ENFORCEMENT OF SUPPORT OBLIGATION

CS 860P Posting Bond or Security 

01/86 Revised 08/12/08

42 U.S.C. 654b and 657; 45 CFR 303.104; UCA 62A-11-321; R527-394

 

Statutory Authority

 

Federal regulations found at 45 CFR Section 303.104 Procedures for posting security, bond or guarantee to secure payment of overdue support state:

    “(a) The State shall have in effect and use procedures which require that noncustodial parents post security, bond or give some other guarantee to secure payment of overdue support.

    (b) The State must provide advance notice to the noncustodial parent regarding the delinquency of the support payment and the requirement of posting security, bond or guarantee, and inform the noncustodial parent of his or her rights and the methods available for contesting the impending action, in full compliance with the State's procedural due process requirements.

    (c) The State must develop guidelines which are generally available to the public to determine whether the case is inappropriate for application of this procedure.”

 

State law found at Utah Code Annotated (UCA) 62A-11-321 states:
     “(1) The office shall, or an obligee may, petition the court for an order requiring an obligor to post a bond or provide other security for the payment of a support debt, if the office or an obligee determines that action is appropriate, and if the payments are more than 90 days delinquent. The office shall establish rules for determining when it shall seek an order for bond or other security.
     (2) When the office or an obligee petitions the court under this section, it shall give written notice to the obligor, stating:
     (a) the amount of support debt;
     (b) that it has petitioned the court for an order requiring the obligor to post security; and
     (c) that the obligor has the right to appear before the court and contest the office's or obligee's petition.
     (3) After notice to the obligor and an opportunity for a hearing, the court shall order a bond posted or other security to be deposited upon the office's or obligee's showing of a support debt and of a reasonable basis for the security.”

Bond or Security Types

 

Based on Federal regulations and state law the Office of Recovery Services/Child Support Services (ORS/CSS) will, under certain circumstances, petition the court to require a non-custodial parent (NCP) to post a bond or provide other security for the payment of a support debt.  The bond or security should be in an amount equal to at least one year’s support, or in an amount set by the court.  This amount is in addition to payment of a monthly current support obligation, if applicable.  Per Federal law found at 42 USC 657, CSS must apply all payments, except payments received from Federal tax offset, to current support before applying payments to past-due support. 

 

Bonds or securities for the payment of child support obligations may take the form of the following:

 

1.                  ESCROW ACCOUNT - A bank account created by a special deposit with restricted access and returned to the depositor upon the occurrence of a specified condition agreed upon in advance.

 

2.                  CASH BONDS - A sum of money given to assure the performance of an obligation previously agreed upon.

 

3.                  LETTER OF CREDIT - A letter addressed by a banker to a person to whom credit is given authorizing the person to draw on the issuing bank up to a certain sum and guaranteeing to accept the drafts if made.

 

4.                  USE OF COSIGNERS - The practice of allowing a third party to assure, authorize, guarantee, etc. that a person will pay a certain sum or perform an agreed upon duty or act.

 

5.                  ESTABLISHMENT OF TRUSTS - Right to real or personal property held by one party for the benefit of another.

 

6.                  BLOCKED ACCOUNTS - A bank account owned by a person to which access is limited or denied until certain future obligations are met.

 

7.                  COURT APPOINTED RECEIVER - A person appointed by the court for the protection or collection of property.  A receiver's function is the protection or preservation of property for the benefit of persons who have an interest in it.

 

Referral Criteria

 

The criteria for referring a case to the AGO for posting bond or security is found in Administrative Rule R527-394-1, as follows:

“According to Federal regulation, 45 CFR 303.104, the Office of Recovery Services must petition the court to require the obligor to post bond or provide other security for the payment of a support debt if:

1. the Office determines the obligor has or has had the ability to pay but has failed or refused to pay, and;

2. the obligor has the ability to provide bond or security and to pay court ordered child support, and;

3. the Office determines that income withholding and garnishment are not viable or cost effective methods of collecting the support obligation, and;

4. the obligor has not made a payment during the period of 90 days prior to the time of a petition to the court in accordance with section (1) above, and;

5. the circumstances of the case include one of the following conditions:

a. the obligor is self-employed, voluntarily unemployed or underemployed, or receives income-in-kind, or;

b. the obligor realizes income from seasonal or other irregular employment or from commissions, or;

c. there is reason to believe that the obligor is preparing to leave the state.”

NOTE:  You may take this action in conjunction with another type of judicial action, such as professional license suspension, to increase its effectiveness.  For example, you may want to request a posted bond along with a professional license suspension of a NCP who is a contractor and who meets the criteria above.

 

Procedures

 

If a case meets the above criteria, consult with your management chain (Manager, Associate Regional Director, Regional Director and CSS Director) and the AGO about whether proceeding with this action is the most appropriate enforcement action to take on the case.  If it is determined that the action is appropriate, refer the case to the AGO.  You must include the amount of the past-due support debt in the referral.

 

State law requires that when CSS petitions the court for an order requiring the NCP to post a bond or provide other security for payment of past-due support, the NCP be notified in writing of the past-due support amount. This information must be included in the judicial legal pleadings, a copy of which will be served on the NCP.  The NCP must also be notified that s/he has the right to appear before the court to contest the petition.

 

After notice to the NCP and an opportunity for a hearing has taken place, the court should order a bond posted or other security deposited into an account to guarantee the payment of support.

 

Once the support debt has been paid in full, refer the case back to the AGO to ask the court to release the bond or other security.