ENFORCEMENT OF SUPPORT OBLIGATION
CS 818P
Support Follows the Child – Post Order, Legal Custody Determined
01/01
Revised 09/03/24 Training Completed 09/17/24 Last Reviewed 10/02/24
Utah Code
81-6-101, 104, 105, 110, 204, 205, 208, 211
Statutory Authority
Utah
Code 81-6-104 states that:
“(4) An obligation ordered for
child support and medical expenses:
(a) are for the use and benefit
of the child; and
(b) shall follow the child in a
case in which a parent, or another person, is awarded sole physical custody of
the child as described in Subsection 81-6-205(8).”
Utah Code 81-6-205 states:
“(8) (a) When physical custody of
a child changes after the original child support order,
the parent without physical
custody of the child is required to pay the amount of child support calculated
under this section, without the need to modify the order, to:
(i) the
parent who has physical custody of the child;
(ii) a relative to whom physical
custody of the child has been voluntarily given; or
(iii) the state when the child is
residing outside of the home in the protective custody, temporary custody, or
care of the state or a state-licensed facility for at least 30 days.
(b) When physical custody of a
child changes from the physical custody that is assumed in the original child
support order calculated under this section, the modification of the child
support order is not necessary even if only one parent is specifically ordered
to pay in the child support order.”
These statutes facilitate the
collection of child support for parents who willingly agree to a change in
physical custody without the need to have their judicial order modified. If physical custody of all of the children in the order changes from what is originally
stated in the judicial support order, the obligation of the parent (or parents)
who does not have physical custody
may be due and payable.
Only a court with jurisdiction or
the parent who has court ordered legal
custody of the child(ren) may decide if legal custody can or cannot
change. Even if physical custody of the
child(ren) changes and the former custodial parent (CP) starts paying child
support, legal custody does not change until the court orders a change in legal
custody.
NOTE: The support follows the child procedures in
this section describe the process to end the support on a post-order case where
legal custody has been determined. Several other sections of policy provide
additional support follows the child procedures for other case scenarios as
follows:
1. For cases with
administrative orders or where custody has not been legally determined, refer
to CS 819P Support Follows the Child – Post Order, Legal Custody Has Not Been
Determined.
2. If physical
custody of one or more of the children changes to a specified relative, refer
to CS 356P Specified Relative Cases, Overview and Questions & Answers.
3. If the other
parent applies for child support services, refer to the procedures for opening
the case, determining the support amount and notify the parent(s) of the
support obligation, Notice of Child Support Obligation due to Physical Custody
Change found in CS 104P Opening a Support Follows the Child Case, Overview
sections.
Forms Overview
1.
“Confirmation of Custody Change Letter and
Form.”
2.
“Physical Custody Change Courtesy Letter.”
Definitions
The definitions listed below are
provided to clarify the terms discussed in this section.
1.
Existing case – The case that existed on ORSIS before the change in physical custody occurred. This case may be closed when custody changes,
depending on the circumstances, e.g., whether arrears are owed.
2.
New case – The case that is opened after
the change in physical custody occurred because either Child Support Services (CSS)
has received a new IV-A referral, or the parent who now has physical custody
has opened a Non-IV-A case. This case
may be closed depending on the circumstances of the case (e.g., the change in
physical custody was not voluntary).
3.
Receiving assistance – For purposes of this section, if the CP is receiving cash
assistance, Medicaid or child care, s/he is considered to be receiving
assistance. If the individual is receiving cash assistance, the current child
support debt is a IV-A debt. If there is no cash assistance, the current
child support debt may be either be Non IV-A Medicaid only (family is receiving
Medicaid), or Non IV-A child care, or Non IV-A (no financial or medical
assistance being received by the family).
Food stamps, HEAT assistance or any other type of assistance are not
considered to be “receiving benefits or assistance,” as defined by this
section.
Support Follows the Child Criteria
If a child support order
establishes an obligation for one parent, and legal custody is addressed in the order, but physical custody of the child (or all the children of the order if
more than one child) has changed to the other parent, refer to the criteria
listed below to determine if you can enforce the other parent's obligation
without initiating legal action to modify the order.
1.
The support order must be a Utah
order a foreign support order registered and modified in Utah. Utah’s support follows the child statute does not apply to
out-of-state orders unless they have been registered and modified in Utah.
a.
IV-A case, out-of-state order:
i.
If the case
has an order from another state and both parties and the child (or children)
reside in Utah, refer the case to the modification team. The modification worker will review the case
and refer the case to the Attorney General’s Office (AGO) for registration and
modification of the order if appropriate.
See CS 154P Determination of the Controlling Order (DCO) Overview &
Screen for additional information.
ii.
If both
parties do not reside in Utah, the laws of the issuing state will determine if
the order can be enforced for the appropriate state.
b.
Non-IV-A case, out-of-state
order: The parents will need to resolve the custody and support issues
with the courts in the appropriate state.
2.
The individual whom you will be enforcing
against must be listed as a party (specifically named) in the action to
establish the order.
3.
The underlying guideline
worksheet to the Utah support order must list amounts that are greater than
zero.
If a worksheet does not exist, is unavailable, is pre-guideline, or the
ordered amount is zero or deviated from the worksheet, take the additional
steps listed below.
a.
IV-A case: The order will need to be
modified. Refer the case to the
modification team. The modification
agent will make a determination consistent with the Review and Adjustment of a Support Award
sections of policy (CS 450P through CS 451P) as to the temporary or long-term
nature of the physical custody, and pursue a modification accordingly.
b.
Non-IV-A case: The parent or specified
relative requesting the enforcement must provide the worksheet, or obtain it
from the court. If the ordered amount is
zero, pre-guideline or deviated from the worksheet, do not pursue a
modification further due to a change in physical custody unless both parents
are willing to stipulate to a modification of the order in accordance with
current child support guideline amounts (see CS 450P Review and Adjustment for
additional information). Otherwise,
inform the parent that any modification of the order will need to be initiated
privately by the parties, and close the case.
You may reinstate the case at a later date if the parent provides a
modified order.
4.
The physical custody arrangement
of the child(ren) must be verified.
a.
IV-A case: Once the family has been found eligible for cash assistance,
Medicaid, and/or child care, DWS has determined that the child (or all the
children if more than one child) is living with the parent receiving cash
assistance, Medicaid and/or child care.
You may use this information to determine the physical location of the
child(ren) in a IV-A case without an “agreement”
unless the parent who has legal custody is disputing the change in physical
custody, and proceed to enforce the obligation of the parent(s) who does not
have physical custody.
b.
Non-IV-A case: The parties must be in
agreement that physical custody of the child (or all the children if more than
one child) has changed, and that the change was voluntary on the part of the
parent with legal custody, and is not simply an example of extended
parent-time. The parent with legal
custody may provide a written statement that provides all of the necessary
information, or complete the “Confirmation of Custody Change” form. If there is any dispute in the custody
arrangement, or any evidence that the change is without the voluntary consent
of the parent with legal custody, the parents must resolve the custody issue
before CSS will begin enforcing the obligation of the parent who has legal
custody, but no longer has physical custody.
EXAMPLE: ORS has an open case and is collecting state arrears and current support from the NCP (father) in an order. The NCP claims to have physical custody of all the children. The CP (mother) cannot be located, and has not been located since she was in jail 10 months ago. Current school records for the children list the NCP’s address for the children. Since the CP cannot be located, she cannot provide a written statement or complete the E90A form. The ORS worker can utilize the school records (or other sources) to determine if the children are now living with the NCP.
NOTE: If eRep records indicate the CP is receiving assistance for the children, you must continue to charge the NCP for current support while requesting DWS investigate.
NOTE 1: In addition to the above criteria, the order
can only be enforced by contempt if both parties were in fact served, were
present in court, or were represented by legal counsel. Refer to CS 838P Civil
Contempt for Non-Payment of Child Support.
NOTE 2: Verbal communication regarding the
physical custody of a child, whether over the phone or in person, IS NOT
sufficient verification for purposes of applying support follows the child. The
Confirmation of Custody Change Letter and Form must be returned to ORS within 10 days in
order to verify the custodial arrangement. If the parent with court ordered
custody fails to return the form as required, proceed with closing the case.
Support Follows the Child Not Applicable
The support follows the child
statute is not applicable in the following situations:
1.
Sole custody was ordered and all
of the children are not residing with one of the parents. The law only applies when all of the children are residing with one or the other parent.
(Specified relative cases are an exception.)
If physical custody of the children in the order is split between the
parents, take the following steps.
a.
IV-A cases:
i.
If the order
provides for extended parent-time or the parents sign a written extended
parent-time agreement, a partial reduction in the support obligation for the
child(ren) living with the noncustodial parent (NCP) may be granted under Utah
Code 81-6-211 (see CS 413P Extended Parent-time).
ii.
If the
parents cannot agree that extended parent-time applies, refer the case to the
modification team to obtain a modification based on a split-custody worksheet
and the child support guidelines.
Modification agents will make a determination
consistent with CS 450P Review and Adjustment of Child Support Awards as to the
temporary or long-term nature of the physical custody, and pursue a
modification accordingly. In the
meantime, continue to charge support based on the legal custody provision in
the order until the order is modified.
b.
Non-IV-A cases:
i.
If the order
provides for extended parent-time or the parents sign a written extended
parent-time agreement, a partial reduction in the support obligation for the
child(ren) living with the NCP may be granted under Utah Code 81-6-211 (see CS
413P Extended Parent-time).
ii.
If the
parents cannot agree that extended parent-time applies, ask if they are willing
to stipulate to a modification of the support order to change legal custody and
their support obligations in accordance with the split custody worksheet and
the child support guidelines. If they
are willing to stipulate, refer the case to the AGO for a modification of the
order.
iii.
If the
parents are not willing to stipulate, they may pursue a modification on their
own. Until/unless the order is modified,
the current order remains in effect.
2.
Joint or split custody was
ordered by the court in the most recent order.
a.
“Joint physical custody” is when the order specifies that each parent has physical custody
of the child(ren) for a certain number of nights during the year and a joint
custody worksheet was used. Support
follows the child cannot be applied when a joint custody worksheet used.
a.
“Joint legal custody”
is the sharing of authority, responsibility and combined decision making by
both parents in regard to the child(ren)’s welfare. It does not affect the child support or where
the child(ren) will live. If an order
mentions “joint custody” but a sole custody worksheet was used, it is possible
that the custody situation is a joint legal custody situation and not a joint
physical custody case. Agents should consult with the assigned Assistant
Attorney General (AAG) to ensure the meaning of “joint legal custody” per the
order.
Procedures: Physical Custody Change from Legal Custody on
an Existing Non-IV-A Case
If you are contacted
by a parent or a specified relative on an existing
Non-IV-A case who does not have legal custody of the child (or all of the
children if more than one child), and s/he now claims to have physical custody
of the child(ren), and that individual is not
applying for or receiving IV-A cash assistance, Medicaid, and/or child care for
the child(ren), follow the steps listed below.
1.
Verify that
the individual is not receiving IV-A cash assistance, Medicaid, and/or child
care for the child (or children). If the
individual is in application status, proceed with the steps for a non-IV-A
case. Once the individual has been
approved to receive cash assistance, Medicaid and/or child care, proceed with
the steps for a IV-A case.
2.
Ask the
individual if the child(ren) is with him/her due to a change in physical
custody or due to him/her exercising extended parent-time.
a.
Extended Parent-time: Refer to the procedures
in CS 413P Extended Parent-time instead of treating the case as support follows
the child.
b.
Change in physical custody: Proceed with the next step
in this section.
3.
Ask the
individual if the parent with legal custody voluntarily consented to the change
in physical custody.
a.
The parent
with legal custody did NOT consent to the change in physical custody: Inform the other parent that s/he will need
to obtain a court order that will address the change in custody and child
support and that you will not stop the current support obligation on the
existing case.
b.
The parent
with legal custody voluntarily consented to the change in physical
custody: Inform the individual that you
will ask the parent with legal custody to confirm the change in physical
custody.
4.
Generate and
mail a “Confirmation of Custody Change Letter and Form” to the parent with
legal custody.
5.
Monitor for
response. The parent with legal custody
has ten days to respond. After the ten
days have passed, take one of the following actions:
a.
If the
parent with legal custody responds but does not confirm the change in physical
custody or that the change is voluntary, inform the individual you cannot stop
the current support obligation on the existing case;
b.
If the
parent with legal custody does not respond, or fails to provide all of the
requested information within the ten day period, pend the case for closure due
to applicant non-cooperation; or,
c.
If the
parent with legal custody returns the form and confirms that there has been a
voluntary change in physical custody, proceed with the next step.
NOTE: Verbal communication
regarding the physical custody of a child, whether over the phone or in person,
IS NOT sufficient verification for purposes of applying support follows the
child. The Confirmation of Custody Change Letter and Form must be returned to
ORS within 10 days in order to verify the custodial arrangement. If the parent
with court ordered custody fails to return the form as required, proceed with
closing the case CNC.
6.
Adjust the
debts on ORSIS.
a.
End the
current support debt.
b.
Modify the
Notice to Withhold on the existing case to an arrears-only payment, if arrears
debts are still owed.
c.
If no
arrears are owed, pend the case for closure.
7.
Send the NCP
on the existing case a “Physical Custody Change Courtesy Letter.” This letter informs that individual of the
following:
a.
CSS has ceased
collecting his/her current support obligation;
b.
any
outstanding arrears must still be paid; and,
c.
the NCP may
apply for Non-IV-A services by completing and returning an application for
services to CSS.
NOTE: In a Non-IV-A situation, if it is determined
to be appropriate, child support services will commence the first day of the
month following the date of the Non-IV-A application for services.
If the individual with physical
custody requests a modification, and the worksheet amount is greater than zero,
inform the individual that a modification request will need to accompany an
application for services.
Procedures: Physical Custody Change from Legal Custody on an
Existing IV-A Case
If you are contacted by a NCP on
an existing IV-A case who now claims to have physical custody of the child (or
all of the children if more than one), but s/he does not have legal custody,
and s/he has been found eligible for and is receiving IV-A cash assistance,
Medicaid, and/or child care by the Department of Workforce Services (DWS) (or
by the Department of Health and Human Services), take the following steps.
1.
Verify that
the individual is receiving IV-A cash assistance, Medicaid, and/or child care
for the child (or children). CSS will
deem that the child(ren) is now living with that parent based on the DWS
finding of eligibility. In this
situation, it is not generally necessary to obtain a written agreement from the
parent with legal custody unless the
parent who has legal custody is disputing the change in physical custody.
NOTE: If on an existing CSS IV-A
case, the other parent or specified relative contacts you to inform you s/he
now has physical custody of the child (or all the children), and this
individual does not plan to apply for IV-A cash assistance, or was found to be
ineligible for IV-A assistance, s/he must apply for Non-IV-A services in order
for CSS to open and pursue child support for the child(ren).
2.
Adjust the
debts on ORSIS.
a.
End the
current support debt.
b.
Modify or
terminate the Notice to Withhold.
Consider if there is an arrears balance remaining and if the NCP on the
existing case will be receiving IV-A assistance when deciding the appropriate
withholding action.
c.
Pend the
case for closure if there are no arrears owed.
3.
If the
parent with legal custody does NOT dispute the determination of DWS, proceed
with enforcement on the new case as of the date of the IV-A referral.
Procedures: Parent with Legal Custody Disputes Physical
Custody Change on New IV-A Case
If the NCP (the
parent with legal custody) on a new IV-A case disputes that physical custody
has changed and/or that it was voluntary, or alleges extended parent-time is in
effect instead of a change in physical custody, take the steps listed below.
1.
Generate and
mail a “Confirmation of Custody Change Letter and Form” to the parent with
legal custody.
2.
Monitor for
response. The parent with legal custody
has ten days to respond.
a.
If the
parent with legal custody returns the form and confirms that there has been a
voluntary change in physical custody, proceed with enforcement on the new IV-A
case.
b.
If the
parent does not respond, or fails to provide all of the requested information
within the ten day period, proceed with enforcement action on the new IV-A
case.
c.
If the
parent with legal custody responds and states the child(ren) is still residing
with him/her, or confirms that a change in physical custody has occurred, but
claims it was not voluntary, take the following steps.
i.
Suspend all
collection actions on the new case.
ii.
Make a
public assistance fraud referral to DWS to inform them that the physical
custody of the child(ren) is in dispute, and to ask them to conduct
an investigation and review the eligibility determination. (Note that there is a time restriction for
when these referrals may be made.)
d.
If the
parent with legal custody responds and states extended parent-time is in effect
instead of a change in physical custody, take the steps below.
i.
End the
current support and any arrears debts on the new case.
ii.
Terminate
the Notice to Withhold.
iii.
Refund any
support that was collected inappropriately to the parent with legal custody.
iv.
Pend the
case for closure using closure code.
EXAMPLE: The father has legal custody but the mother
applied for and was found eligible for IV-A assistance during the summer
months. The father disputes a change in
physical custody and claims he permitted the child to live with the mother only
for a period of extended parent-time.
You treat the case as extended parent-time instead of support follows
the child and do not charge the father for the months the child received
assistance with the mother.
NOTE: DWS policy allows a
parent to be eligible for assistance if that parent has physical custody of the
child, i.e. the child is with that parent more than 50% of the time. Legal custody is not an eligibility
requirement.
3.
If DWS has
conducted an investigation, take the steps listed below.
a.
If DWS determines
that the parent with legal custody did
not consent to a voluntary change in physical custody from the date of
eligibility to the date s/he disputed the custody change, take the following
steps.
i.
End the
current support and any arrears debts on the new case.
ii.
Terminate
the Notice to Withhold.
iii.
Refund any
support that was collected inappropriately to the parent with legal custody.
iv.
Pend the
case for closure using closure code.
EXAMPLE: The mother has legal custody but the father
applied for and was found eligible for IV-A assistance. The mother confirmed that a change in
physical custody had occurred, but that it was not voluntary. The mother would not be obligated for any
child support on the new case with her as the NCP.
b.
If DWS
determines that that the parent with legal custody voluntarily consented to a
change in physical custody from the date of eligibility to the date s/he
disputed the custody change, and the parent with legal custody is not claiming
the arrangement was extended parent-time, take the following steps.
i.
End the
current support on the new case.
ii.
Modify the
Notice to Withhold to an arrears-only payment, if arrears debts are owed.
iii.
If no
arrears are owed, pend the case for closure.
EXAMPLE: The mother has legal
custody but the father applied for and was found eligible for IV-A
assistance. The mother voluntarily
agreed in writing to the change in physical custody until contacted by
CSS. She is now disputing the custody
change, but is not claiming the arrangement was extended parent-time. Based on her written statement agreeing to
the change in physical custody, she would be obligated for any arrears that
accrued up until the date she disputed the custody change.
4.
If
appropriate, reinstate the existing case if it was closed at the time physical
custody changed.
EXAMPLE: The mother has legal
custody but the father applied for and was found eligible for IV-A
assistance. The mother confirmed that a
change in physical custody had occurred, but that it was not voluntary, and the
mother now has physical custody of the child.
DWS has determined that the father is not eligible for IV-A
assistance. After closing the new case,
the existing case with the father as the NCP is reinstated.
Medical Support
Medical support does not change when
support follows the child (or children).
Continue the current enforcement of the medical support according
to the order and follow the Medical Support procedures found in sections CS 480P
General Description of IV-D Medical Support Services, CS 482P Securing a
Medical Insurance Provision in the Support Order, CS 484P Gather and
Disseminate Medical Insurance Information, CS 490P Enforcement of Medical
Insurance, and CS 495P Collecting Court Ordered Medical Support. If you are
enforcing medical support against an individual who was not a party to the
original order, and the issue of not being a party arises, consult with your
management chain.