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California: CALIFORNIA CHILD SUPPORT- SUMMARY OF STATUTES
(provided by Glen Rabenn, Esq.)
NEW STATEWIDE CHILD SUPPORT COLLECTION SYSTEM
ADDED: Family Code 17000, et. seq.
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EXISTING: California's child support enforcement system is extremely complex, involving
numerous state and local agencies. The state's system has been divided between
the State Department of Social Services, the Attorney General's office, the
Franchise Tax Board, the Employment Development Department, the Department
of Motor Vehicles, and the 58 county district attorneys' offices. The State
Department of Social Services is the single organizational unit to administer the
state plan for securing child and spousal support and determining paternity and
sets forth the department's duties and functions for this purpose. Certain child
support collection duties are delegated to the Franchise Tax Board. Each county to
maintain a single organizational unit within the office of the district attorney to be
responsible for establishing, modifying, and enforcing child support obligations
and specifies various duties and the authority of the district attorney for these
purposes. Employers are required to file with the Director of Employment
Development a report of contributions and report of wages paid to his or her
workers as prescribed.
NEW: Department of Child Support Services: This significant legislation creates the Department of Child Support Services [hereinafter referred to as "the Department"] to administer all services and perform all functions necessary to establish, collect, and distribute child support. The Department is designated as the single organizational unit to administer the state plan for securing child and spousal support, medical support, and determining paternity.
Plan and Task Force Report: The "Director of Child Support Services" is required to develop a plan for consolidating state and local child support enforcement collection activities within the department and submit the plan to the Governor, the Legislature, and the public by January 1, 2001. In addition, the director is required to convene a task force by September 1, 2000, to evaluate the benefits of implementing an administrative process in the state for handling child support matters being enforced by a local child support agency pursuant to the bill. The task force is required to report its findings and recommendations to the Legislature by July 1, 2001.(Family Code 17602)
County Department of Child Support Services: Each county is required to establish a county department of child support services referred to as the "local child support agency," to which the Department of Child Support Services has delegated or with which the department has contracted, to secure child and spousal support, medical support, and determine paternity in a county pursuant to these provisions. (Family Code 17400)
Franchise Tax Board: The Franchise Tax Board is required to implement augmented child support collection activities and shall have responsibility and authority for the enforcement and collection of child support delinquencies. The local agency is required to transfer the enforcement of any child support delinquency to the Franchise Tax Board within thirty days after the agency receives the case. (Family Code 17400)
Establishment of Support: The local agency is empowered to establish child support amounts and is provided the right to obtain court orders for child support. In the pleadings served on the parent from who support is sought, a "presumed income" must be set forth. The parent must also be served with a proposed child support order, that will be filed if the parent fails to file his or her response within thirty days of service. (Family Code 17400, 17402, 17404)
Relief from Support Judgments: A parent ordered to pay child support may have the order set aside if the parent can show that his/her income was substantially different for the period of time during which the judgment was effective compared with the income defendant was presumed to have. The parent's right to file such a motion is not limited by the 6-month rule of C.C.P. 473. However, any such motion must be filed within 90 days of the first collection of money by the local child support agency or the obligee. (Family Code 17432.)
Reporting of Income: Employers and labor unions are required to provide specified income information to the local support agency, or any other state agency that is enforcing support obligations. Failure to comply with such a request can result in a civil penalty not to exceed $1,000, plus attorneys' fees and costs. (Family Code 17512)
Confidentiality of Information: With specified exceptions, all files, applications, papers, documents, and records established or maintained by any public entity pursuant to the administration and implementation of the child and spousal support enforcement program must remain confidential, and cannot be open to examination or released for disclosure for any purpose not directly connected with the administration of the child and spousal support enforcement program. No public entity shall disclose any file, application, paper, document, or record, or the information contained therein, except as expressly authorized in the statute. (Family Code 17212)
Among the exceptions to this confidentiality requirement are the following: Records may be used by a public entity for all administrative, civil, or criminal investigations, actions, proceedings, or prosecutions conducted in connection with the administration of the child and spousal support enforcement program.
The payment history of an obligor pursuant to a support order may be examined by or released to the court, the obligor, or the person on whose behalf enforcement actions are being taken. Income and expense information of either parent may be released to the other parent for the purpose of establishing or modifying a support order.
In a noticed motion, in a case in which establishment or enforcement actions are being taken, a court can order the release of records, upon a finding that release or disclosure to the obligor or obligee is required by due process of law. However, before doing so, the court must inquire of the local child support agency and the parties appearing at the hearing if there is reason to believe that release of the requested information may result in physical or emotional harm to a party. (Family Code 17212)
Revocation of Licenses: The existing procedures that restrict the issuance or suspension licenses and permits in the name of a delinquent support obligor have been incorporated into this new structure. (Family Code 17520)
Levy Issued by Local Agency: The local county agency can directly levy delinquent support obligor's income and assets. Before executing a levy, the local agency must notify the parent of the support arrearages. The parent then has 20 days to request a judicial determination of the amount of arrearages. (Family Code 17522)
COMMENT: In clear language reflecting its intent, the legislature sets forth its view that the collection of child support was in desperate need of revision and that the only remedy is a centralized, statewide program:
"The lack of coordination and integration between state and local child support agencies has been a major impediment to getting support to the children of this state. An effective child support enforcement program must have strong leadership and effective state oversight and management to best serve the needs of the children of the state. . . The state would benefit by centralizing its obligation to hold counties responsible for collecting support. Oversight would be best accomplished by direct management by the state. . . A single state agency for child support enforcement with strong leadership and direct accountability for local child support agencies will benefit the taxpayers of the state by reducing the inefficiencies introduced by involving multiple layers of government in child support enforcement operations." (Family Code 17303)
AMENDED: Family Code 5208, 5212, 5234
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EXISTING: Earnings assignment orders are to be issued for the collection of child and
spousal support
NEW: In Title IV-D cases, wage assignment orders are to be issued on an"order/notice to withhold income for child support" mandated by Section 666 of Title 42 of the United States Code. The local support agency may issue and serve an order/notice to withhold income for child support without obtaining the signature of a judicial officer. This legislation conforms the wage assignment procedure to the statewide child support collection system, discussed above.
ADDED: Family Code 5000, 5001, 5002, 5005
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EXISTING: In 1997, California adopted the Uniform Interstate Family Support Act
[UIFSA], which is designed to establish a uniform set of rules to determine
which state has jurisdiction to make or modify support orders. California's
version of UIFSA is found in the Family Code, commencing with section
4900.
NEW: When a UIFSA petition is filed, the district attorney or the petitioning party can request that a summons be issued or notice an Order to Show Cause. The summons or Order to Show Cause must then be served on the respondent. In the case of an Order to Show Cause, service must be effected at least 15 days before the hearing. Blank forms must be included in the documents served. A UIFSA petition, file or order can be transferred to another county within the state if it appears that the respondent is not or is no longer a resident of the county in which registration is sought or where the registration was initially made.
In a UFISA action prosecuted by the district attorney or the Attorney General that is initiated by service of summons and petition, the respondent may also be served with a proposed judgment, which will become effective if the respondent fails to file a response with the court within 30 days after service.
The Attorney General may declare the foreign jurisdiction to be a reciprocating state for purposes of establishing and enforcing support obligations, if the Attorney General is satisfied that reciprocal provisions will be made by a foreign jurisdiction for the establishment of support orders for obligees in California. Such a declaration can be revoked.
AMENDED: Family Code 3652, 3653, 3654, 4009, 7575, 7642, 17212, and 17402; the heading of Division 9, Part 1, Chapter 6 (commencing with Section 3650) of the Family Code.
ADDED: Division 9, Part 1, Chapter 6 Article 4, commencing with 3690, of the Family Code; Family Code 17400.5, 17401, 17433, 17521, and 17530.
REPEALED: Family Code 4071.5
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EXISTING: If a support order is retroactively reduced by reason of the unemployment of
the support payor, the payee can be ordered to repay any payments that
exceed the modified order. A support order can be set aside under Code of
Civil Procedure 473, upon a showing of mistake, inadvertence or excusable
neglect, but a motion under that section must be filed within 6 months after
the order is made or judgment is entered.
An order for child support may be made retroactive to the date of filing the notice of motion or order to show cause, or to any subsequent date, except as provided by federal law.
For purposes of computing the minimum level of child support, no hardship shall be deemed to exist and no deduction from income shall be granted if aid payments are being made on behalf of a child or children of the parent seeking the deduction, even if the payments are being received by the other parent.
NEW: Repayment of Support Overpayments: The court may order that the repayment by the support payee shall be made over any period of time and in any manner, including, but not limited to, by an offset against future support payments or wage assignment, as the court deems just and reasonable. In determining whether to order a repayment, and in establishing the terms of repayment, the court must consider all of the following factors: (1) The amount to be repaid; (2) The duration of the support order prior to modification or termination; (3) The financial impact on the support obligee of any particular method of repayment such as an offset against future support payments or wage assignment; (4) Any other facts or circumstances that the court deems relevant. (Family Code 3653(c))
Setting Aside Support Orders: An entirely new support order set-aside procedure has been codified in Family Code 3690, et. seq. Under the new rules, a support order may be set aside after the six-month time limit of Section 473 of the Code of Civil Procedure has run if any of the following are found to exist:
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(a) Actual fraud. Where the defrauded party was kept in ignorance or in
some other manner, other than his or her own lack of care or attention, was
fraudulently prevented from fully participating in the proceeding. An action
or motion based on fraud must brought within six months after the date on
which the complaining party discovered or reasonably should have
discovered the fraud.
(b) Perjury. An action or motion based on perjury shall be brought within six months after the date on which the complaining party discovered or reasonably should have discovered the perjury.
(c) Lack of Notice.
(2) A notice of motion to set aside a support order pursuant to this subdivision must be accompanied by an affidavit showing, under oath, that the party's lack of notice in time to defend the action was not caused by the party's avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.
(3) The court cannot set aside or otherwise relieve a party from a support order by reason of lack of notice if service of the summons was accomplished in accordance with existing requirements of law regarding service of process.
Retroactivity of Child Support Orders: An original order for child support may be made retroactive to the date of filing the petition, complaint, or other initial pleading. If the parent ordered to pay support was not served with the petition, complaint, or other initial pleading within 90 days after filing and the court finds that the parent was not intentionally evading service, the child support order can be effective no earlier than the date of service. This does not apply to child support actions initiated by the local support agency under Family Code 17400(C), discussed above.(Family Code 4009)
Hardship Deduction Where Welfare is Being Paid: The prohibition against allowing a hardship deduction where the supported child is receiving public assistance has been abolished.
COMMENT: In last year's session, the legislature dealt with the question of modifying support orders because of the unemployment of the support payor or payee. (Family Code 3653 (b) and (c)). This year, the Legislature continued its work in that area by re-casting several existing sections and enacting several new sections of the Family Code as the Child Support Enforcement Fairness Act of 2000. The Legislature's intent in enacting this multi-faceted statute is set forth at the beginning of the chaptered legislation and is repeated in virtually every section of the Family Code that is affected:
"The Legislature finds and declares as follows: (1) The efficient and fair enforcement of child support orders is essential to ensuring compliance with those orders and respect for the administration of justice. (2) A large number of child support orders are obtained by a default judgment. In one study by the Judicial Council, more than 70 percent of all child support orders studied were obtained by default judgment. Very often, by the time a support obligor receives actual notice of the support order, the accumulated amount of arrearages totals tens of thousands of dollars. These arrearages amounts, particularly for a low wage earner, are a significant obstacle to good faith compliance. Ensuring prompt, actual notice of a child support obligation will prevent the accumulation of large amounts of arrearages and encourage greater timely compliance. (3) Thousands of individuals each year are mistakenly identified as being liable for child support actions. As a result of that action, the ability to earn a living is severely impaired, assets are seized, and family relationships are often destroyed. It is the moral, legal, and ethical obligation of all enforcement agencies to take prompt action to recognize those cases where a person is mistakenly identified as a support obligor in order to minimize the harm and correct any injustice to that person."
The elimination of the prohibition against hardship deductions for children receiving welfare appears to be a legislative response to Moreno v. Draper (1999) 70 Cal. App. 4th 886, 83 Cal. Rptr. 2d 82; and City and County of San Francisco v. Freeman (1999) 71 Cal. App. 4th 869, 84 Cal. Rptr. 2d 132, which held that the denial of the hardship deduction was not unconstitutional.
PAYMENT OF CHILD SUPPORT BY ELECTRONIC FUNDS TRANSFER
AMENDED: Family Code 4065, 4508
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EXISTING: The family code provides that the Court can order a support obligor to set up
an electronic funds transfer. However, the court cannot order the obligor to
set up an account for that purpose. This cannot be ordered if an earnings
assignment order is in place.
NEW: The court can now order the obligor to set up an account for the electronic funds transfer. The parties can also stipulate to an electronic funds transfer.
AMENDED: Family Code 6341
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EXISTING: In domestic violence cases, where there is a presumption that the respondent
is the natural father of a minor child and the child is in the custody of the
petitioner, the court can order a party to pay an amount necessary for the
support and maintenance of the child if the order would otherwise be
authorized in an action brought pursuant the Uniform Parentage Act.
NEW: In addition to the presumption that the Respondent is the child's natural father, the court can order the payment of child support if If the parties are married to each other and no other child support order exists.
Glen Rabenn, Attorney at Law
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