Use of Presumptive Child Support Guidelines to Establish and Collect Support
March 22, 1993
Use of Presumptive Child Support Guidelines for Establishment of Support Awards/Collection of Unreimbursed Assistance
March 22, 1993
TO:STATE AGENCIES ADMINISTERING CHILD SUPPORT ENFORCEMENT PLANS APPROVED UNDER TITLE IV-D OF THE SOCIAL SECURITY ACT AND OTHER INTERESTED INDIVIDUALS
SUBJECT:Use of Presumptive Child Support Guidelines for Establishment of Support Awards / Collection of Unreimbursed Assistance
BACKGROUND:In recent years, OCSE has issued several policy transmittals addressing establishment of child support orders and collection of unreimbursed public assistance. Those policy issuances state that: (1) even though a noncustodial parent may be obligated under State law for the amount of public assistance paid to that parent's child(ren), that obligation does not constitute a support order established in accordance with Federal IV-D requirements at 45 CFR 302.50; and, (2) collection of unreimbursed public assistance in the absence of a court or administrative order for back support or a judgment for support in the amount of the unreimbursed assistance is not an allowable IV-D function.
Section 103 of the Family Support Act of 1988 (P.L. 100-485) requires that there shall be a rebuttable presumption, in any judicial or administrative proceeding for the award of child support, that the amount of the award which would result from the application of the State's child support guidelines is the correct amount of child support to be awarded.
Final regulations were issued May 15, 1991, (see OCSE-AT-91-02) to implement the presumptive guidelines requirements. As a result, after October 13, 1989, the setting or modifying of all child support orders, whether established through a judicial proceeding or through an administrative process, must be based upon presumptive guidelines, unless application of the presumptive guidelines would be unjust or inappropriate in a particular case.
Questions have been raised regarding: the use of presumptive child support guidelines to establish support awards; the IV-D agency's role in collecting unreimbursed public assistance; and, the establishment and enforcement of support awards in interstate cases.
PURPOSE:The purpose of this Action Transmittal is to clarify Federal policy regarding the use of guidelines for establishing all prospective support awards and support awards for prior periods. It also makes clear, effective October 13, 1989, that reimbursement of public assistance through the IV-D program must be based on support obligations established using presumptive guidelines.
USE OF GUIDELINES AS A REBUTTABLE PRESUMPTION IN ESTABLISHING SUPPORT OBLIGATIONS
Effective October 13, 1989, section 467(b) of the Social Security Act (the Act), and the implementing regulations at 45 CFR 302.56(f), specify that there shall be a rebuttable presumption, in any judicial or administrative proceeding for the award of child support, that the amount of the award that would result from the application of such guidelines is the correct amount of child support to be awarded. Congressional intent, as indicated in the Conference Report (Report No. 100-998), is that judges and other officials must use the "State's guidelines, uniformly applied, as a rebuttable presumption." Therefore, there must be one set of guidelines developed by a State and uniformly applied as a rebuttable presumption in setting all child support awards. This would include application of the guidelines to establish child support awards for prior periods. For example, once paternity is established, the court may order back support to the date of birth of the child or the date the action was filed.
USE OF PRESUMPTIVE GUIDELINES IN SETTING SUPPORT FOR PRIOR PERIODS
In setting support awards, States are required, at a minimum, to take into consideration the obligor's earnings and income, in accordance with 45 CFR 302.56(c)(1). The establishment of a child support award covering a prior period must be based on guidelines and take into consideration either the current earnings and income at the time the order is set, or the obligor's earnings and income during the prior period. The award of back support is not required under Federal rules but may be appropriate in accordance with State law. Criteria established
by the State for rebuttal of the presumptive support amount may take into consideration the obligor's ability to pay back support as well as maintain current payments.
PURSUIT OF UNREIMBURSED PUBLIC ASSISTANCE
Before the October 13, 1989, statutory effective date of the presumptive child support guidelines requirements, Federal law, at section 456 of the Act, and regulations, at 45 CFR 302.50, specified that a child support obligation would be the amount specified in a court order, or, if there was no court order, an amount determined by legal process using the State's formula, established in accordance with former 45 CFR 302.53(a). Courts could set current support obligations in the amount of the public assistance grant and award support judgments for prior periods in the total amount of unreimbursed public assistance furnished to the family.
Effective October 13, 1989, as a result of the amendments to section 467 of the Act, and implementing regulations at 45 CFR 302.56(f), presumptive guidelines must be used in setting any child support award amount. Whether the order is established by a court or by an administrative process, after October 13, 1989, guidelines must be used. Final regulations published May 15, 1991 repealed the "formula" rule at 45 CFR 302.53.
The responsibility of the IV-D agency is to establish ongoing support obligations for children, based upon the noncustodial parent's ability to pay, using the State's guidelines as the basis for determining the correct amount of such support. Effective October 13, 1989, States may not, through the IV-D program, establish judgments for reimbursement of public assistance, or pursue enforcement of such judgments established on or after that date. This applies in both intrastate and interstate cases. If the amount of the support obligation specified in a court or administrative order established on or after October 13, 1989, is less than the amount of the assistance paid to the family, seeking a judgment for an additional amount representing the difference between the guidelines amount and the unreimbursed public assistance is not an allowable IV-D function. It may, however, be appropriate under State law as a non-IV-D action.
In some States, furnishing State aid to a family constitutes a debt for which the noncustodial parent is liable. Under such "laws of general obligation," amounts expended may be recovered by the State from the legally liable third party. These "State debt" laws exist independently of the IV-D program. The debt owed to the State would not be construed as child support if guidelines were not applied to determine the amount of the order or judgment. The State's use of IV-D funds to recover such debts established post-October 13, 1989, is not permitted. State IV-D agencies responsible for such State debt collection must allocate costs. States may continue to enforce existing support ordersestablished, prior to October 13, 1989, either by a court, or by administrative process using the formula under 45 CFR 302.53, in the amount of public assistance paid to the family.
ESTABLISHING AND ENFORCING SUPPORT OBLIGATIONS IN INTERSTATE CASES
In response to an initiating State's request to establish an order for child support in a IV-D case, a responding State must establish a child support order, or judgment for support for a prior period, in accordance with its child support guidelines. In addition, if the law of the responding State allows the State to collect unpaid child support from a noncustodial parent once the child has reached the age of majority, and it has statutory authority to bring such actions at the request of and on behalf of other States, then such services should be provided in interstate cases.
CHANGE IN USE OF STANDARDIZED INTERSTATE FORMS FOR COLLECTION OF UNREIMBURSED PUBLIC ASSISTANCE
In accordance with Federal requirements at 45 CFR 303.7(b)(3), initiating States are required to provide responding States sufficient accurate information using the Interstate Child Support Transmittal form or a computer-generated replica. Section VI of the standardized General Testimony form addresses the matter of "recovery of unreimbursed public assistance paid to the family." It requires the initiating State to supply information to justify the amount requested as reimbursement of public assistance paid to the family, including a detailed public assistance payment history. These forms predate the publication of the presumptive guidelines regulations on May 15, 1991. Since guidelines, rather than the amount of public assistance expended, are the basis for setting child support award amounts, States should, effective with the publication of this Action Transmittal, no longer utilize that portion of the standardized interstate forms, for IV-D purposes. Establishment of an order in the amount of unreimbursed public assistance furnished to the family and not established in accordance with presumptive guidelines is not allowable under the IV-D program.
SUPERSEDED OCSE-PIQ-88-18, OCSE-PIQ-88-19, and
INQUIRIES TO:ACF Regional Administrators
Robert C. Harris
Acting Deputy Director
Office of Child Support