Arkansas’ Approach to Arrearage forgiveness

No arrearage is forgiven or reduced No arrearage is forgiven or reduced based upon a lump sum payment.based upon a lump sum payment.

Custodian contacts State asking to forgive arrears.

State cannot advise the custodian State cannot advise the custodian regarding the issue of forgiveness of regarding the issue of forgiveness of arrearage.arrearage.State provides the custodian with State provides the custodian with information regarding the arrears.information regarding the arrears.This issue is handled privatelyThis issue is handled privately. .

The question becomes, “ what is in the best interest of the child or children in this situation?”

Is it in the best interest of the child to have Is it in the best interest of the child to have arrearages forgiven?arrearages forgiven?

No, it is not in the child’s best interest.

All support is for the benefit of the child.All support is for the benefit of the child.Reducing what should have been paid does not Reducing what should have been paid does not provide for the child in the future.provide for the child in the future.Problem:Problem:

No immediate help for the child’s present No immediate help for the child’s present needs.needs.This fails to consider the possibility that all This fails to consider the possibility that all back child support might be paid.back child support might be paid.

Yes, it is in the best interest of the child.

The child’s immediate needs are better The child’s immediate needs are better met.met.No guarantee that future child support No guarantee that future child support will ever be paid by the noncustodial will ever be paid by the noncustodial parent.parent.

It fails to take into consideration the It fails to take into consideration the future needs of the children.future needs of the children.How much do you forgive?How much do you forgive?

Is it in the best interest of the child to do away with

arrearages?

Who has the right to forgive or reduce what Who has the right to forgive or reduce what a nona non--custodial parent owes?custodial parent owes?

Mother

Father

State

How did Arkansas decide to take this position?

In the decision making process, what is best In the decision making process, what is best for everyone?for everyone?

Does the State have a right to make this decision?

Arkansas felt as though it was being asked to Arkansas felt as though it was being asked to decide if forgiving an arrearage was decide if forgiving an arrearage was acceptable.acceptable.The process caused many problems.The process caused many problems.

Who decides?Who decides?Local officeLocal officeSupervisorSupervisorDirectorDirector

Who decides on what is best for the child?

CustodianCustodianProblem: The need of current monies Problem: The need of current monies may influence the acceptance of a lesser may influence the acceptance of a lesser amount.amount.Problem: The custodian is influenced by Problem: The custodian is influenced by the noncustodial parent to accept any the noncustodial parent to accept any amount of money.amount of money.

What about the child?

Does a minor child have a say in what he Does a minor child have a say in what he or she should receive in arrearages?or she should receive in arrearages?

What about a child that is now an adult?What about a child that is now an adult?Can an adult dependant state what Can an adult dependant state what amount of arrearages he or she should amount of arrearages he or she should get from the nonget from the non--custodial parent?custodial parent?

Arkansas considered all of this.

The field offices took the policy of our agency.The field offices took the policy of our agency.The policy was then applied to each case.The policy was then applied to each case.

Each case had a different set of facts which Each case had a different set of facts which directed the procedure of handling this issue.directed the procedure of handling this issue.The question was asked if any arrearage is The question was asked if any arrearage is owed to the State.owed to the State.

Other factors that are considered.

What stage has the case progressed to? What stage has the case progressed to? Has there been pleadings filed?Has there been pleadings filed?Is the case scheduled for Court?Is the case scheduled for Court?Is current support still owed in the Is current support still owed in the case?case?What is the past history of the case?What is the past history of the case?

A normal situation for a request to forgive arrears.

NCP contacts OCSE to make an offer to NCP contacts OCSE to make an offer to settle arrears.settle arrears.Normally, this is done either right before Normally, this is done either right before court or in court.court or in court.

The timing of any offer by a NCP will The timing of any offer by a NCP will dictate how you handle the offer.dictate how you handle the offer.

What do you do with the offer?

You communicate with the CP about the You communicate with the CP about the offer.offer.You do this only if the NCP gives You do this only if the NCP gives something in consideration for the something in consideration for the forgiveness.forgiveness.You explain about the State of You explain about the State of Arkansas’ position regarding the Arkansas’ position regarding the arrearage.arrearage.

The final steps in the process.

We clearly indicate that OCSE does not represent the CP.We clearly indicate that OCSE does not represent the CP.This is also communicated to the NCP.This is also communicated to the NCP.It is made clear to each party that any arrearage assigned to It is made clear to each party that any arrearage assigned to the State of Arkansas will not be waived or forgiven.the State of Arkansas will not be waived or forgiven.The State must make the Court aware of any proposed The State must make the Court aware of any proposed agreement; even if it is made outside of the court hearing.agreement; even if it is made outside of the court hearing.If in court, the attorney will make an argument to protect If in court, the attorney will make an argument to protect any of the state arrears.any of the state arrears.The State’s attorney willThe State’s attorney will provide to the court current provide to the court current Arkansas law.Arkansas law.

What is Arkansas law?

Davis v. OCSE, Davis v. OCSE, 322 Ark. 352,908 S.W.2d 649322 Ark. 352,908 S.W.2d 649(1995)(1995)

It has long been the law in Arkansas that a It has long been the law in Arkansas that a guardian cannot compromise the interests of a guardian cannot compromise the interests of a minor without approval by the court.minor without approval by the court.It is not sufficient that a court be made aware of It is not sufficient that a court be made aware of a compromise agreement and that it is a compromise agreement and that it is agreeable to the guardian; rather, the court must agreeable to the guardian; rather, the court must make a judicial act of investigation into the make a judicial act of investigation into the merits of the compromise and into its benefits merits of the compromise and into its benefits to the minor. to the minor.

Davis v. OCSEContinued

Any judgment by a court that compromises a Any judgment by a court that compromises a minorminor’’s interest without the requisite s interest without the requisite investigation is void on its face.investigation is void on its face.The foregoing rules of public policy protecting The foregoing rules of public policy protecting minors have been applied to a child's right to minors have been applied to a child's right to support from his parents.support from his parents.As a rule, no arrearage can be forgiven without As a rule, no arrearage can be forgiven without the courtthe court’’s review of the compromise to see if it is s review of the compromise to see if it is in the best interest of the child.in the best interest of the child.

Roark v. OCSE, 101 Ark. App. 382, 278 S.W.3d 114 ( Ark. App 2008)

Our case law has made clear that independent Our case law has made clear that independent agreements concerning child support are not agreements concerning child support are not binding on the trial court, and the court always binding on the trial court, and the court always retains jurisdiction over child support as a matter retains jurisdiction over child support as a matter of public policy.of public policy.No matter what an independent agreement states; No matter what an independent agreement states; either party has the right to request modification of either party has the right to request modification of a child support award.a child support award.The trial court was required to investigate the The trial court was required to investigate the merits of the compromise and to determine its merits of the compromise and to determine its benefits to the minor, and without doing so, any benefits to the minor, and without doing so, any order entered by the court would have been void on order entered by the court would have been void on its face.its face.

What do these cases mean?

Offers to forgive child support arrearages are not Offers to forgive child support arrearages are not binding unless approved by the court.binding unless approved by the court.Neither party in a child support case can bargain Neither party in a child support case can bargain away the child’s right to support.away the child’s right to support.The court must determine whether this The court must determine whether this compromise is in the best interest of the child.compromise is in the best interest of the child.

What next?

MARTIN VS. MARTIN, MARTIN VS. MARTIN, 370 Ark. 53,370 Ark. 53, 257 257 S.W.3d 82 (2007) S.W.3d 82 (2007)

When a circuit judge determines that the When a circuit judge determines that the appointment of an attorney ad litem appointment of an attorney ad litem would facilitate a case in which custody is would facilitate a case in which custody is an issue and further protect the rights of an issue and further protect the rights of the child, the circuit judge may appoint a the child, the circuit judge may appoint a private attorney to represent the child.private attorney to represent the child.

Martin vs. PierceContinued

Therefore, it was prudent and proper for the Therefore, it was prudent and proper for the circuit court to appoint an attorney ad litem to circuit court to appoint an attorney ad litem to guard the individual interests of a minor child.guard the individual interests of a minor child.We (Arkansas Supreme Court) agree, and we We (Arkansas Supreme Court) agree, and we cancan’’t say that t say that the circuit court abused its the circuit court abused its discretion in appointing an attorney ad litem to discretion in appointing an attorney ad litem to protect the interests of the child.protect the interests of the child.The circuit court has the inherent authority to The circuit court has the inherent authority to appoint an attorney ad litem to represent a child's appoint an attorney ad litem to represent a child's interests in disputes between divorcing parents. interests in disputes between divorcing parents.

Responsibilities of an Attorney ad litem in child support.

An attorney ad An attorney ad litemlitem; should be allowed an ; should be allowed an adequate opportunity to investigate the case; adequate opportunity to investigate the case; should be permitted to call his witnesses at should be permitted to call his witnesses at trial and to cross examine those witnesses trial and to cross examine those witnesses called by the parties. called by the parties. In short, an ad In short, an ad litemlitem should be permitted to should be permitted to represent the child client as he or she would represent the child client as he or she would any other client in preparation for and at trial.any other client in preparation for and at trial.The attorney ad The attorney ad litemlitem should represent the should represent the child as he or she would with any other client.child as he or she would with any other client.

The rest of the story.When the arrearages are forgiven.When the arrearages are forgiven.

Any such agreement will be in a Court Any such agreement will be in a Court order to be recognized.order to be recognized.Our OCSE system will be adjusted to show Our OCSE system will be adjusted to show the correct arrearage.the correct arrearage.Any IRS certification or State Tax Any IRS certification or State Tax certification will be removed unless costs certification will be removed unless costs are owed to the State.are owed to the State.All license suspension will be stopped.All license suspension will be stopped.All credit reporting will be removed.All credit reporting will be removed.If arrearages were assigned, motions will If arrearages were assigned, motions will be prepared to set aside any agreement.be prepared to set aside any agreement.