Child Support Recovery Act of 1992
Information Memorandum IM-96-04
DATE: August 21, 1996
TO: STATE AGENCIES ADMINISTERING CHILD SUPPORT ENFORCEMENT PLANS UNDER TITLE IV-D OF THE SOCIAL SECURITY ACT AND OTHER INTERESTED INDIVIDUALS
SUBJECT: Child Support Recovery Act of 1992
STATUTORY REFERENCE: 18 U.S.C. § 228
RELATED REFERENCES: OCSE-DC-92-49; DC-93-39; DC-93-61; DC-94-48; DC-94-53; DC-94-56; DC-94-58; DC-95-31
BACKGROUND: The Child Support Recovery Act of 1992 (CSRA) was enacted by Congress on October 25, 1992 making it a Federal crime to willfully fail to pay support for a child living in another State. The elements of this crime require that the support obligation be determined by court or administrative order; that the noncustodial parent and the child to whom the support is owed reside in different States; that the nonpayment of support be willful; and that the past-due support has remained unpaid for over a year or total more than $5000.
The Office of Child Support Enforcement (OCSE) and the Department of Justice (DOJ) have been working together to coordinate the implementation of this Act. OCSE and DOJ have stressed the importance of effective working relationships between the State and Local IV-D offices and their respective U.S. Attorney Offices (USAOs).
ATTACHMENTS: Sample IV-D/USAO Memorandum of Understanding; sample CSRA referral checklists; USAO CSRA Contact list; OIG Resources list; list of States/Counties affected by adverse U.S. District Court CSRA decisions.
INQUIRIES: ACF Regional Administrators
David Gray Ross
Office of Child Support Enforcement
I Statement of Purpose
The Federal Office of Child Support (OCSE) publishes this Information Memorandum (IM) to offer technical assistance to the State IV-D programs in their implementation efforts regarding the Federal Criminal Nonsupport Initiative. At this time, all IV-D programs should have met with representatives of the local U.S. Attorney Offices (USAOs) within their State. The purpose of this IM is to assist IV-D offices in preparing a complete CSRA package for referral to their local USAO. The exact procedures outlined in this IM are not mandatory, but all IV-D offices are expected to negotiate a Memorandum of Understanding (or acceptable alternate procedure) with their respective USAO, which will control the CSRA referral process at the local level.
II CSRA referral process to occur at the local level:
From the outset of the Child Support Recovery Act of 1992 (CSRA) initiative, the goal of OCSE was to have the referral process (IV-D to USAO) occur entirely at the local level. In August 1994, OCSE requested the State IV-D agencies send CSRA referrals to OCSE Central Office. In 1995, OCSE gave States the option of sending CSRA referrals directly to the local USAO or routing referrals to OCSE Central Office.
OCSE was interested in reviewing the early referrals for two reasons. First, OCSE wanted to ensure that they were appropriate for referral to DOJ. Second, OCSE wanted to see if any training and technical assistance on the CSRA initiative was needed.
Having satisfied these two reasons, OCSE is announcing that, effective immediately, the local IV-D office is encouraged to make CSRA referrals directly to their local USAO. It is no longer necessary or recommended that CSRA referrals be routed to the OCSE in Washington, DC. However, States may require a review of the CSRA referral by their Central State IV-D office. At this time, IV-D offices should evaluate cases for possible CSRA referral as part of the regular case review process. (See referral procedures in § IV " Quality of the CSRA referral from IV-D to the U.S. Attorney", below).
If your IV-D offices (Central/local) have not already met with your local USAO to negotiate a Memorandum of Understanding, you are encouraged to do so. (See sample Memorandum of Understanding, attachment A.)
A IV-D office need not execute a formal Memorandum of Understanding with their respective USAO, provided the alternate procedure results in CSRA referrals meeting the quality and quantity needs of the local USAO.
In addition to a local Memorandum of Understanding (or appropriate alternate procedure), it is recommended that the Central/local IV-D offices negotiate a standard checklist for CSRA referral packages. (See sample CSRA referral checklists, attachment B.)
III The Department of Justice (DOJ) decision regarding "venue":
DOJ has recently decided to allow for additional flexibility when deciding where to file Federal criminal nonsupport charges. While the rules of "venue" (where, logistically, a case can be tried) have allowed DOJ to file a Federal criminal nonsupport case in either the district where the child resides or the district where the NCP resides, to date DOJ has filed most cases in the district where the child resides. DOJ informs OCSE that many CSRA prosecutions will now be filed in the district where the NCP resides. The venue decision will be determined by the USAO.
IV The IV-D office of any State working a case may initiate a CSRA referral:
Consistent with the DOJ decision to allow for additional flexibility regarding venue, OCSE has decided to expand the availability of the CSRA remedy. In the past, responsibility for making the CSRA referral rested with the IV-D agency in the custodial parent’s/child’s State of residence. Effective immediately, any State working the case (initiating or responding) may make the CSRA referral. This includes the State where the noncustodial parent resides. In open two-state interstate cases, the State considering a CSRA referral shall notify the other State that a CSRA referral in being considered prior to referring the case to their USAO. The State making the CSRA referral shall also notify the other State after the case has been referred to the USAO.
V Quality of the CSRA referral from IV-D to the U.S. Attorney:
DOJ informs OCSE that some USAOs and Federal Health and Human Services (HHS) Office of Inspector General (OIG) Inspectors have raised concerns regarding the quality of the CSRA referrals received from the IV-D offices. Although the quality of the IV-D CSRA referral is improving, this IM offers technical assistance intended to assist the State IV-D programs in continuing to improve the quality of their CSRA referrals.
When reviewing a case for potential referral to the U.S. Attorney, the IV-D officer must keep in mind the five essential elements of the Act:
- The NCP must have an ability to pay. Ability to pay does not require an ability to pay either total current or total arrearages. The ability to pay any amount towards the support obligation and failure to do so is generally sufficient to meet this requirement.
- The NCP must have willfully failed to pay his/her administrative or court-ordered support obligation. "Willful" is defined as the knowing and intentional violation of a legal duty. The U.S. Attorney must be able to prove that the NCP possessed sufficient funds or assets to pay all or part of the child support obligation. In the alternative, the U.S. Attorney must prove that the lack of funds or assets was created by, or the result of, a voluntary act (such as quitting a job to avoid payment).
- The NCP must know of his/her past-due support obligation. First, the NCP must have been properly served the order for support. Second, the IV-D office must have verification of prior letters, notices, telephone calls, service of process, and/or contempt proceedings to the NCP regarding the past-due obligation.
- The past-due child support obligation must be greater than $5000 or must have remained unpaid for more than one year. Some USAOs may give preference to cases where current support is due (i.e., child is still a minor). Not all USAOs will routinely accept arrears-only referrals. In order to learn if a local USAO will accept arrears-only cases, it is recommended that IV-D offices check with their local USAO.
- The NCP must reside in a State different than that of the child. The IV-D office must verify that the NCP does not reside in the same State as the child; however, a current verified address is not required. For example, in cases where the NCP routinely leaves a residence and/or employer as soon as personal service or a wage withholding action is effected, the fact that the NCP’s address is not verified would not, by itself, preclude referring the case to the USAO. With no verified address, the case must be referred to the SPLS and FPLS.
In addition, the IV-D officer reviewing the case for possible CSRA referral should consider the following criteria:
- The IV-D office must show that all reasonably available civil and State criminal remedies have been exhausted. The IV-D office may use its own discretion in determining, on a case-by-case basis, what remedies are "reasonably" available. The IV-D office must document the exhaustion of all such efforts.
- Is there a pattern of flight across State lines to avoid payment or service of process? This may include the NCP fleeing to another State every time an employer is served or a State commences a URESA or UIFSA action.
- Is there a pattern of deception to avoid payment? This may include the NCP changing employment to avoid payments, concealing assets or the location of the assets, utilizing an alias or using a false Social Security Number (SSN).
- Is the non-payment of support linked to possible other charges? The IV-D office may be aware of bankruptcy fraud, Federal income tax evasion, utilizing a false SSN, or other charges.
- Is there a failure to pay support after the NCP was held in contempt of court (State civil court)? The IV-D officer must review the payment history following contempt charges.
- Are there any other prior criminal convictions or pending criminal charges for non-support? The IV-D officer should include both in-state and out-of state-actions in the CSRA referral.
There is no requirement that IV-D offices provide CSRA-related services to non-IV-D families. It is appropriate for IV-D offices to request an application for IV-D services from a non-IV-D family requesting CSRA-related services.
Due to the limited number of cases that can be accepted for prosecution by the local USAO, it is imperative that IV-D provide a complete referral package. If your State IV-D agency is interested in receiving additional technical assistance regarding the CSRA initiative, please contact your ACF Regional Office.
OCSE recognizes and thanks South Dakota’s Office of Child Support Enforcement for the assistance they provided in the drafting of this section.
VI Role of HHS’ Office of the Inspector General (OIG) in the CSRA initiative:
Pursuant to the Inspector General Act and HHS procedures, HHS’ Office of the Inspector General (OIG) is authorized to investigate abuses of HHS monies. Due to this fact, the OIG is available to the U.S. Attorney to serve as an additional investigative resource in CSRA cases involving AFDC monies. In addition, OIG investigators have been deputized by DOJ to investigate CSRA cases that do not involve any AFDC monies.
The local IV-D office may be able to obtain assistance from OIG in screening potential CSRA cases prior to referral. In those areas where OIG maintains offices, the IV-D offices can request investigative assistance in preparing the case for referral. The State/local IV-D offices are encouraged to meet with the Regional OIG representatives to devise an referral process appropriate for both agencies. All IV-D offices are also encouraged to cooperate with OIG Inspectors in their CSRA investigations on specific cases. (See attachment C for the locations of the OIG offices.)
VII Verification of IRS 1099 information procedures:
In preparing a CSRA case, the USAO, FBI, or OIG may request the State IV-D agency to provide IRS 1099 information on the NCP. Consistent with preexisting IRS 1099 procedures, the State IV-D agency will forward these requests to OCSE. OCSE will route the IRS 1099 data received from the IRS back to the appropriate State IV-D official.
The raw 1099 information cannot be referred to the USAO. IV-D offices can only forward IRS 1099 information to the USAO after that information has been independently verified. The State IV-D programs can establish local procedures to refer the verified information to the USAO. HHS’ OIG also has authority to verify raw IRS 1099 data and provide the verified information to the USAO or FBI.
VIII Local USAOs to provide status reports on previously referred cases to IV-D:
DOJ informs OCSE that local USAOs will, upon request and consistent with law enforcement needs for confidentiality, provide status reports to IV-D offices on CSRA cases previously referred by IV-D. Each of the 94 USAOs has a staff member designated as the child support coordinator. It is recommended that the State/local IV-D office contact their respective USAO to cooperatively develop a status reporting process through the child support coordinator. (See attachment D for a complete listing of all 94 DOJ child support coordinators.)
DOJ Central Office is developing national guidelines on DOJ case status reports. When developed, these guidelines will be distributed to the State IV-D programs.
IX Payment processing in CSRA cases:
Early on in the development of the CSRA initiative, problems surfaced regarding the processing of restitution payments made pursuant to a CSRA conviction or plea agreement. The Act requires that, upon conviction, restitution of all past due support be ordered by the trial judge. For restitution purposes, "past-due support" includes any arrears, even those arising prior to the effective date of the law.
In some districts, the defendant/obligor was ordered to make the restitution payments to the National Fine Center (within the Administrative Office of the United States Courts). In a few cases the National Fine Center distributed restitution payments directly to the victim/obligee. As a result, IV-D offices were not aware that the restitution was being paid.
To resolve this problem, DOJ and OCSE staff met with representatives of the National Fine Center. It was agreed that, in those districts where the National Fine Center is responsible for processing the CSRA restitution payments, they would track the restitution payments and, in IV-D cases, forward these payments to the appropriate IV-D agency for final distribution. In all other cases the Clerk of Court for the U.S. District Court will handle the collection/distribution of CSRA restitution payments by tracking collections and forwarding them to the appropriate IV-D agency for final distribution.
The National Fine Center is in the process of closing. DOJ is currently working with the National Fine Center to finalize the procedures involved in the transition of restitution payment processing from the National Fine Center to the Clerks of Court for the U.S. District Courts. Because of this, IV-D offices may experience delays in the distribution of restitution payments processed by the National Fine Center. These delays will end on September 30, 1996, because that is when the transition of cases to the Clerks of Courts will be complete and the National Fine Center will close.
The collection and distribution of ongoing support remains the responsibility of the IV-D agency. The National Fine Center or Clerks of Court for the U.S. District Courts are only involved in the collection/distribution of restitution (arrears) payments.
X Post conviction follow-up:
In cases where the USAO has obtained a conviction or negotiated settlement to the offense, the IV-D office working the underlying case should receive a copy of the sentencing or settlement document. Upon a conviction under CSRA, restitution is required under the Act. Restitution is defined in the Act as the total past-due support obligation at the time of sentencing. If the noncustodial parent fails to pay restitution or current support payments, the IV-D office working the case should notify the USAO that handled the criminal action.
Post conviction procedures should be spelled out in the Memorandum of Understanding negotiated between the IV-D agency and the USAO.
XI What effect do the U.S. District Court decisions finding the Act unconstitutional have upon the CSRA initiative?
The fact that a few U.S. District Courts have found the Act to be unconstitutional will have little impact upon the CSRA initiative. DOJ is pursuing appeals of these trial court decisions. On August 12, 1996, the first appellate court decision regarding the constitutionality of the Act was handed down by the U.S. Court of Appeals for the Second Circuit. The Court of Appeals for the Second Circuit issued an opinion in the case of United Stated v. Sage upholding the constitutionality of the Act. The Second Circuit includes the States of New York, Connecticut and Vermont. In the Sage case, the defendant entered a conditional guilty plea in the U.S. District Court (Connecticut). The appeal in the Sage case was initiated by the noncustodial parent. To date, no appellate court has reviewed one of the U.S. District Court decisions finding the Act to be unconstitutional.
Therefore, except for the specific districts that have found the Act unconstitutional, DOJ continues to actively pursue the prosecution of these cases. IV-D offices located within a District where the CSRA was found to be unconstitutional should not refer cases to their local USAO. In the alternative, the IV-D office should review the venue options to see if the case may be filed in another District. If venue is appropriate in another State/county, the IV-D office should route the CSRA referral to a IV-D office in that other jurisdiction, for referral to the USAO consistent with the Memorandum of Understanding developed in that jurisdiction (See attachment E for a listing of jurisdictions affected by adverse decisions.)