ENFORCEMENT OF SUPPORT OBLIGATION     

CS 838P Civil Contempt for Non-Payment of Child Support

1/95 Revised 10/05/18 Training Completed 10/19/18

42 U.S.C. 666(a)(15), 45 CFR 303.6(c)(4), U.C.A. 62A-11-107(5), 78B-6-310, and 315

 

 

Statutory Authority

 

42 U.S.C. 666 (a)(15) Procedures to ensure that persons owing overdue support work or have a plan for payment of such support:

“Procedures under which the State has the authority, in any case in which an individual owes overdue support with respect to a child receiving assistance under a State program funded under part A of this subchapter, to issue an order or to request that a court or an administrative process established pursuant to State law issue an order that requires the individual to—

(A) pay such support in accordance with a plan approved by the court, or, at the option of the State, a plan approved by the State agency administering the State program under this part; or

(B) if the individual is subject to such a plan and is not incapacitated, participate in such work activities (as defined in section 607 (d) of this title) as the court, or, at the option of the State, the State agency administering the State program under this part, deems appropriate.”

 

45 CFR 303.6(c)(4):

“Establishing guidelines for the use of civil contempt citations in IV-D cases.  The guidelines must include requirements that the IV-D agency:

(i) Screen the case for information regarding the noncustodial parent’s ability to pay or otherwise comply with the order;

(ii) Provide the court with such information regarding the noncustodial parent’s ability to pay, or otherwise comply with the order, which may assist the court in making a factual determination regarding the noncustodial parent’s ability to pay the purge amount or comply with the purge conditions; and

(iii) Provide clear notice to the noncustodial parent that his or her ability to pay constitutes the critical question in the civil contempt action; . . .”

 

Utah Code Annotated (U.C.A.) 62A-11-107(5) states:

“The office has the power to pursue through court action the withholding, suspension, and revocation of driver's licenses, professional and occupational licenses, and recreational licenses of individuals owing overdue support or failing, after receiving appropriate notice, to comply with subpoenas or orders relating to paternity or child support proceedings pursuant to Section 78B-6-315.”

 

U.C.A. 78B-6-310.   Contempt -- Action by court:

“The court shall determine whether the person proceeded against is guilty of the contempt charged. If the court finds the person is guilty of the contempt, the court may impose a fine not exceeding $1,000, order the person incarcerated in the county jail not exceeding 30 days, or both. However, a justice court judge or court commissioner may punish for contempt by a fine not to exceed $500 or by incarceration for five days or both.”

 

78B-6-315 Noncompliance with child support order states:

(1) When a court of competent jurisdiction, or the Office of Recovery Services pursuant to an action under Title 63G, Chapter 4, Administrative Procedures Act, makes an order requiring a parent to furnish support or necessary food, clothing, shelter, medical care, or other remedial care for his child, and the parent fails to do so, proof of noncompliance shall be prima facie evidence of contempt of court.

                (2) Proof of noncompliance may be demonstrated by showing that:

                a) the order was made, and filed with the district court; and

                (b) the parent knew of the order because:

(i) the order was mailed to the parent at his last-known address as shown on the court records;

                (ii) the parent was present in court at the time the order was pronounced;

(iii) the parent entered into a written stipulation and the parent or counsel for the parent was sent a copy of the order;

(iv) counsel was present in court and entered into a stipulation which was accepted and the order based upon the stipulation was then sent to counsel for the parent; or

                (v) the parent was properly served and failed to answer.

(3) Upon establishment of a prima facie case of contempt under Subsection (2), the obligor under the child support order has the burden of proving inability to comply with the child support order.

(4) A court may, in addition to other available sanctions, withhold, suspend, or restrict the use of driver's licenses, professional and occupational licenses, and recreational licenses and impose conditions for reinstatement upon a finding that:

                (a) an obligor has:

(i) made no payment for 60 days on a current obligation of support as set forth in an administrative or court order and, thereafter, has failed to make a good faith effort under the circumstances to make payment on the support obligation in accordance with the order; or

(ii) made no payment for 60 days on an arrearage obligation of support as set forth in a payment schedule, written agreement with the Office of Recovery Services, or an administrative or judicial order and, thereafter, has failed to make a good faith effort under the circumstances to make payment on the arrearage obligation in accordance with the payment schedule, agreement, or order; and

(iii) not obtained a judicial order staying enforcement of the support or arrearage obligation for which the obligor would be otherwise delinquent;

                (b) a custodial parent has:

(i) violated a parent-time order by denying contact for 60 days between a noncustodial parent and a child and, thereafter, has failed to make a good faith effort under the circumstances to comply with a parent-time order; and

                (ii) not obtained a judicial order staying enforcement of the parent-time order; or

(c) an obligor or obligee, after receiving appropriate notice, has failed to comply with a subpoena or order relating to a paternity or child support proceeding.”

 

Once a child support order has been established judicially or administratively, with proper notice to the non-custodial parent (NCP), and the NCP has not complied with the order, judicial action to enforce the order may be taken by the Office of Recovery Services/Child Support Services (ORS/CSS).  If there is no judicial order because the final order is an administrative order, the Attorney General’s Office (AGO) will have to establish the jurisdiction of the court before contempt can be determined.  ORS/CSS has the responsibility to screen cases and gather information about the NCP's ability to pay prior to determining if a civil contempt referral to the AGO is appropriate.  If a civil contempt action is filed with the court, the NCP technically has the burden of proving inability to pay; however, the AGO must also present all available evidence to the court concerning the NCP's ability to pay or otherwise comply with the order.

 

 

Definitions

 

1.                   Order to Show Cause – An order requiring the NCP to appear in court and explain or “show cause” why the previous child support order of the court has not been obeyed.  The NCP must have knowledge of the previous child support order and is not complying with the order.

 

2.                   Bench Warrant – A process issued by the court itself, or “from the bench”, for the arrest of a person.

 

3.                   Contempt – Willful failure to comply with an order of the court.

 

4.                   Evidentiary hearing – A judicial hearing where testimony may be given to support the allegation of contempt.  If an evidentiary hearing is held an ORS/CSS representative may be required to testify regarding support payments and the arrears debt.

 

5.                   Purge agreement - The courts may give the NCP an opportunity to purge his/her contempt by providing conditions that must be followed.  The judge may set whatever conditions s/he wishes as requirements for the purge. 

 

If an NCP has a purge agreement and is not complying with the agreement, the case should be referred back to the AGO.

 

 

Overview of Federal Requirements for Civil Contempt

 

The Office of Child Support Enforcement (OCSE) has issued guidelines for the use of civil contempt in the Code of Federal Regulations at 45 CFR 303.6(c)(4).  As a summary, state IV-D programs are required to meet three guidelines in their civil contempt procedures: 

 

1.                   Screen the case for the ability to pay or comply with the order;

2.                   Provide the court with information regarding the NCP’s ability to pay or comply with the order; and,

3.                   Notify the NCP that his or her ability to pay is the critical question in the civil contempt action. 

 

The information in this section of policy provides the screening criteria to be used by caseworkers when determining if it is appropriate to refer a case to the AGO for a civil contempt procedure, and the criteria includes a consideration of the NCP’s ability to pay or otherwise comply with the support order.  Caseworkers will contact the NCP and the CP prior to a civil contempt referral to seek more information about the NCP’s ability to pay as part of this screening process.  The assigned AGO will further screen the case based on the evidence submitted.  If the evidence is unclear or inconclusive, the Order to Show Cause hearing may be used to allow the NCP another opportunity to present information and evidence about his/her ability to pay or comply with the order. 

 

The AGO will present any available evidence to the court of the NCP’s ability to pay that results from the screening process.

 

 

Order to Show Cause Action

 

If the action is an Order to Show Cause (OSC) action, and the NCP cannot “show cause” as to why the order was not followed, the NCP may be found in contempt of court and sanctioned accordingly.  If the NCP does not appear, the presiding judge in the case may issue a civil bench warrant.  An Order to Show Cause is a procedural technique and may be used for, but is not limited to:

 

1.                   Citing the NCP for contempt; and,

 

2.                   Enforcing a judgment taken against an employer who has failed to honor a Notice to Withhold Income for Child Support.

 

NOTE:  Do NOT refer the case to the AGO for an OSC action if there is a downward modification currently taking place.  If the potential results of the review and adjustment action are unclear, consult with the AG before sending a referral to see if a judicial enforcement action is appropriate at that time.

 

All other enforcement issues may be discussed with the AGO to determine on a case-by-case basis if it is appropriate to proceed with a referral.

 

If a notice to withhold (NTW) is in place that is not meeting the full ongoing current support amount, contact the AGO to discuss the NCP’s situation and the probability that an OSC/contempt action will be effective before contacting the CP and NCP, and referring the case to the AGO.

 

 

Civil Contempt Action

 

When considering a civil contempt action, consult with the AGO to see if it is appropriate to withhold, suspend, or restrict the NCP’s use of driver’s license, professional and occupational licenses, and recreational licenses.

 

Examples of potential civil contempt cases include an NCP who:

 

1.                   Is self-employed and is not paying;

2.                   Quits employment;

3.                   Evades process of service;

4.                   Controls his/her company payroll;

5.                   Tells others that s/he has no intention of paying support;

6.                   You believe is employed, employable or being supported by another person, but you have not been able to identify income or assets;

7.                   Transferred his/her assets to someone else; or,

8.                   Voluntarily reduced his/her income to avoid paying child support.

 

NOTE:  It is not necessary for an NCP to be referred for civil enforcement before the case can be referred for criminal enforcement.

 

 

Barriers that Limit or Prevent the NCP’s Ability to Pay

 

Before referring a case to the AGO for an enforcement referral, you must determine if there are any barriers that limit or prevent the NCP’s ability to pay support.  Send the Ability to Pay Questionnaire to the NCP to identify any barriers that limit or prevent his/her ability to pay.

 

1.                   If you identify barriers that limit the NCP’s ability to pay support, determine whether an enforcement referral is appropriate based on the information provided.  You may consult with the assigned attorney as needed prior to the referral.  Some examples of barriers that limit the NCP’s ability to pay support include:

a.                   Incarceration – The NCP was recently incarcerated and claims that the incarceration has affected his/her ability to find employment;

b.                  Disability – If the NCP claims to be partially or temporarily disabled, the NCP must provide documentation from his/her healthcare provider;

c.                   Criminal record – The NCP has an extensive criminal record, including felony convictions, and claims it is difficult to find employment; and,

d.                  Citizenship – The NCP is not a U.S. citizen and claims it is difficult to find employment.

 

2.                   If you identify barriers that prevent the NCP’s ability to pay support, do not refer the case to the AGO for enforcement. Some examples of barriers that prevent the ability to pay include when the NCP is:

a.                   Currently incarcerated – Obtain verification of the NCP’s incarceration;

b.                  Permanently disabled – The NCP must provide documentation of the disability from his/her healthcare provider or from the Social Security Administration (SSA);

c.                   In a drug or mental health treatment program – For more information, refer to CS 707P – Special Circumstances: Individuals Participating in Mental Health or Substance Abuse Treatment Programs; and,

d.                  Homeless –Without a serviceable address it is difficult to serve notice of the judicial action.

 

 

Referral Criteria

 

A case must meet the criteria listed below before you may make a referral to the Attorney General’s Office (AGO) for enforcement.

 

1.                   The case has not previously completed the contempt process (e.g., the NCP was sanctioned and served the entire sanction).  Do not make repeated referrals for civil contempt.  If a case has previously completed the civil contempt process, it should be reviewed for the next appropriate enforcement action.  Consult with your management chain and the AGO if needed.

 

2.                   The case meets the enforcement action criteria. 

 

3.                   The NCP is at least 18 years old.  Do not refer the case for contempt if the NCP is a minor.

 

4.                   All appropriate administrative enforcement remedies have been attempted and the referral is not being created to fill an “audit” requirement.

 

5.                   Current support is due and owing on the case.

 

6.                   The NCP has a residential address (e.g., verified MAIL1 address on the 204 Address Detail Screen) for personal service.  A post office box, homeless shelter, or other incomplete address is not sufficient. 

 

7.                   The NCP has NOT made a voluntary current support payment for at least six months.  Payments that have resulted from enforcement actions (e.g., lien levies or tax intercepts) are not considered voluntary.  Voluntary payments must be for the full amount of current child support.

 

8.                   The NCP has the ability (i.e., sufficient income or assets) to pay his/her support obligation. Provide the AGO with any information that you obtain about barriers that limit the NCP’s ability to pay support.

a.                   In addition to the information that is available in the case file, send the Ability to Pay Questionnaire to the NCP. 

b.                  If the Questionnaire is returned by the NCP, add a case level narrative, then store it in  the case file.

c.                   If the NCP does not return the Questionnaire within 20 business days, you may still refer the case to the AGO provided you add a case narrative and note that the form was not returned on the Order to Show Cause/Civil Contempt Referral Checklist. 

NOTE:  Do not refer the case for an enforcement action if the NCP does not have the ability to pay any support.  Consult with the assigned AGO on a case-by-case basis if you have questions about whether the evidence available demonstrates an ability to pay support. 

 

9.                   The NCP has not obtained a judicial order staying enforcement of the child support order or arrearage obligation, or an order changing the custody arrangement.  The provisions of the order are to be enforced “as is.”

 

10.               A judicial order was made and filed with the district court, and the NCP was aware of the order because:

a.                   The order was mailed to the NCP at the last known address as shown on the court record;

b.                  The NCP was present in court;

c.                   The NCP entered into a written stipulation and the NCP or the NCP’s counsel was sent a copy of the order;

d.                  The NCP’s counsel was present in court, entered into a stipulation which was accepted, and the order based upon the stipulation was sent to the NCP’s counsel; or,

e.                  The NCP was properly served and failed to answer.

 

NOTE 1:  If the case does not fall into any of the above criteria and child support payments have been made on the case, consult with the AGO regarding whether the payments constitute the NCP’s awareness of the order.

 

NOTE 2:  An Administrative order must be registered with the court before an Order to Show Cause is filed but a case can be referred to the AGO for enforcement prior to the Administrative order being registered with the court. 

 

11.               The custodial parent (CP) has completed and returned the Civil Contempt Cooperation Letter and it has been imaged and filed in the case folder.   If necessary, the AGO may request that the CP appear at the hearing to dispute any claims made by the NCP of direct payments or promises to forgive payments. 

 

On a non-IV-A case, if the CP fails to return the Civil Contempt Cooperation Letter (completed, signed, and notarized) AND all other enforcement remedies have previously been exhausted, notify the CP of your intent to close the case due to non-cooperation: 

 

NOTE:  If the case is an incoming intergovernmental case, remember to coordinate with the initiating state to ensure the CP receives, completes and returns the letter.

 

If, after consideration, you determine that an enforcement action is NOT appropriate at the present time, carefully document in the case narrative the reasons why the action will not be pursued.  Then determine the next appropriate enforcement action to be taken on the case.  Discuss the next appropriate action with your management chain (i.e., Manager, Associate Regional Director (ARD), and Regional Director (RD)) if needed.

 

Many cases will meet the criteria to qualify for judicial enforcement, but ORS/CSS and AGO resources are limited for completing the required processes.  Considering these jurisdictional differences and limitations, priority should be given to those cases where it is likely that judicial enforcement will bring about the desired result of regular payments toward the case.  It may be a good idea to consult with your management chain (Manager, Associate Regional Director, and Regional Director) or the AG that would be assigned to the case if it is referred for contempt proceedings, before making a referral to the AGO to discuss the possibility of a successful contempt pleading or proceeding with another type of administrative or judicial enforcement action.

 

 

Penalties

 

If the court finds the NCP in contempt, the court may impose a fine not exceeding $1,000.00 and /or order the NCP incarcerated in the county jail not exceeding 30 days for each offense.

 

In addition to these sanctions, the court may also withhold, suspend, or restrict the use of the NCP’s driver’s license, and/or professional and occupational license.  Once an order has been entered to withhold, suspend or restrict the NCP’s license, the AGO will forward a copy of the order to the agent assigned to the case. 

 

If the court imposed a purge agreement and the NCP has failed to comply, the case may be referred back to the AGO for further contempt proceedings.