ENFORCEMENT OF SUPPORT OBLIGATION

CS 844-2 Criminal Nonsupport:  Phases of CNS Cases & Procedures

09/86 Revised 08/29/16 Training Completed 09/01/16

18 U.S.C 228; U.C.A. 15-1-4(3), 76-1-302, 76-3-201(1)(d), 76-3-201.1, 76-7-201, 76-7-202, and 77-30-24; IRS Publication 1075

 

 

Criminal Case Activity Phases

 

If a case is accepted for criminal prosecution, it will be included in one of three phases of criminal case activity listed below.

 

1.                   Phase 1 - Pre-filing Phase:  The period when the case is first referred to the criminal nonsupport attorney general, but not yet filed with the court. 

 

2.                   Phase 2 - Active Status Phase:  The case has been filed with the court and hearings are scheduled, but not yet concluded. 

 

3.                   Phase 3 - Disposition and Sentencing Phase:  Criminal hearings on the charge(s) have been concluded, sentence has been imposed and restitution has been ordered, (sentence could be probation or it could be prison).

 

Every month, three monitoring reports, corresponding to the three phases of criminal case activity, will be sent to all concerned.

 

 

Phase 1 Pre-filing Procedures - Referral for State Criminal Prosecution

 

After the Office of Recovery Services/Child Support Services (ORS/CSS) Agent or Attorney General’s Office (AGO), and others (e.g., Team Manager, Associate Regional Director (ARD), and Regional Director (RD)), decide that a case should be referred for possible criminal nonsupport prosecution, the case is assigned to the appropriate regional criminal nonsupport (CNS) agent. The regional CNS agent is responsible for completing the following:

 

1.                   Research ORSIS to determine if the non-custodial parent (NCP) has any other cases open on ORSIS including a case with arrears debts on the Children in Care (CIC) team. 

a.                   If a CSS case(s) is found, contact the team and have it transferred to the appropriate regional CNS agent team, regardless of whether the case(s) meets the CNS criteria. 

b.                  If a CIC case is found, contact the team manager and:

i.                     notify him/her of CSS intentions to pursue criminal charges on the CSS case; and,

c.                   Discuss the possibility of including the CIC case. 

 

2.                   Generate a “Post Office Request for Address Information” form, if needed, to re-verify the NCP’s current address.

 

NOTE:  If the NCP is in Canada, the Canadian Privacy Act prohibits the release of personal information from unauthorized disclosure.  Releasing address information and employment information falls with the Act’s definition of personal information, which means it is illegal to provide State Child Support Offices with address and employment information.  Do NOT send the form to the Canadian Post Office.

 

NOTE 2:  When sending the Post Office Request for Address Information form, use the option that requires the POSTMASTER street address.  Often multiple post offices serve the same zip code area and this will assist the post office in determining which office to send the letter to.  If the post office is unabe to determine which office to send the letter to, they will return the letter, “RETURN TO SENDER, INSUFFICIENT ADDRESS, UNABLE TO FORWARD”.  The full address for a specific post office can be found on the United States Postal Service website, www.usps.com.  Click on Find Locations and add the city and state, or zip code. 

 

3.                   Generate the “Criminal Referral Notice and Statement of Understanding/Waiver” form and send it to the custodial parent (CP) to determine:

a.                   if s/he is willing to fully cooperate with the AGO; and,

b.                  whether s/he agrees to waive any interest that may be due which exceeds the ORS standardized 3% or 5.5% rates.

 

NOTE:  On cases filed between June 16, 2001 and March 1, 2002, the standardized interest rate is 5.5% per annum.  The interest rate prior to June 16, 2001 is the interest rate referred to in U.C.A. 15-1-4(3).  The CP may pursue any additional interest due pursuant to UCA 15-1-4(3) as a restitution request to the court in the criminal case.

 

4.                   Enclose the “Criminal Nonsupport Custodial Parent Questionnaire” and the “Criminal Nonsupport Affidavit”.  The CP has ten days to complete and return the forms.

a.                   CP failure to complete and return forms:

i.                     Non-IV-A CP - send the:

A.                  “Non-Cooperation Determination” letter – wait the 10-day time frame, and when/if appropriate;

B.                  “60 Day Closure Notice”.

ii.                   IV-A CP - begin the process for non-cooperation.  For more information on non-cooperation, refer to Applicant/Recipient Cooperation.

b.                  CP returns forms:  Ensure that the forms have been properly completed, signed, and notarized.

 

NOTE:  On cases filed between June 16, 2001 and March 1, 2002, the standardized interest rate is 5.5% per annum.  The interest rate prior to June 16, 2001 is the interest rate referred to in U.C.A. 15-1-4(3).  The CP may pursue any additional interest due pursuant to UCA 15-1-4(3) as a restitution request to the court in the criminal case.

 

5.                   Create the Criminal Interest Calculation Worksheet.

 

6.                   Safeguard the worksheet if it contains any FTI information, the payment source, and the amount of the federal tax intercept.

 

7.                   Complete the Case Referral for Criminal Prosecution form.

 

8.                   Prepare the appropriate referral packet.

 

9.                   Send the referral packet to the criminal prosecuting attorney/AGO.

 

 

Phase 2 Procedures – Active Status Phase

 

In Phase 2, the prosecuting attorney notifies the regional CNS contact that the case has been accepted for criminal prosecution.  The attorney will provide the date the case was filed with the court, the name of the attorney filing the case, the criminal charges that have been filed, and the status of the case.  During Phase 2, the regional CNS office contact is responsible for monitoring the criminal case(s) and continues monitoring the case until the final action from the AGO’s has been completed.

 

 

Phase 3 Procedures - Disposition and Sentencing Phase

 

The court determines the NCP’s criminal nonsupport sentence(s), including the terms of probation, although the prosecuting attorney may make some recommendations to the court.  Once this occurs, it is the regional CNS contact’s responsibility to monitor the case(s), unless otherwise dictated by the court.  This part of the process is Phase 3 (post-sentencing, probation monitoring, etc.).  For example, if the NCP is delinquent for more than 30 days, or falls short of the monthly amount ordered by the court, the regional CNS contact will notify the AGO and request an Order to Show Cause (OSC), or other appropriate legal action. 

 

During this phase, the prosecuting attorney will provide CSS with a copy of the restitution order or a disposition with details such as jail time, probation ordered, restitution amount, payments ordered, Plea in Abeyance, etc.

 

Once the restitution order is received, the regional CNS contact is responsible to update ORSIS. 

 

 

Case Actions on Criminal Cases

 

The regional CNS contact will maintain the accounting in ORSIS and take the appropriate steps to coordinate arrears balances and judgments with the AGO to be consistent with the restitution order.  Criminal nonsupport cases are included in automated income withholding and automated enforcement notices and actions.    The post-order agent will proceed with state and federal tax refund intercepts as usual.  You may enforce medical support obligations, and review, adjust or modify orders, if appropriate.  If an order is modified, immediately notify your regional CNS contact. 

 

Do not take any other administrative or civil child support enforcement actions after a case has been referred for criminal prosecution or while the NCP is on probation without first obtaining the consent of the AGO.

 

 

Distribution of Criminal Restitution Payments

 

Occasionally, in multiple case situations, a case may not be included in the criminal restitution order.  There are several reasons that this may occur, for example, the case did not have an order for child support at the time restitution was ordered, the CP was not willing to cooperate with the AGO at the time the charges were being pursued against the NCP, or the AGO may not have been aware of an order for support at the time of prosecution.  When/if this occurs, it is best to allow ORSIS to distribute the payments without manual agent intervention, if possible.  When the non-restitution order is added to ORSIS for that case, it is automatically included in the ORSIS distribution of payments; e.g.,  the new case will receive current support using the same priority as CNS cases with current support.  Once the current support for each case is met, ORSIS should apply arrears payments to the applicable CNS cases until the full arrears payment has been met according to the restitution order.  Once/if this amount is met, ORSIS will distribute arrears payments to the non-CNS case. The regional CNS contact is responsible to ensure that all payments distribute according to the restitution order and in the manner described above. 

 

EXAMPLE:

Case Facts:  The NCP has three cases but only A and B were included in the restitution order.  Case A’s CRS is $150, B’s CRS is $220, and C’s CRS is $100.  All three cases have substantial arrears owed to them.  The criminal restitution order states the NCP is to pay $370 toward CRS and $300 toward arrears, to be distributed evenly between the two cases.  In addition, there is a clause in the order that states the NCP must meet all other CRS owing on cases not part of this action.

 

1.                   Procedures:  The NCP has three cases:

a.                   Case A – The NCP owes:

i.                     $150.00 for current support (CRS); and,

ii.                   $7,500.00 in back support.

b.                  Case B – The NCP owes:

i.                     $220.00 for CRS; and,

ii.                   $8,000.00 in back support.

c.                   Case C – There is not an order for current support.

d.                  CSS pursue CNS for Case A and B and obtains a restitution order.  The restitution order requires the NCP to pay: 

i.                     $370.00 for CRS (Case A = $150.00, Case B = $220.00);

ii.                   $300.00 for arrears to be split evenly between Case A and Case ($150.00 per case); and,

iii.                  all other CRS debts that may be owing on cases not part of this action.

e.                  During the CNS proceeding and prior to the restitution order being taken, CSS establishes an order for $100.00 CRS and $4,225.00 in arrears.

 

2.                   Payment received:  Payments posted to ORSIS will distribute as follows:

a.                   A payment of $400.00 is received - ORSIS will distribute the payment to all three cases for CRS.  Because the payment was for $400.00 and the CRS amount due for all three cases is $470.00, no payment is applied to the arrears. 

b.                  A second payment for $400.00 is received - ORSIS distribute the remaining $70.00 owed for CRS to the appropriate case(s),  leaving a balance of $330.00 to distribute to the arrears.  Both Case A and B have a $150.00 monthly arrears payment (totaling $300.00 in arrears restitution) entered on the 410 screen, ORSIS pays these debts next, leaving a balance of  $30.00 to be evenly distributed between all three cases ($10.00 each).

 

NOTE:  If all of the CPs included in the restitution order have been Non-IV-A for at least one year and debt roll is not occurring on the cases, use the method described above.  However, if debt roll is occurring on a case, add a posting instruction to the screen to notify accounting to meet CRS on all cases first.  Make sure you list the case number(s) and amounts to be applied to arrears for each case to ensure that current support is met on all of the NCP’s cases and any CNS court ordered arrears debts before any money is applied to arrears.