CHAPTER 26-1
GENERAL PROVISIONS

26-1-1 Title.

This Chapter may be referred to as the “Prairie Band Potawatomi Nation Child Support Services Code.”

26-1-2 Authority.

Article V of the Constitution of the Prairie Band Potawatomi Nation (hereafter the “Nation”) enumerates the responsibility and duties of the Tribal Council to exercise lawmaking powers. Among other powers, the Tribal Council shall have the duty “to promote law and order by regulating or prohibiting harmful conduct by any person; to regulate domestic relations; and to promote and protect the peace, health, education, morals, and welfare of the Nation and its members.”

26-1-3 Purpose.

The purpose of this Chapter is to:

(A)    Establish a tribal Child Support Services program as authorized under Section 455(f) of the Social Security Act;

(B)    Designate the Nation’s Child Support Services Program (CSS) as the Child Support Services department of the Nation with the authority granted to it in accordance with Title IV-D of the Social Security Act, 42 U.S.C. § 651 et seq., as amended, and Title IV-D rules and regulations;

(C)    Provide for the establishment of paternity in accordance with Title 7 of the Potawatomi Law & Order Code (PL&OC);

(D)    Provide for the establishment, modification and termination of child support orders;

(E)    Provide for the enforcement of child support orders;

(F)    Provide for the collection and distribution of child support payments;

(G)    Provide for the location of parents and assets; and

(H)    Provide for the administrative and judicial procedures for the establishment, modification, termination and enforcement of child support.

26-1-4 Construction, Uniformity and Interpretation, Severability.

(A)    Construction. This Chapter shall be liberally construed to provide child support for minor children under the jurisdiction of the Nation.

(B)    Consistency with Other Laws. This Chapter and Chapter 7 of this Code establishes the Nation’s child support laws as mandated under Title IV-D of the Social Security Act and in a form generally consistent with Kansas statutes concerning child support in order to provide uniformity in the child support laws applied by the Nation, other tribes and the State of Kansas, unless otherwise expressly provided.

(C)    Other Laws. If there is a child support issue that this Chapter and Chapter 7 of this Code do not address, the Prairie Band Potawatomi Nation District Court (“court”) may apply any other applicable law of the Nation and any federal law concerning such child support issue to the extent mandated by Title IV-D of the Social Security Act. If a child support issue is still not addressed by the Nation’s law or federal law, the court may consider any state or other tribal law concerning such child support issue as a guideline to make a determination in a child support action.

(D)    Severability. If any provision of this Chapter is determined by a court of competent jurisdiction to be invalid for any reason, the remainder of the provisions shall remain in full force and effect and shall not be affected.

26-1-5 Definitions.

(A)    “IV-D Child Support Services Program” means the federal, state and tribal child support programs established under Title IV-D, 42 U.S.C. § 651 et seq., as amended, and Title IV-D rules and regulations, 45 CFR 302.00 et seq.

(B)    “IV-D Services” means the services that are authorized or required for the establishment of paternity; establishment, modification and enforcement of support orders; and location of non-custodial parents under Title IV-D, 42 U.S.C. § 651 et seq., as amended, and Title IV-D rules and regulations, 45 CFR 302.00 et seq.

(C)    “Acknowledged Father” means a man who has established a father-child relationship.

(D)    “Adjudicated Father” means a man who has been adjudicated by a court of competent jurisdiction to be the father of a child.

(E)    “Alleged Father” means a man who alleged himself to be, or is alleged to be, the genetic father or a possible genetic father of a child, but whose paternity has not been determined. The term does not include: a presumed father, a man whose parental rights have been terminated or declared not to exist or a male donor.

(F)    “Administrative Procedure” means a method by which support orders are made and enforced by an executive agency rather than by courts and judges.

(G)    “Arrearage” means the total amount of an unpaid child support obligation by a parent who is obligated to pay.

(H)    “Assignment” means any transfer of rights to child support by a custodial parent to the Nation or other state or federal agency.

(I)    “Child” means an individual of any age whose parentage may be determined under this Act.

(J)    “Child Support” means the financial obligation a non-custodial parent has towards his or her child(ren) whether entered into voluntarily or ordered by a court or administrative agency.

(K)    “Child Support Order” and “Child Support Obligation” means a judgment, decree or order, whether temporary, final or subject to modification, issued by a court of competent jurisdiction, tribunal or an administrative agency for the support and maintenance of a child, including a child who has attained the age of majority under the law of the issuing jurisdiction, or of the parent with whom the child is living, which provides for monetary support, health care, arrearages or reimbursement, and which may include related costs and fees, interest and penalties, income withholding, attorney’s fees and other relief.

(L)    “Child Support Services” means an agency that exists under Title IV-D of the Social Security Act that locates non-custodial parents or putative fathers, establishes, enforces and modifies child support and collects and distributes child support money. A Child Support Services agency is operated by state, local or tribal governments according to the Child Support Services Program guidelines as set forth in Title IV-D of the Social Security Act.

(M)    “Consumer Credit Protection Act (CCPA)” means the federal law that limits the amount that may be withheld from earnings to satisfy child support obligations under §303(b) of the CCPA, 15 U.S.C. § 1673(b).

(N)    “Consumer Reporting Agency” means 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 under 15 U.S.C. § 1681a(f).

(O)    “Court” means the Prairie Band Potawatomi Nation District Court.

(P)    “Custodial Parent (CP)” means the parent with legal custody of the child(ren) or who exercises physical custody of the child(ren). The custodial parent may be a parent, relative, legal guardian or custodian appointed by a court.

(Q)    “Default” means failure of a defendant to appear or file an answer or response in a civil case after having been properly served with a summons and complaint.

(R)    “Default Judgment” means a decision made by the tribunal when the defendant fails to respond.

(S)    “Delinquency” means any payment under an order for support which becomes due and remains unpaid. See Arrearage.

(T)    “Determination of Parentage” means the establishment of the parent-child relationship by the signing of a valid acknowledgment of paternity or adjudication by the court.

(U)    “District Judge” means the presiding judge of the District Court of the Prairie Band Potawatomi Nation.

(V)    “Enforcement” means the application of remedies to obtain payment of a child support or medical support obligation contained in a child and/or spousal support order.

(W)    “Establishment” means the process of determining paternity and/or obtaining a court or administrative order for child support.

(X)    “Genetic Testing” means an analysis of genetic markers to exclude or identify a man as a father or a woman as the mother of the child. The term includes an analysis of one or a combination of the following: deoxyribonucleic acid, blood-group antigens, red-cell antigens, human-leukocyte antigens, serum enzymes, serum proteins or red-cell enzymes.

(Y)    “Income Assignment” means an assignment by operation of law or by court or administrative order of a portion of the monies, income or periodic earnings due and owing to the non-custodial parent, to the person entitled to the support or to another person designated by the support order or assignment. An income assignment may be for payment of current support, arrearages or both.

(Z)    “Income Withholding” means the automatic deductions made from wages or income to pay a debt such as child support. Income withholding usually is incorporated into the child support order and may be voluntary or involuntary. An employer must withhold support from a non-custodial parent’s wages and transfer that withholding to the appropriate agency.

(AA)    “Indian Tribe” means any Indian or Alaska Native tribe, band, nation, pueblo, village or community that the Secretary of the Interior acknowledges to exist as an Indian Tribe and includes in the list of federally recognized Indian Tribal governments as published in the Federal Register pursuant to 25 U.S.C. § 479a-1.

(AB)    “Intercept” means a method of securing child support by taking a portion of non-wage payments made to a noncustodial parent. Non-wage payments subject to interception include federal tax refunds, state tax refunds, unemployment benefits and disability benefits.

(AC)    “Location” means information concerning the physical whereabouts of the non-custodial parent or the non-custodial parent’s employer(s), other sources of income or assets, as appropriate, which is sufficient and necessary to take the next appropriate action in a case.

(AD)    “Lien” means a claim upon property to prevent sale or transfer of that property until a debt is satisfied.

(AE)    “Medical Support” means health or dental insurance coverage or health benefits ordered to be paid by a parent(s) for the benefit of a minor child(ren).

(AF)    “Non-Custodial Parent” means a parent who does not have legal or physical custody of the child(ren) and has an obligation to pay child support. Also referred to as the obligor.

(AG)    “Non-Cash Support” means support other than cash provided to a family in the nature of goods and/or services, which has a certain and specific dollar value.

(AH)    “Obligee” means a person or entity to whom child support is owed. Also referred to as the custodial parent or CP.

(AI)    “Obligor” means the person who is obligated to pay child support. Also referred to as the non-custodial parent or NCP.

(AJ)    “Offset” means an amount of money intercepted from a non-custodial parent’s state or federal tax refund or from an administrative payment such as federal retirement benefits to satisfy a child support debt.

(AK)    “Past Support” means past due support or support for a prior period. See “Arrearage.”

(AL)    “Payment Plan” means, but is not limited to, a plan approved by a judicial or administrative court or a child support services agency to make periodic payments of past due support to reduce the obligor’s arrearage. A payment plan usually consists of a monthly payment plan that includes current support and past due support. The plan may provide for an income assignment or similar plan to insure the past due support will be paid.

(AM)    “Presumed Father” means a man who, by operation of law, is recognized as the father of a child until that status is rebutted or confirmed in a judicial proceeding.

(AN)    “Public Assistance” means benefits granted from tribal, federal or state programs to aid eligible recipients (eligibility requirements vary between particular programs). Applicants for certain types of public assistance (e.g. TANF) are automatically referred to their tribal or state IV-D agency for child support services.

(AO)    “Signatory” means an individual who authenticates a record and is bound by its terms.

(AP)    “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

(AQ)    “Temporary Assistance for Needy Families” means the Temporary Assistance for Needy Families program as found at Section 401 et seq. of the Social Security Act (42 U.S.C. § 601 et seq.).

(AR)    “Tribunal” means a court or administrative agency authorized to establish, enforce or modify support orders, or to determine parentage.

26-1-6 Designation of the Prairie Band Potawatomi Nation Child Support Services Program as a Title IV-D Program.

The Prairie Band Potawatomi Nation Child Support Services Program (hereinafter “CSS”) shall be the designated Title IV-D agency for the Prairie Band Potawatomi Nation with all the authority granted to it in accordance with Title IV-D of the Social Security Act, 42 U.S.C. § 651 et seq., Title IV-D rules and regulations and applicable laws of the Nation, including this Code.

26-1-7 Powers and Duties of the CSS

The CSS shall be authorized to provide Title IV-D child support services that include, but are not limited to:

(A)    Administering and managing the plan and services of its tribal IV-D program;

(B)    Establishing administrative procedures for paternity establishment and establishing, modifying, terminating and enforcing child support orders through court or administrative action consistent with this Code and the rules and regulations set forth by Title IV-D of the Social Security Act, 42 U.S.C. § 651 et seq.;

(C)    Establishing paternity in accordance with this Code;

(D)    Initiating legal action to provide child support services, including appeals;

(E)    Adopting policies and procedures for the Nation for child support services;

(F)    Adopting rules and regulations for child support services, subject to the approval of the Nation’s Tribal Council;

(G)    Negotiating agreements and/or contracts as necessary for child support services under tribal and federal law, subject to the approval of the Nation’s Tribal Council;

(H)    Establishing and maintaining child support records, files and accounting, pursuant to the CSS Record Retention Policy;

(I)    Providing location services for parents and assets; and

(J)    Collecting and distributing child support payments.

26-1-8 Services.

(A)    Services Provided. The CSS program may provide the following Title IV-D services that include, but are not limited to:

(1)    The location of the parents and their assets through local, state and federal agencies and private sources;

(2)    The establishment of paternity through court or administrative action in accordance with this Code and the rules and regulations of Title IV-D of the Social Security Act, 42 U.S.C. § 651 et seq.;

(3)    The establishment and modification of child support obligations through court or administrative action;

(4)    The enforcement of child support orders through court or administrative action;

(5)    A review of child support orders for modification; and

(6)    The collection and distribution of child support payments.

(B)    Services Not Provided. The CSS program shall not provide services for the following:

(1)    The establishment or modification of visitation rights or custody;

(2)    The establishment or modification of spousal support;

(3)    The dissolution of a marriage;

(4)    Enforcement of marital property settlements; or

(5)    Legal advice to custodial on non-custodial parties.

(C)    Termination of Service. The CSS program may terminate child support services under the following circumstances:

(1)    When the Nation receives a written request for termination of services from the person to whom services are being provided;

(2)    When the minor child is no longer eligible for child support or entitled to child support; or

(3)    When an applicant receiving services has violated any term or condition set forth by the CSS program.

26-1-9 Eligibility, Assignment, Priority.

(A)    Eligibility and Application. Child support services are available to an applicant who qualifies under Title IV-D laws and regulations.

(B)    Assignment. An application for child support services shall assign his or her child support rights to the PB, which shall distribute the payment to the appropriate agency or individual.

(C)    Nation has Priority. An assignment of child support to the Nation shall have first priority over any prior or subsequent assignments.

26-1-10 Application Fee.

The CSS may charge an application fee not to exceed twenty-five (25) dollars to an applicant whose family does not receive public assistance from any tribal, state or federal agency. An application fee shall not be charged to an individual who receives public assistance from any tribe, state or federal agency. A fee may not be charged in an intergovernmental case referred to CSS for services.

26-1-11 Intergovernmental Procedures, Full Faith and Credit.

(A)    Intergovernmental Procedure. The CSS shall extend the full range of services available under its Tribal IV-D plan to respond to all requests from and cooperate with other tribal and state IV-D agencies.

(B)    Full Faith and Credit. The Nation shall recognize child support orders issued by other tribes, all tribal organizations and states, in accordance with the requirements under the Full Faith and Credit for Child Support Orders Act, 28 U.S.C. § 1738(B).

26-1-12 Confidentiality of Records.

(A)    All applications, information and records received or obtained by the CSS are confidential and shall only be opened under authorized tribal or federal laws in accordance with Title IV-D rules and regulations.

(B)    The use or disclosure of personal information received or maintained by the CSS is limited to purposes directly connected with the administration of the program, or Titles IV-A and XIX with the administration of other programs or purposes prescribed by the Secretary in regulations.

(C)    No employee or agent of the CSS shall provide any information referred to in this Act, including paternity, establishment, or modification activities or any other activities related to child support, except as provided herein, to IV-D state, tribal or federal government agencies or individuals. Information may be disclosed and shared between a state, tribal or federal agency as necessary in the collection of child support only in accordance with Title IV-D rules and regulations.

(D)    Information on the whereabouts of one party or the child shall not be released to any person against whom the party or child has a protective order.

(E)    Information shall not be released on the whereabouts of one party or the child to another person if there is reason to believe that the release of the information to that party could result in physical or emotional harm to the party or the child.

(F)    Unauthorized disclosure of any such information may subject the disclosing party to criminal and/or civil liability. Criminal prosecution may result in conviction, punishable by a fine of up to five thousand (5,000) dollars per offense.

26-1-13 Attorneys.

(A)    Attorneys. An attorney employed by or under contract with the Nation shall represent and act on behalf of the Nation when providing child support. An attorney-client relationship shall not exist between the attorney and any other party other than the Nation, regardless of the name in which the action is brought.

(B)    No Representation of Parties by Nation Attorneys. An attorney employed to represent the Nation in child support and related proceedings shall not provide any form of legal representation to any person who is a party, an interested party, or a beneficiary in a matter in which the Nation is providing services. Such attorney shall not represent any party, interested party or beneficiary in any other legal matters or proceedings.

(C)    Information to be Provided to Applicants and Recipients Regarding Legal Representation. The SCE shall inform the applicant or recipient of child support services that no attorney-client relationship exists between the attorney and the applicant or recipient and that the attorney does not provide legal representation to the applicant.

26-1-14 Locating Parents.

(A)    Parent Locator Service. The Nation’s parent locator service may be used to obtain information for paternity establishment and for other child support related proceedings.

(B)    Attempts to Locate. Attempts to locate custodial or non-custodial parents and/or sources of income and assets shall be made when location is required to take necessary action in a case. Reasonably available sources of information and records shall be used to locate custodial or non-custodial parents and their sources of income and assets.

26-1-15 Financial Disclosure.

The parents shall provide a complete disclosure of assets on a financial affidavit for purposes of child support and related proceedings, except as otherwise provided.

26-1-16 Applicant Cooperation.

An applicant shall cooperate with the CSS in child support and related proceedings. Non-cooperation may result in the closure of the applicant’s case for failure to cooperate. If notification is required for non-cooperation by other state, tribal or federal agencies, the CSS shall notify the appropriate agency of the non-cooperation of the applicant.

26-1-17 Reasonable Costs.

The CSS may seek reasonable costs against a party in child support and related proceedings. These costs include, but are not limited to court filing fees, process server fees, mailing fees and genetic testing fees performed in accordance with Title 26 of the Potawatomi Law and Code.

26-1-18 Overpayment.

When an obligor has overpaid a child support obligation and there are no arrearages, the CSS shall refund the amount from the obligee.