Chapter 26-4 CHILD SUPPORT ESTABLISHMENT

CHAPTER 26-4
CHILD SUPPORT ESTABLISHMENT

26-4-1 General.

(A) Applicability. This Chapter governs the establishment of child support for a minor child as defined herein.

(B) Orders. In all child support cases, the PB Court shall order the payment of child support pursuant to the child support guidelines established in this Title and the child support schedule attached as Appendix A to this Code.

(C) Initiation of Action. The Nation, mother, father, guardian, custodian, child or other agency responsible for the support of the child may initiate an action for child support.

(D) Age Requirement. An action to establish child support shall be initiated before the minor child reaches the age of eighteen (18) years of age.

(E) Parent Requirement. Child support shall only be established for a biological or legally adopted child of the parents.

(F) No Support of Stepchildren Required. A parent shall not be responsible or liable for the support of a step-child(ren).

(G) Adopted Children. Parents have the same legal duty of support for an adopted child as for a biological child.

(H) Obligors and Obligees. In the payment and receipt of child support, the non-custodial parent or the person responsible for the payment of child support shall be designated the “obligor” and the custodial parent or the person who receives the child support shall be designated the “obligee.”

26-4-2 Child Support, Age of Majority, Minor Parents, Emancipation.

(A) Age Limitation. A child shall be entitled to support by his or her parents until such child reaches eighteen (18) years of age or is emancipated. If a child is regularly enrolled and attending high school or an alternative high school education program as a full-time student, the child shall be entitled to support by the parents until the child graduates from high school, is emancipated or reaches the age of twenty (20) years, whichever occurs first. Full-time attendance shall include regularly scheduled breaks from the school year. No hearing or further order shall be required to extend support pursuant to this subsection after the child reaches the age of eighteen (18).

(B) Minor Parents. Minor parents are responsible for the financial support of their child. The Court may deviate from the child support guidelines if the minor parents are attending high school. When the minor parent emancipates, the Court may modify the order in accordance with the child support guidelines.

(C) Emancipation. A child shall be considered emancipated when said child either reaches the age of eighteen (18) or is regularly enrolled and attending high school until the age of twenty (20) whichever occurs first pursuant to subsection (A) of this Section; or when the child enlists in the military, marries or is emancipated by an order from the Court.

26-4-3 Child Support Obligations and Guidelines.

(A) Purpose. The purposes of the child support guidelines are to:

(1) Establish as policy an adequate standard of support for minor children, subject to the ability of parents to pay;

(2) Make support payments equitable by ensuring consistent treatment of persons in similar circumstances; and

(3) Improve the efficiency of the court process by promoting settlements and giving guidance in establishing levels of child support to the Court, CSS and the parties.

(B) Child Support Worksheet. The worksheet should contain the actual calculation of the child support based on Child Support Income, Work-Related Child Care Costs, Health, Dental, Orthodontic and Optometric Insurance Premiums, and any Child Support Adjustments. (See Appendices II – III).

(C) Use of Child Support Schedules. In any action to establish or modify child support, the child support instructions as set forth in Appendices I – III) shall be applied to determine the child support due and shall be a rebuttable presumption for the amount of such child support. The child support schedule shall be used for temporary and permanent orders, separations, dissolutions and support decrees arising despite non-marriage of the parties. The child support schedule shall be used as the basis for reviewing the adequacy of child support levels in non-contested cases as well as contested hearings. A specific amount of child support should always be ordered, no matter how minimal, to establish the principle of that parent’s obligation to provide monetary support to the child.

(D) Base Monthly Child Support Amount. A child support obligation shall provide for a base monthly child support amount, which shall be calculated using the child support computation schedule, the computation formula and income guidelines for employed and self-employed parents. The computation formula computes the base monthly child support amount based on the domestic gross income of both parents, which shall be calculated in accordance with this Section.

(E) Sources for Determination of Gross Income Amounts. Gross income shall be derived, but shall not be limited, to the following sources: salaries, wages, tips, commissions, bonuses, severance pay, dividends, pensions, interest income, trust income, annuities, capital gains, alimony or maintenance received, social security benefits, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, prizes, Individual Indian Money accounts and per capita payments. For income from self-employment, rent, royalties, proprietorship of a business or joint ownership of a partnership or closely held corporation, “gross income” means gross receipts minus ordinary and necessary expenses required to produce such income, provided that ordinary and necessary expenses do not include expenses determined by the Court to be inappropriate for purposes of calculating child support. If the parent is unemployed, the minimum wage rate shall be used to compute the income of that parent, if the parent is physically capable of working, unless otherwise provided under these guidelines.

(F) Excluded Sources for Determination of Gross Income Amounts. Gross income shall not be derived from the following sources: actual child support received for children not before the Court, Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), food stamps, general assistance and state supplemental payments for the aged, blind and disabled.

(G) Computation of Domestic Gross Income. The domestic gross income to be used for the purpose of determining the base monthly child support amount described in subsection (B) of this Section shall be calculated as follows:

(1) In computing gross income for a child support obligation from sources such as those described in subsection (E) of this Section, one of the following types of income may be used, whichever is most equitable: (i) all earned and passive income; (ii) all passive and earned income equivalent to a forty-hour week plus such overtime and supplemental income as the Court deems equitable; (iii) the average of the gross monthly income for the time actually employed during the previous three years; or (iv) the minimum wage paid for a forty (40) hour work week. If a party is unemployed, the Court may impute a minimum wage for income. If a parent is permanently, physically or mentally incapacitated, the child support obligation shall be computed on the basis of actual monthly gross income.

(2) The amount of any preexisting court order for current child support for children, not before the Court, shall be deducted from gross income, if actually paid. The amount of reasonable expenses of debt service for preexisting, jointly acquired debt of the parents may be deducted from gross income, if actually paid.

(H) Basic Child Care Obligations. A child support order shall provide for child care expenses reasonably necessary to enable both parents to be employed, seek employment or attend school or training to enhance employment income. The actual child care costs incurred shall be allocated and paid monthly in the same proportionate share as the child support. Upon reasonable request by the obligor, the obligee shall provide the obligor with timely documentation of any change in the amount of the child care costs. If the Court finds that it will not cause detriment to the child or undue hardship to either parent, in lieu of payment of child care expenses incurred during employment, employment search or while the obligee is attending school or training, the obligor may provide for the child care during that time.

(I) Basic Medical Support Obligation. A child support obligation shall provide for medical and dental insurance and unreimbursed medical and dental expenses. Medical support may be provided through employer insurance, group insurance, an alternative private source or the Indian Health Service. The actual medical and dental premiums are to be allocated between the parents in the same proportion as their adjusted gross income and added to the base child support obligation. An Indian Health Service facility, including such facility operated by an Indian tribe, and/or services may be used for both medical and/or dental service, if agreed by both the obligor and obligee.

(J) Other Expenses Not Covered by Basic Child Support Obligations.

(1) Medical Expenses Not Covered by Insurance. Reasonable and necessary medical, dental, orthodontic, optometric, psychological or any other physical or mental health expenses of the child incurred by either parent and not reimbursed by insurance shall be allocated in the same proportion as the parents’ adjusted gross income as separate items that are not added to the base child support obligation. The parent who incurs the expense shall be reimbursed by the other parent within thirty (30) days of receipt of documentation of the expense. If a clinic, hospital, or program provides health services as described in this subsection utilizing direct or contract health care funding provided through the Indian Health Service, both parties shall be liable for any medical and dental expenses resulting from, but not covered by, such services, or otherwise unreimbursed with funding through the Indian Health Service, in the same proportionate share as the child support.

(2) Travel Expense. A child support obligation may provide for transportation and communication expenses necessary for long distance visitation or time divided in proportion to each parent’s adjusted gross income.

(3) Extraordinary Educational Expenses. A child support order may provide for any extraordinary educational expenses for children of the parties.

(K) Deviations. The Court may order child support in an amount different from that which is provided in these guidelines, if:

(1) (i) There is a presumption of hardship because application of the child support guidelines would required the non-custodial parent to pay the custodial parent more than forty percent (40%) of his gross income for a single child support obligation for current support; (ii) a minor custodial and non-custodial parent are regularly attending high school; (iii) the court makes a finding that the parents of the minor parents are responsible for the financial support of the child; or (iv) application of the guidelines would be inappropriate or unjust in the particular case due to other circumstances;

(2) Deviation is in the best interest of the children for whom the child support obligation is being established;

(3) The award order states the amount the award would be if it were calculated by application of the guidelines;

(4) The award order states the amount of child support which is actually awarded after the deviation; and

(5) The award order contains written findings regarding items (1) through (4) above.

26-4-4 Address Requirements, Service.

(A) Address Information. All child support orders shall require the parties to keep the CSS informed of their current addresses and an address of record for service. An address of record for service may be different from a party’s physical address.

(B) Change of Address. Any change of address shall be provided to the CSS program within thirty (30) days of the change. The address of a party shall be protected from disclosure if evidence of domestic violence or child abuse is found or if it is determined that disclosure could be harmful to a party or child.

26-4-5 Child Support Order.

(A) Contents of Child Support Order. A child support order shall provide the following:

(1) the names of the obligor and obligee;

(2) the name or names of the child(ren) before the court;

(3) a provision for the monthly child support amount;

(4) a provision for the amount of any past due support and a payment plan for the past due support, if applicable;

(5) a provision for a judgment for past due support and a payment plan for the past due support, if applicable;

(6) a provision for medical and dental insurance;

(7) a provision for unreimbursed medical expenses;

(8) a provision for immediate income withholding;

(9) a provision for child care costs, if applicable;

(10) a provision for a current address and an address for service; and

(11) such other information or requirements as determined appropriate and reasonable by the Court or the CSS.

(B) Commencement of Obligation. The obligations shall commence, unless otherwise ordered, on the first day of the month immediately following the month in which the child support order was issued.

(C) Statement of Amount. The amount of a child support order shall not be construed to be an amount per child unless specified by the Court. If there is more than one child in the child support order and one of the children has attained the age of majority or is no longer entitled to support, the child support order may be modified.

(D) Support of the Child. The child support order may include a provision, if the Court deems it appropriate; to assure that the child support payment shall be used for the support of the child.

26-4-6 Arrearage.

A judgment for arrearage may be included in each child support order if there is past due child support owed as well as a payment schedule for the judgment. Failure to state a past due amount in the order does not bar collection of the amount.

26-4-7 Non-Cash Support.

(A) Non-Cash Support. The Court may allow part of the child support obligation to be paid with non-cash support, if the obligee agrees to the use of a non-cash payment being used, and the child support order states:

(1) the specific dollar amount of the support obligation; and

(2) the type and amount of non-cash support that will be permitted to satisfy the child support obligation.

(B) Satisfaction of Public Assistance Monies. Non-cash payments shall not be permitted to satisfy any tribal, state or federal public assistance monies.

26-4-8 Payments.

Child support payments shall be made to the Prairie Band Potawatomi Nation Child Support Services, except as otherwise provided, and such payments shall be distributed to the appropriate agency or individual.

26-4-9 Approval by Court.

The child support order and the child support computation form which establishes or modifies child support shall be approved by the court.

26-4-10 Voluntary Agreement.

Parents may establish child support through a voluntary agreement in accordance with the child support guidelines. In the event of such agreement, the parties shall sign and date the child support order, the child support computation form, and a waiver of right to service of process before submission to the court. Once signed, the agreed order, computation form, and waiver shall be submitted to the Court for approval and signature, including any evidence, for approval without the parties being present at a court hearing.

26-4-11 Rebuttable Presumption.

There shall be a rebuttable presumption in any proceeding for child support that the amount of the award is the correct amount of child support to be awarded.

26-4-12 Liability for Past Support.

In an establishment case for child support, the court may award an additional judgment to reimburse the expenses of support and education of the child from the date of birth to the date the order is entered. If the determination of paternity is based upon a presumption arising under Section 26-3-30 of this Code, the court shall award an additional judgment to reimburse all or part of the expenses of support and education of the child from at least the date the presumption first arose to the date the child support order is entered, except that no additional judgment need be awarded for amounts accrued under a previous order for the child’s support.

26-4-13 Termination of Parental Rights, Adoption.

(A) Termination of Parental Rights. When a parent terminates his or her parental rights, the termination does not end the duty of either parent to support his or her child. The duty ends when a court terminates the parent’s duty to support his or her child, or if there is a signed written agreement, which is approved by the court, between the parties to terminate the duty to support. If there is a child support arrearage, the arrearage shall be due until paid in full unless waived by the court or by a signed written agreement between the parties that waives the past arrearage and that is approved by a court.

(B) Adoption. If an adoption of a child is pending, a child support order shall remain in effect until notice is received that the final decree of adoption has been entered by the applicable court. If there is a child support arrearage, the arrearage shall be due until paid in full, unless waived by the court or by a signed written agreement, approved by the court, between the parties that waives the arrearage.

26-4-14 Modification.

(A) Petition to Modify. A child support order may be modified upon petition of the obligor, obligee or CSS.

(B) Modification Upon Material Change in Circumstances. Child support orders may be modified upon a material change in circumstances that includes, but is not limited to:

(1) An increase or decrease in income;

(2) When a child reaches the age of majority;

(3) When a child ceases to be entitled to support pursuant to the support order, or

(4) A change in child care costs or medical support.

(C) Effective Date of Modification. An order of modification shall be effective upon the date the motion to modify was filed, unless the parties agree to another effective date or the Court finds that the material change of circumstances did not occur until a later date.

(D) Voluntary Modification. If the parties agree to a modification, the court shall review the modification to insure that it complies with the child support guidelines.

26-4-15 No Retroactive Modification.

A child support order shall not be modified retroactively.

26-4-16 Temporary Orders.

(A) The court may upon proper application establish a temporary order for child support in accordance with the child support guidelines.

(B) A temporary order may be vacated or modified prior to or in conjunction with a final order or decree.

(C) A temporary order terminates when the final judgment on all issues, except attorney fees and costs, is rendered or when the action is dismissed.

26-4-17 Prior Born Children.

If an obligor has a child support order and later has additional children born or adopted, the obligor may not be permitted to modify the order for the prior born child to support a child born or adopted later.

26-4-18 Past Due Support.

A final order for modification shall state whether past due support is owed and set a payment schedule. The failure to state a past due amount does not bar an action to collect the past due amount.

26-4-19 Review of Child Support Orders, Review of Guidelines.

(A) The CSS shall conduct a review of a child support order at least once every four (4) years to insure that the child support order is in accordance with the child support guidelines and Title IV-D rules and regulations.

(B) If the CSS determines that the child support order is not in accordance with the child support guidelines, CSS shall initiate an action to modify the child support order.

(D) Either a non-custodial or custodial party may request a review of the child support order.

(E) CSS shall conduct a review at least once every four (4) years to insure the child support guidelines are appropriate child support award amounts and in accordance with Title IV-D rules and regulations.

26-4-20 Redirection of Child Support Upon Change in Physical Custody.

Whenever physical custody of the child is changed, the child support payments shall be redirected to the new custodian, except for the amount of unpaid support still owed to the previous custodian or to the tribal or state child support agency.

26-4-21 No Statute of Limitations.

Court ordered child support shall be owed until paid in full and it shall not be subject to a statute of limitation.

26-4-22 TANF Money Owed to a State or Tribe.

When a state or tribe expends TANF money for the benefit of a dependent child, the payment of the TANF money creates a support debt owed to a state or tribe by the person(s) responsible for the support of the dependent child. The amount of support debt shall be equal to the amount of TANF money expended for the benefit of the dependent child, unless otherwise provided through a court or administrative order.

26-4-23 Income Assignment.

(A) Every child support order or a modification of such order shall provide for an immediate income assignment provision, regardless of whether support payments are in arrears.

(B) The income assignment shall withhold the necessary amount to comply with the child support order for the monthly obligation. If there is overdue child support, the income assignment must withhold an amount to be applied toward satisfaction of the arrears.

(C) The total amount to be withheld from an individual’s income for current and past due support shall not exceed the maximum amount permitted under § 303(b) of the Consumer Credit Protection Act, 15 U.S.C. § 1673(b).

(D) Income shall not be subject to withholding in any case where:

(1) Either the custodial or non-custodial parent demonstrates, and the court finds, there is good cause not to require immediate income withholding; or

(2) A signed written agreement is reached between the custodial and non-custodial parent, which provides for an alternative arrangement, and is approved by the court.

(E) If the obligor has multiple withholding orders, the CSS shall allocate amounts to be withheld from each order to insure that all orders are implemented. In no case shall an allocation result in a support obligation not being implemented.

(F) Where immediate income withholding is not in place, the income of the obligor shall become subject to withholding on the date on which the payments the obligor has failed to make are at least equal to the support payable for one month.

(G) The only basis for contesting a withholding order is a mistake of fact, which means:

(1) An error in the amount of current or overdue support, or

(2) In the identity of the alleged obligor.

(H) CSS shall terminate income withholding in cases where there is no longer a current order for support and all arrearages have been satisfied.

(I) CSS shall refund amounts which have been improperly withheld.

(J) CSS shall be responsible to receive and process income withholding orders from any state, tribe or other entity, and to insure such orders are properly and promptly served on employers located within the Nation’s jurisdiction.

(K) The income assignment issued pursuant to this Section shall remain in effect as long as any support monies are owed. Payment of any support monies shall not prevent the income assignment from taking effect.

(L) Nothing in this Section shall limit the authority of CSS to use its administrative powers conferred by law to collect delinquent support without the necessity of a court order.

26-4-24 Voluntary Income Assignment.

An obligor may execute a voluntary income assignment at any time. The voluntary assignment shall be filed with the court and take effect after service on the employer.

26-4-25 Employer, Notice of Income Assignment, Requirements.

(A) CSS shall send the employer notice of the income assignment using the standard federal form prescribed by United States Secretary of Department of Health and Human Services.

(B) The income withholding shall take effect on the next pay period of the obligor after the employer receives notice. The employer shall withhold the amounts specified in the notice on each pay period. The amounts withheld shall be sent to CSS within seven (7) business days after the date upon which the obligor is paid. The employer shall include with each payment a report that states the date the amount was withheld from the obligor’s income.

(C) The amount withheld, including any fee under this Section, by the employer shall not exceed the limits permitted under § 303(b) of the Consumer Credit Protection Act, 15 U.S.C. § 1673(b).

(D) If the amount of support due in the notice exceeds the maximum authorized under subsection (C) of this Section, the employer shall pay the amount due up to the statutory limit and send written notice to CSS or another person designated to receive payments that the amount due exceeds the amount subject to withholding.

(E) The employer shall notify CSS within ten (10) days of the date when the obligor terminates employment and provide the obligor’s last known address and the name and address of the obligor’s new employer, if known.

(F) If the employer fails to withhold in accordance with the provisions of the income assignment order, the employer will be liable for the accumulated amount the employer should have withheld and paid from the obligor’s income.

(G) The employer may not discipline, suspend, discharge or refuse to employ an obligor because of an income assignment. Any employer who violates this Section shall be subject to a civil fine of $500 for the unlawful discipline, suspension, discharge or refusal to employ.

(H) The employer may combine withheld amounts from two (2) or more obligors’ incomes in a single payment to each appropriate agency requesting withholding and separately identify the portion of the single payment which is attributable to each individual obligor.

(I) The income assignment is binding on the employer until further notice by CSS.

(J) Any payment made pursuant to the provisions of this Section by the employer shall be made payable to CSS.

(K) An income assignment issued pursuant to this Section shall have priority over any other subsequent garnishments against the same income.

(L) The employer may deduct from an income of the obligor a sum not exceeding five (5) dollars per pay period but not to exceed ten (10) dollars per month as reimbursements for costs incurred by the employer in complying with the income assignment.

(M) The income assignment applies to any current or subsequent employer. If the obligor changes employment where an income assignment is in place, CSS shall notify the new employer pursuant to this Section that the income assignment is binding on the new employer.

(N) Two (2) or more income assignments may be levied concurrently. Any current support due shall be paid before the payment of any arrearages or support debt payment.

(O) The employer shall verify the obligor’s address, employment, earnings, income, benefits and dependent health insurance information upon request of CSS.

26-4-26 Registration of Foreign Child Support Order.

(A) Any other state or tribal child support order shall be registered with the court for the purpose of obtaining jurisdiction for enforcement of the withholding.

(B) After registration of a foreign child support order, the CSS shall notify the obligor that the child support order has been registered with the Nation and is a valid order and enforceable as if originally issued in the Nation’s court.