EXPEDITED CHILD SUPPORT
An Overview of the Commonwealth Countries'
and United States' Procedures for
Establishing and Modifying Child Support
Although the Colorado system ultimately culminates with the courts, the state has established a front-end administrative scheme designed to reduce the number of cases to be dealt with judicially. The cornerstone of this process, from an alternative dispute resolution perspective, is the negotiation conference.
The Child Support Enforcement Unit first issues a notice of financial responsibility to the obligor. The notice states that a negotiation conference will be held at least 10 days after service but no later than 30 days later. It also includes a statement to the effect that if the obligor fails to attend or reschedule ahead of time, a default order will be issued. In this respect, the negotiation conference is a mandatory part of the process.
The conference is conducted by a legal technician who is a member of the child support staff and designated by the director. The custodial parent (or obligee) is never present at the same time as the obligor; however, the obligee does receive notification that the conference is going to be held. The reason for the custodial parent's absence from the conference is to avoid emotional argument between the two parties in regard to issues unrelated to child support. The conference has been designed so that the only issue discussed is child support. Colorado uses the income shares model for calculating child support, which involves a consideration of how much time each parent spends with the children. This consideration is based upon the present living arrangement.
If the obligor does not show up at the conference, a default order will be sent out to him or her; this order is binding and requires that the obligor commence child support payments right away.
If the person shows up for the negotiation conference, he or she is informed of due process rights and, following discussion and child support calculations, the obligor and the legal technician will or will not arrive at a stipulation - an agreement about the amount of support to be paid. If a stipulation is agreed upon, the legal technician issues an administrative order of financial responsibility to the obligor. It sets out certain information, including the following:
- the monthly amount of support and the means by which it is to be paid;
- the level of arrears owed and instructions about how to pay them; and
- the name of the custodian of the child, and the birth date and social security number of the child in question.
The order is then filed with the court and, once date stamped and assigned a case number, has the force and effect of a court order.
If the obligor does not agree to the proposed stipulation, one of two things may result. If the disagreement is on the basis of disputed paternity, the notice of financial responsibility and proof of service are filed with the court and a hearing requested. If the obligor does not raise paternity as an issue but does not agree, the legal technician issues a temporary order establishing current child support to be paid and also files the documents with the court and requests a hearing. In the latter scenario, the hearing will be held within 90 days of the filing of the notice and only the issue of child support will be addressed. This administrative process also applies where paternity is in question. In this circumstance, the legal technician can order a paternity test to be done.
Like Colorado, Texas has established an administrative mechanism to streamline child support cases which, if not settled informally, must ultimately proceed through the court process. The Child Support Review Process (CSRP), as it is known, is administered by the Child Support Division of the Office of the Attorney General and is designed to resolve IV-D child support issues, where possible, without the need to go to court. The purposes of the system have been identified as facilitating speedy orders where possible; freeing up court time for contested issues; addressing the federal preference for administrative child support processes; satisfying the Texas Family Code requirement that alternative dispute resolution be used before matters proceed to court; and generating funding for the Child Support Division. The CSRP is the alternative to the court process for establishing, enforcing and modifying child support; however, staff are encouraged to use the process as much as possible, particularly for the more straightforward cases. In the case of a pending divorce, the process would generally not be used, nor would it apply in a case involving complicated circumstances such as minor parents or one out-of-state parent.
As a first step in the review process, the Child Support Division assesses the case to determine whether or not the case is appropriate for the process. The possibility of a negotiation conference is triggered either by one of the parties' request and the discretion of the Child Support Division or, in most cases, by the decision of the Child Support Division alone.
If considered appropriate, a notice of child support review will then be sent to the parties, setting out the following:
- the overall procedure for the CSRP;
- the fact that a party has a right to an attorney throughout the process, if desired; and
- the fact that the parties are not required to participate in the process and have a right not to go ahead (however, if the process is terminated, an order will not be filed).
The notice must also include the following:
- a financial resources affidavit and a form for designation of a mailing address for other forms in the future; and
- instruction that the form should be returned within 15 days of receipt and that, if it is not received by the division, the review process may continue with the information available or, alternatively, the division may commence a legal action in the court right away.
After the notice has been sent out to the parties, the division will wait for response for a period of 15 days before again reviewing the file to assess whether or not a negotiation conference will be held. If it is determined to be appropriate, a notice of negotiation conference will be mailed out at least 13 days in advance and proof of diligent attempts to effect service must be kept on file.
A child support review officer conducts the negotiation conference with the parties. This person is designated by the Child Support Division and trained in mediation. The review officer generally has previous experience as a child support officer and has exhibited a high level of ability during the course of his or her employment to date.
Unlike the Colorado model, in Texas both involved parties usually attend at the conference unless there are extenuating circumstances, and are informed of their rights, provided with an explanation of the process and the child support issues confronting them, and then encouraged to resolve any identified differences. If the parties do not reach an agreement, the review officer can do one of several things:
- issue an agreed order;
- issue a non-agreed order and reserve issues of visitation and/or custody for the court;
- adjourn the negotiation conference so that both parties might seek mediation;
- adjourn the negotiation conference so that parentage, if disputed, may be established; or
- issue no order and end the process.
An agreed CSRP order will contain provisions for
"child support, medical support, [and] a determination of arrearage or retroactive support, as well as conservatorship and visitation provisions." Further, the following phrase must be included in the order and written in a clearly visible format:
I know that I do not have to sign this child support review order. I know that I have a right to be personally served with the petition for confirmation of this order. I know that I have a right to change my mind and withdraw my agreement to the terms of this order and request that a court decide this matter by filing a request for court hearing at any time before the 20th day after the date the petition for confirmation of the order is filed with the clerk of the court. I know that if I fail to file a request for a court hearing a court may confirm and approve this order without a hearing, and the order will become a valid court order. I know that if I do not obey the terms of this order I may be held in contempt of court.
A copy of this draft order is then given to the parties, who have 20 days to request a court hearing. If they fail to do so, the court signs off the administrative order.
A non-agreed order would include provision for child support and medical support, and a determination of arrearage or retroactive support, but would reserve the other outstanding issues for the court to resolve. In the situation where custody and/or access are reserved, the Child Support Division requests a court hearing only for these issues. In every situation, a Child Support Division attorney attends at the court hearing for the purpose of representing the state on the child support issues and fielding any questions from the judge that might arise in regard to the agreement reached by the parties.
In addition, the orders that serve to either vary or modify child support must also include the findings based on the specific requirements of the state's child support guidelines. These findings must be added to the establishment or modification order and provide the following information:
- both the obligee's and the obligor's net monthly resources;
- the percentage applied to the obligor's resources that provided the basis for the amount of support as assessed;
- what the amount of child support would be if the guidelines were applied;
- if the amount assessed varies from the guidelines, the reason for the variance; and
- in the situation where the obligor is supporting other children, information about the number of children both before the court and separate.
The review officer has discretion to deviate from the guidelines in the case where both parties agree to a reasonable deviation. Generally, however, the deviation would have to result in higher support payments than those stipulated by the guidelines in order for a review officer to entertain the parties' agreement in this regard.
If the review officer issues an order, the Assistant Attorney General reviews it, and it is then filed at the district court for confirmation. If the parties do not request a hearing, the court will confirm the order. If there is a court hearing, the order will be confirmed, amended or denied. The order once entered is a court order.
Texas has in place a system of masters who are employees of the Office of Court Administration. Any cases referred to the court from the CSRP go through this court process. The masters' program has been in place for nine years. It was initially established as a response to the federal government's call for expedited child support processes to be set up. The master is always an attorney with a minimum of five years of legal experience, and the hearings are much more informal than court hearings before judges. The rules of evidence apply. A hearing officer makes recommendations to the judge rather than signing binding orders. The parties then have a three-day period during which to request a full court hearing before a judge.
Some states have kept child support within the court process. For these states, the expedited process for child support mandated in federal legislation comes in the form of quasi-judicial decision-makers who operate within the court structure.
Illinois, New Mexico, New Jersey, New York and Pennsylvania are among those states that have continued to use the judicial model exclusively for child support issues. These states' systems share the common characteristic of utilizing an official in a quasi-judicial capacity to decide child support issues, whether through a review of the relevant written materials or through a hearing. This person also makes a decision, which takes the form of either a binding decision or a recommendation to a judge, depending on the constitutional constraints operating in the state that limit which decisions can be delegated from the judicial decision-making level.
Title of Decision-maker and Qualifications for the Position
In these court-based states, hearing officers, masters or other comparable officials are either hired by the court or appointed to fill a quasi-judicial position. In Pennsylvania, masters who are trained attorneys conduct the hearings in the larger counties, whereas in the smaller counties, decision-makers are called hearing officers and are usually people with experience in child support. In New Mexico, New York and Illinois, the decision-makers are hearing officers with experience as attorneys. In New Mexico, the hearing officers' experience would be in the area of family law. In New Jersey, the hearing officers need not be lawyers but, rather, university graduates with three years of experience with social services agencies.
Jurisdiction of the Decision-maker and Nature of the Decision
Generally speaking, the hearing officer has jurisdiction to hear only child support and, usually, parentage cases, whereas all other family issues are reserved for a judge. Generally, the job description includes conducting child support hearings related to establishment, modification and enforcement of child support obligations pursuant to the Title IV-D program. The person would also analyze the rules of evidence and apply the child support guidelines to arrive at either a decision or a recommendation.
The distinction between those states where hearing officers issue binding decisions and those states where recommendations are made to a judge is a function of the legal constraints operating in each place. For instance, in Pennsylvania and New York, hearing officers are able to issue child support orders without having them ratified by a judge. In New Mexico and New Jersey, on the other hand, the judge must sign off the order. Often, this "signing off" done by the judge is no more than a legal formality. If the parties are dissatisfied with a hearing officer's decision, they can request a full court hearing. In the absence of such a request, the judiciary often relies on the judgement of the hearing officer which, it can safely be said, is grounded in a high degree of familiarity with the subject matter because of the daily routine of hearing child support cases and applying the guidelines on an ongoing basis.
When a case goes before a hearing officer, the parties generally have a very short period during which to request a full court hearing in front of the judge. This time period is usually no more than a couple of days and sometimes requires the parties to make their request immediately. If the hearing officer has issued an order and a further hearing is not requested, the order will stand as a legally binding court order.
Format of the Hearing
The level of formality at a hearing before a master is usually lower than in family court. Because of the governing framework provided by state guidelines, the hearing is less complex from a legal standpoint. Although the rules of evidence technically apply, they are usually more relaxed than in the courtroom. Generally speaking, a representative of the child support enforcement agency will attend, as will the parents or their representatives. The number of parties representing themselves in family court is steadily on the rise throughout the United States, due mainly to cutbacks in legal aid funding. This phenomenon results in increased backlog in the courts as judges must deal with a mass of legally irrelevant evidence. In addition, judges often find themselves in counselling and advising roles for the people appearing in their courtrooms, often referring the parties to alternative resources for addressing some of the issues before the court. The states' child enforcement agencies do not always send attorneys either. For example, in New Mexico, attorneys are rarely present. In Illinois, however, attorneys are always present at the hearings on behalf of the state.
Often, the hearing does not even take place in a courtroom or even in the courthouse. In Illinois, the hearing is usually conducted in a smaller room than a full courtroom and, depending on available funding, sometimes takes place with the parties in attendance sitting around a table. In Pennsylvania, the hearings are usually conducted in a conference room with both parties in attendance.
California is one of the more strongly court-based states in the area of child support. The state uses a system involving the services of district attorneys and, in some situations, court-appointed commissioners who fulfill a quasi-judicial function within the court system. Notwithstanding that the legislation exists for the appointment of these commissioners, they do not operate in all of the Californian counties. Instead, throughout much of the state, child support continues to be dealt with through the traditional judicial approach. The Californian experience, then, provides an example of a state where the government has not seen fit to move away from the traditional court process in regard to setting and varying child support.
Criticisms of the Californian Process
The heavy emphasis on judicial decision-making for all family matters in the state has been the subject of substantial criticism and efforts at reform throughout various Californian counties. One of the more vocal proponents for improving the family law scheme in the state is Associate Justice Donald B. King of the First District Court of Appeal in San Francisco. In 1994, King wrote:
...despite the increasing complexity of family law, it is financially impossible for the average Californian to afford legal representation in the largest single category of civil cases in Superior Court ... [For instance] the parties cannot take advantage of less expensive alternatives such as mediation and arbitration, to finalize their divorce.
These issues relating to divorce also relate to other family matters such as fixing child support amounts.
In 1993, the Child Support Task Force was created with the mission to look at the child support system within California and to make recommendations for an effective expedited process as required by federal law to process child support cases. The task force brought together representatives of the courts, the District Attorney, the Attorney General, the legislature, the administration, the state bar, and advocacy groups representing parents and children.
The task force looked at the feasibility of implementing an administrative scheme such as those that exist in various other states. This approach was rejected. In looking at other states' administrative processes, the task force noted both advantages and disadvantages. The task force report states the following.
Proponents of an administrative process argue that
- it is cheaper and more efficient;
- it is able to provide greater uniformity because hearing officers are employees of a single state agency;
- it is easier for parents to use because proceedings are more informal with relaxed rules of evidence;
- it can produce due process safeguards; and
- it removes a substantial number of routine cases from the courts and allows the courts to redirect resources to other priorities.
However, the task force members rejected the administrative approach on the following grounds, arguing that an administrative process would
- add a separate forum for hearing child support cases to a system that is clearly inefficient and frustrating to parents because of its diverse players and scattered forums;
- not provide a neutral forum to decide cases if the hearing officer was employed by the same agency that enforces support orders;
- duplicate costs for two processes that essentially perform the same functions since child support would continue to be decided by the courts in private family law actions, in IV-D paternity cases and in certain IV-D enforcement actions; and
- relegate IV-D child support cases to a second-class adjudication system.
The child support guidelines in California provide that both child custody and visitation arrangements will be taken into consideration when assessing the amount of child support to be asessed; therefore, child support is not a stand-alone legal issue, as it is treated in some other states in certain situations. Accordingly, then, the members of the task force were of the view that it made more sense to have child support cases continue
"to be heard in the courts where other family law services related to children are provided." The task force strongly stated that the goal of any reform should be increased integration of various legal issues concerning children as opposed to separation of the issues.
Reform Initiatives in California
As a result of the observed shortcomings of the system for dealing with an ever-growing number of pro se (unrepresented) cases in the state, novel programs and pilot projects are common. Often, these programs are annexed to or operated under the guidance of the courts. For instance, in both San Mateo and Santa Clara counties, pilot projects were set up pursuant to state legislation. These programs were designed to deal with a variety of family issues including support, custody, visitation, property and temporary restraining orders. The attorneys and volunteers who ran the program helped parents complete forms and do guideline calculations. In addition, they provided general information about family law procedure, drafted stipulations, made recommendations to the judges and prepared orders after hearings. The programs proved successful and will likely continue and be expanded in the future.
As a result of the findings contained in the 1995 Child Support Task Force Report, it is likely that a process modelled after these pilots will become an inherent part of the court process in the near future. Following the report, a number of proposals are going forward to the state legislature this session and it is anticipated that many, if not all, of these recommendations will become law in 1997.
Based on the successes of the San Mateo and Santa Clara pilot projects, one of the proposals is to expand the projects to statewide implementation in the form of family law facilitators' offices. Like the family law advisor program, the facilitator program would have to be supervised by an attorney because what constitutes "the practice of law" in the state has been broadly defined to include some of the functions for which the family law facilitators would be responsible. The attorney in charge would also be required to have either litigation or mediation experience.
Like the San Mateo and Santa Clara pilots, the family law facilitators' offices would function as an adjunct of the courts and would be responsible for a number of functions, including the following:
- providing educational materials to parents about the process for establishing parentage and for establishing, modifying and enforcing child and spousal support in court;
- distributing court forms and voluntary declarations of paternity;
- providing assistance in completing court forms;
- preparing support schedules based on the statutory guidelines; and
- providing referrals to other related services including the district attorneys, family court services, and other available community agencies and resources.
In addition, it is anticipated that the family law facilitators' offices will also have a role to play in other related areas if legislated by local rule. Some of the suggested functions in addition to the above list include the following:
- meeting with litigants in an attempt to mediate child support, spousal support and maintenance of health insurance;
- drafting stipulations (agreements), which may well include a variety of family issues;
- in the case of non-resolution of the issues, reviewing paperwork, examining documents, preparing support schedules and advising the judge whether or not the matter is to proceed;
- assisting the clerk to maintain records; and
- serving as a special master in proceedings and making findings to the court if the facilitator has not already functioned as a mediator in the particular case in question.
Finally, if possible, it is envisioned that the facilitators' offices may have a role to play in
- conducting related research for the court; and
- developing training and informational programs for the bar and the community through videotape and other media (topics could include the underutilized expedited child support process - that is, the commissioner system, which is not in place in every county - and other related information).
These proposals for reform recognize the need to assist parties, particularly those who are unrepresented, through the complex court process. In the meantime, private initiatives have been implemented in some areas, illustrating some of the outstanding needs of the current judicial process.
For instance, the special masters' program has been implemented in several Californian counties surrounding the San Francisco area. This program was developed as an unofficial alternative to the formal court process that exists in the state and is specifically targeted at post-divorce custody disputes that would involve parents in ongoing court battles in the absence of an alternative program. Generally, the smaller contentious issues that would tie up an undue amount of court time are dealt with through the process so as to avoid undue amounts of litigation.
When the program was initially developed, an interdisciplinary task force was set up and came together to research the issue of whether or not judicial authority could be delegated to such a program. As the program currently functions, the parents must stipulate authority to the special master for the purpose of their case. This stipulation takes the form of a 10-page document, which is filled out by the parents and returned. This program is one among many indications in the state that approaches outside the courtroom are being implemented because of a substantial backlog in the courts.
Connecticut is a state firmly based in the judicial process. Divorce falls within the exclusive jurisdiction of the superior court of the state.
The Magistrate System
The Connecticut Support Enforcement Division administers the IV-D program within the state. The state utilizes a court-based family support magistrate system to adjudicate monetary child support orders; technically, the magistrates are the "Family Support Magistrate Session of the Superior Court." The magistrates derive their authority from Section 46b, 231 of the Connecticut General Statutes and are empowered to issue binding court orders for support or paternity. They are appointed by the governor for a four-year period and, generally speaking, are members of the Connecticut bar.
These magistrates are not able to hear marriage dissolution matters or matters concerning custody and/or visitation. A family support magistrate may preside over paternity matters, establishment matters, enforcement actions and modifications for IV-D cases, as well as matters relating to the Uniform Reciprocal Enforcement of Support Act (URESA). In the case of persons on welfare, as in other states, the case is automatically an IV-D case and the magistrate presides. Other custodial parents not on welfare may apply to have their cases heard by the magistrate. The cost savings of utilizing the magistrate option as opposed to the court approach (which always remains an option) are substantial.
Those parents who are separated may ask to have their cases heard by a magistrate. However, the Support Enforcement Division first makes thorough inquiries about whether or not a divorce action is pending. In the case of a divorce, the matter must be dealt with through the judicial process, and the judge will issue a child support order in addition to dealing with the other family matters. After the divorce has been finalized, however, the custodial parent then has the option of applying to the Support Enforcement Division for enforcement assistance. In this case, further complaints and requests for modification are heard by the magistrate.
The Court Process in the Case of Divorce
In the situation of a pending divorce, Connecticut has developed a unique program for assisting parties through the court process. The system as it currently exists has evolved over a span of approximately 20 years and has become a well-established practice throughout the state. The Family Division Service Unit of the Family Division of the Connecticut Superior Court offers a service to the divorcing population comprising three features, which are as follows:
- custody and access evaluation;
- custody and access mediation; and
- pretrial settlement conferences for any issues that are before the court for resolution.
The first two enumerated functions of the unit generally arise following a direction from the superior court judge that the parties engage in the evaluation and mediation if appropriate in the circumstances of a case to be adjudicated.
The Family Division Service Unit is staffed by family relations counsellors who are employees of the judicial branch with backgrounds in social sciences and in conducting evaluations and mediation. The family relations counsellors are involved in each of the three parts of the service offered; however, the general practice is that the more senior or qualified persons, with a demonstrated ability to deal with attorneys and complex legal issues, conduct the settlement conferences.
The pretrial settlement conference originally arose out of a judicial practice of asking family relations counsellors to conduct informal discussions with the parties with the goal of hopefully reaching agreement on some of the outstanding issues. The family relations counsellors were, at the time, attending at court for the purpose of conducting custody evaluations as required. Their role in the court process has gradually expanded.
Currently, there will be, on average, two to three family relations counsellors attending at court on a given day. They are responsible for conducting pretrial settlement conferences, which are now listed on the court calendar for the day. The conferences are now a mandatory part of the process required before a matter will be heard by a judge. The conferences are usually held on the same day that the hearing is scheduled, the reason being that there is a much higher likelihood that the parties and their counsel will be present on the date of a scheduled hearing. Some counties have developed the practice of sending out prior notice to the parties suggesting that they contact a family relations counsellor to sort out some outstanding issues prior to the court date.
During the pretrial settlement conference, any number of issues may be addressed, ranging from custody and access issues to child support arrangements. The family relations counsellor fulfills the role of "pre-trier" in a sense, making recommendations to the parties and directing the parties to arrive at the solution he or she suggests. In this sense, the pretrial conference differs from mediation in that the parties are provided with a recommended course of action based on the information provided. There is nothing binding about the settlement conference; however, if an agreement is reached, the parties can proceed directly to the courtroom and put the agreement on the record without the need for a hearing before the judge.
In regard to child support issues, it sometimes arises that at least one of the parties does not have the financial information required to do the formula calculations. In this situation, the party will be provided with the forms and told to fill them out while another conference is held. The parties will then reconvene. It has not been found to be a problem to complete the child support calculations and often, if counsel are present for both sides, the family relations counsellor will ask that they complete the calculations on behalf of their clients.
The state of Michigan has not moved away from the judicial process. The Title IV-D child support program is administered jointly through the Office of Child Support of the Department of Social Services and the Friend of the Court Office, which is part of the State Court Administrative Office.
The Friend of the Court Office is an integral part of the processing of child support cases in the state of Michigan. The office has been operational since 1919 and its mandate extends beyond assisting in the facilitation of the process leading toward obtaining a child support order. The Friend of the Court Office derives its authority from the Friend of the Court Act. The staff members of the office have the following duties:
- upon the request of either the parents or the judge, assisting parents who cannot agree on issues such as custody, "parenting time" and child support;
- offering mediation, with the consent of both parents, in an attempt to resolve differences over custody or parenting time (sometimes conciliation services are offered instead);
- collecting, recording and distributing support payments if so ordered by the court; and
- providing enforcement services for custody, parenting time and support orders entered by the court.
In the case of child support, after the friend of the court has applied the guidelines and calculated the amount of support to be paid, the case is then referred to a referee, who is also an employee of the Friend of the Court Office. This referee reviews the case and signs off the child support order drafted by the friend of the court; the referee also has authority to conduct child support hearings where appropriate.
The referee is also a friend of the court, usually with substantial experience. All Friends of the Court are appointed "at will" by the chief judge of the circuit court.
The friend of the court also manages modifications, which in the case of Title IV-D cases are automatic every 36 months. In all other cases, the friend of the court conducts a review upon receiving a written request for a review from either parent. Alternatively, the friend of the court can provide the requesting parent with a "do-it-yourself" modification package to be filed with the court. When the friend of the court is to conduct the review, the file is first reviewed by the office and then both parties receive a notice of review at least 30 days in advance. In conjunction with the review, both parties are asked to provide proof of income and the friend of the court applies the Michigan guidelines to the levels of income. The friend of the court then calculates a support recommendation for each parent.
The Friend of the Court Office is involved not only in processing child support cases but also in assisting with all domestic relations cases at the outset and as requested. Section 5 of the Friend of the Court Act establishes that the office will provide information about the parties' rights and responsibilities and about the court procedures relating to domestic relations cases. In addition, the Friend of the Court Office also provides information about family mediation services and other human services in the community.
In addition, the friend of the court makes a written report and recommendation to the court about custody in cases where the parties refuse to engage in mediation. The report includes the findings of extensive investigations conducted by the Friend of the Court Office, including consideration of any reports and evaluations done by outside agencies.
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