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When Public Law 96-272 established title IV-E in 1980, it made no provision for the assignment of support rights as a condition of eligibility. Early developmental policy stated that under title IV-E the assigment of support rights was optional; however, section 471(a)(17) of the Social Security Act (as amended by Public Law 98-378, (effective October 1, 1984)) requires title IV-E agencies to take steps to secure an assignment of support rights on behalf of each child receiving title IV-E foster care maintenance payments. However, a child is not ineligible under title IV-E because the parent fails to comply with certain AFDC requirements in regard to child support assignment.
According to the regulations, "a child may not be denied AFDC either initially or subsequently because a parent or other caretaker relative fails to cooperate with the child support agency..." (45 CFR 233.90 (b)(4)(i)).
Title IV-E agencies are required to refer children receiving title IV-E foster care to title IV-D for child support enforcement, but are afforded some degree of flexibility by title IV-E in determining which cases are appropriate for referral. The title IV-E plan must provide that, "where appropriate all steps will be taken, including cooperative efforts with the State agencies administering the plans approved under parts A and D, to secure an assignment to the State of any rights to support on behalf of each child receiving foster care maintenance payments under this part" (Section 471(a)(17) of the Social Security Act).
To determine if a case is "appropriate" to refer to the title IV-D agency, the title IV-E agency should evaluate it on an individual basis, considering the best interests of the child and the circumstances of the family. For example, is the parent working towards reunification with the child, consistent with the case plan? Would the referral impede the parent's ability to reunify with the child? Has the parent agreed to pay for the costs of out-of-home care or to temporarily accept a reduction in the adoption assistance payment? Questions of this nature should guide the agency's decision making regarding whether or not the referral should be made to the title IV-D agency.
Each State is required by Federal statute and regulation to establish guidelines for child support awards within the State that "take into consideration all earnings and income of the absent parent" (45 CFR 302.56(c)). The court or administrative body setting the award must presume that the amount resulting from the application of these guidelines is the correct amount of child support to be paid (section 467(b)(2) of the Social Security Act; 45 CFR 302.56(f)). It is unlikely that the presumptive child support obligation determined according to the State child support guidelines would be equal to the adoption subsidy amount.
Federal law, however, allows the court to deviate from the presumptive amount determined pursuant to the State child support guidelines. In order to deviate from the presumptive amount required by the guidelines, the court must make written findings on the record, documenting why the guidelines amount is unjust or inappropriate in a given case. These findings must be based on criteria that are established by the State that support a deviation from the guidelines (section 467(b)(2); 45 CFR 302.56 (g)). ACF recommends that the title IV-E agency collaborate with the title IV-D agency to review and recommend criteria for deviations that would support the best interests of the child.
Adoption assistance payments may or may not be included in a State's definition of "all earnings and income" for the purpose of determining a child support award. Federal regulations implementing the Federal child support laws require that State guidelines take into consideration "all earnings and income of the absent parent" but afford States the discretion to define the term.
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