CHAPTER 26-5
CHILD SUPPORT ENFORCEMENT

26-5-1 General.

(A)    CSS may initiate an enforcement proceeding that includes, but is not limited to:

(1)    enforcement of current child support payments;

(2)    establishment and enforcement of a child support judgment; and

(3)    review and modification of child support orders.

(B)    CSS may use applicable remedies in accordance with Title IV-D rules and regulations that includes, but are not limited to: income withholding; revocation of a driver’s license, hunting and fishing licenses and professional licenses; consumer credit reporting; passport denial; use of state and federal income tax refund intercept programs; use of lien and levy; contempt proceedings; and any other civil remedy available for the enforcement of a child support order or judgment.

(C)    An action to enforce child support may be brought by the CSS, parent, guardian, child or other public agency responsible for the support of the child.

(D)    The CSS is authorized to initiate legal action and appeal orders as necessary to implement the provisions of this Section.

26-5-2 Judgment for Arrearage.

(A)    When an obligor fails to pay current child support and an arrearage accumulates, said arrearage becomes a judgment by operation of law, and becomes effective on and after the scheduled payment date in the child support order.

(B)    A party or the CSS may initiate an action to obtain a formal order of judgment from the Court; however a judgment by operation of law shall have the full force and effect of a judgment of the court and shall be enforced under the laws of the Nation and/or in accordance to the laws of the adjudicating court.

(C)    A judgment shall be accorded full faith and credit with other tribes and states.

(D)    A child support judgment is not subject to retroactive modification by the tribe or by any other tribe or state except that the court may permit a modification with respect to any period during which there is pending a petition for modification, but only from the date that notice of such petition has been given to the obligee or (where the obligee is the petitioner) to the obligor.

(E)    A child support judgment shall not become dormant for any purpose. CSS shall follow applicable laws regarding judgments and liens.

(F)    Except as otherwise provided, a judgment for past due child support shall be enforceable until paid in full.

26-5-3 Arrearage.

(A)    The court shall determine the amount of arrearage of any child support obligation and set a payment schedule.

(B)    The parties may voluntarily agree on an arrearage payment schedule, subject to approval by the court.

(C)    Any amounts determined to be past due by the court may be subsequently enforced by indirect civil contempt proceedings.

26-5-4 Liens, Workers Compensation, Release.

(A)    Liens arise by operation of law against real and personal property for amounts of overdue support owed by an obligor who resides or owns property within a state.

(B)    Past due child support shall become a lien by operation of law upon the real and personal property of the obligor at the time they become past due.

(C)    A judgment or order for current support or an arrearage of child support shall be a lien upon real property owned by the obligor or upon any real property which may be acquired by the obligor prior to the release of the lien.

(D)    The CSS shall comply with the rules and procedures regarding the recording and service of a lien or extension of a lien on personal and real property within a state or tribe in accordance with the applicable law.

(E)    The judgment or order shall not become a lien for any sums prior to the date they severally become due and payable.

(F)    A judgment for an arrearage of child support shall become a lien upon benefits payable as a lump sum received from a worker’s compensation claim of the obligor. The filing and service for a worker’s compensation claim for child support shall follow applicable state workers’ compensation statutes.

(G)    The provisions of this Section shall not authorize a sale of any property to enforce a lien which is otherwise exempted by tribal, state or federal law.

(H)    A lien shall be released upon the full payment of the amount of the arrearage.

(I)    All liens shall be given full faith and credit.

26-5-5 Tribal and Individual Exempted Property.

Tribal religious and/or ceremonial property, individual tribal trust property, individual religious and/or ceremonial property and Individual Indian Money (IIM) accounts are exempt from liens.

26-5-6 Initiated Income Assignment, Notice, Hearing.

(A)    If an income assignment has not been ordered for the collection of child support, CSS shall initiate an income assignment when the obligor has failed to make a child support payment at least equal to the support payable for one month, regardless of whether support payments are in arrears.

(B)    The only basis for contesting a withholding order under this Section is a mistake of fact which means an error in the amount of current or overdue support or in the identity of the alleged obligor.

(C)    In cases where the CSS initiates an income assignment, notice to obligor shall be given and served according to law. The notice shall inform the obligor at a minimum that:

(1)    The withholding has commenced;

(2)    The amount of overdue support that is owed, if any, and the amount of wages that will be withheld;

(3)    The provision for withholding applies to any current or subsequent employer or period of employment;

(4)    The procedures available for contesting the withholding, and that the only basis for contest of such withholding is a mistake of fact;

(5)    The assignment shall remain as long as the support order is in effect;

(6)    The payment of any support monies will not prevent an income assignment from taking effect; and

(7)    The obligor shall be required to keep the CSS informed of the name and address of the current employer and health information.

(D)    If the obligor challenges the income assignment, the obligor may request a hearing by giving written notice to the CSS. The obligor has fifteen (15) days from the date of service of the notice to request a hearing. On receipt of the request for a hearing, the CSS shall schedule the request on the next available court date.

(E)    The court shall hear the matter and unless the obligor successfully shows there is a mistake of fact, the court shall enter an order that grants an income assignment and a judgment for arrearage, if any, and a payment schedule for the arrearage.

(F)    The order shall be a final judgment for purposes of appeal.

(G)    If within fifteen (15) days of the date of service of the notice, the obligor fails to request a hearing, pursuant to this Section, or if after having requested a hearing the obligor fails to appear at the hearing, the court shall enter an order that grants an income assignment and a judgment for arrearage, if any, and a payment schedule for the arrearage.

(H)    A copy of the order shall be served upon the obligor by certified mail, return receipt restricted delivery or, if the CSS has an address of record, through regular mail.

(I)    The obligor may voluntarily request an income assignment be initiated for the next due date, or earlier if so requested.

26-5-7 Spousal Support.

The CSS is authorized to enforce an established spousal support obligation as long as a child support obligation is being enforced by CSS and the minor child lives with the spouse or former spouse.

26-5-8 Revocation or Suspension of Licenses.

(A)    The CSS may initiate enforcement proceedings for the suspension or revocation of a professional license, hunting and fishing license or driver’s license of an obligor who is in noncompliance of a child support order.

(B)    Before CSS initiates proceedings for the suspension or revocation of a license(s), CSS shall issue a notice to the obligor that states his or her license(s) will be suspended within twenty (20) days after service, unless the obligor notifies CSS within those twenty (20) days and:

(1)    Pays the entire past due support or enters into a payment plan approved by CSS; and/or

(2)    Complies with all orders and subpoenas regarding paternity or child support.

(C)    The notice to the obligor shall be served according to law.

(D)    The obligor may submit a written request for a hearing to CSS within twenty (20) days after the date of service of the notice. Upon receipt of the request for hearing, CSS shall schedule a hearing on the next available court date.

(E)    The court shall determine whether the obligor is in noncompliance with an order for support and whether suspension or revocation of a license is appropriate or whether probation is appropriate.

(F)    If an obligor fails to respond to the notice issued under this Section, fails to request a timely hearing or fails to appear at a scheduled hearing, the court shall enter an order of suspension, revocation, non-issuance or non-renewal of a license to the licensing board and to the obligor.

(G)    The order for suspension or termination of a license for noncompliance of a child support order shall be sent to the appropriate state or tribal licensing board.

(H)    For licenses issued by the state, CSS shall follow applicable state statutes.

26-5-9 Probation.

The Court may grant probation if the obligor enters into a court-ordered payment plan to repay past due support and provides proof that the obligor is complying with all other orders for support. Probation shall be conditioned upon full compliance with the order(s). If the court grants probation, the probationary period shall not exceed three (3) years and the terms of the probation shall provide for automatic suspension or revocation of the license if the obligor does not fully comply with the order.

26-5-10 Reinstatement, Termination of Orders.

(A)    An obligor whose license(s) have been revoked or suspended may request in writing to CSS that the license(s) be reinstated.

(B)    The court may reinstate the obligor’s license, if the obligor has paid either:

(1)    The current child support and monthly arrearage payments for the current month and two (2) months immediately preceding, or

(2)    Paid an amount equivalent to three (3) months of child support and arrearage payments, and

(3)    Is in full compliance with other provisions of the support order.

(C)    If CSS proceeds to terminate an order for revocation or suspension of a license, CSS shall serve on the obligee a copy of the motion for reinstatement of the obligor’s licenses and notice of hearing. The motion and notice may be either sent by regular mail if there is an address of record on file with CSS or served according to law.

(D)    If the license is reinstated, a copy of the order reinstating a license shall be sent to the obligee, obligor and appropriate state or tribal licensing board.

(E)    If the obligor’s license is reinstated and he or she fails to make child support payments, the obligor’s license(s) may again be suspended or revoked.

(F)    CSS shall proceed to terminate an order for suspension or revocation when the obligor has paid his child support debt in full, without the necessity of a hearing. The order to reinstate a license shall be sent to the obligor, obligee and appropriate state or tribal licensing board.

(G)    For licenses issued by the state or another tribe, CSS shall follow applicable state or tribal statutes.

26-5-11 Employment, Find-Job Order.

(A)    Employment Requirement. A person who is ordered to pay child support through either court or administrative action shall be required to maintain employment to meet his or her child support obligation.

(B)    Action for Order for Employment. If an obligor is in arrears for child support in an amount greater than three (3) times the obligor’s total monthly support payments and is not in compliance with a written payment plan, and the obligor claims inability to pay court-ordered child support because of unemployment or underemployment, CSS may initiate an action to obtain an order to require an unemployed or underemployed obligor to find employment through job search programs or job-training programs. To initiate such action, the CSS must schedule an administrative conference with the obligor or a court hearing to determine if he or she is noncompliance because of unemployment or underemployment.

(C)    Notice to Obligor. Notice of the administrative conference or court hearing shall be sent to the obligor in noncompliance with a child support order because of unemployment or underemployment through one of the following methods: (i) first-class mail to the obligor’s last known address with a certificate of mailing; (ii) certified mail, return receipt restricted delivery; or (iii) personal service with proof of service certificate. The notice shall include the following information:

(1)    The name of the obligor;

(2)    The name of the obligee and the child or children for whom support is owed;

(3)    The telephone number and contact number for CSS;

(4)    Statements that the obligor is in noncompliance with a court or administrative support order and the amount of the past due support; the time, date and place of an administrative conference or court hearing set in said matter; the consequences of the obligor’s failure to appear at the said hearing or conference; the obligor’s burden of proof at the hearing or conference; and a description of the order that may be issued following the hearing or conference, all as set forth in sub-sections (D) and (E) of this Section; and

(5)    A statement that if a CSS administrative conference has been set, the obligor has the right to request transfer of the proceedings to the Court prior to the conference, or to appeal a CSS administrative find-job order to the court following a CSS conference within ten (10) days from the date of the order.

(D)    Hearing; Order. The obligor shall be responsible for providing documentation for good cause not to participate in an employment search or job training program. If the obligor fails to appear at the hearing or appears and is determined to be unemployed or underemployed, the Court or CSS in an administrative conference shall enter a find-job order setting forth such findings and directing the obligor to participate in job-finding or job-training programs and accept available employment. Such order may require the obligor to register with a state and/or tribal employment agency for employment or job training. The order shall require the obligor to file a weekly report with CSS showing at least five (5) attempts to find employment, including the name, address and phone number of a contact person with whom the obligor sought employment. CSS shall submit the order to the Court for approval. A copy of the order will be mailed to the obligor by first-class mail with a certificate of mailing.

(E)    Failure to Comply. If an obligor fails to report or otherwise comply with a find-job order without good cause, enforcement proceedings may be initiated against the obligor. The obligor shall be responsible for the verification of any reason for noncompliance with a find-job order.

(F)    Order Duration. The duration of the order shall not exceed three (3) months.

26-5-12 Passport Denial.

CSS may refer a judgment for child support to the Secretary of Health and Human Services for passport denial, revocation or restriction pursuant to Title IV-D rules and regulations.

26-5-13 Reporting to Consumer Reporting Agency.

(A)    CSS may report to a consumer reporting agency the name of an obligor who is delinquent in the payment of support and the amount of overdue support owed by the obligor.

(B)    The obligor shall be notified before the release of the information to the consumer reporting agency and given a reasonable opportunity to contest the accuracy of such information.

(C)    Information shall be given only to an entity that has furnished evidence satisfactory to the CSS that it is a consumer reporting agency as so defined in 15 U.S.C. § 1681a(f).

26-5-14 State and Federal Tax Offset Programs, Administrative Offset.

(A)    CSS may use a state tax intercept program or services to collect child support debts.

(B)    CSS may use the federal tax intercept program or services to collect child support debts.

(C)    CSS may use administrative offsets to collect child support debts.

26-5-15 Indirect Civil Contempt.

(A)    CSS may initiate indirect civil contempt proceedings or any other proceeding to secure compliance with a child support order.

(B)    In a proceeding for indirect contempt, the pleading must be verified through affidavit of the party initiating the proceeding. The obligor shall be served by personal service or certified mail, return receipt.

(C)    In a proceeding for contempt, prima facie evidence of an indirect civil contempt of court shall be held when:

(1)    There is proof that:

(a)    The child support order was made, filed and served on the obligor;

(b)    The obligor had actual knowledge of the existence of the order;

(c)    The order was granted by default after prior due process notice to the parent; or

(d)    The parent was present in court at the time the order was announced; and

(2)    The obligor is in noncompliance with the order.

(D)    Unless otherwise provided by law, punishment for direct or indirect contempt shall be the imposition of a fine in a sum not exceeding five hundred (500) dollars or imprisonment in jail not exceeding six (6) months, or both, at the discretion of the court.

(E)    If a contemner is committed to the custody of the sheriff to serve the sentence imposed by the court, the contemner may thereafter only be discharged from the custody of the sheriff:

(1)    Upon payment in full of the adjudicated arrearage;

(2)    Upon serving the full sentence;

(3)    Upon an agreement by the parties as to payment of the arrearages, subject to any conditions and approval by the court; or

(4)    Upon payment of a lump sum amount to be determined by the Court. The Court shall determine the amount by:

(a)    the circumstances giving rise to the contempt;

(b)    the total amount of the adjudicated arrearage; and

(c)    evidence of the obligor’s attempts to reduce the arrearage prior to the contempt proceeding.

(F)    Contemners incarcerated pursuant to this Section shall not be given credit for good time, trustee time or any other credit for time served. Contemners incarcerated pursuant to the provisions of this Section shall serve flat time.

26-5-16 Purge Fee, Referral.

(A)    When an obligor is found guilty of indirect contempt of court for failure to pay child support or violation of other court-ordered provisions for child support, the obligor may purge the contempt through a payment plan that requires:

(1)    The obligor to make current support payments as well as paying the arrearage or some portion thereof either paying the full amount of the arrearage or if the full amount of the arrearage is not paid in a lump sum, then by making additional monthly payments, exclusive of day care expenses; and

(2)    The arrearage payments made under this Section shall be applied to reduce the amount of child support arrearage.

(B)    The arrearage payments made under this Section shall continue until the child support arrearage has been paid in full, at which time the contempt shall be deemed purged.

(C)    If an obligor is found guilty of indirect contempt, the court may refer the contemner to a state or tribal employment program, in accordance with Section 26-5-11 for employment services or training as a condition of probation. If the obligor fails to comply with the state or tribal employment program requirements, the obligor shall be sentenced accordingly.

26-5-17 Waivers or Credits, Payments to Children.

(A)    The obligee may waive or give credit for past due child support.

(B)    No waiver or credit is allowed for tribal-, federal- or state-owed money, unless waived by the tribal, state or federal agency that issued the money.

(C)    Payments to child(ren) are considered gifts to the child(ren).

26-5-18 Exceptions to Enforcement Proceedings.

(A)    An obligor who currently receives TANF payments shall be exempt from CSS actions while currently receiving TANF payments or any other state or tribal public assistance benefits.

(B)    An obligor who claims unemployment because of a physical and/or mental health problem shall provide documentation of such claim by a licensed physician or licensed mental health professional. The obligor shall be responsible for providing documentation of the physical or mental health treatment plan with the time it may take to complete the plan. Upon completion of the treatment plan, the terms regarding unemployment in subsection (D) of this Section shall be in force.

(C)    An obligor who claims unemployment because of a physical or mental disability shall provide documentation that he or she has applied for disability determination with the Social Security Administration. The obligor shall provide to the court documentation that he or she has applied to a state department of rehabilitation services for assistance in becoming employable. If the obligor is determined to be employable by the state department of rehabilitation services, the obligor shall provide documentation that such parent has made every effort to cooperate in obtaining employment pursuant to subsection (D) of this Section.

(D)    An obligor who claims unemployment in subsection (B) or (C) shall be required to register with the state employment security commission or a state and/or tribal employment agency for employment. The obligor is responsible for making a good faith effort to obtain employment either through the employment services and personal initiative, providing documentation of employment registration to the court, and providing documentation of an employment application. The obligor must demonstrate he or she is actively seeking employment and/or training as provided by the employment agency and is willing to work.

(E)    These provisions shall not apply to an only parent caring for the child or children in the home, when daycare services are not available or when it is unreasonable to place the child or children in day care services.

26-5-19 Interest.

CSS may charge interest on past due support obligations stemming from tribal court orders but is not required to charge interest; however, CSS shall charge the statutory rate of interest on state-owed or other tribal-owed judgments as required by full faith and credit.

26-5-20 Expedited Procedures.

(A)    CSS has the authority to enter orders in the following actions without the necessity of obtaining an order from any other judicial or administrative court:

(1)    To require both parents to appear for genetic testing in cases where paternity has not been established or admitted.

(2)    To subpoena any financial or other information needed to establish, modify or enforce a support order, provided that the subpoena complies with applicable tribal, federal or state statutes.

(3)    In cases where there is support arrearages, to secure assets by:

(a)    intercepting or seizing periodic or lump-sum payments from:

(i)    a state or local agency, including unemployment compensation, workers’ compensation and other benefits, and

(ii)    judgments, settlements and lotteries;

(b)    attaching and seizing assets of the obligor held in financial institutions.

(c)    attaching public and private retirement funds; and

(d)    imposing liens in accordance with this Code.

(4)    To increase the amount of monthly support payments to include amounts for the purpose of securing overdue support.

(5)    If an income assignment is not ordered or in place by operation of law, CSS is authorized to implement income withholding.

(6)    To obtain access, subject to safeguards on privacy and information security, and subject to the non-liability of entities that afford such access under this subparagraph, to information contained in the following records.

(a)    Records of other state and local government agencies, including: (i) vital statistics; (ii) state and local tax and revenue records; (iii) records concerning real and titled personal property; (iv) records of occupational and professional licenses and records concerning the ownership and control of corporations, partnerships and other business entities; (v) employment security records; (vi) records of agencies administering public assistance programs; (vii) records of the motor vehicle department; and (viii) corrections records.

(b)    Certain records held by private entities with respect to individuals who owe or are owed support, consisting of: (i) the names and addresses of such individuals and the names and addresses of the employers of such individuals, as appearing in customer records of public utilities and cable television companies, pursuant to an administrative subpoena; and (ii) information on such individuals held by financial institutions.

(B)    Such procedures listed in subsection (A) of this Section shall follow due process safeguards, including (as appropriate) notice to the obligor, opportunity for obligor to contest the action and opportunity for appeal.

26-5-21 Reimbursement of Costs.

CSS shall seek reasonable costs against the obligor in the enforcement of child support cases. These costs include, but are not limited to: court filing fees, process server fees, mailing fees and paternity tests.

26-5-22 Bankruptcy.

Current and past due child support owed on behalf of a child is not dischargeable by bankruptcy.