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Giving Hope and Support to America's Children |
Essentials for Attorneys in Child Support Enforcement
T.O.C. Forward 1 2 3 4 5 6 7 8 9 10 11 12 Appendix
CHAPTER 10 - ENFORCEMENT OF SUPPORT OBLIGATIONS
INTRODUCTION
Enforcement actions are the steps necessary to compel a noncustodial parent to pay support that has been ordered by a court or administrative agency. To ensure that payments are made as ordered, it is critical to monitor payments and to initiate the appropriate enforcement remedy.
Certain enforcement remedies are available exclusively to State Child Support Enforcement (CSE) agencies. Other remedies are available to any child support tribunal,[1] as well as to private attorneys and collection agencies. Some always involve court action; others are administrative in nature, requiring little or no court action.
Determining correct remedies is case-specific. Thus, the facts, coupled with Federal and State mandates, dictate how a IV-D caseworker, private attorney, or custodial parent should proceed to enforce the particular support order.
MONITORING PAYMENTS
Many State CSE programs have had recordkeeping responsibility for a long time, while others have only recently taken over these functions as a result of new mandates contained in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA).[2] Awareness of the payment status of a case is vital to the timely initiation of enforcement actions.
Calculating Payments
Child support arrears occur when the party ordered to pay periodic support, usually the noncustodial parent, either fails to make any payment or does not pay the entire amount for a designated period. Arrears also can arise when a custodial parent and child receive public assistance; the initial support order may contain “support for a prior period”, based on the obligor’s past income, that represents recoupment of payments the State made for the care of the child before the order’s entry.
Typically, the party seeking to collect the arrears amount is the custodial parent. Arrears due the custodial parent accrue when the family received no public assistance and the noncustodial party has failed to pay the full amount ordered by the tribunal. In addition, a tribunal can order payment to the custodial parent of retroactive support for a period prior to the entry of the order or reimbursement for common law “necessities” that the custodial parent paid before entry of the order. On the other hand, the State IV-D agency may be entitled to pursue arrears if the family receives, or has received, public assistance and the noncustodial party has failed to pay the full amount ordered by the tribunal. Additionally, a tribunal may order payment to the agency of retroactive support or support for a prior period. Some courts have recognized that special circumstances can arise that give the child standing to enforce the support order.[3] The Nevada Supreme Court in Morelli v. Morelli [4] reasoned that the child is an intended third party beneficiary of an agreement for support between the parents. The New Jersey Supreme Court has reiterated this as recently as 1997, when the court held that support belongs to the child and not the parent.[5]
Federal regulations require that State IV-D agencies have an effective system for monitoring compliance with a support obligation and identifying the date that a noncustodial parent fails to make payments in an amount equal to the support payable for 1 month.[6] This includes responsibility for keeping accurate records to monitor the payment history of the noncustodial parent. Accurate payment records help ensure that appropriate enforcement remedies are initiated.
Sometimes when the tribunal is attempting to determine arrears, a noncustodial parent will claim that payment has been made in a manner other than the ordered payment method(s). Generally, a noncustodial parent is not allowed credit for expenditures made for the child while the child is in his or her custody. State child support guidelines usually address how visitation arrangements impact on the support amount. Nor are obligors usually given credit for payments made outside of the order’s terms. Many States consider in-kind payments or cash paid directly to the child as gifts and, therefore, do not credit these payments against the child support obligation. Courts in a number of States have found that giving credit for voluntary payments permits the noncustodial parent to vary the terms of the order, and usurps the custodial party’s right to determine the manner in which support money will be spent. The Supreme Court of Alaska affirmed a long-standing Alaskan principle and held that “payments voluntarily made to the children are not to be credited against child support obligations. The rationale is that such voluntary payments to the children quite often are intended for particular purposes whereas the manner in which child support payments are used to meet the children’s basic needs is left to the discretion of the custodial parent or guardian.”[7]
It is important to note that some courts have been willing to use equitable principles to determine the propriety of a substituted form of payment. For example, when the custodial party expressly or implicitly consents to the alternate payment as partial or complete satisfaction of the support obligation, some courts will give a credit to the noncustodial parent. For a credit to be awarded, however, it appears that the payment must substantially comply with the “spirit and intent” of the original order. [8]
Interest
A companion issue to arrears monitoring is interest. Some States charge interest on past-due child support obligations. Interest can be applied to unpaid support at the rate set by State statute. In the relevant States, judgment interest generally is determined in child support matters in the same way it is set in other civil judgments. States that charge interest typically begin its accrual on the day the relevant child support payment becomes due and unpaid.[9]
A State’s decision to award interest rests on important public policy considerations. Many States believe that the award of interest encourages obligors to make their child support payments on time. Interest also provides the child a measure of compensation for his or her loss caused by the tardiness of the child support payments. For instance, in Adams v. Adams[10], the court reasoned that:
The use of one’s money by another has value in economic theory and in fact. In our society, this use is frequently compensated by the charging of interest, such charges being imposed variously under the authority of public and privately made law. Charges made on the use of one’s money or forbearance to collect a debt are called interest. The economic value of a supporting spouse’s use of a child’s money, or forbearance to pay for whatever reason, is real and should be compensated via interest. When a supporting spouse fails to timely make child support payments, he or she uses the child’s money.[11]
Numerous courts have upheld the concept of interest being due for unpaid child support.[12] In Lauderback v. Wadsworth, for example, the court clearly stated that matured alimony and child support installments are judgments for money, which accrue, along with interest imposed by statute, from the date the payments are due.[13]
Spousal Support
When Title IV-D of the Social Security Act was originally passed, it only had provisions pertaining to the enforcement of child support obligations. State CSE agencies could not attempt any collection of spousal support obligations. When there was a single order that contained both child and spousal support, the State CSE agency could only take steps to collect the child support portion of the order, even though spousal support was required to be assigned to the State as a condition of receiving public assistance.
With passage of the Omnibus Budget Reconciliation Act of 1981[14], it became permissible in certain circumstances for the State CSE agency to collect spousal support obligations. In a public assistance case, if the spouse or former spouse was residing in the same household as the child for whom support was being collected and the child support obligation and the spousal support obligation were included in the same order, State CSE agencies were permitted to collect and enforce spousal support or alimony. Under no circumstances were CSE agencies allowed to receive Federal funds for the establishment of a spousal support obligation. Subject to the same restrictions that the spouse, or former spouse, reside in the same house as the child receiving support and that the obligations be included in the same order, spousal support collection was extended to nonpublic assistance cases by enactment of the Tax Equity and Fiscal Responsibility Act of 1982.[15]
Current law provides that a State CSE agency will enforce any support obligation established with respect to the custodial parent of such a child for whom support is being collected. The agency cannot, however, receive Federal funds for the establishment of spousal support obligations. There remains a requirement that the spouse or former spouse and the child reside in the same home.[16] Additionally, at State option, the State can enforce a spousal support obligation for an individual who is not a party to a child support case at the request of a foreign country.[17]
Today, State CSE agencies collect spousal support using many of the same collection techniques used for child support. As with child support, income withholding is the most effective and efficient manner to secure spousal support. The requirements and restrictions contained in 45 C.F.R. § 303.100 apply to both child and spousal support obligations. Federal and State tax refund offset can also be used as a tool to collect spousal support.[18] Liens, bonds, IRS Full Collection, and reporting to credit bureaus are all enforcement remedies available for the collection of spousal support. Although traditionally reserved for child support purposes only, some States, such as California, provide that license suspension and revocation are available for nonpayment of spousal support so long as it is being enforced in conjunction with a child support obligation.[19]
SPECIFIC ENFORCEMENT REMEDIES
There are many different ways to enforce child support orders. State IV-D agencies have some special remedies available to them that are not available to private parties. The applicability of any enforcement method to a particular case will depend on the facts of the case.
Income Withholding
Perhaps the most effective child support enforcement tool is income withholding, a procedure by which automatic deductions are made from wages or other income. Once initiated, income withholding can keep support flowing to the family on a regular basis.
Income withholding grew out of wage garnishments. Over the years, many States have used wage garnishments effectively. However, even where garnishment procedures are summary and wage exemptions are limited, the temporary nature of the garnishment remedy proved to be unsatisfactory.
Eventually, Congress enacted laws designed to enhance the effectiveness of income withholding on the State level. In the Family Support Act of 1988[20], for example, Congress made immediate income withholding mandatory effective November1, 1990, for child support orders issued or modified through State IV-D agencies. With limited exceptions, that law also mandated immediate wage withholding for all orders entered or modified on or after January 1, 1994.[21]
Today, any child support order issued or modified in a State, regardless of whether the case is a IV-D case, must contain a provision for income withholding.[22] Additionally, immediate withholding is required in all IV-D cases that have an order issued or modified on or after November 1,1990[23], as a continued effort to “see that innocent children receive the care they need and deserve and that both parents acknowledge and accept their responsibilities.”[24]
There are exceptions to immediate withholding, but they are very limited. The Family Support Act of 1988[25] carved out a “good cause” exception to immediate income withholding. That exception requires the tribunal to approve a written agreement executed between the custodial parent and the noncustodial parent for an alternative payment arrangement. The tribunal must make a finding that implementing immediate income withholding would not be in the best interest of the child and require some proof, if the order is being modified, that previously ordered support was paid in a timely manner.[26]
PRWORA brought about several additional changes to income withholding. For instance, different types of income, not just wages, are now subject to withholding.[27] Additionally, State agencies must have administrative authority to initiate income withholding. PRWORA also required the States to adopt the Uniform Interstate Family Support Act (UIFSA)[28] and its direct income withholding provision.Under UIFSA, income withholding can be initiated in one State, and sent directly to an employer in another State, without involving a tribunal or the IV-D agency in either State.[29] Direct income withholding is available in all interstate cases, including those handled by private attorneys.[30]
Courts have upheld the mandatory nature of income withholding, recognizing the high priority of child support enforcement.[31] Additionally, they have routinely held that the exceptions to immediate income withholding do not include the absence of an arrearage, but rather hinge on the issue of whether the court finds good cause to exempt the parties from income withholding and to ratify an alternative payment arrangement agreed to by the parties.[32] Courts have further held that “good cause” should be narrowly defined. For example, one appellate court concluded that the trial court must “make a written determination explaining why immediate income withholding is not in the best interests of the child, [the parties must offer] proof of timely payment of previously ordered support, and the noncustodial parent [has a] continuous duty to inform the clerk of court of current and future income payers and the availability of employment-related health insurance.”[33]
In IV-D cases where income withholding is not immediate, including those cases where the order predates the statutory date of November 1, 1990, and cases where the court has found good cause, an income withholding must be initiated when the support owed is at least equal to one month’s support amount.[34] Additionally, the noncustodial parent can request that income withholding be initiated or the State IV-D agency can determine, after request by the custodial parent, that income withholding would be appropriate.[35]
In cases where income withholding is initiated rather than immediate, the noncustodial parent is entitled to notice regarding the commencement of the withholding, the amount of overdue support (if any), the amount of income to be withheld, that the withholding is binding not only on the current employer but on all subsequent employers, the right to contest the withholding, and information necessary for the employer to begin withholding.[36] Should the noncustodial parent wish to contest the withholding, the only issue that the tribunal should consider is a mistake of fact (i.e., an incorrect amount or the incorrect individual).[37]
National Directory of New Hires. The National Directory of New Hires (NDNH) interacts with the Federal Case Registry (FCR), which contains information about persons in all child support cases being handled by State CSE agencies. These two databases compare their data and, when a match occurs, the NDNH provides the appropriate State information concerning the noncustodial parent. That information can be used by the State to initiate an income withholding notice to the noncustodial parent’s employer.
In many instances, the State will learn that a noncustodial parent is living or working in another State. With this information, a State can take appropriate action regarding direct or interstate income withholding.
Standard income withholding form. When it came to income withholding, variety often equaled confusion, especially in the interstate enforcement context. To eliminate the confusion to employers, child support workers, service recipients, and domestic relations practitioners, the Federal Office of Child Support Enforcement (OCSE) issued a revised standardized form in 2001—the Order/Notice to Withhold Income for Child Support. [38] Its use is mandated for "all child support orders which are initially issued in the State on or after January 1, 1994.”[39] The form relays certain basic information, such as:
Use of the standard form will help ensure that employers receive key information to begin the income withholding, and eliminate the need for them to decipher unfamiliar orders or notices from different States, agencies, or entities.
Interstate income withholding. Income withholding is also an effective enforcement tool for interstate child support cases. There are two income withholding options for the interstate context—direct income withholding and traditional interstate income withholding.
The Child Support Enforcement Amendments of 1984[40] required the use of interstate income withholding. However, with the advent of direct income withholding and other interstate enforcement remedies such as UIFSA’s registration for enforcement, it is rare that traditional interstate income withholding will be the primary enforcement tool used in an interstate case.
As of January 1, 1998, all States were required to adopt the UIFSA.[41] One of UIFSA’s cornerstones is the concept of direct income withholding.[42] Under this remedy, an income withholding order is sent directly from one State to an obligor’s employer, or other income source, in another State.
Today, State law must direct employers to comply with an income withholding order issued by any State and to treat that order as if it were issued by a tribunal in the employer’s State.[43] The employer or source of income must comply with any order that is regular on its face.[44] Enforcement must continue as specified in the order, until the employer or source of income receives notice from the initiating CSE agency or individual to modify or stop the withholding.[45]
Although UIFSA permits direct income withholding, there are times when that remedy is not appropriate. One example is when the initiating CSE agency has asked a responding State to enforce the order and an income withholding is already in place.[46]
Withholding from Government benefits. Income withholding is one of the most effective means of securing payment. As long as the noncustodial parent receives periodic income from the identified income source, it is possible to collect on the child support obligation without having to rely on the noncustodial parent to make the payment.
Benefits that are characterized as remuneration for employment are traditionally subject to withholding for child support purposes. These would include Social Security Disability payments, but not Supplemental Security Income, which is a need-based benefit.
Unemployment Compensation
Federal regulations provide that each IV-D agency must enter into a written agreement with the State Employment Security Agency (SESA) in its State regarding the withholding of unemployment compensation due individuals with unmet child support obligations being enforced by the IV-D agency.[47] Thus, unemployment compensation is subject to withholding in IV-D cases.
Because of the State-specific agreements between IV-D agencies and SESAs, it might be necessary for State IV-D agencies to seek enforcement against unemployment benefits in interstate cases through a two-State income withholding procedure rather than by direct income withholding.[48] Federal regulations require each IV-D agency to take actions, in conjunction with its SESA, which both support and facilitate the two-State enforcement approach.[49]
Social Security Benefits
Generally, Social Security Disability (SSD) payments are not subject to attachment or other legal process.[50] SSD benefits are, however, attachable for child support purposes.
The law provides that payments from the Federal Government are subject to income withholding or other legal process for child support purposes if based on remuneration for employment. Because SSD payments are considered to be based on remuneration for employment, they are subject to withholding.[51]
In contrast, Supplemental Security Income (SSI) benefits are not attachable for child support purposes. Both Federal law and regulations specifically prohibit withholding of this income.[52] This prohibition continues even after the benefits are deposited into the recipient’s bank account.[53] The basis for this conclusion is that SSI benefits are not based on remuneration for employment; rather, they are based on need. Some courts have held that SSI is a form of public assistance, intended to protect the recipient from poverty.[54]
Note that while SSI payments cannot be attached for child support enforcement purposes, some courts have considered them as income for the purposes of calculating the underlying child support obligation.[55]
Judgments
Unlike income withholding, some remedies for collection of child support require that the noncustodial parent be in arrears prior to their use. Therefore, it is essential that a judgment for the arrearage be obtained as the first step in securing payment on the arrears. Judgments can occur either by order of the tribunal or by operation of law.
In addition to judicially imposed judgments are those that arise by operation of law. The Omnibus Budget Reconciliation Act of 1986[56] provided that all support orders must be entitled to judgment status. Further amendments to the Social Security Act have made it a State requirement that unpaid support become a judgment by operation of law. States are required to have:
[p]rocedures which require that any payment or installment of support under any child support order, whether ordered through the State judicial system or through the expedited processes … , is (on and after the date it is due)—–
(A) a judgment by operation of law, with the full force, effect, and attributes of a judgment of the State, including the ability to be enforced,
(B) entitled as a judgment to full faith and credit in such State and in any other State, and
(C) not subject to retroactive modification by such State or by any other State;
except that such procedures may permit modification with respect to any period during which there is pending a petition for modification, but only from the date that notice of such petition has been given, either directly or through the appropriate agent, to the obligee or (where the obligee is the petitioner) to the obligor.[57]
State courts have ruled in a consistent manner, holding that child support becomes a judgment as the obligation becomes due.[58] In the case of Carter v. Carter,[59] the Maine Court of Appeals held that “[t]he right to the payment of support becomes vested as it becomes due. Thus [,] an order of child support is essentially a judgment in installments.” Consequently, the judgment automatically increases as subsequent payments are missed. Additionally, courts have upheld the proposition that a judgment rendered in one State is entitled to full faith and credit in a sister State.[60]
Some States have a preclusion against retroactive modification in their court rules. For instance, Alaska rules provide that “[e]ach monthly child support installment mandated in the final decree was a final judgment, not subject to retroactive modification.”[61] Most States, however, have taken a statutory approach and included a bar to retroactive modification of child support arrears in their State code. North Dakota, for example, provides that “[a]ny order directing any payment or installment of money for the support of a child is, on and after the date it is due, an unpaid judgment and not subject to retroactive modification.”[62] Statutes, like North Dakota’s, almost uniformly provide for modification of the support amount from the date of filing of the petition for modification.
Contempt
A contempt action—sometimes called a violation order—typically is not the first method of enforcement. In most instances, it is used only when other enforcement tools have been ineffective or are unavailable. For example, contempt may be appropriate for the delinquent, self-employed noncustodial parent for whom income withholding is not a possibility. Also, unlike other enforcement actions, contempt is always a judicial remedy.
There are two types of contempt, “civil” and “criminal.” Civil contempt differs from criminal contempt in both purpose and procedure. If the purpose and character of the penalty imposed by the court is remedial and for the benefit of a private party to the action, the contempt is classified as civil. If the purpose of the penalty, however, is to vindicate the authority of the court, the contempt is classified as criminal. For example, a sentence of imprisonment is remedial if the contemnor remains imprisoned unless and until he or she performs the act required by the court; but if the sentence is imprisonment for a definite period without a purge clause, it is punitive. Furthermore, as a general rule, a fine is remedial if paid to the complainant, but punitive if paid to the court. Finally, if contempt is classified as criminal, then the U.S. Constitution affords greater safeguards in the contempt proceeding including the requirement that the offense be proved beyond a reasonable doubt.[63] Furthermore, “if both civil and criminal relief are imposed in the same proceeding, then the criminal feature of the order is dominant and fixes its character for purposes of review.”[64]
Civil contempt. Generally, civil contempt actions are brought against noncustodial parents who have particularly poor payment histories, are unemployed or self-employed, or have no regular income that can be withheld through income withholding. As stated above, the primary purpose of civil contempt is to encourage compliance with the child support order. In fact, in many States, a finding of present ability to pay is a prerequisite to a civil contempt ruling.
There are two approaches to the concept of ability to pay. The Supreme Court of Mississippi has held that, once the custodial party makes a prima facie case of contempt due to nonpayment, the burden of proof shifts to the noncustodial parent. That noncustodial parent must show an inability to pay or present some other defense; this proof must be clear and convincing, and it must rise above a state of doubtfulness.[65]
In some States, a person can be held in contempt if he or she refuses to comply with a court order. Failure to pay, however, must be willful and contemptuous; contempt cannot be ordered as a result of an inability to pay.[66]
Noncustodial parents have made challenges, on constitutional grounds, to the use of contempt in the child support context. Opponents assert that the imposition of the contempt sanction violates the constitutional prohibitions against slavery, involuntary servitude, and imprisonment for a debt. The courts, however, have struck down such challenges.
The California Supreme Court’s opinion in Moss v. Superior Court[67] provides an example of the rationale for rejecting the constitutional argument: “[T]here is no constitutional impediment to the use of the contempt power to punish a parent who otherwise lacking monetary ability to pay child support, willfully fails and refuses to seek and accept available employment commensurate with the parent’s skills and abilities.”[68]
A parent’s obligation to support a minor child is a social obligation that is no less important than compulsory military service, road building, jury service, or other constitutionally permissible enforced labor.
Procedure. In most jurisdictions, the contempt process is initiated by filing a motion for order to show cause as a supplementary proceeding in the cause of action that produced the underlying support order. The motion is "heard" and ruled on by the tribunal ex parte. In virtually all jurisdictions, the judge or administrative hearing officer can grant the motion and issue an order to show cause without even an informal hearing. Most tribunals require the motion to be supported by an affidavit from the payee or a certified copy of the clerk's payment record.
After the judge reviews and signs the order to show cause, it is usually processed by the court clerk's office. The clerk will check the court calendar for an available date, prepare an appropriate summons to accompany the order, and forward the two documents to the appropriate sheriff's (or other process server's) office for service on the obligor.
Notice requirements. In the case of In re Oliver,[69]the U.S. Supreme Court discussed in detail a variety of due process requirements regarding an individual charged with contempt of court. Specifically, the Court found that a contemnor must “be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf.” The U.S. Supreme Court has continued to uphold this proposition.[70]
The noncustodial parent generally must have actual notice of the date and time of the hearing on the order to show cause. “[D]ue process requires that the alleged contemnor receive full and unambiguous notification of the accusation of contempt.”[71] If it can be established that the noncustodial parent is avoiding service of process, it is sometimes possible to serve the noncustodial parent’s attorney of record (assuming the attorney-client relationship is intact) or to serve an adult at the noncustodial parent's residence.[72] To direct such service, it might be necessary to file an accompanying motion asking the tribunal for permission prior to issuance of the summons. It also might be possible to direct the sheriff to attempt substituted service on a routine basis if personal service proves difficult.
State rules and procedures may provide that certified mail, return receipt requested, is an option for service. Using “restricted delivery” so that the addressee must personally sign for the mail might be preferable. If the noncustodial parent fails to appear, the tribunal might not entertain a motion for or issue a bench warrant or capias unless proof of actual notice is shown. If the noncustodial parent appears at the hearing in response to the summons, actual notice is deemed to have been given and the issue will not have to be addressed. If the noncustodial parent does not appear, it may be possible to justify the substituted service to the tribunal as a step in obtaining a bench warrant.[73]
In addition to the issue of serving the summons and order on the noncustodial parent, there is an important issue surrounding the quality of the notice. The allegation contained in the motion for order to show cause and the language transferred to the order itself must be specific enough to allow the noncustodial parent to prepare a defense at the show cause hearing. The specificity that is required varies from State to State, and even from case to case. Generally, it is prudent to allege the specific provisions of the support order that have been violated, and set forth the noncustodial parent’s payment record during the applicable period. Serving a copy of the motion for order to show cause with the supporting affidavit or court record is one possible way to demonstrate service.
Bench warrants. In most States, a bench warrant can be issued directing the sheriff to arrest a noncustodial parent who is served with an order to show cause but fails to appear at the hearing.[74] The procedure after the noncustodial parent is apprehended varies. If the judge or hearing officer is available, many tribunals will notify the attorneys that the noncustodial parent has been brought in on the bench warrant, and a hearing on the order to show cause will commence as soon as counsel can convene. When the judge who will hear the show cause hearing is not available, another judge will hold a preliminary hearing for the purpose of setting bail to secure the noncustodial parent's appearance at the show cause hearing. Some tribunals routinely follow the latter procedure, even when the appropriate judge or hearing officer is available.
Right to counsel. Due process requires that the noncustodial parent be given the opportunity to be represented by counsel at the show cause hearing. A significant amount of case law has developed with respect to indigent noncustodial parents who ask for, and are denied, counsel at State or county expense. The decisions are split on whether there is a right to appointed counsel in a child support contempt proceeding.
Because imprisonment is a frequent outcome of the show cause hearing, some courts have held that counsel must always be provided to indigent contemnors.[75] Other courts take a middle position, holding that the right to counsel does not accrue until the court determines that imprisonment is a possible outcome.[76] Finally, the third position is that in civil contempt cases, by definition, the noncustodial parent will be imprisoned only if he or she has the present ability to purge himself or herself of the contempt. If the noncustodial parent has that present ability, he or she is not indigent and does not need court-appointed counsel.[77]
Elements of contempt. Generally, there are five elements required for a finding of civil contempt:
- continuing personal and subject matter jurisdiction in the tribunal that is holding the show cause hearing;
- the existence of a valid support order;
- knowledge of the order by the noncustodial parent;
- ability of the noncustodial parent to comply; and
- willful noncompliance by the noncustodial parent.[78]
Jurisdiction will usually be established in the pleadings filed with the court. Traditionally, citing the original order underlying the contempt action, the residence of the parties, and the court’s authority to hear the matter as established by State code will meet jurisdictional requirements. Personal jurisdiction, which requires minimum contacts with the forum, can be clearly established if the obligor is served within State.[79] Subject matter jurisdiction, which is the authority of the tribunal to hear the contempt action, should be provided for in the State code.
The existence of a valid support order can be established by asking the court to take judicial notice of the support order contained in the file.[80] The noncustodial parent’s knowledge of the order usually can be established by reference to the support order itself, which often will note the presence of the noncustodial parent or his or her attorney at the hearing that produced the order. If the order does not contain such a reference, the court file should contain the court clerk’s certificate of mailing, which creates a rebuttable presumption of service.[81]In States where personal service is required, this too may act as a presumption. Nonpayment can be established by entering the records maintained by the IV-D agency. To verify these it may be necessary to take testimony from the custodial parent or a representative of the IV-D agency. It may be possible to substitute an affidavit in lieu of live testimony.[82]
Punishment. In a civil contempt action, the punishment must be remedial and coercive, forcing compliance by the noncustodial parent. The purpose of the sanctions is not punishment per se and tends to fall into three categories: (1) incarceration, (2) coercive fines, and (3) compensatory fines.[83] Any fine or imprisonment is improper, however, unless it benefits the custodial parent and the children and allows the noncustodial parent to purge him or herself by complying with clearly stated and attainable requirements.
Purgation requirements and commitment. Tribunals have the authority to set conditions that allow contemnors to purge themselves of contempt. The purge requirements, however, must serve a remedial aim, must be clearly specified, and should be reasonably related to the cause or nature of the contempt. In addition, the contemnor should be able to fulfill the conditions.[84] Within these limits, the court’s discretion in setting the purgation requirements is very broad.[85] Contempt might be an appropriate remedy when a noncustodial parent’s income source or assets cannot be ascertained. It might also be useful when dealing with self-employed noncustodial parents or noncustodial parents who are unemployed. The tribunal may go so far as to make the noncustodial parent borrow from friends and relatives, sell or mortgage property, or seek out work as a condition of purge.
Generally, the fine or imprisonment continues until the noncustodial parent complies with the purgation requirements. In a civil contempt proceeding, a fixed term without possibility of purgation is clearly not proper.[86] Additionally, some courts have found that if the children have attained the age of majority, incarceration is not an option.[87] Furthermore, due process may require that a civil contemnor be released when confinement has lost its coercive force, but the contemnor has the burden of proving that there is not a substantial likelihood that continued confinement would accomplish its coercive purpose.[88]
Criminal contempt. While the same act may give rise to both civil and criminal contempt charges, each confers distinct procedural rights. The distinction between civil and criminal contempt is crucial. A strictly penal sanction can be imposed only where the defendant is provided essential due process protections.[89] These due process concerns include the right to notice of the offense, the right to present a defense, the right to call witnesses, an impartial judge, and, in some jurisdictions, the right to counsel and a trial by jury.
A criminal contempt proceeding is considerably more complicated than a civil contempt proceeding. Initiation of the proceeding may require a more formal notice than is provided the civil contemnor in the motion and order to show cause, although a formal indictment is not necessary. The possibility of an indigency hearing, a jury trial, and a change of judge makes the process potentially a very long one. The evidentiary hurdles are difficult to overcome without knowledgeable witnesses.
Despite these drawbacks, there are occasions when criminal contempt is useful. Where a noncustodial parent has been charged with civil contempt on numerous occasions, but regularly frustrates the action by paying the arrearage on the day of the show cause hearing and never making payment voluntarily, a criminal contempt action may change his or her attitude about compliance.[90] A court may set consecutive jail terms for multiple contempts.[91] Furthermore, criminal contempt might be the only available remedy to punish a noncustodial parent who has made himself or herself unable to pay by quitting a job or taking one at a much lower salary.[92]
Liens and Levy
In the child support enforcement context, a lien is a nonpossessory interest that a custodial parent or the State, if there is an assignment of rights, obtains in the real or personal property of the noncustodial parent. The interest arises as a result of the entry of a support order, noncompliance by the noncustodial parent, and compliance with all the procedural requirements to “perfect” the lien by the custodial parent, his or her representative, or the State IV-D agency.[93]
Federal law requires States, as a condition of receiving Federal funds, to provide that a lien, in the amount of overdue support, arises by operation of law against a noncustodial parent’s real and personal property.[94] Methods for creating, and executing on, the liens are subject to State law. It also is important to note that Federal law requires States to give full faith and credit to the lien of another State, as long as “the State agency, party, or other entity seeking to enforce such a lien complies with the procedural rules relating to recording or serving liens that arise within the State[.]”[95] Note, however, that State “rules may not require judicial notice or hearing prior the enforcement of such a lien.”
Liens are also an appropriate remedy in interstate child support cases. There are two provisions in Federal law that relate to the use of liens in the context of an interstate support matter. The first provision requires each State to accord full faith and credit to a child support lien that arises in another State, as long as it complies with State procedural rules.[96] To increase recognition of sister State liens, Congress required States to impose liens using standardized forms beginning March 1, 1997.[97]
A lien is often referred to as a “slumbering” interest that allows the noncustodial parent to retain possession of the property, but which prevents transfer of clear title of affected property either directly (by prohibiting the recording agency from issuing a new title or deed) or indirectly (by providing that all subsequent interests in the property will be subject to the lien). The latter method is the most common. It works because subsequent potential purchasers and lenders receive notice of the existence of the lien during the process of transferring the title or deed. The potential purchaser or lender reacts to this “cloud on the title” by requiring the noncustodial parent to satisfy the lien, or to obtain a release from the custodial parent, before proceeding with the transfer or loan. In real property transfers, the potential purchaser or lender discovers the lien through a title search conducted by the title insurance company. Personal property liens require notice to subsequent purchasers and lenders as well, but the notice usually is provided by way of a notation on the title of the property, or by serving notice on a third party possessor.
The lien will last for a number of years, depending on the statute, and generally can be revived for an indefinite number of additional periods, as long as the underlying judgment survives. The lien may grow automatically, as the arrearage increases, and may even take priority over subsequent liens created by other creditors if the statute so provides. Some States have given priority to child support liens over most other liens.[98]
Procedure to create liens. Although child support liens arise by operation of law, there are procedures for perfecting liens. These vary among the States. Most States require the custodial parent to take some affirmative act to perfect the lien. This act might be as simple as recording a transcript of the support order or judgment in the appropriate office or registry of public records (typically the recorder of deeds for real property and the title agency for personal property). Other States may require a custodial parent to file a certified copy of the support order, and perhaps attach an affidavit specifying the amount claimed to be due as of the date of recording. Additionally, some States maintain a centralized registry for liens and thus keep track of all liens that are filed.
Duration of liens. Liens are creatures of statute, so they have various lifespans depending on State law. Once a lien is created, it remains a cloud on the title as security for the child support judgment until it is released or expires. State statutes specify the duration of liens. Typically, such statutes also prescribe a method to extend or “revive” the lien. Assuming a case warrants continuation of the lien as security for payments, the lien should be revived before its expiration. Failure to revive the lien might allow the noncustodial parent to dispose of property without having to apply the sale proceeds to his or her arrearage.
Revival procedures vary among States. Some States employ the common law procedure. The custodial parent must obtain a writ of scire facias from the tribunal that entered the order and attempt service of the writ on the noncustodial parent. The issuance of the writ generally affects the revival, even if it cannot be served until after the initial lien expires, and the second lien dates back to the date of the initial lien's creation for priority purposes.
Some States allow a judgment lien to be revived by issuance of a writ of execution at any time before dormancy. In other States, the lien must be revived by a separate “action in debt,” seeking the entry of a new judgment based on the first judgment and an allegation of nonsatisfaction. The custodial parent or CSE agency must comply anew with the lien perfection procedures to revive the lien. The second judgment lien attaches to property owned by the noncustodial parent as of the date of the creation of the second lien, and the priority of the lien is determined as of that date.
Satisfaction and release. Most lien statutes allow for a voluntary lien release by the custodial parent and establish a procedure whereby the noncustodial parent can petition the rendering tribunal for an order releasing the lien if the custodial parent refuses to execute a voluntary release. The release can be general or limited to specific property. To obtain a court order releasing the lien, the noncustodial parent generally must post a bond, provide other security, or satisfy the tribunal that releasing the lien will not leave the custodial parent in an insecure position.
Most liens will expire of old age or be released voluntarily by the custodial parent. A lien expires of old age when it is not renewed or perfected within the time prescribed by statute. The noncustodial parent generally requests a voluntary release when he or she attempts to sell the property or borrow money using it as collateral, and the existence of the lien becomes known to the purchaser or lender. At this point, the lien becomes a powerful collection remedy. Clearly, the custodial parent has a great deal of leverage in such a situation. It might not be advantageous to object to the transfer, particularly if the sale or loan is likely to produce funds from which a substantial payment on the support arrearage can be made. If the transfer is a sale, it is likely that the noncustodial parent has some equity in the property after prior lienholders (i.e., mortgagees) are paid off, otherwise the sale price would not be acceptable to the noncustodial parent. If the transfer is a loan or second mortgage, sometimes a portion of the loan proceeds can be applied to the child support obligation. The custodial parent or CSE agency, subject to the custodial parent’s approval, may also make other arrangements, such as conditioning the release agreement on payment of all or a substantial portion of the arrearage.
In cases where public assistance is not an issue, the IV-D attorney should confer with the custodial parent to determine whether to release the lien based on the best terms available. Where the lienholder is the State, the IV-D attorney should confer with the State official who possesses authority to execute a release on behalf of the State. If that authority has been delegated to the attorney, the attorney should follow State policy in determining whether to agree to the release.
Once an agreement is reached, a third party is usually involved in the transfer (i.e., a real estate agent or closing attorney) who is willing to act as escrow agent to facilitate the exchange of the lien release for the payment. This allows the judgment to be paid and the lien to be lifted as part of the same transaction, thereby diminishing any insecurity the subsequent purchaser might have regarding the validity of the title.
A lien release is a contract and, like any other contract, must be drafted carefully so that it embodies the entire agreement entered into between the parties. Lien releases are often the product of negotiations that can be quite unique. Furthermore, the result of the negotiation process can have profound effects on subsequent purchasers of the noncustodial parent's property (and the noncustodial parent’s children) should something go awry. Thus, it is crucial that forms be tailored to the specific case, and that the IV-D attorney be involved in the negotiation and drafting of each agreement and release. The legal description of the property must be transcribed carefully from the deed, and the statement of exactly what is being released must be explicitly stated. A poorly drawn lien release could be construed as a satisfaction of the entire judgment, or a limitation of the custodial parent’s right to use other remedies to enforce any arrears that might remain.
In addition to executing lien releases, a judgment creditor occasionally is asked to enter a formal “satisfaction of judgment” with the tribunal that entered the order. A formal satisfaction is the only way a judgment debtor in such a situation can obtain a clear record. The custodial parent generally can enter the satisfaction by sworn affidavit or in person under oath. Any future review of the judgment record by a title searcher or abstractor would indicate that the lien has been released.
Levy and execution. The statutory procedure that allows a judgment creditor to obtain an order directing the sheriff (or other similar official) to seize property in the possession of the noncustodial parent, sell the property at a sheriff's sale, and apply the proceeds, less the costs of the sale, in satisfaction of the judgment debt is known as execution and/or levy. Because execution is statutory, the exact procedure will vary from State to State. The CSE attorney who wants to levy against the obligor’s property must ensure that the agency complies with State law.
Procedure. Generally, the levy and execution process is initiated by requesting that a writ of execution, or attachment, be issued by the clerk of the court that issued the order. In some States, the writ is issued in the county where the property to be seized is located, regardless of the identity of the issuing tribunal. In such a State, the support order or judgment must first be transferred to, or registered in, the county where the property is situated. The writ orders the sheriff of the appropriate county to levy the property described in the writ and, after appraisal and a specified form of public notice, to sell the property at a sheriff's sale. Issuance of the writ is usually a ministerial act of the court clerk, and as such does not allow for notice and a hearing; nor does the clerk have discretion to refuse the writ request if all procedural steps required by the statute have been completed. Most court clerks provide forms for making the request, or a praecipe can be filed.
Once the writ is issued, it typically has a limited lifespan. The expiration date specified on the writ is referred to as the “return date.” The sheriff must seize the property, appraise it, schedule the sale and issue public notice, hold the sale, and turn over the proceeds less costs before the return date. If the sheriff is unable to locate the property during the period of the writ, the sheriff will make a “nulla bona” return. Successive writs are referred to as alias and plurius, as appropriate.
The procedure the sheriff follows to seize the property depends on whether the property to be seized is real or personal property. Levying against real property is easier. The legal description and street address give the sheriff sufficient information to identify and seize the property. The seizure is accomplished by placing a notice on the property, notifying anyone on the property at the time of the levy, and placing a notice in the office of the recorder of deeds.
For personal property, the procedure is more difficult. First, the property is often movable and thus difficult to locate. Second, the property might not be particularly unique in the community. As a result, the execution request should include very specific and complete information. The court clerk transfers this information to the writ, enabling the sheriff to locate the piece of property. It might be desirable for the IV-D attorney or caseworker to accompany the sheriff to identify the property. If the property can be seized physically and taken away, the sheriff will do so. If not, the seizure will be accomplished by some other act that effectively removes the item from the noncustodial parent’s possession and notifies third parties that the property has been seized. This may be achieved by placing a sheriff's seal on the item in a manner that makes it incapable of being removed. If the item is physically seized, it will be transported to a storage facility maintained or arranged for by the sheriff.
Notice and sale procedures are also specified by State statute and may differ depending on whether the property to be sold is real or personal property. After the sheriff has seized the property and appraised its value to determine whether additional property should be seized to satisfy the judgment, the sheriff must schedule the sale and provide public notice as required by statute. The notice may include newspaper advertisements, notices posted in the courthouse, or other similar methods.
The statute also might prescribe the number of days in advance of the sale that the notice must appear, and the place and timing of the sale. For instance, some statutes provide that a sheriff’s sale must take place at a real estate exchange between the hours of 9:00 a.m. and 5:00 p.m. Personal property is often sold “on the steps of the courthouse.”
Costs incurred for the storage and sale of the property, along with execution and sheriff's fees, if applicable, are subtracted from the sale price, and the sheriff distributes the remainder to the judgment creditor together with a sheriff’s deed to the property. The purchaser takes the property subject to prior liens and encumbrances, and subject to any right granted the debtor by statute to “redeem” the property by submitting the sale price, costs, and fees to the sheriff within a specified period of time. When the redemption period expires, the sheriff’s deed matures into a regular deed.
Exemptions. In most States, certain types of a judgment debtor’s property are exempt from execution. The exemptions are established by statute and generally protect tools of the noncustodial parent's trade, books, family heirlooms, and similar items from execution. Many States also allow the judgment debtor a homestead and an automobile exemption in limited amounts.[99] By statute, court rule, case law, or practice, the sheriff may be responsible for notifying the debtor of his or her exemption rights. The notice usually is accomplished with a form “notice of exemptions” provided by the court clerk’s or the sheriff’s office. Often, the sheriff provides a verbal explanation of the exemption rights to ensure that the debtor understands them. The exemption process usually requires that the debtor choose the property to be protected by the exemption, substituting nonexempt property for the exempt property listed in the writ.
Many States have enacted statutes providing that the normal exemptions do not apply to protect delinquent noncustodial parents. The underlying theory is that exemptions are designed to protect the judgment debtor’s ability to provide for his or her family and should not be applied to frustrate the custodial parent’s attempt to force payment of child support. The IV-D attorney should ensure that the exemption forms and practices being used by courts and sheriffs in such States reflect the special nature of executions for child support.
Additional State Remedies. Many States have implemented unusual enforcement remedies against noncustodial parents when traditional methods are unsuccessful. Often these alternative techniques are successful because of their shock value. Media attention about the success of these techniques often promotes community awareness of, and support for, the child support collection efforts.
Alternative enforcement measures include vehicle booting, wanted posters or advertisements, sheriff sweeps, and sting activities, such as an offering of athletic event tickets to draw delinquent noncustodial parents out so that IV-D officials can secure payment.
High Volume Administrative Enforcement in Interstate Cases
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 [100](PRWORA) permits States to use high-volume automated administrative enforcement in interstate cases (AEI).[101] AEI is a process designed to enable CSE agencies to locate and secure assets held by delinquent noncustodial parents in another State or jurisdiction without opening a full-blown interstate IV-D case in the second State.
A requesting State can submit an AEI request by electronic or other means. The request must include sufficient information to enable the assisting State to compare the information about the noncustodial parent and the debt to the information in the State’s databases. This request constitutes a certification by the requesting State of the delinquent amount owed by the noncustodial parent and of compliance with all procedural due process requirements applicable to any noncustodial parent included in the request.
On receipt of an AEI request, an assisting State must use automatic data processing to search its various State databases, including financial institutions, license records, and employment service data, to determine whether information is available regarding a delinquent noncustodial parent. When asset information is discovered, the assisting State must proceed to seize the identified asset. Additionally, the assisting State must promptly report the results of any enforcement procedures to the requesting State and send any collections to the requesting State. The assisting State must also maintain records of the number of AEI requests that it receives and the amount of support collected.
AEI is not intended to be an ongoing or long-term enforcement remedy, but a “one-shot” enforcement action. If the data match uncovers location information or an asset suitable for ongoing enforcement, the assisting State must promptly notify the requesting State. Unless the requesting State opts to implement a direct income withholding, it should submit the case to the assisting State for all appropriate enforcement remedies.[102]
Because of the difficulties inherent in enforcing another State’s order, without registration, AEI is not yet in widespread use. Its use may become more prevalent as States increase their reliance on the child support enforcement network (CSENet) and as Federal and State partners develop rules and regulations for interstate case processing. Additionally, attorney involvement in AEI will be very limited because it is an automated enforcement tool.
FEDERAL OFFSET PROGRAMS
The Federal offset program is another support enforcement tool. This program permits a CSE agency to request the intercept of a noncustodial parent’s Federal income tax refunds and other types of payments to fulfill past-due support obligations. Additionally, the CSE agency can locate assets of noncustodial parents pursuant to a Financial Institution Data Match (FIDM), or can seek denial of a delinquent noncustodial parent’s passport, through cooperation with the Secretary of State.
Federal Tax Refund Intercept
The Federal Tax Refund Offset Program collects past-due child support payments from the income tax refunds of parents who have been ordered to pay child support. The program is a cooperative effort of OCSE, the Internal Revenue Service (IRS), the Financial Management Service (FMS) of the Department of Treasury, and the State CSE agencies.
Legislative history. The Omnibus Budget Reconciliation Act of 1981 authorized the IRS to withhold Federal income tax refunds, in whole or in part, to satisfy delinquent support obligations.[103] Originally this was restricted to child support debts owed in public assistance cases. With passage of the Child Support Enforcement Amendments of 1984, however, the Federal intercept program was extended to all IV-D cases.[104] It is important to note, however, that the tax refund offset remedy is only available through the State IV-D agency. Private counsel cannot make direct tax refund intercept requests.
Procedure. Under the Federal offset program, Federal income tax refunds owed to noncustodial parents are intercepted and sent to the CSE agency, through OCSE, to pay the noncustodial parent’s past-due child support. Only cases receiving full services through the State IV-D child support enforcement agency are eligible for Federal Tax Refund Offset. In addition to past-due child support, the tax refund intercept can recover past-due spousal support, so long as the child support order includes an award for spousal support. In a public assistance case, a Federal tax refund offset can be requested when the past-due amount is at least $150 and the support has been delinquent for three or more months.[105] For other IV-D cases, the unpaid support amount must be at least $500; the State can require that amount to have accrued after the application for IV-D services. Additionally, the law requires that the child must be a minor at the time of submission.[106] For both types of cases, the CSE agency must have in its records a copy of the underlying support order and any modifications, and a copy of any payment records or an affidavit signed by the custodial parent attesting to the arrearage.[107] In nonassistance cases, the address of the custodial parent is also required.[108]
State CSE agencies, through OCSE, certify to the Department of Treasury the names, Social Security Numbers, and the amount of past-due support for people who are delinquent and meet the established criteria. The CSE agency, or OCSE if the State requests and OCSE agrees, must send an advance written notice to the noncustodial parent of the arrearage amount that is being referred for Federal tax refund intercept. This notice informs the noncustodial parent of his or her right to contest the State’s arrearage determination, the right to request an administrative review by either the submitting State or, at the noncustodial parent’s request, the State with the order on which the referral is based, and the procedures and timeframes for contacting the CSE agency to request administrative review. The notice also informs the noncustodial parent how to protect any portion of the refund due the noncustodial parent’s spouse.[109]
Injured spouse claims. A noncustodial parent’s spouse typically does not have a duty to pay support for the noncustodial parent’s child from another relationship.[110] Thus, if the noncustodial parent and the spouse file a joint tax return, the portion of the tax refund attributable to the spouse is not subject to intercept. If an intercept includes an amount owed to the spouse, there is recourse. The nonobligated, or injured, spouse is allowed to request relief directly from the IRS.[111] The IRS requires submission of an Injured Spouse Claim and Allocation of a Joint Return form for the spouse to claim his or her portion of the offset refund. Money received through a tax refund intercept can be held for up to 6 months to see if an injured spouse will file a claim for a portion of the refund.
Request for review by the noncustodial parent. In addition to the requirement that noncustodial parents receive notice, Federal regulations set out procedures for contesting offsets in intrastate cases[112] and interstate cases.[113]
In intrastate cases, if the noncustodial parent requests a review, the CSE agency must notify the noncustodial parent—and in non-TANF cases, the custodial parent—of the time and place of the review. In cases where the issue is a joint return that has not yet been offset, the CSE agency must inform the noncustodial parent that the Secretary of the Treasury will notify the noncustodial parent’s spouse of the steps to take at the time of the offset in order to secure the portion of the refund due him or her. If the refund has been offset, the CSE agency will refer the noncustodial parent to the IRS.[114]
If the review results in an adjustment to the amount referred for offset, there are specified procedures for the State to follow to make the adjustment. If the amount is deleted or decreased, the State will put OCSE on notice of the modification to the amount. If the intercepted amount exceeds the amount of past-due support, the CSE agency should take the necessary steps to refund the excess to the noncustodial parent.[115]
In interstate cases, if the noncustodial parent makes the request for a review and the review is conducted in the State that submitted the case for offset, the procedure is identical.[116] If the matter cannot be resolved by the State that submitted the case, and the noncustodial parent requests a review in the State that issued the order on which the referral for offset was based, the submitting State must place the issuing State on notice and, within 10 days of the noncustodial parent’s request, provide sufficient information to allow that State to conduct the review.[117] A notice must be sent to the noncustodial parent—and in non-TANF cases to the custodial parent—of the time and place of the review. A decision must be made within 45 days.[118] Notice of any deletion or reduction of the amount is sent by the issuing State to the submitting State.[119] The submitting State is bound by the decision rendered in the State with the order and must refund any amount required by the decision in the issuing State.[120]
Distribution.[121] Collections received by a IV-D agency as a result of a Federal tax refund intercept, both for TANF and non-TANF cases, must be distributed as past-due support as required by 42 U.S.C. § 657. For individuals who have never received public assistance, the amount collected will be sent to them. In former assistance cases and in current TANF cases, some past-due child support payments are assigned to the State as a condition of receiving TANF. When the State receives intercepted Federal tax refunds, the refunds are retained to satisfy any support assigned to the State. After the debt to the State has been satisfied, the refund amount can be applied to any child support owed to the family.
Constitutionality. Federal tax refund intercept has been challenged in both State and Federal courts. Originally, noncustodial parents raised issues of denial of due process based on notice requirements and on an interpretation of the earned income tax credit portion of a Federal return.[122] As courts routinely upheld the validity of Federal tax refund interception, noncustodial parents have raised questions pertaining to the definition of the term “past due.” Courts have held that a supporting parent must fall behind in his or her ordered payments before having his or her Federal tax refund intercepted. The issue often arises in the context of a modification when the court orders that a modification take effect retroactively. Courts have found that, although the noncustodial parent was in arrears based on the entry of a modified order, he or she was not in arrears as the term “past due” was defined by 42 U.S.C. § 664.[123]
Administrative Offset[124]
Unlike Federal Tax Refund Offset, which is a program in which State CSE agencies must participate, administrative offset is a voluntary program. The administrative offset program allows a wide range of Federal payments to be intercepted in order to enforce past-due child support. All payments eligible for offset under the Debt Collection Improvement Act of 1996 (DCIA),[125] other than Federal Tax refunds, are categorized as “administrative” offsets. The process is managed by OCSE, through the Financial Management Service (FMS) of the Department of Treasury, in conjunction with the Federal Tax Refund Offset program.
Currently vendor and miscellaneous payments, such as expense and travel reimbursements, and Federal retirement payments, are included in administrative offset. Vendor and miscellaneous payments are offset at 100 percent, while retirement pay is offset at 25 percent. Federal salary payments, though eligible for offset, are not currently being offset. These salary amounts are subject to the limits of the Consumer Credit Protection Act[126] along with any collections pursuant to income withholding from the obligor.
Some payments are exempted from offset by Federal law.[127] They include military survivor benefits, payments under the Longshore and Harbor Worker’s Compensation Act,[128] payments under any law administered by the Secretary of Veteran Affairs, and payments made under the Social Security Act, except as provided for under DCIA. Others are exempted by Action of the Secretary of the Treasury.[129] These include benefit payments from the Department of Agriculture, Federal Emergency Management Administration payments under disaster relief and emergency assistance programs, and certain Pension Benefit Guaranty payments.
A case is eligible for an administrative offset when the noncustodial parent owes at least $25 and is at least 30 days delinquent in his or her child support obligation, although States have the option of setting a higher threshold. Persons who owe child support debts subject to administrative offset will be notified by the same notice sent for Federal tax refund offset purposes.[130] Administrative offset cases are submitted through the same process as Federal tax refund offset cases. When a match occurs between the records of persons who owe child support debts and the payment records for Federal payees, FMS will seize the amount and transmit it to the State, through OCSE. A notice is also sent by FMS to the noncustodial parent, explaining the offset and referring him or her to the local CSE agency for more detail.
Administrative offsets can be contested. Either party, or the IV-D agency of the State that issued the underlying support order, can initiate the challenge in the State that submitted the offset request. While there is no mandated court review in the event of a challenge, there is authorization for a review in the manner prescribed by the State.[131]
Passport Denial
Passport denial is another effective enforcement tool. With this remedy, the Secretary of State must refuse to issue a new or renewed passport to any person known to owe a child support debt exceeding $5,000.[132] Further, the Secretary of State may take action to revoke, restrict, or limit a passport previously issued to an individual owing such a child support debt.[133] Currently, there are no procedures for revocation, restriction, or limitation on a passport.
All cases receiving services through State CSE agencies are eligible for passport denial. Any case that a State submits to the OCSE for the Federal tax refund offset process also is eligible for passport denial if the arrears exceed $5,000. OCSE automatically forwards appropriate cases from the tax refund offset file to the State Department for passport denial unless the case has been specifically excluded.[134]
After a case has been referred to the State Department, if the noncustodial parent applies for a new or renewed passport, he or she receives notice of the denied application.[135]The notice advises the applicant to contact the listed State IV-D agency for further information. A noncustodial parent then can make arrangements with the State IV-D agency to pay the past-due amount. A State will contact OCSE to remove the case from passport denial status after appropriate payment arrangements are made. It is important to note that there is no contest procedure included in the enabling legislation for the passport denial program. Additionally, once issued, a passport is valid for 10 years. Proceed with caution in reaching any arrangements to allow the noncustodial parent to pay less than the full amount overdue in order to avoid passport denial. Once a parent obtains a passport, passport denial will not be an enforcement option for another 10 years, even if the noncustodial parent reneges on the agreement.
Passport denial is only available in IV-D cases.[136]
Financial Institution Data Match (FIDM)
PRWORA added the Financial Institution Data Match (FIDM) process to the enforcement arsenal of IV-D agencies.[137] FIDM is a means of locating certain obligor assets, which later can be levied to fulfill the unpaid support amount. These assets include demand deposit accounts, checking accounts or negotiable withdrawal order accounts, savings accounts, time deposit accounts and money-market mutual fund accounts.
As provided in PRWORA, financial institutions are required to participate in the FIDM process. For FIDM purposes, financial institutions include:
By using financial institution data, IV-D agencies can identify accounts belonging to delinquent child support obligors. After finding such accounts, the State CSE agency, consistent with State law, can seek to attach these assets and seize them to satisfy delinquent support debts.
In-State FIDM. Each State is required to develop and operate, in coordination with in-state financial institutions, a data match system in which each financial institution provides quarterly to the State CSE agency the name, record address, and Social Security Number or other taxpayer identification number for each delinquent obligor who maintains an account at such institution. The financial institution data is matched with child support data in order to identify assets of the delinquent noncustodial parent.
After such assets are identified, the State CSE agency will proceed with the proper enforcement action to attach the asset or proceed with a lien and levy action. Financial institutions subject to the matching provision must encumber or surrender the assets of the delinquent noncustodial parent, which the institutions hold, in response to the notice of attachment/lien and levy from the State. Financial institutions are not liable under any Federal or State law to any person for:
- encumbering or surrendering any assets held by the financial institution in response to a notice of lien or levy issued by the State CSE agency; or
Multistate FIDM. The Child Support Performance and Incentive Act of 1998[141] amended the FIDM process. More particularly, the Act authorized OCSE to act as a conduit between States and multistate financial institutions to facilitate a centralized, quarterly data match.
For multistate FIDM, State CSE agencies use the Federal Offset File. This is the same file used to intercept Federal tax refunds and other Federal administrative payments. The State indicates whether the noncustodial parent should be submitted for multistate financial institution data matching. The file includes the name and Social Security Number of the noncustodial parent. OCSE transmits the file to multistate financial institutions that will compare the child support data to their deposit accounts, and transmit to OCSE account information for delinquent noncustodial parents. OCSE then transmits the data returned from the multistate financial institution to the appropriate State(s). Based on the information from OCSE, and in accord with State law, State CSE agencies can proceed to enforcement. Consistent with State law, the CSE agency can issue liens or levies to attach and seize the assets belonging to the noncustodial parent.
IRS Project 1099[142]
Project 1099 is a cooperative endeavor involving the Internal Revenue Service (IRS), the State IV-D agencies, and OCSE. The program is named for the “1099” IRS reporting form. Project 1099 provides State IV-D agencies with the address reported to the IRS by the noncustodial parent, the addresses of the 1099 reporting organizations (banks, State unemployment agencies, and employers), plus information about the noncustodial parent’s wages, tips, FICA taxes, pensions, annuities, advanced earned income credits, IRA contributions, securities, futures transactions, commodities, bartering exchange transactions, mortgage interest, real estate taxes, insurance unemployment compensation, State and local income tax refunds, agricultural payments, prizes and awards, crop insurance, fishing boat proceeds, and profit-sharing retirement plan/IRA distributions. With the advent of new tools to locate assets and enforce child support, Project 1099 has become less widely used. Although it is still available, the NDNH and the FIDM process are much better sources of data.
IRS Full Collection
Requesting assistance from the Internal Revenue Service to enforce a support obligation is another useful tool, particularly where all other alternatives have been unsuccessful, assets exist, and the noncustodial parent has shirked his or her responsibility to pay support.[143] It can also be effective against self-employed noncustodial parents who evade other collection measures, or U.S. citizens living abroad who own property in the States. In effect, the IRS treats the support judgment as equivalent to delinquent back taxes owed to the Federal Government.
This remedy is only available in IV-D cases. To use it, the State IV-D agency must submit a certification request to the appropriate OCSE Regional Representative.[144] Only the State IV-D agency can request the certification. There must be a court or administrative order for support entered against the individual, reasonable efforts must have been made to collect the amount owed, the State must have an assignment of support or application for services, and the delinquency amount must be at least $750. Certification will not be granted if there has been a request for certification in the case during the previous 6 months.[145]
A State's request must be signed by the Director of the State IV-D agency and include the following items:
- the individual’s name;
- the individual’s Social Security Number; and
- the individual’s address and place of employment, including the source of this information and the date it was last verified.
- dates of any previous requests for referral of the case to the Secretary of the Treasury;
The OCSE Regional Representative[147] reviews the request to determine whether it meets the above requirements and forwards the approved request to the Secretary of the Treasury. At the same time, the Regional Office notifies the IV-D agency in writing of the transmittal.[148] If the request does not meet all of the requirements, the Regional Office will attempt to correct the request in consultation with the IV-D agency.[149] If the request cannot be corrected after consultation, the case is returned to the State IV-D agency with an explanation of why the request could not be certified.[150]
After transmission of the case to the Regional Office, the State IV-D agency must immediately notify the Regional Office of any change to the amount due, the nature or location of assets, or the address of the noncustodial parent.[151] On receipt, the Regional Office will transmit the revised information to the Secretary of the Treasury. [152]
The IRS will attempt to collect the amount certified as it would a tax delinquency, except that:
The 60-day stay described above presumably gives the noncustodial parent the opportunity to satisfy the arrearage or contest the amount of the arrearage claimed by the State. No Federal court has jurisdiction to restrain or review the assessment or collection. This does not, however, preclude the noncustodial parent from bringing legal, equitable, or administrative action in the appropriate State court or administrative body to determine his or her liability for any amount assessed against him or her, or to recover any such amount collected through this procedure.[154]
STATE TAX REFUND OFFSET
The Child Support Enforcement Amendments of 1984 required States, as a condition of receiving Federal funds, to initiate a State tax refund program.[155]
All States that have an income tax have enacted setoff statutes, authorizing the State revenue agency to withhold tax refunds due individuals who owe any liquidated debt to any State agency. The procedure is nearly identical to the Federal tax refund offset procedure. The State revenue agency performs a role similar to the IRS.
Judicial challenges to State tax refund offset began almost as soon as States began the State offset process. Oregon, which had a State tax refund offset program predating the Federal requirement, first met with a challenge as early as 1978. In Brown v. Lobdell [156] the Oregon Supreme Court found that the State tax intercept procedure withstood all constitutional challenges. Other State statutes and procedures, such as those in California and Maryland, have withstood similar challenges.[157] More recent decisions have also upheld the State’s interest in pursuing child support collection via State tax refund offset.[158]
Within certain parameters, each State has discretion to tailor the criteria for its State tax refund offset program.[159] The State must establish procedures that provide that any amount that has been submitted is verified and accurate and that the appropriate State office or agency is notified of any significant reductions in an amount referred for collection by State income tax refund offset.[160] Additionally, following advance notice to the noncustodial parent, the State must establish a procedure whereby the noncustodial parent can contest the offset and the State will reimburse any excess amounts that are received.[161] States are required to send advance notice in cases in which medical support rights have been assigned and amounts are collected that represent specific dollar amounts designated in the support order for medical purposes.[162]These processes must account for the State’s full due process requirements and provide for a procedure to protect any interest the spouse of the noncustodial parent may have in the refund if the return was a joint filing.[163]
LICENSE REVOCATION
As a condition of receiving Federal IV-D funds, Congress required each State to have procedures regarding the withholding, suspension, or restriction of the licenses of noncustodial parents who owe past due support. Specifically, the mandate relates to drivers’ licenses, professional and occupational licenses, as well as recreational and sporting licenses.[164] Licenses can be affected when the noncustodial parent meets established criteria or fails to comply with subpoenas or warrants related to child support proceedings. Appropriate notice is required. Use of these procedures is not mandated in every case, but must be available at the State’s discretion.
Because the license revocation program follows State law, practices vary across the country. What is consistent, however, is that this remedy is intended to be a coercive tool, not a punitive measure. The goal is not to punish a noncustodial parent for nonpayment of support by depriving him or her of license privileges. Rather, the hope is that once a noncustodial parent receives notice of the State’s intention to affect the license, he or she will contact the State CSE agency to negotiate payment of the outstanding amount. In most instances, there should not be a large role for a court or attorney to play in connection with State license revocation programs; however, the court or attorney could become involved if a noncustodial parent challenges the intended action based on an available defense.
Most challenges to license suspension or revocation have been on grounds of due process. In Alaska Child Support Enforcement Division v. Beans[165], for example, the Alaska Supreme Court was asked to determine the constitutionality of the statute that allowed for the suspension of a delinquent noncustodial parent’s driver’s license. The court held that the statute did not violate a noncustodial parent’s substantive due process right because it was based on a rational policy interest. The court further held that license revocation was proper even if the parent had insufficient resources to pay off the debt because the noncustodial parent can negotiate a settlement with the IV-D agency. Thus, the court found that the statute satisfied substantive due process requirements.
The South Dakota Supreme Court reached a similar decision. [166] Here, a class of noncustodial parents asked the court to find the entire South Dakota licensing restriction scheme unconstitutional on grounds that it violated substantive due process and equal protection. The court ruled that the statute was neither arbitrary nor irrational and, therefore, was not a violation of the substantive due process rights of the parties. Additionally, the court held that restrictions on licenses imposed on noncustodial parents who meet the required arrearage threshold were “different than the remedies available to collect debts from persons owing other types of debts.” The court, however, ruled that the treatment was not so “unrelated to the achievement of the legitimate purpose of collecting child support” as to be a violation of equal protection.
CONSUMER REPORTING AGENCIES
PRWORA required the States, as a condition of receiving Federal funds, to institute measures to periodically report unpaid child support to credit bureaus.[167] The law requires that States provide the noncustodial parent with due process, as set out by State law. It permits reporting only to recognized consumer reporting agencies.[168] The information that must be reported includes the name of the delinquent noncustodial parent and the amount of the child support arrears.
Consumer reporting agencies are defined by 15 U.S.C. §1681a(f) as “any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports.”
The OCSE Federal Tax Refund Offset program includes a statement in pre-offset notices that warns the noncustodial parent that child support arrearages are subject to being reported to credit bureaus as a delinquent debt.
Credit bureau reporting serves a two-fold purpose. Not only is it a valuable enforcement tool, but States have also found it an excellent source for gathering locate information. [169]
CRIMINAL NONSUPPORT
In some instances, civil actions are not successful in collecting child support due. In those cases, the attorney might want to pursue criminal charges against the delinquent obligor. There are criminal offenses for nonsupport of children at both the State and Federal level.
State Actions
A number of States have State-specific criminal statutes that relate to the failure to pay support in purely intrastate cases. The standard of proof in these cases is high, as in all violations of the penal code—that is, proof beyond a reasonable doubt. In some of these States, the attorneys who establish and enforce child support obligations in civil court are district or prosecuting attorneys who have discretion to file criminal charges against a noncustodial parent. Other States have a referral process where the child support attorney refers the case to the district attorney or prosecutor to review for criminal prosecution. Lastly, some States appoint child support attorneys as special prosecutors solely for the purpose of bringing an action under the State criminal nonsupport statute.
Although civil remedies such as income withholding and tax refund intercept are still the most often used enforcement tools, criminal nonsupport proceedings can be a useful deterrent to noncompliance. Local law might require that all available civil remedies be exhausted prior to resorting to use of criminal nonsupport. Where civil remedies have proven unsuccessful or where the noncustodial parent has been evading civil remedies, however, a criminal charge can be effective in bringing about payment.
In most States, the normal rules of evidence apply to a criminal nonsupport action. Depending on local practice, the action is initiated by filing a criminal complaint, information, or indictment. Based on the initial finding, a judge may issue a warrant or summons. Not unlike any State criminal action, the initial pleading must allege all elements of the crime in such a manner that allows the defendant to understand the charge and prepare a defense.[170] State law defines the elements of the crime.
Federal Actions
There are Federal laws that make the nonpayment of child support a criminal offense. The Child Support Recovery Act of 1992 (CSRA) made it a Federal crime to willfully fail to pay a past-due child support obligation for a child who resides in another State. The statute relates to obligations that remain unpaid for longer than 1 year or that are greater than $5,000.[171] By enacting the CSRA, Congress expressly recognized that collecting past-due child support obligations from out-of-state noncustodial parents has outgrown State enforcement mechanisms.
While Federal prosecutions proved somewhat successful, the simple misdemeanor penalties provided for in CSRA did not have the force to deter serious violators. As a result, Congress passed the Deadbeat Parents Punishment Act in 1998.[172] This made it a felony offense to travel interstate or internationally to evade a child support obligation that has remained unpaid for longer than 1 year or is greater than $5,000.[173] In addition, the law covers the willful failure to pay any child support obligation for a child living in another State if the obligation has remained unpaid for a period longer than 2 years or is greater than $10,000.[174] Additionally, a second or subsequent violation of 18 U.S.C. § 228(a)(1) becomes a felony.
Criteria/elements of the crime. Establishing willful failure to pay has proven difficult. Demonstrating the culpable state of mind of a defendant requires a tribunal to develop a subjective standard. Legislative history might be helpful. According to the legislative history of CSRA, willfulness has the same meaning as it has for purposes of Federal criminal tax law. According to the House Report:
The operative language establishing the requisite intent is ‘willfully fails to pay’. This language has been borrowed from the tax statutes that make willful failure to collect or pay taxes a Federal crime….The willfulness element in the tax felony statutes requires proof of an intentional violation of a known legal duty, and thus described a specific intent crime…. The Committee intends that the willfulness standard be given similar effect as the willful failure contained in these tax felony provisions.[175]
In addressing the willfulness concept, the U.S. Supreme Court in Cheek v. United States, stated that “[w]illfulness, as construed by our prior decisions in criminal tax cases, requires the Government to prove that the law imposed a duty on the defendant, that the defendant knew of this duty, and that he voluntarily and intentionally violated that duty.”[176]
The Government is not required to prove that the defendant knew his or her failure to pay child support was a violation of a Federal criminal statute. The standard is simply proof that the defendant knew of the legal obligation to pay child support and that the defendant knowingly and intentionally violated the duty. Knowledge of the order is all that is needed, not knowledge of the statute.[177]
Establishing “ability to pay,” although not an explicit element of the crime of failure to pay, must be factored into the willfulness proof requirement. Addressing the difficulty of proving ability to pay in CSRA, the Deadbeat Parents Punishment Act created a rebuttable presumption permitting a jury to conclude that a defendant had the ability to pay the support obligation during the period the support obligation was in effect. The legislative history explains:
A demonstration of the obligor’s ability to pay contributes to a showing of willful failure to pay the known obligation. The presumption in favor of ability to pay is needed because proof that the obligor is earning or acquiring income is difficult. Child support offenders are notorious for hiding assets and failing to document earnings. A presumption of ability to pay, based on the existence of a support obligation determined under state law, is useful in the jury’s determination of whether the nonpayment was willful. An offender who lacks the ability to pay a support obligation due to legitimate, changed circumstances occurring after the issuance of an order has state civil means available to reduce the support obligation and thereby avoid violation of the federal criminal statute in the first instance.[178]
Courts have rejected arguments by defendants that it is necessary to demonstrate that the defendant had the ability to pay the entire amount of past-due child support during the period alleged in the indictment rather than just showing an ability to pay at some juncture during the period alleged in the indictment.[179] The courts have reasoned that to require a showing that the defendant had the ability to pay the entire amount was too narrow an interpretation.[180]
Penalties. If a defendant is charged with a misdemeanor and the obligation has remained unpaid for longer than 1 year, or is greater than $5,000, the defendant is subject to a sentence of imprisonment of up to 6 months, fines, and restitution in an amount equal to the total unpaid support amount existing at the time of sentencing.[181]
For felony offenses, or a second or subsequent misdemeanor, the maximum penalty is up to 2 years of imprisonment, or 5 years of probation, a fine of up to $250,000, and mandatory restitution in an amount equal to the total unpaid support obligation existing at the time of sentencing.[182]
The Deadbeat Parents Punishment Act requires all sentencing courts to order mandatory restitution pursuant to 18 U.S.C. § 3663A, in an amount equal to the total unpaid child support obligation existing at the time of sentencing.[183] The total unpaid child support obligation includes the total amount of arrears, even if the arrearage began to accumulate long before the charging period. This may include costs for medical insurance, other medical expenses, college expenses, and life insurance and may also include spousal support.[184] Interest on a child support obligation depends on the law of the State entering the order.
For actions under CSRA and the Deadbeat Parents Punishment Act, Federal Sentencing Guidelines do not apply. This is important because it allows the penalty to be uniquely tailored to suit the nonsupport offense. For example, a defendant might be required to serve the full 5-year probation that is available.[185] Additionally, it is a standard condition of probation that a defendant pay any ongoing child support obligation. A probationary period may also include a requirement that the defendant serve nights or weekends in jail for a up to 1 year to be followed by 4 years of probation.[186]
Defenses. Defendants have offered a number of defenses as legal challenges to criminal nonsupport. They have ranged from a contest to venue and jurisdiction to Constitutional grounds of violation of the commerce clause. Courts have routinely upheld criminal nonsupport as an enforcement action.
Venue/jurisdiction. With respect to venue and jurisdiction, courts have found that since failure to pay a child support obligation is considered a continuing offense, venue is appropriate in any district in which the offense continued, including where the child or the noncustodial parent resides. This is true even if the child support order was entered in a State other than where the child or noncustodial parent is residing at the time of indictment.[187]
This principle was codified in June 1998 with passage of the Deadbeat Parents Punishment Act, making venue appropriate in the district where either the child or the noncustodial parent resides, or in any other district with jurisdiction otherwise provided for by law.[188] This would include any district inwhich a child support order was entered.
Constitutional issues. Defendants charged under these Federal criminal nonsupport statutes have raised several Constitutional issues.
The availability of a jury trial has also been an important issue. In a prosecution pursuant to 18 U.S.C. § 228(a)(1) (a Class B misdemeanor offense), the defendant is not entitled to a trial by jury because the crime is considered to be a petty offense. The most significant factor in determining whether a crime is a petty offense is the maximum term of imprisonment. Where the maximum term of imprisonment is 6 months or less, there is a strong presumption that the offense ispetty and, thus, the defendant is not entitled to a jury trial.[189] In United States v. Ballek, the defendant argued that in addition to imprisonment, he was ordered to pay a large amount of restitution, taking the offense out of a class ordinarily considered “petty.”[190] The court held, however, that the defendant was not entitled to a jury trial, no matter howlarge the amount of restitution ordered. The restitution order did not impose an additional obligation on the defendant, but rather recognized the debt that the defendant already owed the victim.
For felony prosecutions under 18 U.S.C. §§ 228 (a)(2) and (a)(3), the defendant is entitled to a jury trial. A defendant is likewise entitled to a jury trial for a second or subsequent violation of Section 228(a)(1).
The district courts had found the CSRA an unconstitutional exercise of Congressional power because the Act did not meet the test of a “substantial relation to interstate commerce,” under the Commerce Clause of the U.S. Constitution. As a basis for their findings, these courts cited the U.S. Supreme Court decision in U.S. v. Lopez.[191] In reaching that conclusion, the courts found that:
- The law’s requirement that parents reside in different States is not sufficient to provide the necessary interstate nexus. Otherwise, almost any activity could be subject to Federal legislation if that simple language were added.
- Although the description of the Federal statute mentions fleeing a State for the purpose of avoiding payment of support, the actual language of the statute contains no such flight requirement.
- The effect of nonpayment of support on the Federal AFDC/TANF program does not provide a sufficient nexus with interstate commerce.
- Although there is some interstate activity in the nonpayment of support, (i.e., financial transactions across State lines involving mail, out-of-state travel, or long-distance telephone calls), these transactions are not enough to characterize the willful failure to pay child support as an economic enterprise that substantially affects interstate commerce. One court stressed that nonpayment does not affect the marketplace for goods and services. Nor does it threaten citizens’ abilities to travel.
To date, Federal appellate courts have upheld the Constitutionality of the CSRA.[192] A recent case[193] has, however, raised the issue of Congressional authority to criminalize behavior under the auspices of the interstate commerce clause. The Sixth Circuit Court of Appeals concluded that the CSRA is not a proper exercise of that power. An en banc review is pending.
Criminal nonsupport statutes have also withstood a challenge based on equal protection grounds. In United States v. Nichols, the court found that the CSRA was a gender-neutral statute intended as an enforcement action against noncustodial parents regardless of their sex.[194] The court reasoned that any adverse effect on men was not the product of invidious gender-based discrimination.
Defendants have also raised the defense of an ex post facto prohibition. They argue that the enactment of criminal nonsupport statutes imposes a penalty for an act that was not punishable at the time it was committed. In a number of decisions, courts have held that the criminalization of failure to pay a child support obligation might have been enacted after the obligation became due, but the obligation was “past due” after the statutes became effective.[195] Moreover, the inclusion of amounts owed before passage of the Act as part of the restitution order does not violate the ex post facto prohibition because it does not inflict punishment on the defendant. It merely seeks compensation for a past-due child support obligation.[196]
Courts have held that the CSRA does not violate the Thirteenth Amendment prohibition against involuntary servitude.[197]
Courts have also held that a defendant cannot raise paternity as a defense.[198] One court found that emancipation of the child does not preclude a child support prosecution for an obligation and willful failure to pay that arose before emancipation of the child.[199]
Extradition. If a defendant has been tried and convicted of the felony offense of nonpayment of child support and flees the jurisdiction, he or she is subject to extradition as with any federal offense. Federal law provides that the governor or chief magistrate of the State or Territory from which the defendant has fled shall make a request of the governor or chief magistrate of the State or Territory to which the defendant fled that the person be arrested and secured.[200] The request should include a “copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed … felony … certified as authentic by the governor or chief magistrate of the State or Territory.”
After the defendant has been arrested, the requesting State shall be placed on notice and is required to make arrangements within 30 days to have the defendant returned to the State where the conviction was made. If no arrangements are made within the prescribed 30 days, the defendant may be released.
POSTING BONDS
The Child Support Enforcement Amendments of 1984 required States, as a condition of receiving Federal funds, to enact and use “procedures which require that a noncustodial parent give security, post a bond, or give some other guarantee to secure payment of overdue support, after notice has been sent to such noncustodial parent of the proposed action, and of the procedures to be followed to contest it (and after full compliance with all procedural due process requirements of the State).”[201]
Like most enforcement remedies, bonds might not be appropriate in every case. Pursuant to 45 CFR § 303.104(c), cases should be reviewed individually to ascertain if this is an appropriate remedy. Most State guidelines generally take into account such criteria as the payment record of the noncustodial parent and the availability and success of other enforcement remedies.
The attorney might successfully combine bonds with other enforcement remedies. For example, when a noncustodial parent is found to be in civil contempt, a request that a bond be ordered to secure future payments might be appropriate. Bonds can also be used in lien releases. To secure the release of a lien on real or personal property, the attorney can request that noncustodial parent be required to post a surety or bond. If the noncustodial parent continues to ignore a support obligation, the bond or surety can be liquidated or released by the court and distributed as support. A noncustodial