The NLADA recently produced a webinar on new child support regulations most of which go into effect this month. The new regulations require that the states make changes in their policies and procedures to improve the processes states use to collect and distribute child support. They direct a few issues about child support collection that have created problems for some parents. The states are required to make changes in their guidelines that address incarceration and unemployment among other issues.
One issue that the states must address in their new guidelines is the effect of incarceration of the payor when calculating support. Previously some courts considered incarceration to be “voluntary unemployment.” The judges would then attribute income to the payor and calculate child support based on that attributed income. That means that the court would estimate what the payor might earn if he or she was not incarcerated. The court would then calculate the support consistent with the guidelines or formula based on that amount. The current practice varies state-by-state, but once the new regulation is in effect, states may not use this “attributed income” when a person is incarcerated. The new regulation addresses notice to the incarcerated parent. Under the new policy, when the child support agency learns that a person is going to be incarcerated for 180 days or more, the agency may initiate a review of the order with notice to both parents. Additionally, the child support agency has a duty to notify the parents if a review is permitted due to incarceration when the agency learns about the incarceration.
When a party is not working, courts often attribute income. This means that the court sets the amount of child support based on what the party could make if he or she were earning minimum wage. The new rule requires that the state’s guidelines and laws do not include a standard presumption that any party could earn minimum wage. The court must review each case individually to determine what the ability to be hired and be paid is for each of the parties.
While these changes could increase the time the courts may spend to calculate support, the rule also allows for a greater role for mediators in addressing child support issues. The rule provides funding to the states through federal reimbursement (called IV-D funds) for certain processes related to child support collection activities, including pro se mediation. Referral of these cases to mediation allows more individualized assessment of the numbers to use when calculating support. It could increase the federal funds available to the states to provide mediation at no cost to the parties.
The new rule gives further direction in how states develop their child support guidelines, including some very specific provisions as to what notice the state must give and what access the state must give to the public when the state is reviewing guidelines.
The rule impacts how states address ciivl contempt of court. The limitations on actions that a child support enforcement office could take seeking civil contempt have been bound by due process as articulated by U.S. Supreme Court in Turner v. Rogers. The regulation provides greater clarification to the states as to what is procedurally required before a court holds a payor in contempt by requiring that the state provide guidelines. Before pursuing contempt, the agency must consider the ability of the parent to pay support. That information must be supplied to the court.
You may view the powerpoint from the webinar. You may also view the entire rule on line.