lesson two child support enforcement · orders (with judicial review and approval), use...

National Conference of State Legislatures 1

An Introductory Course for Legislators

Child Support 101

Lesson Two

Six Steps forChild Support Enforcement

2 National Conference of State Legislatures

WHY DO WE NEED CHILD SUPPORT?

WE NEED CHILD SUPPORT BECAUSE...

• Approximately half of all children spend time in a single-parent home.• Children with one uninvolved or absent parent tend to have more behavioral

and emotional problems than children who are raised in two-parent families.• Despite a healthy economy, millions of American children live in poverty,

and most of these children are living in single-parent households.

CHILD SUPPORT AFFECTS MARRIAGE AND FAMILIES...

• Strong child support programs have been shown to keep families together.• Higher support awards can mean lower divorce rates. Parents are forced to

consider the full ramifications of divorce or separation.• Fathers who pay child support are more likely to remain involved in their

children’s lives.• Payment of child support decreases conflict between parents.

CHILD SUPPORT AFFECTS STATES...

• States become surrogate guardians for kids with problems; kids who receivechild support have fewer problems.

• Immediate savings are realized as families become less reliant on TANF,food stamps and Medicaid.

• Savings also are realized on future costs of juvenile and criminal courtprocessing, special education resources and mental health services.

DOES THE AMOUNT OF SUPPORT PAID MATTER?

WHAT ARE THE POTENTIAL LONG-TERM BENEFITS OF ASTRONG CHILD SUPPORT PROGRAM?

HOW EFFECTIVE IS THE CHILD SUPPORT PROGRAMNATIONWIDE?

Call the Child Support Project at (303) 364-7700 or visit our website, http://www.ncsl.org/programs/cyf/cs.htm, for the answers to these questions andmore!

©2002 by the National Conference of State Legislatures. All rights reserved.


Lesson Two

SIX STEPS FOR CHILD SUPPORT ENFORCEMENT

STEP ONE: GETTING STARTED—HOW DO IGET CHILD SUPPORT?

What child support services are offered by the stateagency? At a minimum, state child support programsare required to provide the following services:

1) Locating noncustodial parents2) Establishing paternity3) Establishing child support orders4) Enforcing child support orders (collecting support

owed)5) Distributing child support6) Reviewing child support orders periodically and

modifying them when appropriate

Some child support payments are handled through courtsor private attorneys. These arrangements are separatefrom state child support programs, although some stateprograms process all child support payments in the state.

Child support programs typically do not provide ser-vices related to child custody, visitation or propertydistribution. Some programs collect alimony when itis included as part of the child support order, and oth-ers may facilitate limited access and visitation programs.

The Personal Responsibility and Work OpportunityReconciliation Act of 1996 (PRWORA, more com-monly known as the 1996 federal welfare reform act)required states to expand the administrative authorityof their state agencies to carry out many of the childsupport establishment and enforcement tasks previouslyreserved to the courts. In many states, administrative

processes are used more often than judicial processesfor child support functions. For example, some stateagencies have broad powers to establish child supportorders (with judicial review and approval), use enforce-ment tools such as liens and license suspensions, andreview child support orders every few years.

Where are child support offices located? Child sup-port offices are located in state or county departmentsof human services or revenue, state attorneys generaloffices, county district attorney offices, or county clerksof court offices. In California, the child support agencyis a separate state department.

Child support program structures vary widely fromstate to state. Some states have centralized programsthat offer the same services statewide through local ser-vice offices. Other states have county-operated pro-grams that are completely independent of each otherin their procedures, forms and requirements.

Who can receive child support services from the stateagency? Any parent or person with custody of a childcan apply for services from the state child support agency.These services include paternity establishment, establish-ment of a child support or medical support order, modi-fication of an order, or enforcement of an order.

How much will the state charge for these services?States are permitted under federal law to charge a feeof up to $25 for child support enforcement services,and many states do. Agencies may also charge fees forlegal work done by agency attorneys or for costs asso-ciated with locating absent parents. However, cash as-

Is Child Support Important?Approximately half of all children today will spend time in a single-parent home. One state study found that more children rely on thechild support program than on any other state program, with the exception of the public school system. Child support can mean thedifference between living above or below the poverty level for some single-parent families, and regular child support payments are essentialto families who are leaving cash assistance.

The collection of child support has increased steadily nationwide, and new enforcement techniques and automation are expected to resultin improved performance in the future.

This lesson provides an overview of the child support enforcement process. This question and answer format attempts to provide theinformation that is most likely to be of concern to constituents who are involved in the child support process.


sistance (Temporary Assistance to Needy Families[TANF], foster care) and Food Stamp recipients arenot required to pay for any child support services.

Are there any special requirements for TANF or foodstamp recipients? Under federal law, all TANF clientsare required to cooperate with state authorities in childsupport establishment and enforcement efforts as a con-dition of receiving benefits or assistance. Assistanceincludes cash, food and housing to meet basic needs.Failure to cooperate results in loss of TANF eligibility,with limited exceptions for domestic violence situa-tions.

In addition, TANF clients are required to assign theirrights to their child support payments to the state inreturn for eligibility to receive TANF assistance. Thisrequirement has its origin in the initial creation of statechild support programs as cost-recovery programs forstate and federal welfare expenditures.

Delinquent obligors whose children are TANF recipi-ents may be required to agree to a payment plan or toparticipate in work activities.

STEP TWO: LOCATING THE NON-CUSTODIAL

PARENT—HOW DOES THE STATE FIND THEM?

How does the state locate missing parents? State childsupport programs have a wide variety of tools to locatea noncustodial parent, including the following.

• New Hire Directories (SDNH and NDNH)—Employers are required to report all new employ-ees to the State New Hire Directory within 20 daysof hiring. This information is shared with otherstates through the National New Hire Directory.

• Federal Parent Locator Service (FPLS)— Thisdatabase is used to cross-check information withthe Internal Revenue Service, Department of De-fense, National Personnel Records Center, SocialSecurity Administration, Department of VeteransAffairs, and state employment security agencies.

• Data Matches—The child support agency con-ducts data matches with state financial institutionsto locate obligor’s assets. The agency also conductsdata matches with other state agency databases, suchas state departments of corrections and transporta-tion.

• Statewide Automated Systems—Each state ismandated to develop a statewide automated childsupport computer system. State systems will belinked nationwide to improve location techniquesand successes.

STEP THREE: ESTABLISHING PATERNITY—HOW DO I ESTABLISH PATERNITY?

What are the federal requirements for paternity estab-lishment? Under federal law, all state programs must:

• Permit paternity establishment at any time beforethe child reaches 18.

• Provide written and oral notice to both parents ofthe consequences of paternity acknowledgment.

• Have procedures to require paternity tests at therequest of a child or parent who is alleging or de-nying paternity.

• Permit parties to contest acknowledgments andcourt orders within 60 days. After that, challengesare allowed only on the basis of fraud, duress ormistake of fact.

• Pay for state-ordered genetic tests, subject to re-coupment from the challenging party if the testresult is negative.

• Admit genetic test results into evidence and createa rebuttable presumption of paternity if test re-sults are positive to a certain probability.

• Order a second set of paternity tests if the first re-sults are contested.

• Require TANF recipients to cooperate with pater-nity establishment proceedings.

• Have procedures available at hospitals and birthrecords agencies for a simple civil process to volun-tarily acknowledge paternity.

• Permit a father to initiate a paternity action.

• Include the father’s name on the child’s birth cer-tificate only if both parents sign an acknowledg-ment of paternity, or if subject to a court order.


• Not provide a jury trial for paternity proceedings.

How is paternity established? Fathers may acknowl-edge paternity voluntarily by signing an affidavit ofacknowledgment in-hospital at the time of birth or, insome states, at a state agency. The state has powers toestablish paternity whether the putative father wishesto do so or not. The state can order genetic testingover a putative father’s objections. If the test resultsare positive, he can contest the results and request asecond set of tests, but he may be required to pay forthe second tests. If the test results are again positive, arebuttable presumption that he is the father takes ef-fect. To rebut this presumption, he must then provethat he is not the father and that the test is wrong.

STEP FOUR: SETTING THE CHILD SUPPORT

ORDER—HOW ARE CHILD SUPPORT ORDER

AMOUNTS DETERMINED?

Child support guidelines are the formula and rules usedby courts and agencies to set award amounts for childsupport orders so that each child support order in thestate is evaluated and set according to the same rules.In many states, the formula is applied to different in-come levels to develop a table or schedule of awards,

much like an income tax table. This schedule is oftenreferred to as the “guidelines;” however, child supportguidelines also include any other rules or laws that af-fect how child support is determined.

How do state child support guidelines work? The Fam-ily Support Act of 1988 mandated that states imple-ment presumptive child support guidelines by 1994. Inpresumptive guidelines there is an assumption that theguideline amount is correct; however, the court can de-viate from a set award amount in cases where applica-tion of the guidelines would be unjust or inappropriate.Child support guidelines provide a consistent standardagainst which each child support order established in astate can be measured, and they help courts set similaraward amounts for parents in similar situations. Mostchild support orders require payment until the child’s18th birthday, with some possible exceptions for dis-abled children, educational costs and other circumstances.

How does the state set its guidelines? States currentlyuse three models to calculate appropriate guidelineamounts: the Income Shares Model, the Percentage ofIncome Model, and the Melson Formula Model (fig-ure 1).

Figure 1. Child Support Guideline Models

Income Shares Model

Melson Formula

Percentage of Income Model

Hybrid—Income Shares/Percentage of Income

District ofColumbia

Source: NCSL, 2002.

Delaware

RhodeIsland


The Percentage of Income Model is used in 11 states,and a hybrid form of this model that incorporates someaspects of the income shares model is used in Massa-chusetts and Washington, D.C. This model sets sup-port as a percentage of the noncustodial parent’s in-come only; the custodial parent’s income is not con-sidered. This policy standard assumes that each parentwill expend the designated proportion of income onthe child, with the custodial parent’s portion spent di-rectly.

The Income Shares Model is used in 35 states. Thepolicy behind this model assumes that a child shouldreceive the same proportion of parental income thatwould have been spent on the child had the parentsnot divorced, and it is assumed that, as income increases,the proportion of income spent on the child decreases.This model, more flexible than the percentage of in-come model, can more easily adjust for shared and splitcustody, health care needs, child care expenses, serialfamily development, and children’s ages. It allows forthe manipulation of income, add-ons and deductionsand then allocates these costs between parents.

The Melson Formula Model is used in three states.This model, developed by a Delaware Family Courtjudge in 1979, is a more complicated version of theincome shares model. The Melson model recognizes

that support of others is impossible until one’s ownbasic support needs are met. It also asserts that furtherenhancement of the parents’ own economic statusshould not be allowed until the parents jointly, in pro-portion to their incomes, first meet the basic poverty-level needs of their children. This model holds thatparents should share their additional incomes with theirchildren, thus improving their children’s standard ofliving as their own standards of living improve. This isachieved through inclusion of a “Standard of LivingAllowance.”

How is income determined? States determine incometo be used in setting child support orders based on ei-ther gross or net income (figure 2). Gross income (23states and the District of Columbia) is all income withno deductions. Net income (27 states) is all incomewith deductions for taxes and other mandatory deduc-tions, such as mandatory contributions to retirementplans and mandatory union dues.

States also permit judges to use imputed income.Courts impute, or proceed to act as though a parentearns a certain income, in the following situations:

• The court does not believe the parent’s testimonyregarding reported income;

Figure 2. Gross vs. Net Income for Child Support Calculation

Gross Income

Net Income

District ofColumbia

Source: NCSL, 2002.


• The court believes the evidence of the parent’s in-come, but the income does not meet the parent’sdemonstrated earning capacity (as in situationswhere the parent is voluntarily earning less moneypresumably to avoid paying more child support);or

• The parent does not appear in court as requiredunder law, so the court imputes an income fromavailable evidence in order to set an initial childsupport order.

When imputing income, courts may base earning ca-pacity on several factors, including previous work his-tory, physical and mental condition, educational back-ground, efforts to find and retain employment, andcurrent employment market.

Unemployment and underemployment may be con-sidered voluntary or involuntary by the court, andcourts differentiate between situations where the in-come level decrease is voluntary or involuntary. Anexample of voluntary underemployment is a situationwhere an obligor takes a job that pays much less thanhe or she historically has earned. Some states considerincarceration to be voluntary unemployment, othersconsider it to be involuntary.

Can courts deviate from the guidelines? Guidelinedeviations are necessary when the circumstances renderapplication of the guidelines unjust or inappropriatebecause the situation is at odds with the economic as-sumptions that form the basis of the guidelines. Judgesadhere to presumptive child support guidelines in theoverwhelming majority of cases. The most commonreasons for deviation are extremely high or extremelylow income, prior and subsequent families, and agree-ments between the parties.

State guidelines also permit certain add-ons and de-ductions to the basic child support award, which caninclude mandatory add-ons for health care needs andchild care expenses. Some states have mandatory con-siderations for adjustment to the support amount forshared or split custody, extraordinary visitation, priorand subsequent families, and older children.

Are there any special considerations for low-incomeparents? Federal law prohibits simply exempting ex-tremely low-income parents from paying child sup-port—child support guidelines must apply to all cases,regardless of income. States take three approaches tosetting child support amounts for very low-income par-ents (figure 3). In 19 states, a minimum presumptiveamount (e.g., $50 per month) is set and presumed ap-propriate, but this amount can be modified downward

Figure 3. Treatment of Low-Income Parents for Purposes of Calculating Minimum Child Support Awards

$50 Presumptive Award

Mandatory Minimum Award District ofColumbia

Source: NCSL, 2002.

Court’s Discretion

Delaware

RhodeIsland


if necessary. Fourteen states and the District of Co-lumbia set a minimum mandatory amount, where themandatory minimum (usually $20 to $50 per month)is adopted and cannot be modified downward. Thecourt is given complete discretion to independentlyassess the obligor’s ability to pay and to set an appro-priate award in 17 states.

How far back can my child support order go? Statestreat retroactive child support orders differently. In somestates, courts can backdate child support orders to thedate of the child’s birth, creating an arrearage as soon asthe order is issued. The states that allow this are split onwhether the guidelines apply to the retroactive period orwhether the custodial parent is entitled only to reim-bursement of expenses. Some states allow courts to back-date child support only to the date the child supportpetition was filed with the court. Other states allowretroactive support only for a certain number of years orfor a certain capped amount (e.g., New York sets a limitof $500 on accumulated arrearages for obligors withincome below the poverty level). Retroactive child sup-port orders are one of the primary reasons low-incomeobligors accrue such large arrearage amounts.

Does visitation have anything to do with child sup-port? Although most lay people consider the twolinked, visitation and child support are consistentlyviewed by courts as two separate issues of family law,with the public policy position that a child is entitledto support from both parents regardless of the amountof contact with the parents. As a general rule, noncus-todial parents cannot use lack of visitation to justifynot paying child support, and custodial parents usuallycannot use lack of visitation to justify an increase inchild support. However, most guidelines assume thata child will spend at least 20 percent of the time withthe noncustodial parent, and if that threshold is notmet some courts are willing to modify the child sup-port award. In addition, many state guidelines pro-vide for adjustments to child support orders based onextended visitation arrangements.

Can I get my child support order changed? States arerequired by federal law to review and make necessarymodifications to all child support orders in the state sys-tem at least once every three years. Modifications arealso permitted at the request of either parent or at theagency’s discretion, based on a substantial change in cir-cumstances. Parties are permitted only 30 days to con-test the modification.

STEP FIVE: ENFORCING THE CHILD SUPPORT

ORDER—HOW WILL THE STATE COLLECT

MY CHILD SUPPORT?

State child support programs mainly assist low-incomeparents to establish and enforce child support orders,since members of this population are least likely tohire a private attorney to pursue their cases.

How does the state get money from my child’s otherparent? Under federal law, all child support ordershandled by the state system are subject to automaticincome withholding when a delinquency of at leastone month occurs.

How do arrearages accrue? Among the many reasonswhy noncustodial parents accrue arrearages are the fol-lowing.

• Retroactive child support awards—When courtsorder retroactive child support, the obligor startshis child support payments with an arrearage al-ready in place. This is particularly difficult for low-income obligors because they are saddled with aninsurmountable debt at the outset.

• Knowing or willful failure to pay—A Minnesotastudy identified five types of child support obli-gors:1) Ready, willing and able parents who consistently

pay;2) Uninformed parents who do not know what

their obligations are;3) Parents who are unable to pay;4) Parents who are reluctant to pay; and,5) Parents who are active evaders and will do ev-

erything possible to avoid their obligation.

The last two groups of parents are the main targets ofthe most severe enforcement penalties.

• Interest charges—Some states charge interest ondelinquent payments. Twenty-six states chargedinterest on child support arrearages in 2002 (figure4). Such charges can make it nearly impossible forlow-income obligors to overcome their debt.

• Default orders—States set orders automaticallywhen noncustodial parents fail to appear in court,whether intentionally or because they could not befound to notify. In some of these cases, delinquent


obligors may not know they have a child supportorder, or that they have a mounting child supportarrearage debt.

Some states set limitations on collecting child supportarrearages. Statutes of limitation determine the lengthof time during which a child support debt is collect-able. State approaches vary widely in collectingarrearages. Some require the arrearage to be convertedto a lump sum judgment and pursued accordingly,while others setting exact deadlines for collection (e.g.,Louisiana, five years; Idaho, until the child reaches age23).

Some states facilitate opportunities for obligors’ childsupport debts to be compromised or forgiven. Underthe federal law known as the Bradley Amendment, statecourts may not retroactively modify child support or-ders, nor may they unilaterally forgive or waive childsupport arrearages. However, states are permitted tocompromise and forgive arrearages under certain cir-cumstances. States can compromise child supportarrearages by specific agreement of the parties or by thesame legal grounds that exist for any other judgment.If the child support arrearages at issue have been as-signed to the state by a TANF recipient, the state alsomust agree to the compromise or settlement.

Figure 4. Policies on Retroactive Child Support

District ofColumbia

Source: 2002 NCSEA Interstate Roster and Referral Guide.

No retroactive supportsought

No interest sought onretroactive support

Retroactive support soughtwith interest

Some states are experimenting with forgiveness or am-nesty programs. These typically are time-limited pro-grams during which delinquent obligors can meet withchild support officials to arrange to have their arrearagesforgiven or adjusted or to arrive at an agreement on apayment plan.

What other enforcement procedures will the state useto collect my child support? States have many choicesfor specific child support enforcement procedures fordelinquent obligors, including the following.

• License restrictions;

• Property liens;

• Income tax refund intercepts;

• Reporting delinquent obligors to credit bureaus;

• Voiding property transfers completed to evade childsupport obligations; and

• Mandating work requirements for delinquent ob-ligors whose children are TANF recipients.

These procedures were developed by states and, whenthey proved effective, were adopted by federal bill draft-ers into federal law. The procedures are meant to be

Delaware

RhodeIsland


Figure 5. Actions Regarding Child Support Pass-Through

Source: Center for Law and Social Policy, 2002.

NO PASS THROUGH

Texas and W.Va. retain all collectedsupport, but TANF grant increased byup to $50 per month

Delaware

District ofColumbia

UP TO $50 PASS THROUGH

Nev. passes through up to $75per month

OTHER—SOME OR ALL PASS THROUGH

Conn. and Minn. pass through all collectedsupport; Wis. and Vt. pass through all supportto select groups

RhodeIsland

used with discretion, and the most severe are intendedfor—and are most effective when used on—obligorswith assets and incomes that are presumed adequate topay child support. States are continuing to developnew enforcement tools, including car boots, most-wanted posters, and public relations campaigns to en-courage compliance.

Where will my child support payments be sent oncethey are collected? Federal law requires all child sup-port payments to be processed by centralized state col-lection and distribution units (SDUs). The paymentsare received by the SDU, then distributed to custodialparents. Some states have received limited waivers tothis general rule.

STEP SIX: DISTRIBUTING COLLECTED

SUPPORT—WILL I GET ALL THE SUPPORT

COLLECTED ON BEHALF OF MY CHILD?

Child support collected on behalf of current and formerTANF clients may be kept by the state. Under federallaw, states are allowed to retain collected child supportto reimburse themselves and the federal government forTANF payments that have been made to the family.

Some states operate “pass-through” programs where someor all of the child support collected on behalf of TANFrecipients is passed through to the family (figure 5). Afew states pass through the entire amount of collectedsupport. States that pass through some of the collec-tions can choose whether to disregard some or all of thepass-through when evaluating a client’s eligibility forTANF. These programs would be more popular if stateswere not required to reimburse the federal governmentfor its share of the child support collected on behalf ofTANF families, regardless of whether they have passedthose collections through to the families. Policymakersargue that pass-through programs provide an increasedincentive for low-income obligors to participate in thechild support program.

For child support clients who have never received TANFand have no TANF debt, all collected child support,minus any state fees or charges, is distributed directlyto the family.

Child support distribution rules are so complex and soexpensive to implement that Congress has considered sev-eral new distribution schemes to streamline the process.


The Child Support Project is part of NCSL’s Children and Families Program. For more information about childsupport, custody/visitation issues and family law issues, call Christi Goodman at (303) 364-7700, or e-mail her at

[email protected].

Visit NCSL’s Child Support Project Web site athttp://www.ncsl.org/programs/cyf/cs.htm


NCSL’s Child Support Project is a resource available to state legislators and staff nationwide. Projectstaff are available to provide on-site technical assistance to legislators, legislative staff, task forces, workgroups, etc. This assistance can take many forms—from an educational presentation for legislators, staffand other state leaders, to testimony before a legislative committee, to assistance in drafting legislation,to a roundtable discussion with experts we’ve brought in to assist in understanding a particular issue.NCSL provides on-site technical assistance visits at no charge to your state and project staff work diligentlyto accommodate legislative calendars and legislators’ schedules.

Other services provided by the project include:

Responding to requests for information or research on child support issues;

Publishing new materials such as State Legislative Reports, Legisbriefs, and an annual Legislative Summaryon important and timely issues in child support;

Maintaining a webpage dedicated to child support issues and state legislation in this area. Visit us atwww.ncsl.org/programs/cyf/cs.htm.

Hosting the Child Support Listserv—an email exchange service that allows the NCSL Child Support Projectto disseminate child support-related news and updates to listserve members. The listserve enables state officialsand policymakers to share ideas, problems and solutions with one another easily and quickly. To subscribe tothe Child Support Listserv, contact Mariquita Lucero by email: [email protected], or by phone: (303)364-7700.

If you have any questions, please contact us:

Project Manager—Christi Goodman [email protected] Associate —Stephanie Walton [email protected] Analyst—Natalie O’Donnell [email protected] Assistant—Mariquita Lucero [email protected]

The NCSL Child Support Project

Item # 6316 ISBN 1-58024-255-3Price: $10.00

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