218-RICR-30-00-1
218-RICR-30-00-1. Child Support Program Rules and Regulations (version Amendment, 01/30/2018 to 03/29/2019)
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1.1 Child Support Program Overview
1.1.1
Program Administration
A. Authority
1. The
Child Support Enforcement program is administered by the Federal
government and the State of Rhode Island. Federal stewardship of the
Title IV-D Program is vested in the Office of Child Support
Enforcement (OCSE), an agency within the U.S. Department of Health
and Human Services (HHS) Administration for Children and Families.
2. In
Rhode Island,
the child
support program
is managed
by the
Department of Human
Services, Office
of Child
Support Services
(OCSS). The revenue
collection functions
of the
Department of
Administration, Division
of Taxation
were transferred
to the
Department of
Human Services on
July 1,
2005. Any reference
to the
Department of
Administration, Division
of Taxation,
the Rhode
Island Child
Support Services agency,
and Bureau
of Family
Support in
reference to
child support services
in this
and other
DHS manuals
shall be
construed to refer
to the
Department of
Human Services,
Office of
Child Support
Services except
as may
be required
by context.
3. The
following child support enforcement services are provided:
a. Intake
for both public assistance and non-public assistance cases;
b. Location
of the non-custodial parent;
c. Establishment
of paternity;
d. Establishment
of an
order for
child and
medical support;
e. Enforcement
of the
order;
f. Review
and modification
of the
order; and
g. Collection
and disbursement.
B. Purpose
1. Authority
for states
to administer
a Child
Support Enforcement
Program is vested
in the
Social Security
Act, 42 U.S.C. § 458.
2. Because
of its
enactment under
this part,
the program
is commonly
referred to
as the
IV-D program. The
Social Security
Act, 42 U.S.C. § 451,
identifies the
purpose of
the IV-D
program as
follows:
a. For
the purpose
of enforcing
the support
obligations owed
by non-custodial
parents to
their children
and the
spouse (or former
spouse) with
whom such
children are
living, locating
non-custodial parents,
establishing paternity,
obtaining child
and spousal
support, and
assuring that
assistance in
obtaining support
will be
available under
this part
to all
children (whether
or not
eligible for
aid under part
A) for
whom such
assistance is
requested.
3. Thus,
the goal of the IV-D program is to insure that parents assume their
obligation to financially and emotionally support their children.
C. Spousal
Support Issues
1. For
IV-D purposes:
a.
"Spousal support"
means a
legally enforceable
obligation assessed
against an
individual for
the support of
a spouse,
or former
spouse, who
is living with
a child
or children
for whom
the individual
also owes support;
b. "Overdue
support" means a delinquency pursuant to an obligation
determined under a court order, or an order of an administrative
process established under State law, for support and maintenance of a
minor child, which is owed to or on behalf of the child, or the
non-custodial parent's spouse (or former spouse) with whom the child
is living, but only if a support obligation has been established with
respect to the spouse and the support obligation established with
respect to the child is being enforced under the State's IV-D plan;
c. "Past-due
support" means the amount of support determined under a court
order or an order of an administrative process established under
State law for support and maintenance of a child, or of a child and
the parent with whom the child is living, which has not been paid.
For purposes of referral for Federal income tax refund offset of
support due an individual who has applied for non-assistance services
"past-due support" includes support owed to or on behalf of
a minor child and may include spousal support if such support is
included in the child support order.
2. Orders
for spousal
support may
be enforced
when the
obligor is
under a child
support order
enforced under
the State
IV-D plan,
and the
minor child for
whom support
is sought
is living
with the
individual who
is owed spousal
support. The Office of
Child Support
Services may
not establish
orders for spousal
support, only
enforce such
orders.
D. Petition
or Complaint for a
Minor
A
minor parent,
or a
guardian or
other legal
representative of
a minor parent,
may maintain
a proceeding
on behalf
of or
for the
benefit of
the minor child.
1.1.2 Definitions
A. “Arrearages”
means unpaid child support payments for past periods owed by a parent
who is court ordered to pay.
1. “Conditionally-assigned
arrearages” means:
a. arrearages
that do
not exceed
the cumulative
amount of
unreimbursed assistance
paid to
the family
as of
the date
the family leaves
the assistance
rolls.
b.
arrearages that
were temporarily
assigned to
the State
and became
conditionally assigned
to the
State when the
temporary assignment
expired.
(1) If a
conditionally-assigned arrearage is collected through a Federal
income tax refund offset, the collection is retained by the State to
reimburse the State and the Federal government up to the cumulative
amount of unreimbursed assistance paid to the family.
(2) Collections of
conditionally-assigned arrearages by any other enforcement mechanism
are paid to the family.
2. “Permanently-assigned
arrearages” means arrearages which do not exceed the cumulative
amount of unreimbursed assistance paid to the family as of the date
the family leaves the assistance rolls:
a. which
are or were assigned under an assignment of support rights in effect
on September 30, 1998, and
b. which
accrued under an assignment entered into on or after October 1, 1998,
while a family is receiving assistance.
3. “Temporarily-assigned
arrearages” means arrearages which accrued prior to the family
receiving assistance and which were assigned to the State after
September 30, 1998. These arrearages are not permanently assigned.
The temporary assignment will expire when the family leaves the
assistance program.
4. “Never-assigned
arrearages” means arrearages that accrue after the family's most
recent period of assistance ends.
5. “Unassigned
arrearages” includes:
a.
“Pre-assistance arrearages” means all
previously-assigned
arrearages that
exceed the
cumulative amount
of unreimbursed
assistance when
the family leaves
the assistance
program and
which accrued
prior to
the receipt
of assistance.
b.
“During assistance arrearages” means all previously-assigned
arrearages that exceed the cumulative amount of unreimbursed
assistance when the family leaves the assistance program and which
accrued during the receipt of assistance.
6. “Unreimbursed
assistance” means the cumulative amount of assistance paid to a
family for all months, which has not been repaid by assigned support
collections. The total amount of unreimbursed assistance a State may
recover through the IV-D program is limited by the total amount of
the assigned support obligation.
B. “Assistance
from the State” means assistance received from a State program
funded under Title IV-A of the Social Security Act or under the State
plan approved under Title IV-A (as in effect on August 21, 1996).
1. “Assistance
paid to the family” means money payments paid in cash, checks, or
warrants immediately redeemable at par to eligible families under a
State Plan approved under Title IV-A.
2. “Current
assistance case” means any IV-D case that is currently receiving
TANF (RIW) assistance.
3. “Former
assistance case” means any IV-D
case that
formerly received
RIW or
TANF (RIW)
assistance.
4. “ Never-assistance
case” means any IV-D case that has never received RIW or TANF (RIW)
assistance.
C. “Federal
Medical Assistance Percentage” or
“ FMAP” means the
Fe deral medical
assistance percentage (as
defined in
section 1905(b)
of the
Act, as
such section was
in effect
on September
30, 1995)
in the
case of
any other
State.
D. “Federal
share” means that portion of
the amount collected
resulting from
the application
of the
Federal medical
assistance percentage
in effect
for the
federal fiscal
year in
which the amount
is distributed.
E. “State
share" means one hundred
percent (100%) of
the amount
collected which
does not
exceed the
cumulative unreimbursed
assistance, minus
the Federal
share.
F. “Title
IV-A Agency”
means the State agency that administers Title IV of the Social
Security Act. In Rhode Island, this agency is the Department of Human
Services.
1.1.3 Confidentiality
A. The
OCSS staff
will have
access to
information regarding
both the custodial
parent and
non-custodial parent.
This information
must be held
and used
according to
the regulations
outlined in
this section.
B. Through
the many
databases accessed
by both
the State
Parent Locator
Service (SPLS)
and the
Federal Parent
Locator Service
(FPLS), OCSS
employees have
available a
considerable amount
of personal
information concerning non - custodial
parents. This information
must only
be accessed for
those non - custodial
parents whose
child(ren)/families are
participating in
the IV-D
program by
virtue of
either an
assignment or
application. In no
instance, may
information gained
by OCSS
agency be
disclosed for
purposes other
than the
administration of
the IV-D program,
e.g., for
location, establishing
paternity and
support, or
enforcement of
an existing
order.
C.
The Social
Security Act
is explicit
in restricting
the disclosure
of information to
only authorized
individuals defined
as:
1. Any
agent or
attorney of
any state
having an
approved IV-D plan,
who has
the duty
or authority
under the plan
to seek
to recover
any amounts
owed as
child and spousal
support;
2. The
court, or
an agent
of the
court, which
has authority to
issue an
order against
a non-custodial
parent for
the support
and maintenance
of a
child; and
3. The
resident parent,
legal guardian,
attorney, or agent
of a
non-assistance child
without regard
to the existence
of a
court order
against a
non-custodial parent who
has a
duty to
support and
maintain any
such child.
D. In
proceedings to
establish paternity,
OCSS must
exercise discretion.
All matters
relating to
paternity establishment
should proceed
in the strictest
of confidence
after a
prudent assessment
of all
case information
available.
E. The
OCSS staff
may discuss
a paternity
case only
with the
custodial parent or
the putative
father. If a
call is
received from
a third party
(someone other
than the
mother or
putative father)
the staff is
limited to
discussing only
the general
policy and
procedures regarding
paternity establishment.
1.2 Types
of Child Support Cases
1.2.1 Rhode
Island Works (RIW) Child Support Cases
A. Title
IV, Part A of the Social Security Act provides funding to states to
pay cash assistance benefits to needy families with children. This
program, known as Temporary Assistance to Needy Families, is commonly
referred to as TANF. Rhode Island's TANF program is called the Rhode
Island Works, or RIW. For every child for whom RIW (Title IV-A)
benefits are paid because of a parent's absence from the home, the
State must establish a child support case and pursue collection of
support, unless a claim of good cause for non-cooperation is
substantiated (see § 1.3.6 of this Part). These cases include those
in which the parents were never married, or were married but are now
separated or divorced, and cases where the child(ren) is/are living
with a non-parent caretaker relative who is receiving RIW in the
child's behalf.
B. Assignment
of Rights
1. Both
Federal and
Rhode Island
laws require
the custodial
RIW parent
to assign to
the State
any rights
to support
from any
other person
in behalf of
the custodial
parent or
in behalf
of any
other member
of the RIW
family unit. In
Rhode Island,
this assignment
of support
operates by virtue
of State
law, and
also by
virtue of
a signed
RIW application
which includes
assignment of
rights provisions,
whenever RIW
public assistance
benefits are
furnished.
2. As
a condition
of eligibility
for assistance
under Federal
Title IV-A of
the Act,
a member
of the
family must
assign to
the State
any rights a
family member
may have
(on behalf
of the
family member
or of
any other person
for whom
the family
member has
applied for
or is
receiving such
assistance) to
support from
any other
person, not
exceeding the
total amount
of assistance
paid to
the family
which accrue
(or have accrued)
before the
family leaves
the program.
a. Prior
to October
1, 1998,
the applicant assigns
to the
State all
rights to
support which will
accrue prior
to the
family leaving RIW
assistance.
b. On
or after
October 1,
1998, the
applicant assigns
to the
State all
rights to
support which will
accrue while
the family
is receiving
assistance, until
the family leaves
assistance, up
to the
amount of unreimbursed
assistance.
c. The
cumulative amount
of assigned
arrearages in
former assistance cases
may not
exceed the
cumulative amount
of unreimbursed
assistance paid
to the
family under
all assignments.
d. A
State may
not require,
as a
condition of
providing assistance to
any family,
that a
member of
the family
assign to the
State any
rights to
support which
will accrue
after the date
the family
leaves the
RIW Program.
1.2.2 Non-Public
Assistance (NA) Child Support Cases
A. The
Office of Child Support Services provides child support enforcement
services to individuals who are not receiving RIW, Medicaid, or IV-E
Foster Care. These services may be continued upon the termination of
a RIW case or provided upon the request of a custodial parent or
non-custodial parent.
B.
Non-Public Assistance (NA) Cases Without Prior RIW
1. Title
IV, Part D of the Social Security Act provides funding to states to
operate a child support enforcement program. Section 454 of the Act
provides that the State must provide that the support collection or
paternity determination services established under the plan shall be
made available to any individual not receiving RIW who files an
application for the services with the IV-D agency. These cases are
frequently referred to as Non-public assistance (NA) and represent
families from the general public who choose to access the IV-D agency
for services in lieu of retaining private counsel. In Rhode Island,
these NA families are charged a twenty-dollar ($20.00) application
fee. In no case may the fee exceed twenty-five dollars ($25).
2. Federal
and State law does not require the custodial non-assistance parent to
assign to the State any rights to support from any other person on
behalf of the custodial parent.
C.
Non-Public Assistance (NA) Cases with Prior AFDC/RIW
1. When
a RIW or Medicaid only case is closed, child support services are
continued unless the custodial parent requests, in writing, that they
be terminated. These cases differ from NA cases without prior RIW
because services are provided automatically without an application
fee.
2. When
a family ceases receiving assistance under the state's IV-A plan, the
assignment of support rights terminates except with respect to the
amount of any unpaid support obligation that has accrued under such
assignment.
a. Priority
first shall
be given
to collection
of current
support and shall
be paid
to the
family.
b. Second,
any arrearage due the family shall be paid first if the case is a NA
case and any arrearage due the state shall be paid if the family is
on RIW.
c. Third,
any medical
arrearages due
shall be
paid.
1.2.3 Foster
Care Child Support Cases
Title
IV, Part E of the Social Security Act provides funding to states to
operate foster care and transitional independent living programs for
children who would otherwise qualify for RIW benefits. In addition,
when children are removed from their home and placed in foster care
the Act requires that all steps be taken to secure an assignment to
the state of any rights to support on behalf of each child receiving
foster care maintenance payments under IV-E. As with RIW, the
assignment of rights to support in a IV-E foster care case is
automatic by operation of state law in Rhode Island. The IV-E foster
care program in Rhode Island is administered by the Department of
Children, Youth and Families (DCYF). The Office of Child Support
Services is responsible, therefore, for the establishment and
enforcement of support orders from either or both parents of IV-E
foster care children if referred by DCYF.
1.2.4 Medicaid
Child Support Cases
A. Title
XIX of the Social Security Act provides funding to states to operate
Medicaid programs for indigent families with children and other
specified individuals. This Act requires that all steps be taken to
secure an assignment to the state of any rights to medical support on
behalf of each child receiving Medicaid services and payments under
Title XIX. As with RIW and IV-E foster care, the assignment of rights
to support in a Medicaid case is automatic by operation of state law
in Rhode Island. The Office of Child Support Services is responsible,
therefore, for the establishment and enforcement of orders for
medical coverage from non-custodial parents of Medicaid children.
B. If
the Court determines that the cost of the insurance coverage is not
reasonable, that is, the cost of coverage is more than 5% of the
parent's gross income, the court may order the parent to pay a weekly
cash medical order equal to 5% of the gross income. If the child is
on Medicaid, the State will retain the cash medical order and apply
it towards Medicaid reimbursement. If the child is not receiving
Medicaid, the cash medical will be distributed to the custodial
parent as reimbursement for private health coverage provided.
1.2.5 Intergovernmental
Child Support Cases
A. The
cases described in this section may also occur in intergovernmental
case situations. In general, an intergovernmental case is one in
which one of the parties resides in Rhode Island and the other
resides out of State or in a foreign country; or another State or
foreign country has a legal interest in the establishment and
enforcement of support. Additionally, there are two categories of
intergovernmental cases:
1. Responding
- where the non-custodial parent resides, is employed or has
resources in Rhode Island and the child(ren) live out of state; or
2. Initiating
- where the child(ren) reside in Rhode Island and the non-custodial
parent resides, is employed or has resources in another state.
1.3 Custodial Parent
Responsibilities
1.3.1 Direct
Support
A. Direct
support payment
means an
assigned support
payment from
a non-custodial
parent received
directly by
a RIW
recipient. These payments
may go
to the
RIW recipient
directly from
the non-custodial
parent or,
in some
cases, may
have been
sent by
either an
out-of-State court
or agency
or a
R.I. court.
B. RIW
recipients are
required to
turn over
direct support
payments to the:
Department
of Human Services
Office
of Child Support Services
Business
Office Recovery Unit
77
Dorrance Street
Providence,
R.I. 02903
1.3.2 Conditions
of Eligibility
A. As
a condition
of eligibility
for RIW,
CCAP, and
Medicaid, a recipient
is required
to cooperate
(unless good
cause for
refusing to
cooperate is
determined) with
the Office
of Child
Support Services
to establish, modify,
and enforce
a child
support order(s)
for each eligible
child.
B. To
cooperate with
the child
support agency,
an applicant
or recipient shall
make a
good faith
effort regarding
the non-custodial
parent(s) of each
child for
whom assistance
is requested,
as outlined
below. An applicant
or recipient who
has not
provided the
information specified
shall be provided
an opportunity
to make
a good
faith effort
by providing
all the information
s/he can
reasonably obtain.
Such information
shall include:
1. Each
non-custodial parent's full name and social
security number;
or
2. Each
non-custodial parent's
full name
and at
least two
(2) of
the following items:
a. The
non-custodial parent's
date of
birth;
b. The
non-custodial parent's address;
c. The
non-custodial parent's
telephone number;
d. The
name and
address of
non-custodial parent's
employer(s);
e. The
name and
address of
at least
one of
the parents
of the
non-custodial parent;
and
f. The
manufacturer, model and license plate number (including state of
issue) of the non-custodial parent.
C. Verifiable
Information
The
information requested above must be verifiable. Information
is considered
verifiable, if,
using reasonable
efforts, the
Office of
Child Support
Services can
confirm that
it is
current and
accurate. Reasonable efforts
shall be
determined by
OCSS and
shall include but
not be
limited to
the following: a
review of
databases available to
OCSS to
follow-up on
information; follow-up
contacts with the
applicant or
recipient as
appropriate, telephone
calls to
phone numbers, or
letters sent
to addresses
provided by
the applicant
or recipient, or
requests to
other agencies
for records
identified by
the applicant or
recipient.
D. Husbands
Name Unknown
If
the child birth certificate provides husbands name as unknown, and
parent is married at the time of the birth, the applicant must
provide husband’s full name. If an applicant believes that
providing the name of her husband will result in physical or
emotional harm to her or to her child, the applicant is referred to
the Family Violence Options Program for a determination of whether
good cause not to cooperate exists. If the information is not
provided and does not meet the requirement under good faith efforts,
the applicant and/or recipient is subject to provisions established
in § 1.3.2 of this Part regarding non-cooperation.
E. Good
Faith Effort Required
An
applicant or
recipient who
has not
provided the
information specified in
§ 1.3.2 of this Part
shall be
deemed to
be cooperating
if s/he can
reasonably obtain
any other
information or
documentation that
may assist
in identifying or
locating the
non-custodial parent,
establishing parentage,
or establishing,
modifying or
enforcing a
child support order,
such as:
1. In
cases in which paternity has not been established, a sworn statement
that sexual intercourse between the non-custodial parent and that
applicant or recipient occurred during the probable period of
conception.
2. A
statement or statements as to the identity of location of the
non-custodial parent from individuals other than the applicant or
recipient who have personal knowledge of such information.
3. Records
or information as to the whereabouts of records from law enforcement,
social service, or other agencies, courts, or offices regarding the
identity of location of the non-custodial parent.
4. Utility
bills, parking tickets, credit card receipts, or other personal
records or effects that contain information regarding the identity or
location of the non-custodial parent.
5. Telephone
numbers or addresses of individuals who, if contacted, may be able to
provide information as to the identity and location of the
non-custodial parent.
6. Signed
releases for OCSS to obtain evidence to corroborate that the
information provided is accurate and that all information about the
non-custodial parent available to or reasonably obtainable to the
applicant or recipient has been provided.
7. A
sworn statement documenting with specificity efforts undertaken and
obstacles encountered by the applicant or recipient in pursuit of
information regarding the non-custodial parent, with any
documentation supporting the sworn statement attached; and
8. If
an applicant or recipient is uncertain as to which of two (2) or more
individuals might be the non-custodial parent of a single child, the
applicant or recipient shall provide the information required about
at least one person at the time of application or redetermination of
eligibility for public assistance or upon request of OCSS.
F. If
the applicant or recipient has provided information about an
individual who is found not to be a non-custodial parent by court
order or genetic testing, the applicant or recipient shall provide
information about any additional possible non-custodial parents for
that child.
G. It
is important to emphasize that a sworn statement or affidavit from
the applicant/recipient attesting to the lack of verifiable
information about the non-custodial parent will NOT alone meet the
requirement of cooperation.
H. Continued
Cooperation
Regardless
of whether an applicant or recipient has provided all of the
information in this section, s/he is required to continue to make a
good faith effort to cooperate with the Office of Child Support
Services (OCSS) to establish paternity and establish, modify, and
enforce child support and medical orders.
I. Additional
cooperation may include, but is not limited to:
1. Appearing
for appointment to provide additional information possessed by or
reasonably obtainable by the applicant or recipient;
2. Authorizing
OCSS to obtain pertinent information from third parties;
3. Accepting
personal services of process from licensed constables and authorized
agents relative
to their child
support cases;
4. Appearing
as witness
in a
judicial or
other proceeding;
and
5. Appearing
for parentage
tests.
J. If
an applicant or recipient fails to appear in court or fails to
cooperate in any of the above, and such failure precludes OCSS from
proceeding in an action to establish paternity, or to establish,
modify, or enforce a child support or medical order, OCSS shall
notify DHS, by e-mail, or in writing that the applicant or recipient
has not cooperated and the grounds therefore. The applicant or
recipient shall be sent a copy of this notice. If, however, the
applicant or recipient contacts OCSS on or before the court date and
specifies emergency circumstances that prevent the applicant or
recipient from appearing in court or attending a scheduled
appointment, OCSS shall not issue a determination of non-cooperation,
but shall proceed in court in the absence of the applicant or
recipient, if possible, or reschedule the court date. OCSS may
require the applicant or recipient to provide documentation about
such emergency circumstances.
K. If
subsequent to the issuance of a determination of non-cooperation, the
applicant or recipient begins cooperating, OCSS shall promptly notify
DHS and provide notice to the applicant or recipient.
1.3.3 Non-Cooperation
with Child Support
A. If
the Office
of Child
Support Services
determines that
the applicant or
recipient failed
to provide
the information
s/he has
or can reasonably
obtain (or
to otherwise
cooperate), then
OCSS shall
determine that
the applicant
or recipient
has failed
to make
a good faith
effort to
cooperate. OCSS shall
notify RIW/MA/CCAP
by e-mail
and in writing
of the
failure to
cooperate and
the grounds
therefore, and
provide a
copy of
to the
applicant or
recipient. If subsequent
to the issuance
of the
notice of
noncooperation, the
applicant or
recipient begins
cooperating, OCSS
shall promptly
issue a
notice of
cooperation in writing,
and by
e-mail to
RIW/MA/CCAP and
provide a
copy to
the applicant or
recipient.
B. RIW/MA/CCAP
shall upon
receipt of
a determination
of noncooperation
from OCSS,
impose a
sanction for
noncooperation in
accordance with
DHS policy, unless
the applicant
or recipient
establishes good
cause. If DHS imposes
a sanction
for noncooperation,
DHS shall
provide the
applicant or
recipient with
an opportunity
to challenge
the imposition of
the sanction
in accordance
with DHS
policy.
1.3.4
Good Cause
A. An
applicant or
recipient of
RIW/MA/CCAP may
claim good
cause for refusing
to cooperate
with the
Office of
Child Support
Services. In claiming
good cause,
the applicant
or recipient
states that
by cooperating with
the Office
of Child
Support Services
in the
child support enforcement
effort s/he
would not
be acting
in the
best interest of
the child. That
is, cooperation
with OCSS
would result
in physical or
emotional harm
to the
child or
the applicant
or recipient.
B. Physical
harm and
emotional harm,
as defined,
must be
of a
serious nature. It must
be demonstrated
to the
DHS agency
representative that
there exists
an emotional
impairment that
substantially affects
the individual's
functioning for
a finding
of good
cause for
emotional harm to
be made.
C. If
a determination is based in whole or in part upon the anticipation of
emotional harm to the child, parent, or other caretaker relative,
consideration is given to the following:
1. the
present emotional
state of
the individual
subject to emotional
harm;
2. the
emotional health history of the individual;
3. intensity
and probable duration of the emotional upset; and
4. degree
of cooperation to be required; and the extent of involvement of the
child in paternity establishment or support enforcement activity to
be undertaken.
D. The
DHS agency
representative can
find good
cause on
the basis
of anticipated physical
harm without
corroborative evidence
if the
agency considers the
claim credible
without corroborative
evidence and
if such
corroborative evidence
is not
available.
E. Every
applicant or recipient is given an opportunity to claim good cause
for refusing to cooperate. Good cause applies only to cooperation. An
applicant or recipient may claim good cause for non-cooperation at
any time with DHS. The eligibility requirement regarding the
assignment of support rights is not affected by a good cause
determination.
F. If
good cause is claimed, the applicant or recipient is advised that
(s)he must state the basis of the claim and present corroborative
evidence within twenty (20) days of the claim; or, (s)he must provide
sufficient information to enable the investigation of the
circumstance; or, provide sworn statements from individuals to
support the claim as specified on the AP-35.
G. If
an applicant or recipient informs OCSS of facts that may give rise to
a claim of good cause, OCSS shall refer the applicant or recipient to
DHS to claim good cause.
H. The
determination as to whether good cause does or does not exist should
be made within thirty (30) days of the good cause claim unless the
record documents that the agency needs additional time because the
information required to verify the claim cannot be obtained within
the time standard. The final determination will be reported to Child
Support Services
I. OCSS
shall provide
written notice
to each
applicant or
recipient informing
her/him of
the right
to claim
good cause
with DHS, the
basis for
a good
cause claim,
and how
to claim
good cause
with DHS pursuant
to DHS
policy.
1.3.5
Domestic Violence and Child Support
A. There
are two
scenarios where
a custodial
parent may
allege there
is an issue
of domestic
violence that
prevents him/her,
or limits
his/her ability to
pursue establishment
and enforcement
of a
child support
order. In
the first
scenario, the
custodial parent
applies for
benefits from the
Rhode Island
Works and
alleges an
issue of
domestic violence.
The caseworker
determines there
is good
cause not
to proceed.
The case is
not referred to
the Office
of Child
Support Services.
However, in
a limited
number of cases
the custodial
parent receiving
benefits wishes
to proceed
with establishment of
an order
but needs
to have
his/her confidential
address protected.
B. In
the second
scenario, a
non-welfare custodial
parent applies
for child support
services and
indicates that
there is
a domestic
violence issue, and
that the
non-custodial parent
does not
know where
s/he resides but
that s/he
wishes to
establish or
enforce a
child support
order in
safety. The
OCSS would
follow procedures
to obtain
an ex-parte
order to
seal the
Court file
before any
pleadings are
filed and
in substituting the
address of
the agency
for the
address of
the custodial
parent to
protect the
confidential address.
C. According
to RI
law (R.I. Gen.
Laws §
40-5.1-46) a
history of
domestic violence means:
1. Physical
acts that
resulted in
or threatened
to result
in physical injury
to the
individual;
2. Sexual
abuse;
3. Sexual
activity involving a dependent child;
4. Being
forced as the caretaker relative of a dependent child to engage in
non-consensual sexual acts or activities;
5. Threats
of, or attempts at, physical or sexual abuse;
6. Mental
abuse; or
7. Neglect
or deprivation of medical care.
1.4
Non-Assistance Case Processing
1.4.1 Mandatory
Fees
A. Services
are free for custodial parents whose RIW cases were closed after
October, 1985. For all
others, including
custodial parents
whose RIW
cases were
closed before October,
1985, the
application fee
is twenty
dollars ($20).
B. Effective
10/1/06, pursuant
to the
Deficit Reduction
Act, in
all never
assistance cases,
where the
state has
collected five hundred
dollars ( $500.00) in
child support annually,
the state
will remit
the federal share of the twenty-five dollar ( $25.00)
fee annually to
the federal office
of child
support enforcement
as program
income.
1.4.2
Services Provided
A. The
Office of
Child Support
Services provides
the same
child support
services to
families not
receiving public
assistance as
it does to
families receiving
public assistance.
B. Non-assistance
(NA) cases are established automatically when a public assistance
case is closed or upon receiving an application from a custodial
parent who has requested services.
C. Services
will also
be provided
to fathers who
request assistance in
establishing paternity,
establishing an order and
in filing a Motion to
modify a
child support order.
D. The
Office of
Child Support
Services must
provide applications
for IV-D services
to individuals
on the
same day
a request
is made
in person
or within five
(5) working
days of
a written
or phone
request.
E. Applications
are considered
filed on
the day
the necessary
forms (along with
the application
fee) are
received by
the Office
of Child
Support Services. Applications will be returned if information
is incomplete or the appropriate documentation is not provided. A
case file
will be opened and established within
twenty (20)
calendar days of
the date
the complete application
was received.
Based on an assessment of the case, the following action(s) may
include:
1. Obtaining
necessary and relevant information from the custodial parent and
other relevant sources;
2. Initiating
verification of information, if appropriate;
3. Requesting
additional location information, or referring the case for further
location attempts if location information is inadequate; and/or
4. Scheduling
an applicant interview if needed.
1.4.3
Application Procedures
A. Custodial
parents may request an application by calling or writing the Office
of Child Support Services office or by downloading an application
from the website at www.cse.ri.gov .
B. The
agency will determine whether the case is one in which paternity must
be established, establishment, enforcement or intergovernmental and
forward to the appropriate agent.
C. The
Office of Child Support Services agent will:
1. Establish
a case record following office procedures;
2. Determine
what actions must be taken;
3. Schedule
an appointment with the applicant if needed; and/or
4. Return
the application indicating the reason the application was incomplete
and the documents required.
1.4.4
Interview
A. During
an interview the agent
may:
1. Provide
the custodial parent with information regarding child support
services, his/her rights and responsibilities, the State's fees, cost
recovery and distribution policies;
2. Discuss
the types of services available
3. Provide
assistance in completing the application if needed;
4. Obtain
and clarify any information needed;
5. Advise
the custodial parent that it is his/her responsibility to provide any
legal documentation required such as a birth certificate or divorce
decree;
6. Obtain
a completed income and expense sheet (OCSS-1);
7. Obtain
the custodial parent's signature on any forms necessary to initiate
action; and
8. Explain
the Debit Card and Personal Identification Number (PIN) process
associated with the Child Support Account.
1.4.5
Custodial Parent Responsibilities
A.
The non-assistance
(NA) custodial
parent must
cooperate with
the Office of
Child Support
Services in
the child
support enforcement
effort. Cooperation means
helping in:
1. Locating
the non-custodial parent;
2. Establishing
paternity and orders for support and;
3. Collecting
the support.
B. Actions
include:
1. Keeping
the Office of Child Support Services informed of his/her current
address;
2. Appearing
at the Office of Child Support Services when required;
3. Appearing
as a witness at judicial or other hearings;
4. Providing
information and documentation requested;
5. Attesting
to the lack of information, under penalty of perjury;
6. Maintaining
PIN account information; and
7. Returning
funds received in error as agreed to in the application process.
1.4.6
Non-Assistance to Public Assistance Case Processing
If
an existing IV-D non-assistance (NA) custodial parent begins
receiving Rhode Island Works (RIW), the electronic code for case type
will automatically change from non-assistance (NA) to RIW upon
initial approval of IV-A benefits. The administration of the case
will continue under the rules outlined in § 1.3 of this Part, Rhode
Island Works (RIW) Case Processing.
1.4.7
Public Assistance to Non-Assistance
When
a custodial parent's RIW case is closed, the Office of Child Support
Services continues IV-D services by opening a non-assistance (NA)
case. A letter is sent to the custodial parent informing her/him that
child support services will continue unless a request is made in
writing that these services are no longer wanted.
1.5
Foster Care Case Processing
1.5.1
Foster Care Agency Responsibilities
Where
appropriate the
Foster Care
agency will
take all
steps including
cooperative efforts
to secure
an assignment
to the
State of
any rights to
child support
and medical
support on
behalf of
each child
receiving foster care
maintenance payments.
1.5.2
Office of Child Support Services (OCSS) Agency Responsibilities
A. The
OCSS will
provide the
same child
support services
for children receiving
IV-D Foster
Care benefits
as in
any other
child support enforcement
case, provided the Department of Children, Youth &
Families (DCYF) provides a complete and accurate referral.
B. Upon
receipt of a complete referral from the DCYF with all required
documents, application and affidavits, the OCSS agency establishes a
child support case. The OCSS agency will, based on an assessment of
the case, determine necessary action, solicit necessary and relevant
information from the custodial parent and other relevant sources and
initiate verification of information when appropriate.
C. When
there is
inadequate location
information with
which to proceed,
the OCSS will request
additional information
or pursue
further location
attempts where
appropriate.
D. The
OCSS agency
will:
1. Locate
the parent;
2. Establish
paternity if
necessary;
3. Establish
orders for support and medical support;
4. Suspend
orders when the child is no longer in DCYF care; and
5. Enforce
orders when requested by DCYF
1.5.3
Assignment and Referral
The
assignment of support rights secured on behalf of a child receiving
foster care maintenance payments shall constitute an obligation owed
to the State by the individuals responsible for providing support.
This obligation is collectible under all applicable State and local
processes. The amount of the obligation will be an amount determined
by the State in accordance with a formula established by the State.
1.6
Medicaid Case Processing
1.6.1
Medicaid Agency Responsibilities
A. The
Medicaid agency
is responsible
for forwarding
all cases where
the custodial
parent is
receiving Rite
Care, Medicaid
or Rite Share
to the
OCSS for case processing. The OCSS is not responsible for any
cases until an appropriate and complete referral is provided.
B. The
Medicaid agency must
notify the
OCSS when
the following occurs:
1. a
non-custodial parent
changes insurance;
2.
a non-custodial parent drops insurance; and/or
3. a
custodial parent stops receiving Medicaid.
1.6.2
Assignment and Referral
A. Each
applicant for or recipient of Medicaid or any individual receiving
Medicaid for and on behalf of any other person for whom (s)he may be
legally responsible will assign his/her rights to any medical support
or any other medical care without the necessity of signing any
document.
B. This
assignment includes any and all rights and interests that (s)he may
have to payment for any medical support and to payment for any
medical care from any third party.
C. The
custodial parent is not assigning any rights to child support. That
is a separate assignment, which arises when the custodial parent
receives RIW benefits.
1.6.3
Custodial Parent Responsibilities
A.
As a condition of eligibility for Medicaid, a recipient is required
to cooperate (unless good cause for refusing to cooperate is
determined) with the State in:
1. identifying
and locating the non-custodial parent,
2. establishing
paternity for children born out of wedlock,
3. establishing
medical support obligations, and
4. enforcing
such orders.
1.7
Cooperative Agreements
Per
federal requirements, the Office
of Child
Support Services
enters into
cooperative agreements
with the
Rhode Island
Family Court,
the Department
of Children,
Youth and Families
(DCYF), the Department of
Corrections, and the
Department of
Labor and
Training (DLT),
among other entities and as required. These
are written
agreements, which
specifically outline
each party's
responsibilities and
the financial
arrangements agreed
upon.
1.8
Emancipation
A. Pursuant
to Rhode Island law, a child is emancipated upon his or her
eighteenth (18th)
birthday. The court
may, if
in its
discretion it
deems it
necessary or
advisable, order
child support
and education
costs for
children attending
high school
at the
time of
their eighteenth birthday
and for
ninety (90)
days after
graduation, but
in no case
beyond their
nineteenth birthday.
If the
child has
a mental
or physical disability,
which occurred
before emancipation,
the order
may continue until
the child's
21st birthday.
However, a
non-custodial parent is
obligated to
continue paying
current child
support until
s/he has obtained
an order
terminating that
obligation. Therefore,
the OCSS
will continue
to enforce
an order
until such
time as
the order
has been terminated
and arrears
have been
suspended.
B. Internally
the eligibility
system will
stop the
order at
the youngest
child's 18th
birthday. This
does not
affect the
legality of
the order.
1.9
Case Assessment and Prioritization
The
Office of
Child Support
Services has
implemented a
case assessment
and prioritization
system to
manage its
caseload. This system
includes all
cases and
ensures that
no service
required to be
provided under
the State
plan has
been systematically
excluded.
1.10 Case Closures
1.10.1 Federal
Regulation (Public Welfare, 45 C.F.R. § 303.11)
A. In
order to be eligible for closure, a case must meet at least one of
the closing criteria described. Once the case becomes eligible for
closure, the state’s electronic computer system automatically
schedules the case to close sixty (60) days in the future and
generates the closure letter
to send
to the
custodial parent.
An agent
can also schedule
a case
for closure
by entering
a closure
date sixty
(60) days in
the future. The
eligibility system
will automatically
send the closure
letter and
close the
case in
sixty (60)
days via
the monthly case
closure process. A
case will
not be
closed if:
1. The
custodial parent
supplies information
in response to
the notice
which could
lead to
the establishment
of paternity, an
order for
support, or
enforcement of
an order; or
2. Contact
is reestablished
with a
custodial parent
whose whereabouts were
unknown.
B. A
custodial parent
may request,
at a
later date,
that her/his
case be reopened
if there
is a
change in
circumstances that
could lead
to the
establishment or
enforcement of
an order.
1.10.2 Closing
Criteria Requiring Sixty (60) Day Notice
A. A
sixty (60)
day closing
notice will
be sent
to the
custodial parent
when a
case is
closed for
one of
the following
reasons:
1. There
is no
longer a
current support
order and
arrearages are
under five
hundred dollars
($500) or
unenforceable under
state law;
2. The
non-custodial parent
or putative
father is deceased
and no
further action,
including a
levy against the
estate, can
be taken. The
agent shall obtain
a certified
copy of
the death
certificate and
file a
Motion to
Dismiss;
3. Paternity
cannot be
established because:
a. The
child is
at least
twenty-two (22)
years old; or
b. A
genetic test
or a
court or
administrative process
has excluded
the putative
father.
4. OCSS
shall file
a Motion
to Dismiss
based upon
the exclusion;
5. The
Office of Child Support Services has determined that it would not be
in the best interest of the child to establish paternity in a case
involving incest or forcible rape, or in any case where legal
proceedings for adoptions are pending;
6. The
identity of the biological father is unknown and cannot be identified
after diligent efforts, including at least one interview by the IV-D
agency with the recipient of services;
7. The
non-custodial parent's location is unknown, and regular attempts have
been made using multiple sources to locate the non-custodial parent
over a three (3) year period, when there is sufficient information to
initiate an automated locate effort, or over a one (1) year period
when there is not sufficient information to initiate an automated
locate effort;
8. The
non-custodial parent cannot pay support for the duration of the
child's minority because (s)he has been institutionalized in a
psychiatric facility, is incarcerated with no chance for parole, or
has a medically verified permanent and total disability with no
evidence of support potential. The Office of Child Support Services
must also determine that no income or assets are available to the
non-custodial parent that could be levied or attached for support;
9. The
non-custodial parent is a citizen of, and lives in a foreign country,
does not work for the Federal government or a company with
headquarters or offices in the United States, and has no reachable
domestic income or assets, and the state has been unable to establish
reciprocity with the country.
10.
In a Non-Assistance case:
a. The
Office of
Child Support
Services is
unable to contact
the custodial
parent within
a sixty
(60) calendar day
period despite
an attempt
of at least
one letter
sent by
first class
mail to
the last known
address, or
b. The
custodial parent
fails to
cooperate and
an action by
the custodial
parent is
essential for the
next step
in providing
services.
11. OCSS
documents failure by the initiating state to take an action which is
essential for the next step in providing services.
12. The
OCSS will close cases, codify arrears, and notify the custodial
parent if her address is known, in cases which meet the following
criteria:
a. There
is no current support order,
b. The
child is past the age of emancipation,
c. The
location of the non-custodial parent is unknown despite repeated
automated locate efforts for a period of 1 year,
d. The
arrears are unenforceable which means repeated automated
administrative enforcement efforts have taken place to secure an
asset or payment and such efforts have been unsuccessful,
e. Or
the custodial parent cannot be located to cooperate with the case in
establishing arrears.
1.10.3 Closings
Without Prior Notice
A. A
60-day closing
notice does
not have
to be
sent, if
a case
is closed for
one of
the following
reasons:
1. The
case was
opened as
a non-assistance
location only; or
2. The
non-assistance custodial parent requests closure of a case and there
is no assignment to the State of medical support or arrearages which
accrued under a support order; or
3. There
has been
a finding
of good
cause, and
it has been
determined that
support enforcement
may not proceed
without risk
or harm
to the
child or
caretaker relative.
B. Case
Retention
The
Office of
Child Support
Services will
retain closed
case records for
a minimum
of six ( 6) years
after closure before
purging the
file.
1.11 Non-Custodial
Parent Location
1.11.1 Location
Standards
A. A
non-custodial parent
will be
considered "located"
when information
regarding his/her
physical whereabouts,
or place(s)
of employment,
or other sources
of income
or assets
have been
verified, and
the information is
sufficient to
allow the
Office of
Child Support
Services to take
the next
appropriate action.
B. Within
no more
than seventy-five
(75) calendar
days of
determining that
location is
necessary, the
Office of
Child Support
Services will
access all appropriate
location sources,
including transmitting
appropriate cases to
the Federal
Parent Locator
Service (FPLS)
and ensuring
that location information
is sufficient
to take
the next
appropriate action
in a
case.
C. Appropriate
location sources include but are not limited to:
1. Credit
Bureau;
2. The
Federal Parent
Locator Service
(FPLS);
3. Intergovernmental
location networks;
4. Relatives
and friends
of the
non-custodial parent;
5. Current
or past
employers;
6. The
local telephone
company;
7. The
U.S. Postal
Service;
8. Unions
and fraternal
organizations;
9. Police,
parole, and
probation records,
if appropriate;
10. State
agencies and
departments as
authorized by
State law, including
those departments
which maintain
records of:
a. Public
assistance;
b. Wages,
employment, and
unemployment insurance;
c. Income
taxation;
d. Driver's
licenses, vehicle
registration; and
e. Criminal
records.
1.11.2 Notice
Requirements
A. In
cases where
previous attempts
to locate
the non-custodial
parent have failed,
but for
which adequate
identifying and
other information
exists, the
Office of
Child Support
Services will:
1. Exhaust
all appropriate
location resources
within seventy-five (75)
days of
receiving new
information;
2. Submit
to the
FPLS, at
least annually,
cases in
which location is
needed and
for which
a non-custodial
parent's social
security number
is known
or every effort
has been
made to
obtain it;
3. Document
all location
efforts including
telephone contacts with
the custodial
parent and
the non-custodial
parent in
the state’s
electronic eligibility
system;
4. Record
current, verified
information; and
5. Repeat
location attempts
in cases
in which
previous attempts to
locate non-custodial
parents or
sources of income
and/or assets
have failed,
but adequate
identifying and
other information
exists to
meet requirements for
submittal for
location, either
quarterly or
immediately upon
receipt of
new information which
may aid
in location,
whichever occurs sooner.
1.12
Access to Information
1.12.1 Non-Custodial
Parent Social Security Number
A. The
Office of
Child Support
Services is
authorized by
R.I. Gen. Laws §
15-22-1 to
have access
to and
to request
information from
various individuals
and entities
only for
the purpose
of and
to the extent
necessary for
the administration
of the
child support
enforcement program. The
Child Support
Services agent
decides which
individuals or
entities to query
to assist
in the
location of
the obligor
based on
information available in
the case. These
requests for
information can
be made
by any
method, including
but not limited
to:
1. Paper;
2. Facsimile
(Fax);
3. Telephone;
or
4. Magnetic
tape or other electronic means.
B. Unless
otherwise limited
by federal
statute, individuals
or entities from
whom the
Child Support
Services agent
may secure
such information
include, but
are not
limited to:
1. State
or municipal
agencies;
2. Utility
companies (including
telephone);
3. Tax
assessor's offices;
4. Housing
authorities;
5. Employers;
6. Professional
or trade
associations;
7. Labor
unions;
8. Professional
or trade
licensing boards;
9. Bank
and other
financial institutions;
10. Credit
bureaus or
agencies; or
11. Any
other individual
or entity
which the
Office of Child
Support Services
has reason
to believe
may have
information that
relates to
or may
assist in
the location of
the obligor.
C. Requested
information that
must be
provided includes,
but is
not limited to,
the obligor's:
1. State
income tax
returns (including
address, filing
status, and
number of
dependents reported
on any return
filed by
the obligor
and any
other information
which shall
be determined
and approved
by the
Tax Administrator and
such federal
tax data
as permitted by
federal law).
D. Unless
otherwise limited by statute, the Office of Child Support Services
shall be entitled to:
1. All
criminal offender record information of the obligor which is
necessary to locate the obligor or establish the obligor's ability to
pay including, but not limited to, National Criminal Information
Center (NCIC) records and Bureau of Criminal Identification (BCI)
records maintained by the Department of the Attorney General; and
2. Quarterly
contribution reports of the Department of Labor and Training.
E. Unless
otherwise limited
by federal
statute, requested
information that
must be
provided includes,
but is
not limited
to, the
obligor's:
1. Title
to property;
2. Credit
status; or
3. Professional
affiliation.
F. Holders
maintaining personal
data are
authorized to
disclose to
the Office of
Child Support
Services all
personal data
requested and
such disclosure shall
not violate
provisions of
R.I. Gen. Laws § 38-2-2.
1. No
entity or
individual who
complies with
such requests
for information
shall be
liable in
any civil
or criminal
proceeding brought
by an obligor
or a
custodial parent on
account of
such compliance.
2. Failure
by any
individual or
entity to
provide information,
without reasonable cause,
within twenty
(20) days
of the
receipt of
the request from
the Office
of Child
Support Services,
is punishable
by a
one hundred dollar
($100) fine
for each
failure.
3. This
fine may
be assessed
either by
the Rhode
Island Family
Court or the
Office of
Child Support
Services.
G. Any
employee of
the Office
of Child
Support Services
that uses
or discloses such
information in
any manner
other than
specified in
R.I. Gen. Laws § 15-22-1
shall be
guilty of
a misdemeanor
and shall
be punished
by a fine
of not
more than
one thousand
dollars ($1,000),
or by
imprisonment for not
more than
six (6)
months or
both.
1.12.2
Credit Bureau Inquiries
The
Office of Child Support Services submits a monthly tape to the credit
bureau for locating non-custodial parents. The credit bureau may
provide information regarding
the non-custodial
parent residence
and/or employment.
1.12.3
Division of Motor Vehicles
A. The
Division of Motor Vehicles can provide a non-custodial parent's
social security number, last reported address, and vehicle
registration information. This information can be obtained either by
using the non-custodial parent's social security number, or name and
approximate date of birth.
B. Address
information obtained
from the
DMV driver's
license records
is that which
is provided
by the
non-custodial parent,
and may
not be current.
Therefore, the
agent will
verify the
information with
a second source,
such as
a letter
for location
(Post Office),
before taking
the next action.
1.12.4
Department of Labor and Training
A. Office
of Child Support Services and the Department of Labor and Training
(DLT) conduct a tape exchange once a month to match non-custodial
parents' social security numbers with DLT employment and wage
information. An employer, under R.I. Gen. Laws § 15-24-5, who hires
or rehires an employee on or after October 1, 1997, must report the
hiring or rehiring to the National Directory of New Hires (NDNH) no
later than fourteen (14) days after hire or rehire, or twice a month,
if reporting electronically or magnetically. Once the Office of Child
Support Services submits a non-custodial parent's social security
number on the tape, the Office of Child Support Services agent may
look at the DLT files via the state’s electronic eligibility
system’s WAGE function.
B. Information
obtained from
the DLT
is that
which is
reported to
the Division of
Taxation by
employers throughout
the State.
C. Employers
must report
wage information
by two
(2) monthly
transmissions, not less
than twelve
(12) days
or more
than fifteen
(15) days
apart.
1.12.5
Requests for Information from Employers
A.
The Child Support Services agent may request from any employer or
any other source of income that s/he has reason to believe employs an
obligor, or otherwise provides the obligor with regular periodic
income, to provide information concerning the dates and amounts of
income paid, the last known address, social security number, and
available health care benefits. The Office of Child Support Services
shall not inquire of an employer or other source of income concerning
the same obligor more than once every three (3) months.
B. Employers
or other sources of income to the obligor must respond to these
requests truthfully and in writing. No employer or other source of
income that complies with such requests shall be liable in any civil
action or proceeding brought by the obligor on account of such
compliance. Failure to comply with such a request, without good
cause, within twenty (20) days of receipt of the request shall be
punishable by a fine of twenty dollars ($20) for each violation. If
it is demonstrated that the employer conspired with the employee to
avoid reporting, a five hundred dollar ($500) civil penalty may be
assessed by the Department.
C. Unauthorized
disclosure of
information caused
by the
Department by
any employee or
agent of
the state,
is punishable
by a
fine of
one hundred
dollars ($100)
per offense
and is
subject to
administrative discipline
of the
employee.
1.12.6 U.S.
Postal Service
The
agent will send a Letter for Location (Post Office) to verify a
non-custodial parent's current or forwarding address.
1.12.7 Police
or Criminal Records
The
Child Support System electronically exchanges information with the
Adult Correctional Institution (ACI), and the Bureau of Criminal
Investigation (BCI).
1.12.8 Office
of Vital Records
The
Child Support System electronically exchanges information regarding
birth certificates with the R.I. Office of Vital Records.
1.12.9 U.S.
Armed Forces
A. The
Child Support system electronically exchanges with the Department of
Defense to locate members of the armed forces.
B. There
is a legal procedure that must be followed to serve members of the
armed forces and to secure a child support order.
1.12.10 Federal
Parent Locator Service
A. The
Federal Parent Locator Service is provided by the Office of Child
Support Services (OCSS) for the purpose of locating non-custodial
parents. The Federal Parent Locator Service provides information from
the following:
1. Social
Security Administration
(SSA);
2. Internal
Revenue Service
(IRS);
3. Veteran's
Administration (VA);
4. Department
of Defense
(DOD);
5. National
Personnel Records
Center (NPRC);
6. Selective
Service System
(SSS);
7. National
New Hire
Data base; and
8. Federal
Registry.
B. Restrictions
Only
the central State Parent Locator Service (SPLS) office, or other
designated Office of Child Support Services, can accept requests to
query the Federal Parent Locator Service. Requests may be received
only from:
1. State
or local
agencies seeking
to collect
child and spousal
support obligations
under the
State plan,
or medical support
obligations if
an agreement
is in effect;
2. A
court that
has authority
to issue
an order
against a
non-custodial parent
for the
support and
maintenance of a
child, or
any agency
of such
court;
3. The
resident parent,
legal guardian,
attorney, or
agency of
a child
who is
not receiving
aid; or
4. Authorized
persons as
defined in
Parental Kidnapping,
if an
agreement is
in effect
to use
the FPLS
in connection with
parental kidnapping
or child
custody cases.
C. Requirements
1. All
requests from
the FPLS
will include:
a. The
non-custodial parent's name;
b. The
non-custodial parent's social security number, if known (before
submitting a request without a social security number, make every
reasonable effort to obtain it);
c. Information
regarding whether the non-custodial parent is, or has been, a member
of the armed services (if known);
d. Information
regarding whether the non-custodial parent is, or has ever, received
any Federal compensation or benefits; and
e. Any
other information prescribed by OCSS.
2. All
requests to
the Federal
Parent Locator
Service must
be accompanied by
a statement
signed by
the Director,
which states
that:
a. The
request is
being made
solely to
locate an
individual for
the purpose
of establishing
paternity, child support
and medical
support orders,
and enforcing those
orders, or
parental kidnapping;
b. Any
information obtained
through Federal
Parent Locator Service
shall be
treated as
confidential as
outlined in
§ 1.1 of this Part.
D. Submitting
Requests
The
state’s electronic
eligibility system
will automatically
submit Federal Parent
Locate Services
(FPLS) requests
every six
months on cases
for which
the non-custodial
parent's social
security number
is known and
location has
not been
verified. To determine
whether a
case has been
submitted to
the FPLS
the agent
will review
the case
on the system.
This will
show the
date the
last query
was submitted.
E. An
agent may submit an FPLS request on an individual case before the end
of six months.
1.12.11 State
Parent Locator Service
A. The
Office of
Child Support
Services central
registry acts
as Rhode Island's
State Parent
Locator Service.
The central
registry will:
1. Submit
location requests to other states' Parent Location Services; and
2. Provide
location services for other states.
1.12.12 Directories
The
Child Support
agent will
make use
of various
directories such
as the Verizon
telephone directory.
1.12.13 Friends
and Relatives
Friends
and relatives
of the
non-custodial parent
may be
contacted, however, the
agent must
be sure
and not
disclose information
regarding the specifics
of the
child support
case.
1.12.14
Division of Taxation
The
OCSS agency
conducts an
electronic match
with the
Division of
Taxation to
intercept State
tax refunds
which will
provide a
non-custodial parent's
most recent
filing address.
1.13
Paternity Establishment
1.13.1 Legal
Basis
A. The
father of a child which is, or may be, born out of lawful wedlock is
liable to the same extent as a father of a child born of a marriage
for the reasonable expense of the mother's pregnancy and confinement,
the education, necessary support and maintenance, medical and funeral
expenses of the child, and reasonable counsel fees for the
prosecution of paternity proceedings.
B. Pursuant
to 42 U.S.C. § 654, a state plan for child and spousal support must
provide that such state will undertake to establish the paternity of
a child with respect to whom an assignment is effective, unless the
state determines it is against the best interests of the child to do
so. The Office of Child Support Services may bring such an action
based on the automatic assignment or application for IV-D services.
Any agreement of settlement with the putative father is binding only
when approved by the court.
1.13.2 Paternity
Time Frames
A. For
all cases referred, or when a non-assistance (NA) application is
filed and for which paternity has not yet been established, the
Office of Child Support Services must proceed expeditiously to locate
the alleged father when necessary, to file for paternity
establishment, and obtain a support order or to dismiss all actions
against the alleged father.
B. The
processing of these cases must be done within the applicable time
frames established by federal regulations. Generally, these time
frames begin with either the referral of the case to Office of Child
Support Services or upon the location of the alleged father.
1.13.3 Paternity
Processing
A. Before
proceeding with paternity case processing, the agency will review the
case to determine:
1. Whether
the necessary documentation is present, such as a birth certificate,
marriage license, and/or divorce decree;
2. Sufficient
information and documentation to support whether the child was born
of a marriage or out of wedlock;
3. The
husbands full name if the child was born of a marriage or within
three hundred (300) days after the marriage is terminated by death,
annulment, declaration of invalidity, or divorce, or after a decree
of separation is entered by a court;
4. Whether
location is needed; or
5. Whether
the case is a special situation that needs to be referred directly to
the Office of Child Support Services Legal Unit after location.
1.13.4 Paternity
Allegations
A. A
mother applying for non-assistance (NA) services for a child born out
of wedlock completes a NA Child Support Application.
B. These
documents require her to name (allege) the father of the child for
whom she is requesting benefits or services. The Child Support
Services agent will investigate the custodial parent's allegation,
and obtain the most accurate information with which to proceed. In
investigating the allegation, the agent may find:
1. A
single allegation
of paternity,
whereby the
applicant or
recipient alleges
the possibility
of only one
man as
being the
child's father;
2. A
multi-allegation of paternity, whereby the applicant or recipient
alleges that she had sexual intercourse with more than one man around
the time of conception. A multi-allegation may involve a combination
of putative fathers and/or a presumed father.
3. A
change in allegation, whereby the applicant or recipient alleges that
a child's natural father is someone other than the man who was named
previously;
4. An
unknown putative father, whereby the applicant or recipient cannot
make an allegation because (s)he does not know the identity of the
father. A sworn statement must be provided indicating the father is
unknown. These cases will not be referred to OCSS. Technically if the
applicant cannot name the father, OCSS cannot accept the case.
C. In
cases where the custodial parent alleges that she had sexual
intercourse with more than one man around the time of conception,
only one case at a time will be referred to OCSS. OCSS will establish
paternity in that case. If there is a dismissal OCSS will so notify
and the second alleged father will be referred for paternity
establishment.
D. In
cases where a legal presumption of paternity exists, the full name of
the presumed father must be determined and referred for processing.
1.13.5 Presumptions
of Legal Paternity
A. The
agency will evaluate the information provided and obtained from the
mother, or a previously established case record, and determine
whether paternity needs to be established, and/or whether there is a
presumed father. In cases where a multi-allegation or change in
allegation includes a presumed father and a putative father, the
agent work the case against the presumed father first before pursuing
paternity against a putative father. A man is presumed to be a
child's legal father if:
1. He
and the child's natural mother are, or have been, married to each
other and the child is born during the marriage, or within three
hundred (300) days after the marriage is terminated by death,
annulment, declaration of invalidity, or divorce, or after a decree
of separation is entered by a court;
2. Before
the child's birth, he and the child's natural mother have attempted
to marry each other by a marriage solemnized in apparent compliance
with law, although the attempted marriage is, or could be, declared
invalid, and
a. If
the attempted
marriage could
be declared
invalid only
by a
court, the
child is
born during the
attempted marriage,
or within
three hundred
(300) days
after its
termination by
death, annulment,
declaration of
invalidity, or
divorce, or
b. If
the attempted
marriage is
invalid without
a court order,
and the
child is
born within
three hundred (300)
days after
the termination
of cohabitation;
3. After
the child's
birth, he
and the
child's natural
mother have
married, or
attempted to
marry each
other by a
marriage solemnized
in apparent
compliance with
law, although
the attempted
marriage could
be declared
invalid, and
a. He
has acknowledged
his paternity
of the
child in writing
and filed
with the
clerk of
the Family Court,
or
b. With
his consent,
he is
named as
the child's father
on the
child's birth
certificate, or,
c. He
is obligated
to support
the child
under a written
voluntary promise,
or by
court order;
4. He
acknowledges his
paternity of
the child
in a writing
filed with
the clerk
of the
Family Court,
who shall promptly
inform the
mother of
the filing
of the
acknowledgment, and
she does
not dispute
the acknowledgment
within a
reasonable time
after being
informed thereof,
in a
writing filed
with the
clerk of the
Family Court. If
another man
is presumed
under this section
to be
the child's
father, acknowledgment
may be
effected only
with the
written consent
of the presumed
father, or
after the
presumption has
been rebutted;
5. A
genetic test result of 97% or higher creates a conclusive presumption
of paternity when submitted as evidence in a paternity action;
6. A
presumption under this section may be rebutted in an appropriate
action only by clear and convincing evidence. If two (2) or more
presumptions arise which conflict with each other, the presumption
for which there is more convincing evidence will prevail.
1.13.6 Verifying
Location
A. To
initiate paternity
establishment, a
verified Rhode Island
address at
which the
putative father
can be
served must be provided.
B. When
the non-custodial
parent's verified
address is
out of
state, a
long arm
paternity action
if appropriate
(if the
child was
conceived in
Rhode Island) will
be filed.
1.13.7 Putative
Father Receiving Benefits
Even
if the putative
father is
receiving SSI,
GPA, RIW or
is incarcerated it
will not prevent
the agency
from pursuing
paternity establishment.
1.13.8 Complaint
for Paternity and Support
A. The
applicant/recipient will
sign a
Complaint for Paternity
and Support, which
contains the custodial
parent's sworn
allegation of
paternity.
B. All
information will be verified with the custodial parent and the
custodial parent's signature will be obtained during the initial
interview. If the custodial parent does not sign the complaint at
initial interview, she will be served by the Constable for signature.
C. Once
the custodial parent is served for signature, the agent will E-File
the Complaint for Paternity and Support and obtain a Court date. The
hearing date will be assigned by the Court.
1.13.9 Locating
the Putative Father
The
non-custodial parent's social security number is the single most
important piece of information needed for location. With it the Child
Support agent can query various location resources, and also be
assured that the non-custodial parent will be included in tape
matches used for location, establishment, and enforcement.
1.13.10 Serving
the Putative Father
The
putative father is served by Constable with a copy of the Complaint
for Paternity and Support, the Summons and Subpoena, which are
included in the Paternity Initial Referral. In this way, he is
informed of the allegation and the manner in which to respond. The
putative father is given twenty (20) calendar days from the date of
successful service to respond, in writing, to the Family Court and
the Office of Child Support Services. The putative father must also
appear on the scheduled court date.
1.13.11 Putative
Father's Response
A. The
Putative Father is given twenty
( 20) days by law
to respond to the
Complaint for Paternity
and Support . The putative
father may
respond by:
1. Admitting
paternity;
2. Denying
paternity; or
3. Failing
to respond.
1.13.12 Post
Hearing Activities
A. Putative
Father Admits Paternity
After
the hearing, a court order will be prepared either dismissing the
matter or adjudicating the putative father as the legal father of the
child. If adjudicated, the order will be sent to the Office of Vital
records to amend the birth certificate of the child, adding the
fathers name and information.
B. Putative
Father Denies Paternity
When
a putative father denies paternity, an Administrative Order for
genetic testing will be issued, which will be mailed to the putative
father or mailed to his attorney.
1.13.13 Genetic
Tests
A. In
a proceeding under R.I. Gen. Laws § 15-8-11, before trial, the
court, upon application made by or on behalf of any party to said
action, or on its own motion, shall order that the mother, child,
alleged father, and any other party to the action submit to blood or
tissue typing tests. The Office of Child Support Services may also
administratively order the parties to attend DNA testing upon receipt
of a denial. A court order is not required. These tests may include,
but are not limited to, DNA tests of red cell antigens, red cell
isoenzyme, human leukocyte antigens, serum proteins, and genetic
testing, to determine whether the alleged father is likely to be, or
is not, the father of the child.
B. If
at the trial, in a proceeding under R.I. Gen. Laws § 15-8-11, it is
shown that a party refused to submit to court ordered DNA tests, such
refusal shall be considered by the court, along with all other
evidence presented on the issue of paternity. A DNA test shall be
made by a person the court determines is qualified as an examiner of
DNA types.
C. The
court shall fix or approve the compensation of any expert at a
reasonable amount, and may direct the compensation to be paid by the
state, or by any other party to the case, or by both, in the
proportions and at the times the court prescribes, and that, after
payment by a party, all or part or none of such payment shall be
taxed as costs in the action. Before conducting DNA the court may
order any part of or all of the compensation paid in advance.
D. The
result of the DNA test, and if a determination of exclusion of
paternity cannot be made, a calculation of the probability of
paternity made by a person the court determines is qualified as an
examiner of blood or tissue types based on the result of a blood or
tissue typing test, shall be admissible in evidence in the trial of
the case.
E. A
written report of the test results, including a calculation of the
probability of paternity or a determination of exclusion of
paternity, prepared by the duly qualified expert conducting the test,
or by a duly qualified expert under whose supervision or direction
the test and analysis have been performed, certified by an affidavit
duly subscribed and sworn to by him or her before a notary public,
may be introduced into evidence without the need for foundation
testimony or other proof of authenticity or accuracy and without the
necessity of calling the expert as a witness, unless an objection
challenging the test procedures or results has been filed within ten
(10) days before any hearing at which such results may be introduced
into evidence and a cash bond posted with registry of the family
court in amount sufficient to cover the costs of the duly qualified
expert to appear and testify.
F. If
the results of the DNA tests duly admitted into evidence establish a
ninety-seven percent (97%) or greater probability of inclusion that a
party is the biological father of the child, then such threshold
probability shall constitute a prima facie case of establishment of
paternity and the burden of proof shall shift to the party to rebut
such proof by clear and convincing evidence.
G. The
Office of Child Support Services may also utilize its own contracted
qualified expert DNA facility. When the Office of Child Support
Services is involved in the case and paternity tests are required,
the Office of Child Support Services will schedule the tests and pay
the initial costs. If the defendant is adjudicated the father, the
State will seek reimbursement.
H. Pursuant
to R.I. Gen. Laws § 15-8-11, if the results establish a 97% or
greater probability of paternity, it shall constitute a conclusive
presumption.
I. Scheduling
DNA Test
1. DNA
testing will be scheduled for both parties and the child at the
Office of Child Support Services, 77 Dorrance Street, Providence. The
parties will be scheduled at different times.
2. If
one or both parties does not appear, the DNA test may be rescheduled.
A fter the
appointment has
been rescheduled
twice and the
custodial parent
fails to
keep the
appointment, a
non-cooperation code
will be placed on the
case, which may affect benefits received.
J. Request
for Admissions
1. DNA
test results
are returned
to the
Office of
Child Support
Services. When
the test
shows a
high probability
of paternity,
the Office of
Child Support
Services may:
a. Provide
those results for the assigned Court date; or
b. Send
the results to the putative father (by certified mail), or his
attorney (by regular mail) along with a Request for Admissions.
2. The
non-custodial parent has ten (10) days to respond in writing to the
Request for Admissions. If the non-custodial parent objects to the
Request for Admissions, a Motion to Compel Answers may be filed,
setting the matter for hearing. The court then orders the putative
father to respond to the request by either admitting or denying
paternity.
3. If
the putative father admits or fails to respond within ten (10) days,
the Request for Admissions is deemed true and accurate and a Motion
for Summary Judgment (contested) is filed.
4. If
the putative
father denies
a specific
Request for
Admissions and
admit the
remainder, the
agency may file an
amended version
of the
Motion for
Summary Judgment.
5. A
Motion for
Bond is
filed in
conjunction with
the Motion
for Summary
Judgment. The purpose
of the
Motion for
Bond is
to ensure
that if
the court does
not grant
the State's
Motion for
Summary Judgment,
support payments will
be held
in escrow
until an
order is
entered. If
the non-custodial
parent is
later excluded,
the support
payments will
be returned to
the non-custodial
parent.
6. The
non-custodial parent's
presence is
required at
the hearing,
either on the scheduled hearing date or at
the Motion for
Summary Judgment
hearing date, even
if an
attorney is
representing him:
a. If
the non-custodial
parent appears
and does
not object to
the Motion
for Summary
Judgment, he
is adjudicated to
be the
father of
the minor
child, his name
is added
to the
child's birth
certificate, and
a support order
is entered. The
escrow payments,
if previously ordered,
are released
and an
order for medical
coverage is
obtained;
b. If
the non-custodial
parent fails
to appear,
and is not
being represented
by an
attorney the court
may grant the
Motion for
Summary Judgment, finding
the putative
father to
be the father
of the
minor child;
c. If
the putative father appears and objects to the Motion for Summary
Judgment, the court may:
(1) Grant the Motion for
Summary Judgment and order the aforementioned relief;
(2) Deny the Motion for
Summary Judgment and order a second genetic or DNA testing, and/or
grant the State's Motion for Bond;
(3) Deny the State's
Motion for Summary Judgment and order the discovery process to
continue in preparation for trial.
1.13.14 Discovery
A. Discovery
is the
tool used
for information
gathering in
preparation for a
paternity trial.
The rules
of discovery
are found
in 20 U.S.C. Title
V. Disclosure and Discovery, Rule 26 through Rule 37 and the Family
Court Rules of Domestic
Relations Procedure.
Among the
discovery documents
utilized in
a contested paternity
case are
the following:
1. Depositions
(Rules 26 - 32). Any party
may, upon
order of
the court, take
the testimony
of any
person including
a party,
upon oral examination
or written
interrogatories, for
the purpose of
discovery or
for use
as evidence
in the
action or for
both purposes.
Limitations and
the scope
of the examination
are governed
by Rules
26 -
32.
2. Interrogatories
(Rule 33). Interrogatories, or
written questions,
may be
served upon
an adverse
party without
permission of the
court, if
sent after
20 days
of service
of the defendant.
The answers
must be
made fully
in writing under
oath, and
be signed
by the
person making
said answers, within
40 days
after service. The
scope and
limitation of
the interrogatories
are governed
by Rule 33.
3. Request
for Production
of Documents (Rule
34). Any party
may serve on
the other
party a
request in
writing to
produce, and
permit the
party making
the request
to inspect
and copy documents
or tangible
things which
are in
the possession,
custody, or
control of
the party
upon whom
the request
is served, or
permit entry
upon land
or other
property in the
possession or
control of
the party
upon whom
the request is
made. The procedures,
scope and
limitation of the
Request for
Production are
contained in
Rule 34.
4. Request
for Admissions
(Rule 36). A party
may serve
upon any
other party a
written request
for the
admission of
the genuineness of
any relevant
documents or
of the
truth of any
relevant matters
of fact
set forth
in the
request.
5. Each
of the
matters of
which an
admission is
requested shall be
deemed admitted
unless, within
10 days
after service, the
party either:
a. Denies,
specifically, the
matters requested;
or
b. Sets
forth in
detail the
reasons why
he cannot
truthfully admit
or deny
those matters;
or
c. Objects
and requests
a hearing
on said
objection.
6. Rule
36 sets
forth the
effect of
admissions as
well as the
procedure;
7. Motion
to Compel Answers on Request for Sanctions (Rule 37). If the adverse
party refuses to answer discovery, the party must file a Motion to
Compel said answers and request a hearing. Rule 37 sets forth the
procedures and consequences for failure to respond.
B. These
techniques are used by both the custodial parent's and putative
father's attorneys. Sanctions are ordered for the prevailing party
when the opposing party fails to respond.
1.13.15
DNA Test Reveals Putative Father Excluded
A. When
the DNA
test excludes
the putative
father, the agency will
proceed with a Motion to dismiss
provided the putative father has been properly identified.
B. When
the custodial
parent cannot
identify the
putative father
during DNA testing
or during
a subsequent
appointment viewing the lab photo,
a Motion to Dismiss will be filed.
1.13.16
Putative Father Fails to Respond
A. No
Response
When
a putative
father fails
to respond
to the
Complaint for Paternity and Support (the 20-day summons),
and fails to appear on the scheduled hearing date, a
Paternity: Default
judgment may be entered.
B. Establish
Paternity without Cooperation
1. The
agency may
proceed with
attempts to
establish paternity
when the applicant
or recipient
fails to
cooperate without
good cause.
2. Whether
paternity can
be established
depends on
the Office
of Child Support
Services being
able to
obtain sufficient
information regarding
the putative
father without
the cooperation
of the
mother, and
whether the putative
father admits
paternity.
3. The
agency may
also proceed
with attempts
to establish
paternity in
situations where
it is
determined that
good cause
exists for
the applicant or
recipient refusing
to cooperate
with Office
of Child Support
Services. In these
cases, the
agency must
make a
determination that this
activity can
proceed without
risk of
harm to
the child
or caretaker relative
if the
enforcement activity
does not
involve their
participation. This
determination must
be in
writing, will
contain the
agency's findings
and basis
for determination,
and will
be entered
into the RIW
case record. If
the IV-A
agency excuses
non-cooperation, but
determines that
the IV-D
agency may
proceed to
establish paternity,
it will notify
the applicant
or recipient
to enable
such individual
to withdraw his
or her
application for
assistance or
have the
RIW case closed.
Prior to
making this
determination, Office
of Child
Support Services will
be afforded
an opportunity
to review
and comment
on the findings
and basis
for the
proposed determination.
1.13.17
Special Paternity Issues
A. Not
all paternity
cases will
involve the
child's mother
as the custodial
parent. There will
be cases
where the
child is
living with
a relative ( Loco
Parentis
cases) or
with the
putative father.
In these
cases paternity
can still
be established,
however, procedures
will differ
from the
cases previously
discussed.
B.
Loco Parentis Cases
In
Loco Parentis
cases, the
applicant or
recipient will
make an assignment
regarding both
the putative
father and
the child's
mother. However, (s)he
cannot make
the formal
allegation of
paternity. The Complaint
for Paternity
and Support can only
be signed
by a
child's mother.
Therefore, the
mother must be located
before pursuing
paternity against
the putative
father. The procedures
followed will
depend on
the information
obtained, and
how cooperative the
child's mother
and the
putative father
are. The case record must indicate whether the child was born
of a marriage or out of wedlock.
C.
Putative Father Seeks Paternity Establishment
The
Office of
Child Support
Services will
establish paternity
upon the request
of a
putative father. A
putative father
does not
have to
have custody of
the child
nor receive
assistance for
such services
to be provided.
However, the
case must
be a
case where
the custodial
parent is receiving
services.
D.
Custodial Father
Seeks Establishment
1. The
Office of
Child Support
Services will
seek to
establish paternity
when a
putative father
is the
custodial parent
and applies
for RIW,
MA, or NA
services.
2. If
the Mother and Father appear for the appointment, the agency will:
a. Determine
if there
is an
existing case,
i.e., if
the mother was
previously on
RIW and
named the
custodial parent
as the
putative father;
provide the Rights and Responsibilities statement to them, either
explain the statement or have them watch the Power of Two video
before completing and signing the Voluntary Affidavit of Paternity.
b. Obtain
the putative
father's and mother’s
signature on the
affidavit.
c. Notify
the RIW agency
of the
completed action via
electronic mail.
Provide a
copy of
the completed and
executed Voluntary
Affidavit of Paternity to
the putative
father and
also forward a
copy to
the eligibility
technician in
the appropriate public
assistance office.
This will enable
the putative
custodial father
to obtain
RIW immediately.
d. File
the Voluntary Affidavit of Paternity with the Office of Vital
Records.
e. If
the putative father appears for the appointment alone, a Petition for
Voluntary Acknowledgement will be generated and his signature
obtained the location of the mother will be ascertained and the
petition will be e-filed and served with a Summons to Appear in
court.
3. At
the hearing:
a. The
putative father will acknowledge paternity on the record. If the
natural mother is present and does not object, the court will
adjudicate him to be the father of the child and order that his name
be added to the birth certificate. An order will be prepared and
mailed or hand delivered at court to both parties.
b. The
Office of Vital Records will be ordered to add the father's name to
the child's birth certificate. The court may order the Office of
Vital Records to change the child's surname to that of the father as
well.
c. If
at the hearing, the natural mother and presumed father fail to appear
after being duly served, the court may pass the matter.
d. If
on the hearing date, the Office of Child Support Services Attorney
indicates that after due and diligent efforts, service could not be
perfected either on the natural mother or presumed father, the court
shall order alternative service of notice, i.e., notice by
publication, if applicable. A continuance date will be requested
affording sufficient time for notice of the acknowledgment to be
given to the natural mother. On the continuance date, the Office of
Child Support Services Attorney will present to the court what
efforts have been made to serve the respondent, and present copies of
the notice by publication. The petitioner will acknowledge paternity
on the record. The court will then adjudicate the petitioner the
father of the child and order that the birth certificate be amended
accordingly. A copy of the order will be mailed to the natural
mother.
e. At
the hearing on the Petition for Voluntary Acknowledgment, if the
natural mother objects, DNA testing may be ordered. The case may then
proceed as previously outlined in a contested posture.
f. Subsequent
to the hearing, a copy of the order will be prepared and provided to
the RIW agency.
g. If
the petitioner fails to appear, the proceedings will be terminated
and notice will be given to the IV-A eligibility technician of
petitioner's failure to cooperate.
E.
Non-Custodial Father Seeks Establishment
When
a non-custodial putative father requests voluntary paternity
establishment, the same procedure as outlined above will be followed.
However, if the natural mother is
receiving RIW
or seeks support
as a
NA custodial
parent, the
non-custodial custodial
parent will
be asked
to enter his
appearance as a
self-represented litigant ,
and an
order for
support and
medical coverage will
be entered.
F. If
the non-custodial
parent is
seeking to
establish paternity
by DNA testing,
he may
ask the
agent to
serve him
as a
Defendant or
he may file
an action
as a
Plaintiff with
the Family
Court Clerk. If
the custodial parent
has named
him as
the biological
father, the
agent may serve
him as
a Defendant. If
not, he
may file
as a
Plaintiff with
the court.
1.13.18 Voluntary
Acknowledgment
A. Court
Practice
1. In
any action
commenced before the RI Family Court, utilizing the forms
created by Family Court for this purpose, the father may acknowledge
his paternity of the child with the clerk of the Family Court. Each
acknowledgment must be signed by the person filing it, and it must
contain:
a. The
name, social
security number,
date of
birth and address
of the
person filing
the acknowledgment;
b. The
name and
last-known address
of the
mother of
the child;
c. The
date of
birth of
the child,
or, if
the child
is unborn, the
month and
year in
which the
child is
expected to be
born; and
d. The
name and
address of
the presumed
father, if
any.
2. The
judge shall
hold an
informal hearing
on the
acknowledgment and
shall enter
an order
establishing the
paternity of
the child
and an order
of support
for the
child, provided
there are
no objections
from the natural
mother or
presumed father
filed with
the family
court prior to
the date
of the
informal hearing,
and provided
further that
a copy of
the acknowledgment
and a
notice of
the informal
hearing are
duly served upon
the mother
and any
presumed father
according to
the Family Court
Rules of
Domestic Relations Procedure.
3. The
voluntary acknowledgment of paternity shall be recognized by the RI
Family Court as a basis for establishing a child support order for
the child without requiring any further proceedings to establish
paternity.
B. Hospital
Program
1. Under
R.I. Gen. Laws § 40-6-21.1, all public and private birthing
hospitals in this State are required to participate in a hospital
based paternity acknowledgment program. The title "birthing
hospital" means a hospital that has a licensed obstetric care
unit or is licensed to provide obstetric services, or a licensed
birthing center associated with a hospital. A birthing center is a
facility outside a hospital that provides maternity services. This
hospital based program must provide to both the mother and the
alleged father, if he is present in the hospital:
a. Written
and oral materials about paternity establishment, including written
descriptions of the rights and responsibilities of acknowledging
paternity;
b. A
Voluntary A ffidavit
of P aternity
signed by
both parties;
c. The
opportunity to speak with staff, either by telephone or in person,
who are trained to clarify information and answer questions about
paternity establishment; and
d. The
opportunity to view the Power of Two video, which explains in detail
the rights and responsibilities of acknowledging paternity.
2. This
hospital based
program must
also ensure
that due
process safeguards are
met. The birthing
hospital will
be responsible
for electronically
forwarding completed
acknowledgements or
copies to
the R.I. Department
of Health,
Office of Vital
Records. Both parents
must sign the
V oluntary
Affidavit of Paternity and
the signatures
notarized or
witnessed.
3. Voluntary
acknowledgments made
through a
voluntary acknowledgement
program are
a basis
for seeking
a support
order without
requiring any
further proceedings
to establish
paternity. This process
may also
be done at
the Office
of Child
Support Services
and at
the Office
of Vital Records.
4. The
OCSS will
provide supplies
and manuals
to the
birthing hospital
and the Office
of Vital
Records on
an ongoing
basis.
5. The
requirement for participation in the programs by hospitals is
in addition to the birth registration requirements under R.I. Gen.
Laws Chapter 23 -3 .
1.14
Limitation on Recovery
A. Recovery
from the Father
The
father's liabilities
for past
education, and
necessary support
and maintenance, are
limited to
a period
of six
(6) years
next preceding the
commencement of
an action
hereunder.
B.
Recovery from Father's Estate
The
obligation of
the estate
of the
father for
liabilities under
the R.I. Gen.
Laws §§
15-8-1 through
15-8-26, are
limited to
those amounts
accrued prior
to his
death. However, in
order to hold
the estate
of the
father liable
under R.I. Gen.
Laws §§ 15-8-1
and 15-8-26, an
action hereunder
must have
been commenced
during the
lifetime of
the father.
C.
Statute of Limitations
An
action to
determine the
existence of
the father
and child
relationship as
to a
child who
has no
presumed father
under the
R.I. Gen.
Laws § 15-8-6,
is not
barred until
four (4)
years after the
child reaches
the age
of majority.
1.15
Jurisdiction and Remedies
A. The
Family Court
has jurisdiction
of an
action commenced
under R.I.
Gen. Laws
§ 15-8-11, and
all remedies
for the
enforcement of
orders for
the expense
of pregnancy
and confinement
of the mother,
and for
education, necessary
support and
maintenance, or
funeral expenses
for legitimate
children shall
apply. The court
has continuing
jurisdiction to
modify or
revoke an
order and
to increase
or decrease amounts
fixed by
order for
future education
and necessary
support and
maintenance. All remedies
under the
Uniform Intergovernmental
Family Support
Act, and
amendments thereto,
are available
for enforcement of
duties of
support and
maintenance under
R.I. Gen. Laws Chapter 15-23.1.
B. A
person who
has had
sexual intercourse
in this
State thereby
submits to the
jurisdiction of
the courts
of this
State as
to any
action brought under
R.I. Gen. Laws Chapter 15-8
with respect
to a
child who
may have been
conceived by
that act
of intercourse.
C. Jurisdiction
shall be
acquired by
service made
in accordance
with R.I. Gen.
Laws § 9-5-33, as
amended.
1.15.1
Jurisdiction of R.I. Courts
A. Every
foreign corporation,
every individual
not a
resident of
this state or
his executor or
administrator, and every partnership or association, composed of any
person or
persons, not
such residents,
that shall
have the
necessary minimum
contacts with
the state
of Rhode Island,
shall be
subject to
the jurisdiction
of the
state of
Rhode Island, and
the courts
of this
state shall
hold such
foreign corporations and
such nonresident
individuals or
their executors
or administrators, and
such partnerships
or associations
amenable to
suit in Rhode
Island in
every case
not contrary
to the
provisions of
the constitution or
laws of
the United
States.
B. Service
of process may be made on any such foreign corporation, nonresident
individual or his executor or administrator, and such partnership or
association within or without the state in the manner provided by any
applicable procedural rule or in the manner prescribed by order of
the court in which such action is brought.
C. Nothing
herein shall limit or affect the right to serve process upon such
nonresident individual or his executor or administrator, or such
partnership or association, or a foreign corporation within this
state or without this state in any manner now or hereafter permitted
by law.
1.15.2
Clear and Convincing Evidence
A. In
any action to establish paternity under R.I. Gen. Laws Chapter 15-8,
other than an action brought pursuant to R.I. Gen. Laws §§ 15-8-2
or 15-8-3, the standard that must be met by the plaintiff shall be
that of clear and convincing evidence.
B. If
the results of the DNA tests duly admitted into evidence establish a
ninety-seven percent (97%) or greater probability of inclusion that a
party is the biological father of the child, then such threshold
probability shall constitute a prima facie case of establishment of
paternity and the burden of proof shall shift to the party to rebut
such proof by clear and convincing evidence.
C. Trial
by Court
A
trial shall be heard by the court.
D. Venue
The
action may
be brought
in the
county in
which the
child or
the alleged father
resides or
is found,
or if
the father
is deceased,
in which proceedings
for probate
of his
estate have
been or
could be
commenced.
E.
Time of Trial
If
a paternity
action is
initiated before
a child's
birth, the
trial must not,
without the
consent of
the putative
father, be
held until after
the birth
or miscarriage.
1.15.3 Evidence
Relating to Paternity
A. Evidence
used in
a paternity
hearing may
include:
1. Evidence
of sexual
intercourse between
the mother
and putative father
at any
possible time
of conception. The
standard that
must be
met by
the plaintiff
must be
that of clear
and convincing
evidence.
2. An
expert's opinion
concerning the
statistical probability
of the
putative father's
paternity based
upon the duration
of the
mother's pregnancy.
3. Medical
or anthropological
evidence relating
to the putative
father's paternity
of the
child based
on tests performed
by experts.
4. All
other evidence
relevant to
the issue
of paternity
of the child.
1.15.4
Civil Action
A. A
paternity action
is a
civil action
governed by
the rules
of civil
procedure. The mother
of the
child and
the alleged
father are
competent to
testify and
may be
compelled to
testify.
B. Upon
refusal of
any witness,
including a
party, to
testify under
oath or produce
evidence, the
court may
order him
to testify
under oath
and produce evidence
concerning all
relevant facts.
C. If
the refusal
is upon
the ground
that this,
his testimony
or evidence, might
tend to
incriminate him,
the court
may grant
him immunity
from all criminal
liability on
account of
the testimony
or evidence
he is required
to produce. An
order granting
immunity bars
prosecution of the
witness for
any offenses
shown in
whole or
in part
by testimony
or evidence that
he is
required to
produce, except
for perjury
committed in his
testimony. The refusal
of a
witness, who
has been
granted immunity, to
obey an
order to
testify or
produce evidence
is a
civil contempt of
court.
D. The
Office of
Child Support
Services is
authorized to
issue subpoenas as
appropriate to
individuals or
entities to
secure financial
and other
information relating
to the
obligor for
the purpose
of and
to the extent
necessary for
the administration
of the
child support
enforcement program. An
individual or
entity that
fails to
reply to
an administrative
subpoena shall
be liable
for a
civil penalty
of one hundred
dollars ($100)
for the
violation and
shall be
required to
provide the
information and/or
comply with
the request.
E. Testimony
of a physician concerning the medical circumstances of the pregnancy
and birth is not privileged. Testimony relating to sexual access to
the mother by an unidentified man at any time or by an identified man
at a time other than the probable time of conception of the child is
inadmissible, unless offered by the mother.
F. Testimony
offered by
a putative
father with
respect to
a man
who is
not subject to
the jurisdiction
of the
court concerning
his sexual
intercourse with
the mother,
at or
about the
probable time
of conception of
the child,
is admissible
as evidence
only if
he has undergone
and made
available to
the court
DNA tests,
the results
of which do
not exclude
the possibility
of his
paternity of
the child. A man
who is
identified and
is subject
to the
jurisdiction of
the court shall
be made
a defendant
in the
action.
1.15.5
Hearings and Records - Confidentiality
Notwithstanding
any other law concerning public hearings and records, any hearing or
trial shall be held in closed court without admittance of any person
other than those necessary to the action of the proceeding. All
papers and records, other than the final judgement pertaining to the
action or proceeding, whether part of the permanent record of the
court or elsewhere, are subject to inspection only upon consent of
the court and all interested persons, or in exceptional cases only
upon an order of the court for good cause shown.
1.15.6
Judgements
A. The
judgment or order of the court determining the existence or
nonexistence of the parent and child relationship is determinative
for all purposes.
1. If
the judgment or order of the court is at variance with the child's
birth certificate, the court shall order that a new birth certificate
be issued in accordance with R.I. Gen. Laws § 15-8-23.
2. The
judgment or order may contain any other provision directed against
the appropriate party to the proceeding, concerning the duty of
support, the custody and guardianship of the child, visitation
privileges with the child, or any other matter in the best interest
of the child. The judgment or order may direct the father to pay the
reasonable expenses of the mother's pregnancy and confinement.
B.
Default Judgements
1. A
non-custodial parent's delay or failure to respond to court action
initiated by the Office of Child Support Services may not, in certain
circumstances, delay the paternity establishment process. Under R.I.
Gen. Laws § 15-8-18.1 and the Family Court Rules of Domestic
Relations Procedure, RI Family Court shall enter the defendant's
default and a judgment by default in a paternity action upon the
following conditions:
a. Failure
to respond to the complaint for paternity and support within twenty
(20) days upon proof presented that the defendant has been duly
served with the complaint;
b. Failure
to appear
at a
scheduled hearing
or trial after
being duly
notified of
said hearing
or trial, upon
proof presented
that the
defendant has
been duly served
with notice
of the
scheduled hearing
or trial;
c. Failure
to appear
or refusal
to attend
DNA testing upon
proof presented
that the
defendant has
been duly notified
of the
date, time
and place
of the
testing;
2. The
court may
set aside
an entry
of default
and, if
judgment by
default has been
entered, may
likewise set
it aside
in accordance
with the Family
Court Rules of
Domestic Relations Procedure.
C.
Enforcement of Judgements
1. If
existence of
the father
and child
relationship is
declared, or
paternity or
a duty
of support
has been
acknowledged or
adjudicated under the
R.I. Gen.
Laws Chapter 15-8 ,
or under
prior law, the
obligation of
the father
may be
enforcement in
the same
or other proceedings
by the
mother, the
child, the
public authority
that has furnished
or may
furnish the
reasonable expenses
of pregnancy,
confinement, education,
support, or
funeral, or
by other
persons, including a
private agency,
to the
extent he
has furnished
or is furnishing
these expenses.
2. Willful
failure to
obey the
judgement or
order of
the court
is a
civil contempt of
the court.
All remedies
for the
enforcement of
judgements apply.
D.
Bond to Secure Payment of Judgement
The
court at any time may require the alleged or adjudicated father to
give bond or other security for the payment of any judgement which
exists, or may exist in the future.
E.
False Declaration of Identity
The
making of a false complaint as to the identity of the father, or the
aiding or abetting therein, shall be punishable as for perjury.
F.
Appeals
An
appeal in all cases may be taken by the defendant, the mother or her
personal representative, or the public welfare official from any
final order or judgement of the Family Court, upon an action
commenced, directly to the Supreme Court within 30 days after the
entry of said order of judgement. No appeal, however, shall operate
as a stay of execution unless the defendant shall give security for
the payment of any judgement and security to pay the costs of such
appeal.
G. Costs
If
the court makes an order declaring paternity and for the support,
maintenance, and education of the child, court costs including the
costs of legal services of the attorney representing the petitioner,
expert witness fees, and all other costs shall be taxed against the
defendant.
1.16
Action to Declare Mother and Child Relation
A. Any
interested party
may bring
an action
to determine
the existence
or nonexistence of
a mother
and child
relationship.
B. Insofar
as practicable,
the provision of
the R.I. Gen. Laws Chapter 15-8 applicable to the father and child
relationship shall apply.
1.17
Voluntary Acknowledgement Program
A. The
Office of
Child Support
Services, in
conjunction with
the Department of
Health, Office
of Vital
Records has
a voluntary
acknowledgment program
in the
birthing hospitals
in RI. Medical
Records staff
has been
trained to
answer questions
and complete the
"Voluntary Affidavit
of Paternity
Form". A
videotape entitled
"The Power
of Two" is
shown to
the parents
as well
as pamphlets
distributed with
answers to
commonly asked
questions by
the mother
and father. A
statement of
rights and
responsibilities is
also provided
to the parents.
The affidavit
will be
completed only
if the
parents are
certain of
the paternity
of the
child and
do not
wish to
have DNA testing.
By signing
the affidavit
the father
is acknowledging
he is the
father of
that child
and responsible
to financially
support that child
until the
child is
emancipated. The
father has
sixty days
to rescind the
acknowledgement by
filing a
Motion to
Rescind in
RI Family Court.
Upon the
expiration of
the sixty-day
period, it
is presumed
that he is
the father
of the
child. The
father's name
will be
added to
the child's birth
certificate along
with other
identifying information.
At that time
the child's
last name
can be
chosen.
B. If
the parents
do not
complete the
"Voluntary Affidavit
of Paternity"
at the hospital,
they can
make an
appointment at
the Office
of Vital
Records or at
the Office
of Child
Support Services
to view
the videotape,
read the pamphlets,
review the
Rights and
Responsibilities
Statement and sign
the "Voluntary
Affidavit of
Paternity". The
child's last
name cannot
be changed unless
the Court
orders Vital
Records to
amend the
birth certificate. In
the alternative,
the parties
may file
a Petition
to Voluntarily
Acknowledge with
the RI
Family Court.
1.18
Support Order Establishment
1.18.1 Payment
of Support to Custodial Agency
A. Whenever
the Department
of Children,
Youth and
Families shall
pay for the
support and
maintenance of
any child
pursuant to
the R.I. Gen.
Laws §§ 42-72-13
and 42-72-14,
or whenever
such other
department, agency,
society, institution
or person
having the
charge, care or
custody of
such child
shall pay
for the
support and
maintenance of such
child, the
court shall
order either
or both
parents owing
a duty of
support to
a child
to pay
an amount
based upon
a formula
and guidelines adopted
by an
administrative order
of the
Rhode Island
Family Court.
B. In
fixing the
amount of
support that
the parents
shall be
ordered to pay,
the court
shall take
into account
all relevant
factors, including,
but not
limited to:
1. All
earnings, income
and resources
of the
custodial parent
including real
and personal
property;
2. The
financial resources
of the
child;
3. The
standard of
living the
child would
have enjoyed had
the marriage
not been
dissolved;
4. The
physical and
emotional condition
of the
child and his
or her
educational needs;
5. The
financial resources
and needs
of the
non-custodial parent; and
6. Any
other factors
which bear
upon the
needs of
the child, and
the ability
of the
parent to
provide financial support
for those
needs.
C. If
it deems
necessary or
advisable, the
court may
order child
support and education
costs for
children attending
high school
at the
time of their
eighteenth (18th)
birthday and
for ninety
(90) days
after graduation, but
in no
case beyond
their nineteenth
(19th) birthday.
In addition, the
court may
order the
support of
a child
with a
severe physical or
mental impairment
to continue
until the
twenty-first (21st)
birthday of
the child
(see § 1.8 of
this Part).
D. The
court may review and alter its decree relative to the amount and
payment of support. If the court finds that a substantial change in
circumstances has occurred, the decree may be made retroactive to the
date that the notice of a petition to modify was given to the adverse
party.
E. The
Department for Children Youth and Families will determine which cases
are appropriate for referral to the OCSS. The Policy for such
determination has been published and is available in the Department
for Children Youth and Families Policy Manual.
1.18.2 Name
Children Receiving Public Assistance
The
party commencing
an action
seeking a
divorce from
the bond
of marriage or
divorce from
bed and
board or
an order
pursuant to
the R.I. Gen.
Laws § 15-5-9,
shall at
the time
the proceeding is
begun append
to the
petition a
statement containing
the names of
all children
of the
marriage and
their ages
and stating
whether any
such children
are at
that time
recipients of
or applicants for
public assistance.
1.19
Child Support
A. In
a proceeding
for divorce,
divorce from
bed and
board, a
miscellaneous petition
without the
filing of
divorce proceedings,
or child support,
the court
shall order
either or
both parents
owing a duty
of support
to a
child to
pay an
amount based
upon a
formula and
guidelines adopted
by an
administrative order
of the
Family Court.
B. In
a proceeding
to establish
paternity or
support, the
court may,
after opportunity for
hearing, in
its discretion,
issue a
temporary order
for child support
payable to
the registry
of the
court and
to be
held pending entry
of judgment. In
the event
of a
final adjudication
requiring no
payment or
payments in
an amount
less than
those payments
which have
been made,
the defendant
shall be
entitled to
a full
refund of all
or a
portion of
the amounts
so paid.
C. If,
after calculating
support based
upon court
established formula,
the court, in
its discretion,
finds such
order would
be inequitable
to the child
or either
parent, the
court shall
make such
findings of
fact and may
order either
or both
parents owing
a duty
of support
to pay
an amount reasonable
or necessary
for the
child's support
after considering all
relevant factors
including, but
not limited
to:
1. The
financial resources
of the
child;
2. The
financial resources
of the
custodial parent;
3. The
standard of
living the
child would
have enjoyed, had
the marriage
not been
dissolved;
4. The
physical and
emotional condition
of the
child and his
educational needs;
and
5. The
financial resources
and needs
of the
non-custodial parent.
D. The
court may,
if in
its discretion
it deems
necessary or
advisable, order child
support and
education costs
for children
attending high
school at
the time
of their
eighteenth (18 th )
birthday and
for ninety
(90) days after
graduation, but
in no
case beyond
their nineteenth
(19 th ) birthday,
in accordance
with R.I.
Gen. Laws
§ 15-9-1.
E. Notwithstanding
the foregoing, the court, in its discretion, may order child support,
in the case of a child with a severe physical or mental impairment
still living with or under the care of a parent, beyond the child's
emancipation as defined above. The court shall consider the following
factors when making its determination:
1. the
nature and extent of the disability;
2. the
cost of the extraordinary medical expenses;
3. the
ability of the child to earn income;
4. the
financial resources of the child;
5. the
financial resources of the parents;
6. the
inability of the primary caregiver of the child to sustain gainful
employment on a full-time basis due to the care necessitated by the
child.
7. The
onset of the disability must have occurred prior to the emancipation
event. If a child support order for a child with a severe physical or
mental impairment has been terminated, suspended or expired, the
court shall consider the factors in this paragraph and has the
discretion to order child support for this child prospectively based
upon established child support guidelines. The court may periodically
review the case to determine if circumstances warrant the
continuation of child support.
F. The
court may, if in its discretion it deems it necessary or advisable,
appoint an attorney or a guardian ad litem to represent the interest
of a minor or dependent child with respect to his support, custody,
and visitation. The court shall enter an order for costs, fees, and
disbursements in favor of the child's attorney. The order shall be
made against either or both parents. After a decree for support has
been entered, the court may, from time to time upon the petition of
either party, review and alter its decree relative to the amount of
such support and the payment thereof, and may make any decree
relative thereto which it might have made in the original suit.
G. Said
decree may be made retroactive in the court's discretion to the date
that the court finds that a substantial change in circumstances has
occurred, provided, however, that the court shall set forth in its
decision the specific findings of fact which show a substantial
change in circumstances, upon which findings of fact the court has
decided to make the decree retroactive.
H. In
a proceeding to enforce a child support order, or a spousal support
order for a custodial parent having custody of a minor child, the
court or its master may assign to the custodial parent such tangible
personal property of the obligor as will be sufficient to satisfy the
child or spousal support arrearage owed. The court or its magistrate,
after hearing, shall establish the amount of the child or spousal
support arrearage and the nature and value of the tangible personal
property. To effect such assignment, the court or its magistrate may
order the obligor to execute and deliver such documents of title as
may be necessary to complete the transfer of title to such property,
and may order the obligor to deliver possession of such property to
the custodial parent. Whenever the obligor fails to comply with the
order assigning such property, the order of assignment shall be
regarded as a judgment vesting title to such property in the obligor
as fully and completely as if the obligor had executed and delivered
such documents of title.
1.19.1 Reconsideration
of Support Orders
A. Every
order heretofore or hereafter entered by the Rhode Island Family
Court providing for support of a child who at the time of entry of
the order was not a recipient of or applicant for public assistance
shall, in the event the child becomes the recipient of public
assistance, be reconsidered " de novo " upon the
petition of a parent or guardian of the child or the Department of
Human Services.
B. Upon
the filing of such petition, the court shall hold a hearing for the
purpose of determining the amount of support to which the child is
entitled from the appropriate parent. In fixing the amount of support
the court shall take into account the factors set forth in R.I. Gen.
Laws § 15-5-16.
1.19.2 Set
Support for Public Assistance Children
A. If
the statement appended to the petition indicates that any child of
the marriage is a recipient of or applicant for public assistance, a
hearing shall be held as promptly as possible to determine the amount
of support to which each such child is entitled from the appropriate
parent. The Office of Child Support Services shall be given notice of
the hearing and shall appear there for the purpose of assisting the
court in fixing the amount of support. In the absence of the consent
of the parties and agreement of the Office of Child Support Services,
the court shall not enter an order providing support without
conducting a hearing. In fixing the amount of support that the parent
shall be ordered to pay, the court shall apply the child support
guidelines and take into account the following factors:
1. All
earnings, income
and resources
of the
parent including real
and personal
property;
2. The
earnings potential
of the
parent;
3. The
reasonable necessities
of the
parent;
4. The
needs of
the child
for whom
support is
sought;
5. The
existence and
needs of
other dependents
of the parent;
6. Any
other factors
which bear
upon the
needs of
the child and
the ability
of the
parent to
provide financial support
of those
needs.
B. For
purposes of
the guideline
calculation, the
income attributable
to the RIW
recipient is
-0-.
1.19.3 Child
Support Guidelines
A. The
amount of
the child
support obligation
is determined
by using
the child support
guidelines formula
and guidelines
adopted by
an administrative order
of the
Rhode Island
Family Court.
The guidelines are
used to
determine the
required monthly
support obligation.
B. The
child support guidelines formula takes into account all earnings,
income and resources of both parties, including real and personal
property, the earnings potential of the parties, the mandatory
deductions such as preexisting child support orders, additional
dependent children, the cost of medical premiums paid or cash medical
ordered, optional deductions such as those specified on the guideline
worksheet, and other reasonable criteria which the State may choose
to incorporate.
C. At
a minimum, the formula must ensure that the child for whom support is
sought benefits from the income and resources of both parties and
that the child enjoys the standard of living he/she would have
enjoyed if the family was intact.
1.19.4
Medical Support
A. Any
new or modified order for child support issued by the Rhode Island
Family Court shall contain a provision requiring either or both
parents owing a duty of support to the child to obtain or maintain
health insurance coverage for the child when such coverage is
available through their employment at no cost or at a reasonable
cost. If the child is receiving medical assistance in the form of
RIte Care, RIte Share or fee for service benefits from the State of
Rhode Island or other type of medical assistance, the Office of Child
Support Services must pursue the non-custodial parent for private
medical coverage for the child if it is provided as part of his or
her employment at no cost or at reasonable cost. Reasonable cost
means that the coverage for the minor child is less than, or equal to
five (5) percent of his or her gross income per month. If health
insurance is not currently available at a reasonable cost, either or
both of the parents will be ordered to enroll the child(ren) covered
by the order when it does become available at a reasonable cost. The
court may also order that the non-custodial parent pay five (5)
percent of his or her income, in addition to the child support
monthly order. This would be taken directly from the employee's
income to the Rhode Island Family Court. A custodial parent providing
private medical coverage through his or her employer would receive
the weekly cash contribution toward medical if the court so ordered.
B. Health
insurance includes fee for service, health maintenance organization,
preferred provider organization and other types of coverage under
which medical services could be provided to the dependent child(ren)
by either or both parents.
C. Applicants
for IV-D services will be provided with the same establishment and
enforcement techniques that are available to cases with assigned
support rights. The Office of Child Support Services will inform any
IV-D applicant of the availability of medical support enforcement
services. Upon an appropriate referral by the Medicaid agency, the
Office of Child Support Services must also provide to any Medical
Assistance Only (MAO) recipient the same range of services provided
to RIW cases unless the MAO recipient informs the Office of Child
Support Services in writing that she/he does not wish any services
beyond those the Office of Child Support Services is required to
provide for medical support. The Office of Child Support Services
must provide these services to MAO recipients who have been referred
by the Medicaid agency and have assigned their rights to medical
support without an application or a fee.
D. Any
information the Office of Child Support Services obtains about health
insurance coverage will be provided to the custodial parent. In cases
where the child(ren) are receiving Medical Assistance, any
information about health insurance coverage will also be provided to
the Medical Assistance agency. This would include the policy name and
number, and the child(ren)'s name(s) and social security number(s).
1.19.5 Employer
Medical Notices
A. The
National Medical Notice, is issued to an employer by regular mail or
electronic notice. The medical notice shall instruct the employer
which health care plans the children shall be enrolled and include
all identifying information of the child support case. The employer
must respond within twenty (20) business days after the date of the
medical notice indicating:
1. That
the employer does not maintain or contribute to plans providing
dependent or family care coverage;
2. That
health care is not available because the employee is no longer
employed; or
3. That
the state or federal withholding limitations and/or prioritization
prevent the withholding from employee's income of the amount required
to obtain coverage.
B. If
family health care is available, the employer is required to transfer
the appropriate part of the medical notice to the plan administrator
of each appropriate group health care plan for which the children may
be eligible. The plan administrator must provide health care coverage
of the child(ren) under the group health plan described in the
medical notice within forty (40) business days of the date of notice.
Upon notification from the plan administrator that the children are
enrolled, the employer must either:
1. Withhold
from the employee's income any contributions required and transfer
the contribution to the plan's administrator; or
2. Complete
the appropriate employee response portion of the notice and advise
the Office of Child Support Services that enrollment cannot be
completed because of prioritization or limitations on additional
withholding income.
C. Coverage
of a dependent child shall continue until the child is no longer a
dependent. The employer must continue to withhold employee
contributions and may not discontinue or eliminate health care
coverage for the children unless the employer is provided
satisfactory evidence that:
1. The
court or administrative child support order is no longer in effect;
or
2. The
children are or will be enrolled in comparable health care coverage,
which will take effect no longer than the effective date of
dis-enrollment from the plan; or
3. The
employer eliminates family health care coverage for all of its
employees.
D. In
any case in which employment terminates, the employer must promptly
notify the Office of Child Support Services of the termination within
ten (10) days.
1.19.6 Establishing
the Order
A. The
Office of Child Support Services will pursue a support order either
by first serving the Complaint for Paternity and Support, or filing a
Complaint or Motion for Support. The Office of Child Support Services
agent will:
1. Generate
a Complaint
for Paternity and Support
or Support alone, when
there is
no domestic relations
case found
in the
Family Court
Domestic Index,
or there
is no
reciprocal case
pending and involving
the same
parties (Rhode
Island Divorce
Filings);
2. Generate
a Motion
for Support
if not
automated, when
a. There
is an
existing domestic
support order
and the custodial
parent receives
RIW;
b. When
there is
an existing
domestic case
pending and no
support order
has been
entered; and
c. When
there is
an existing
reciprocal case
pending and the
custodial parent
reopens his/her
RIW case.
1.19.7 Complaint
for Support
A. When
it has
been determined
that a
support motion
is needed,
the child support
agent will
generate the
appropriate motion
and Efile the motion to obtain a hearing date from the family court.
Upon receipt of a court date, the mail notice will be generated in
the first instance, followed by service by constable with witness
subpoena and summons.
B. If
a summons and subpoena are generated, the
Constable has
three weeks
in which
to obtain
successful service.
C. If
the parties do not appear at court after receiving the support packet
by mail, the constable will serve the packet.
1.19.8 The
Non-Custodial Parent is Successfully Served
A. Per
Court Rule, OCSS is permitted to serve the parties by regular mail in
the first instance. If the parties appear voluntarily in response to
the mail notice, and enter their appearance as a self-represented
litigant, the case may proceed on the scheduled hearing date and
time. If the parties do not appear, or one party does not appear, the
pleadings will then be served by constable for a new date.
B. When
successful service
is obtained:
1. The
original witness subpoena
and summons are EFiled
with the
Rhode Island
Family Court;
2. The
case is
then sent
to the
Rhode Island
Family Court for
the Child
Support Attorney
with all appropriate forms.
1.19.9 Non-Custodial
Parent Cannot be Served
When
the non-custodial parent cannot be served, the agency will attempt to
locate the non-custodial parent at a verified address and start the
process again.
1.20
Wage Withholding
A. Immediate
withholding is
required for
all cases
whether or
not the cases
are IV-D
cases, with
new or
modified orders
on the
effective date of
the order
unless one
of the
parties demonstrates,
and the
court or other
administrative process
finds good
cause not
to require
the withholding, or
a written
agreement is
reached between
both parties which
provides for
an alternative
arrangement.
B. Electronic
Income Withholding (EIWO) allows an employer to register on the
federal portal in order to receive income withholding orders
electronically rather than by mail. If an employer registers for one
state that constitutes an acquiescence to participate for all states.
1.20.1
Direct Deposit Payments
A
custodial parent who is in receipt of child support payments must
choose to receive these payments via direct deposit into his or her
checking or savings account, or automatic deposited to an electronic
payment card (electronic transfer of funds to an ATM card) called a
"Kids Card". With Direct Deposit, the payment will be
electronically deposited directly into a custodial parent's
designated checking or savings account. Electronic methods eliminate
the need for a paper check to be issued through the mail and result
in the custodial parent having quicker access to his or her child
support payment. With an electronic debit card custodial parents can
access their child support payments by using a plastic ATM card and
their personal identification number (PIN) at a point of sale (POS)
terminal.
1.21 Enforcement Standards
A.
The Office of Child Support Services will electronically monitor all
IV-D cases for compliance with child support obligations. Parents
must comply with all child support orders and medical support orders.
The Office of Child Support Services will take all appropriate
enforcement actions to enforce the requirements of the orders.
Noncompliance may result in, but not limited to:
1. Administrative
Income Withholding;
2. Administrative
lien and levy on bank accounts;
3. Administrative
offset;
4. Contempt
proceedings;
5. Federal
and State income tax refund intercepts;
6. Credit
Bureau Reporting;
7. Referral
to the R.I. Attorney General's Office (see felony penalties below);
8. New
Hire Reporting;
9. Insurance
intercept; and / or
10. Passport
denial.
B.
For those obligors who are more than ninety (90) days in arrears,
enforcement may include:
1. Revocation;
2. Suspension
or the prevention of the re-issuance or renewal of the obligor's
license to operate a motor vehicle or register a motor vehicle; and /
or
3. Suspension
or the prevention of the re-issuance or renewal of the obligor’s
certification, registration, permit, approval, or other similar
document to engage in a profession, occupation, business, or
industry.
C. For
obligors whose
arrears are
in excess
of five
hundred dollars
($500), enforcement may include:
1. Setoff
of certain lottery winnings and proceeds of insurance settlements to
pay support arrears; and
2. Prevention
of the issuance, re-issuance, or renewal of the obligor's license to
operate a motor vehicle and/or the registration or renewal of
registration of the obligor's motor vehicle.
D. In
addition to
the enforcement
actions described
above, the
Office of Child
Support Services
may refer
delinquent child
support payers
to the R.I.
Attorney General's
office for
prosecution when
it is
determined that
circumstances are
appropriate.
E. In
any case
involving non-support
of a
child pending
before Rhode
Island Family
Court or
any other
tribunal or
agency of
competent jurisdiction,
any person
committing perjury
or false
swearing shall
be guilty of
a felony
and shall
be imprisoned
for a
term not
to exceed twenty
(20) years.
F. The
case may
also be
referred to
the US
Attorney's Office,
if the
non-custodial parent
resides in
another state
and the
arrears is
over $10,000.00. Other
elements of
the felony
include proof
of ability
to earn and
willful failure
to pay.
G. Initiating
Enforcement
1. The
eligibility system is programmed to initiate enforcement action at
certain thresholds in an automated fashion. The custodial parent need
not call and request enforcement action be taken.
2. Enforcement
actions are automated and are taken simultaneously.
1.21.1
Administrative Income Withholding
A. Pursuant
to federal regulations and state law, the State must ensure that in
the case of each non-custodial parent to whom a support order is or
has been issued or modified in the state, and is being enforced under
the State Plan, so much of his or her wages must be withheld to
comply with the order. In addition to the amount to be withheld to
pay the current month's obligations, the amount to be withheld must
include a 10% tack on amount to be applied toward liquidation of
overdue support.
B. Implementation
The
state must take steps to implement the withholding and to send the
advance notice required on the earliest of:
1. The
date on
which the
parent fails
to make
payments in full,
within fourteen
(14) days
of the
due date;
2. The
date the non-custodial parent requests that withholding begin;
3. The
date on which the custodial parent requests that withholding begin in
accordance with the standards and procedures the State may establish
(A custodial parent could request withholding if a non-custodial
parent is not meeting the terms of the written agreement for an
alternative arrangement.); or
4. The
date on which the Office of Child Support Services becomes aware that
third party payments to a non-custodial parent for the costs of
health services were not used for reimbursement to either the other
parent, or guardian of the child or the provider of the services or
the Department of Human Services.
C. Direct
Wage Withholding
1. On
behalf of
any custodial
parent for
whom the
department is
already providing
services, or
on application
of a
resident of
this state
who is
an custodial parent or
obligor of
a support
order issued
by this
state, or
of an agency
to whom
the custodial
parent has
assigned support
rights, the
department may issue
a wage
withholding order
to an
employer in
another state.
Pursuant to
UIFSA the
employer must
honor the
wage withholding
order issued by
Rhode Island.
2. Remedies
Additional
The
income withholding remedy herein provided is in addition to, and not
in substitution for, any other remedy otherwise available to
enforcement support orders issued in this state or in another
jurisdiction. Relief under R.I. Gen. Laws Chapter 15-16, shall not be
denied, delayed or otherwise affected because of the availability of
other remedies, nor shall relief under any other statute be delayed
or denied because of the availability of this remedy.
3. Income
Withholding Agency
In
accordance with R.I. Gen. Laws Chapter 15-16, the Department of Human
Services is hereby designated as the state income withholding agency
and shall have all powers, duties and responsibilities to establish
and administer income withholding, and is further authorized and
directed to promulgate rules and regulations it deems necessary to
implement the provisions and purposes of this law, provided, however,
that any rule or regulation affecting the duties and responsibilities
of the Family Court shall be made with the concurrence of the chief
judge of the Family Court.
4. Withholding
as an Enforcement
Remedy
The
income withholding remedy herein provided is in addition to, and not
in substitution for, any other remedy otherwise available to
enforcing a support order or a medical child support order issued in
this state or in another jurisdiction. Relief under R.I. Gen. Laws
Chapter 15-16 shall not be denied, delayed or otherwise affected
because of the availability of other remedies, nor shall relief under
any other statute be delayed or denied because of the availability of
this remedy.
5. Withholding
Amounts
a. The
Office of
Child Support
Services will
ensure that
in each
court ordered case
an amount
must be
withheld from
the non-custodial
parent's wages
as is
necessary to
comply with
the order.
Payments must include
the current
support payment
and a
payment that
is equal
to ten percent
(10%) of
the current
support amount
as payment
on any
past-due support.
b. Upon
petition by
a non-custodial
parent, the
court in
its discretion,
may reduce
the amount
required to
be withheld
in liquidation
of support
arrearage to
a nominal
or token
amount, if
the court
finds that
such additional
withholding would
work an
undue hardship
on the
non-custodial parent.
c. In
the event
there are
two (2)
or more
income withholding
orders against the
same income
of an
obligor, the
department will
allocate and
distribute the
amount remitted
by the
withholding agent
between or among
the separate
income withholding
orders giving
priority to
current support
obligations as
follows:
(1) Each
custodial parent shall
be allocated
an amount
in the proportion
that each
custodial parent's current
support order
under income
withholding bears
relative to
the total of
all amounts
for current
support under
income withholding orders
for that
obligor;
(2) Any
remaining withheld income shall be allocated to each custodial parent
in an amount proportional to which each custodial parent's arrearage
order under income withholding bears relative to the total of all
amounts ordered to be paid on arrearages under income withholding
orders.
d. Regardless
of the
amount of
the order
or orders,
and amounts
payable on
arrears, the
total amount
withheld under
income withholding
provisions cannot exceed
the maximum
amount permitted
under §
303(b) of
the Consumer Credit
Protection Act
(15 U.S.C.
§ 1673(b)). The Act
limits the
withholding to
fifty percent
(50%) of
disposable income
if the
earner is supporting
another dependent
and sixty
percent (60%)
for an
earner with no
dependents. The
percentages increase
to fifty-five
percent (55%) and
sixty-five percent
(65%) if
the amount
in arrears
has been
delinquent for
twelve (12)
or more
weeks.
6. Employment
Changes
a. The
obligor parent
is responsible
for promptly
notifying a
new employer of
his/her child
support and/or
medical support
order(s). The obligor
must also
promptly notify
the Office
of Child
Support Services
of his/her change
in employment
so that
the Office of
Child Support
Services can
transfer the
assignment, garnishment,
or order
for child support
and/or health
insurance to
the subsequent
employer.
b. Pursuant
to R.I. Gen. Laws
§ 15-20-3,
failure of
an obligor
parent to
make either of
these notifications
shall be
a misdemeanor
and shall
be punishable by
imprisonment for
a term
not exceeding
one (1)
year, or
by a
fine of not
more than
one thousand
dollars ($1000),
or both
to OCSS.
c. Through
interface with
the Department
of Labor
and Training
and as
a result of
information from
New Hire
reporting, the
eligibility system
is updated
electronically and
a new
wage withholding
is generated
to the new
or to
the DLT
for unemployment
benefits, worker's
compensation or TDI
benefits.
7. Employer
Fails to Submit Payment
If
the employer fails to submit a payment, OCSS will initiate an
investigation which may result in serving the employer return receipt
requested. Continued failure to submit payment may result in contempt
action.
8. Termination
of an Income Withholding
a. An
income withholding
order will
remain in
full force
and effect
until modified or
revoked by
the Family
Court. Such order
may be
modified or
revoked by
the court upon
application and for good cause shown, or when the child support order
has been suspended and all arrearages are paid in full.
b. When
appropriate, the Office of Child Support Services will promptly
request Family Court to terminate a withholding order and refund to
the obligor any amount which may have been improperly withheld
subject to the recoupment policy.
9. Contesting
the Income Withholding
a. A
non-custodial parent
may contest
the proposed
withholding but
only on the
basis of
a mistake
of fact. Mistakes
of fact
are limited
to:
(1) An
error in the amount of current support;
(2) Mistaken
identity;
(3) An
error in
the amount
of income
to be
withheld in
payment of
current support;
and/or
(4) The
amount to
be withheld
exceeds the
maximum amount
permitted under
§ 303(b)
of the
Consumer Credit
Protection Act
(15 U.S.C.
§ 1673(b)) .
b. A
non-custodial parent may contest an income withholding by filing or
mailing a written statement to the Office of Child Support Services
within ten (10) days of receipt. The non-custodial parent's request
must specify the mistake(s) of fact claimed.
1.21.2 Contempt
Processing
A. In
a contempt
action, the
non-custodial parent
is brought
to court
to show why
the court
order has
not been
obeyed. A contempt
action is filed
only after
all other
administrative
enforcement measures
are undertaken and
are unsuccessful,
and will
only be
filed when
four ( 4) months’
worth of
arrears are
due and
owed. The
court may:
1. Find
the non-custodial
parent in
willful contempt
and sentence him/her
to prison
until all
or a
part of
the arrearage is
paid;
2. Set
an arrearage
amount and
enter an
arrears order;
3. Order
an income
withholding;
4. Place
a lien
against the
non-custodial parent's
personal or
real property;
5. Require
the non-custodial
parent to
post a
security or bond;
or
6. Order
any other
action necessary
to enforce
the order.
B. Contempt
actions may be filed when
the arrears
due and
owing are
equivalent to
4 months’
worth of
arrears.
1.21.3 Felony
Penalties
A. Every
person who is obligated to pay child support pursuant to an order or
decree established by or registered with RI Family Court pursuant to
R.I. Gen. Laws Chapter 15-11, who has:
1. incurred
arrearage of past due child support in the amount of ten thousand
dollars ($10,000), and who shall willfully thereafter, having the
means to do so, fail to pay one or more installments of child support
in an amount previously set by the court, according to the terms
previously set by the court, shall be guilty of a felony for each
instance of failure to make such subsequent payments and upon
conviction be punished by imprisonment for a period not to exceed
five (5) years; or
2.
who have willfully for a period of three (3) years, failed to pay
any installments of child support in an amount previously set by the
court, according to the terms previously set by the court, and who
shall thereafter, having the means to do so, fail to pay one or more
installments of child support in an amount previously set by the
court, according to the terms previously set by the court, shall be
guilty of a felony for each instance of failure to make such
subsequent payments and upon conviction be punished by imprisonment
for a period not to exceed five (5) years.
B. In
any pursuit of a felony conviction, the Office of Child Support
Services will develop case prosecution in conjunction with the
Department of the Attorney General.
1.21.4 Administrative
Liens
A. Pursuant
to R.I. Gen. Laws
§ 15-21-2,
any child
support order
which is
enforceable by the
Office of
Child Support
Services in
accordance with
Title IV-D of
the Social
Security Act
and which
is unpaid
in whole
or in
part shall, as
of the
date on
which it
was due,
be a
lien in
favor of
the custodial parent or
assignee in
an amount
sufficient to
satisfy unpaid
child support whether
the order
is for
ongoing support
or is
an arrears order.
B. A
lien produced
by another
jurisdiction, in
accordance with
the provisions of
R.I. Gen. Laws §
15-21-11, shall
be accorded
full faith
and credit without
the requirement
of a
hearing.
C.
Notice of Intent to Lien
If
the property
subject to
the lien
is real
property or
personal property, the
title to
which is
maintained as
a public
record, the agency
may record
a copy
of the
notice of
intent to
lien with
the office of
the recorder
of deeds,
the registry
of motor
vehicles, or other
place where
the title
to the
property is
recorded. Any person
taking title
to such
property subsequent
to such
recording does
so subject to
the interest
of the
agency as
it may
be determined.
Said notice of
intent shall
be recorded
no more
than ten
(10) days
prior to the
mailing of
the notice
of intent
to the
obligor.
D. Notice
of Intent to Lien to Obligor
1. The
Office of
Child Support
Services shall
send a
written notice
of intent to
lien to
the obligor
if his
address is
known to
the Office
of Child Support
Services.
2. This
notice, sent
by first
class mail,
will specify:
a. The
amount unpaid as of the date of the notice or other specific date;
b. The
obligor's right to request a hearing by filing a written request with
the Office of Child Support Services within thirty (30) days of the
date of the notice. If a hearing is requested in a timely manner, all
lien enforcement action will cease until a hearing decision is
rendered;
c. Identification
of the property, real or personal, which is subject to the lien.
3. If
the property subject to the lien is a matter of public record, the
Office of Child Support Services may record a copy of the notice of
intent to lien in the appropriate public record. This notice of
intent to lien must be recorded no more than ten (10) days prior to
the mailing of the notice to the obligor.
E.
Notice of Intent to Lien to Non-Obligor
1. If
a lien
is to
be placed
on property
jointly held
with a
non-obligor, the
non-obligor must
be sent
notice of
the Office
of Child
Support Service's intent
to lien. This
notice will
also inform
the non-obligor of
the right
to an
administrative hearing
with the
Office of
Child Support Services
to contest
the scope
of the
property interests
of the lien
and/or the
right to
a judicial
review in
the RI
Family Court.
2. Service
of this
notice may
be made
by first
class mail
or as
specified in the
Family Court Rules of
Domestic Relations Procedure.
F.
Perfecting of Administrative Liens
1. Real
Property
a. To
perfect (record)
the lien,
a notice
of intent
to lien
is sent
to the recorder
of deeds
for the
city or
town where
the property
is located. This
notice of
intent to
lien must
be sent
no more
than ten
(10) days prior
to the
notice of
intent to
lien that
is sent
to the
obligor.
b. If
the obligor
against whom
the notice
of intent
to lien
was filed:
(1) Fails
to request
a hearing
within the
allotted time
allowed;
(2) Fails
to appear
for a
requested hearing;
or
(3) Neglects
or refuses
to pay
the sum
due after
the expiration of
thirty (30)
days after
a hearing
is conducted in
which it
has been
determined that
arrears exist;
c. The
notice of
intent as
filed shall
be deemed
and operate
as a
lien which is
perfected by
the Office of
Child Support
Services by
the filing of
a notice
of lien. The
notice of
lien shall
specify the
property to
be attached
and the
amount of
arrearage due
and shall
be filed with
the office
of the
recorder of
deeds of
the city
or town where
the notice
of intent
was originally
filed.
d. The
lien shall
have priority
over all
subsequent liens
or other
encumbrances, subject
to the
provisions of
R.I. Gen. Laws §
6A-9-312 and
with the exception
of any
lien for
taxes. A child
support lien
shall encumber
after-acquired personal
property or
proceeds.
e. The
lien shall
expire upon
either the
termination of
a current
child support obligation
and the
payment in
full of
unpaid child
support or release
of lien
by the
Office of
Child Support
Services.
f. A
full or partial release of the lien shall be filed within ten (10)
days of the obligor's compliance with the demands of the lien. This
shall be done without fee to the Office of Child Support Services.
2. Personal
Property
a. To
perfect a lien on personal property, a notice of intent to
lien is sent to the Secretary of State's office, the Registrar of
Motor Vehicles, or any other office or agency within the State
responsible for the filing or recording of liens. There will be no
fee charged to the Office of Child Support Services for either the
filing or the release of such liens.
b. This
notice of intent to lien must be sent no more than ten (10) days
prior to the notice of intent to lien that is sent to the obligor.
c. If
the obligor against whom the intent to lien was filed:
(1) Fails
to request
a hearing
within the
allotted time
allowed; or
(2) Fails
to appear
for a
requested hearing;
or
(3) Neglects
or refuses
to pay
the sum
due after
the expiration of
thirty (30)
days after
a hearing
is conducted in
which it
has been
determined that
arrears exist;
d. The
notice of
intent as
filed shall
be deemed
and operate
as a
lien which is
perfected by
the Office of
Child Support
Services by
the filing of
a notice
of lien. The
notice of
lien shall
specify the
property to
be attached
and the
amount of
arrearage due
and shall
be filed in
the office
or agency
where the
notice of
intent was
originally filed.
e. The
lien shall
have priority
over all
subsequent liens
or other
encumbrances, subject
to the
provisions of
R.I. Gen. Laws §
6A-9-312 and with
the exception
of any
lien for
taxes. A child
support lien
shall encumber
after-acquired personal
property or
proceeds.
f. The
lien shall
expire upon
either the
termination of
a current
child support obligation
and the
payment in
full of
unpaid child
support or release
of lien
by the Office
of Child
Support Services.
g. A
full or
partial release
of the
lien shall
be filed
within ten
(10) days of
the obligor's
compliance with
the demands
of the
lien. This shall
be done
without fee
to the
Office of
Child Support
Services.
G. Levy
of Personal Property
1. When
an administrative
lien has
been perfected
(recorded), the
Office of Child
Support Services
may collect
unpaid child
support by
placing a levy
on the
property against
which a
lien has
been placed. This
means that the
Office of
Child Support
Services may
seize and
sell any property
that is
subject to
levy in
order to
satisfy unpaid
child support.
2. A
levy placed
on a
life insurance
or endowment
contract is
a demand
for payment toward
the total
amount of
the lien. Such
organization shall
pay any
available proceeds
from the
insurance or
endowment contract
to the Office
of Child
Support Services
within ninety
(90) days
after service of
notice of
the levy.
3. Whenever
any property
upon which
levy has
been made
is not
sufficient to satisfy
the claim
for which
levy is
made, the
Office of
Child Support Services
may thereafter,
as often
as necessary,
proceed to levy,
with notice,
upon any
other personal
property of
the obligor liable
to levy,
until the
amount due
from him,
together with
expenses, is fully
paid. However, any
support obligation
shall be
fully satisfied
prior to payments
for expenses.
4. Upon
demand, a
person who
fails or
refuses to
surrender personal
property subject
to levy
shall be
liable in
his own
person and
estate to the
state in
a sum
equal to
the value
of the
property not
surrendered but
not exceeding
the amount
of the
lien, along
with costs and
interest, at
the rate
authorized for
civil judgments,
from the
date of the
levy. In addition,
any person
required to
surrender property
which has
been levied
who fails
or refuses
to do
so without
reasonable cause shall
be liable
for a
penalty equal
to twenty-five
percent (25%) of
the amount
recoverable. This
interest or
penalty shall
not be credited
against the
child support
liability but
will instead
be paid into
the general
fund. Any non-obligor
party aggrieved
by a
decision of the
Office of
Child Support
Services, may,
within ten
(10) days
of the receipt
of the
notice of
demand, request
an administrative
hearing with the
Office of
Child Support
Services.
H.
Lien Foreclosure - Real Property
1. If
the obligor
shall default
in the
payment of
any child
support obligation, or
if the
Office of
Child Support
Services has
perfected a lien
on real
property as
outlined above ,
then the Office
of Child
Support Services
may sell
the real
property of
any defaulting obligor
at public
auction after
proper notification
has been made.
Proper notification
consists of
the following:
a. Written
notice by certified mail, return receipt requested, to the obligor's
last known address. This must be sent at least twenty (20) days prior
to the publication of any public notice.
b. Public
notice published at least once a week for three (3) consecutive weeks
in a newspaper published daily in the city or town where the property
is located. If there is no public, daily newspaper published in the
city or town where the property is located, the public notice will be
published according to the mandates of R.I. Gen. Laws § 15-21-7.
c. Written
notice by
certified mail,
return receipt
requested, to
any person
or entity
having an
interest of record
in the
real property.
This must
be sent
no later than
thirty (30)
days prior
to the
date originally scheduled
for the
sale of
the property.
d. Written
notice to other such parties as are designated in R.I. Gen. Laws §
15-21-7 and in accordance with the notification requirements
specified therein.
2. Any
foreclosure sale
held as
outlined above,
and the
title conveyed
to any purchaser
or purchasers
pursuant to
such sale,
shall be
subject to any
lien or
encumbrance entitled
to a
priority over
the lien
of the Office
of Child
Support Services.
I.
Court-Ordered Liens
1. When
RI Family Court orders
a lien
placed on
real or
personal property, a
certified copy
of any
judgement or
order containing
specific language
relative to
a restraining
order or
lien on
real estate may
be recorded
with the
recorder of
deeds in
the city
or town where
the property
is located.
2. The
certificate of
the custodial
parent, or
his or
her attorney
duly signed
and notarized, or
a certified
copy of
a judgement
or order
of the
Family Court which
contains a
provision that
all arrearages
have been
paid in full
shall, when
recorded, be
a discharge
in full
of said
lien.
3. If
any child
support provided
in a
judgement or
order has
been directed to
be paid
to the
clerk of
the court,
or to
any other
office designated
by the
court, pursuant
to any
other provision
of law,
and such directive
is set
forth in
the copy
of the
docketed judgement
or order, or
in the
docket or
certified copy
of an
amended or
supplemental order,
such certificate
shall not
affect the
lien unless
also approved
in writing by
such clerk
or other
designated officer.
4. A
lien under
this section
shall not
be dischargeable
in bankruptcy.
J. Filing
of Court-Ordered Lien
1. The
Child Support
Administrative Office
will be
notified when
the court has
ordered a
lien placed
against a
non-custodial parent's
property.
2. Agents
should:
a. Contact
the city or town hall where the property is located to obtain the lot
and plat number.
b. Record
this information in the appropriate fields in the Lien on Real Estate
panel of the ORDR function.
c. Obtain
a certified copy of the order placing the lien.
d. Send
the certified copy of the order along with a cover letter to the city
or town hall by certified mail, return receipt requested.
e. When
proof of receipt of the registered letter is received from the post
office, the date the letter was signed for should be recorded in the
electronic case record.
1.21.5 Passport
Denial
A. Effective
October 1, 2006, passport denial will be triggered when an obligor's
cumulative arrears are equal to or greater than $2,500. This means
he/she will not be allowed to obtain or renew a passport until these
arrears are paid in full, or an alternative payment plan has been
agreed to, and the non-custodial parent demonstrates that there is a
hardship exemption.
B. Hardship
Exemption
The
non-custodial parent must provide documentation of military service
which requires travel to or from the United States, documentation
that there was a death in the family that requires the non-custodial
parent's presence in another country or this country, a family
illness as demonstrated through medical documentation.
C. Payment
Plan
The
non-custodial parent must present to the OCSS a lump sum payment and
provide the office with a payment plan to reduce the arrears to $0.
D. The
Office of Child Support Services must inform OCSE to notify the
Department of State to reinstate due to incorrect arrears reported, a
hardship exemption, a lump sum payment, and an alternative payment
plan.
1.21.6 Multi-State
Bank Match
Using
the same offset file, the Financial Management Services reports
matches of our delinquent obligors to account holders of all banks or
other financial institutions who do business in more than one state
and have opted to report these accounts to the Office of Child
Support Enforcement rather than to the individual states.
1.21.7 Medical
Enforcement
A. Often
there is an existing order to obtain or maintain medical
coverage and no accompanying insurance information available on the
eligibility system. If after available techniques to match insurance
information are unsuccessful, the Office of Child Support Services
may take steps to enforce an order for medical coverage via a motion
to modify medical coverage. The system generally does this in an
automated fashion when the order to obtain/maintain exists and there
is an absence of available medical insurance information. However, if
it comes to the attention of the agent, a Motion to modify medical
coverage may be filed. The motion requests that the court either
order the party to obtain medical coverage if it is available at no
cost or at reasonable cost through his/her employer or if not
reasonable, to order a cash medical order equivalent to 5% of the
parties gross monthly income. This requires a recalculation
of the
child support
order.
B. The
Office of Child
Support Services, on its own information or on account of a claim by
an custodial parent, determines that an obligor parent has failed to
comply with a judgment or order for health insurance coverage issued
pursuant to R.I. Gen. Laws § 15-5-16.2, and such insurance is
available to the obligor through his employer, the Office of Child
Support Services shall send to the obligor's employer the National
Medical Notice ordering the employer to enroll the minor child(ren)
in a health insurance plan. Upon receipt of the National Medical
Notice from the Office of Child Support Services, the employer or
provider of health care insurance shall, subject to the provisions of
its contract and consistent with the provisions of the support order,
enroll the child(ren) whether or not the employee has signed an
enrollment application. If the employer's benefit plan provides
options as to health care coverage, the hospital plan administrator
shall notify the OCSS of the options available. The OCSS shall
contact the custodial parent with the options and choose an option.
In the event an option is not chosen, the least expensive option
available is chosen.
1.21.8 Posting
Security, Bond, or Guarantee
A. The
Office of Child Support Services uses procedures which require
non-custodial parents to post security, bond, or give some other
guarantee to secure payment of overdue support. The Office of Child
Support Services will provide advance notice to the non-custodial
parent regarding:
1. The
delinquency of the support payment;
2. The
requirement of posting security, bond or guarantee;
3. His/her
rights and methods available for contesting the impending action.
B. The
Office of Child Support Services will develop guidelines that are
generally available to the public to determine whether the case is
inappropriate for application of this procedure.
1.21.9 Secure
Payment of Overdue Support
A. In
a proceeding
to enforce
past due
support, as
defined herein,
the court after
hearing and
a finding
of overdue
support, may
require an obligor
parent to
give security,
post a
bond, or
give some
other guarantee to
secure payment
of overdue
support; the
security, bond,
or guarantee to
be in
such amount,
for such
term and
upon such
conditions as the
court or
magistrate shall
deem necessary
or advisable. The
court may
order that
the security,
bond, or
other guarantee
be deposited into
the registry
of the
Family Court. The
obligor parent
shall be
served with
the notice
of any
proceeding under
this section and
the notice
shall state
the procedures
to contest
the action.
B. For
purposes of
this section,
"past due
support" means
the amount
of court or
administratively ordered
child support
or maintenance,
medical child support
or a
spousal support
for a
custodial parent
having custody of
a minor
child, which
is overdue
or otherwise
in arrears,
regardless of
whether there
is an
outstanding judgment
for that
amount, and whether
the order
for the
support, medical
child support
or maintenance has
been established
by a
court or
by an
administrative process
authorized under
the laws
of any
State for:
1. Support
and maintenance of a minor child, which is owed to or on behalf of
the child;
2. Support
and maintenance of the obligor parent's spouse or former spouse with
whom the child is living; or
3. Medical
Child Support.
1.21.10
Federal and State Tax Refund Offsets
A. Federal
and State income tax refunds which are due non-custodial parents may
be intercepted, and the refunded amount applied to court ordered
past-due child support or maintenance (spousal support) obligations,
owed for a child or a parent with whom the child is living. Any
Federal tax refund that is intercepted must be used to satisfy
past-due amounts, and may not be used to satisfy current obligations.
B. Administrative
Offset
1. Certain
Federal income resources can be offset. These include Federal
salaries, Federal retirement benefits, Federal vendor payments and
Federal stipends such as travel reimbursement.
2. Although
Federal regulations allow administrative offsets for arrears as small
as $25, Rhode Island opted to keep the thresholds for Administrative
Offset the same as for Federal Tax Offset.
1.21.11
Child Support Income Tax Refund Offset
A. R.I.
Gen. Laws Chapter 44-30.1
Per
R. I. Gen. Laws Chapter 44-30.1, for the purpose
of these
regulations, "claimant
agencies" shall mean Department
of Human Services,
Office of
Child Support
Services ,
or the
Rhode Island
Higher Education
Assistance Authority
(RIHEAA) or
RIHEAA acting
as agent
for student loan
guarantee agencies
in other
states and
the Division
of Taxation. The claimant agencies
shall cooperate
in identifying
debtors who
owe money
to the State,
through its
various claimant
agencies, and
who qualify
for a refund
from the
Division of
Taxation. It is
also the
intent of
this chapter that
procedures be
established for
setting off
against such
refund the
sum of
any debt
owed to
the state.
Furthermore, it
is the legislative
intent that
this chapter
be liberally
construed as
to effectuate these
purposes, as
far as
legally and
practically possible.
B. Authorization
The
Department of
Human Services
is authorized
and directed
to promulgate rules
and regulations
to implement
the Federal
and State programs
for offset
and collection
of past-due
child support
and medical child
support from
income tax
refunds, as
authorized by
Internal Revenue Code, 26 U.S.C. §§ 6305(b)
and 6402(c)
of the
Internal Revenue
Code and
implementing regulations,
and as
authorized by
the R.I.
Gen. Laws
Chapter 44-30.1. Such
rules and
regulations shall
provide the
child support obligor
with an
opportunity for
an administrative
hearing to contest
the offset.
C.
Policy and Procedure
The
Office of Child Support Services policies and procedures are the same
for both Federal tax refund intercepts, administrative and State tax
refund intercepts with the exception that administrative and State
tax refund intercepts must first be applied to current support before
being applied to past-due amounts. Also, for State tax refund
intercepts, the Office of Child Support Services submits the
certification file(s) to the RI Division of Taxation.
D. Complaints
Regarding Joint Returns
When
the Office
of Child
Support Services
agent receives
a complaint
regarding joint
returns prior
to offset,
(s)he will
inform the
non-custodial parent
that the
IRS and
Division of
Taxation will
notify his/her spouse
at the
time of
offset regarding
the steps
to take
to secure the
spouse's proper
share of
the refund.
Complaints regarding
joint returns
received at
or after
offset will
be handled
by referring the
spouse to
the IRS
or the
Division of
Taxation.
E. Collections
of Debts by Setoff
Within
such a
time frame
established by
the Division
of Taxation,
the claimant agency
shall supply
the information
necessary relative
to each debtor
owing the
State money,
and further,
shall certify
the amount
of debt or
debts owed
to the
State by
each debtor. Upon
receiving notice
from the
claimant agency
that a
named debtor
owes past-due
support, or has
obligations owed,
the Division
of Taxation
shall determine
whether any amount,
as a
refund of
taxes paid,
is payable
to such
debtor (regardless of
whether such
debtor filed
an income
tax return
as a married
or unmarried
individual). If the
Division of
Taxation determines that
any such
refund is
payable, the
Division of
Taxation shall set
off the
past-due support
or the
obligation owed
against the
debtor's refund
and shall
reduce the
debtor's refund
by the
amount so
determined. The Division
of Taxation
shall transfer
the amount
of past-due support
or obligation
owed setoff
against the
debtor's refund to
the claimant
agency or
in the
case of
out-of-state agencies,
to RIHEAA as
its agent. The
pendency of
judicial proceedings
to contest the
setoff shall
not stay
nor delay
the setoff
and transfer
of refunds to
the claimant
agency. If the
amount of
the debtor's
refund exceeds the
amount of
the past-due
support or
obligation owed,
the Division
of Taxation shall
refund the
excess amount
to the
debtor. If in
any instance the
same debtor
has both
past due
support and
obligations owed
and when
the Division
of Taxation
has received
notice from
both claimant agencies
involved, the
claim by
the Office
of Child
Support Services shall
receive priority.
F. Setoff
and Notification of Debtor
1. The
Division of
Taxation shall
prescribe the
time or
times at
which the claimant
agency must
submit notices
of past-due
support, the
manner in which
such notices
must be
submitted, and
the necessary
information that must
be contained
in or
accompany the
notices.
2. The
Division of
Taxation shall,
from time
to time,
determine the
minimum amount
of claim
to which
the setoff
procedure may
be applied.
3. Prior
to submitting
information relating
to a
debtor for
purposes of setoff
of the
debtor's income
tax refund,
the claimant
agency shall
provide written
notice to
each such
debtor. The notice
shall set
forth the name
of the
debtor, the
amount of
past-due support
or other
obligation owed,
the intention
to setoff
the amount
owed or
other obligation owed,
the intention
to setoff
the amount
owed against
the refund, the
debtor's right
to an
administrative hearing
to contest
the setoff upon
written request
made within
thirty (30)
days of
the mailing of
the notice
to the
debtor, the
debtor's right
to judicial
review of the
administrative hearing
decision, the
general nature
of the potential
defenses available
to the
debtor, and,
in general
terms, the rights
of non-obligated
spouses with
respect to
income tax
refunds in the
event a
joint return
is filed.
4. At
the time
of the
transfer of
funds to
the claimant
agency as
provided in R.I.
Gen. Laws
§ 44 - 30.1-4,
the Division
of Taxation
shall notify
the debtor
whose refund is
sought to
be setoff
that the
transfer has
been made. Such
notice shall set
forth the
name of
the debtor,
the amount
of past-due
support being claimed,
the transfer
of funds
to the
claimant agency,
and the amount
of the
refund in
excess of
the amount
claimed, if
any. In the case
of a
joint refund,
the notice
shall also
state the
name of
a taxpayer-spouse named
in the
return, if
any, against
whom no
past-due support or
obligation owed
is claimed,
the opportunity
to request
that the refund
be divided
between the
spouses by
filing an
amended income tax
return in
conformance with
R.I. Gen. Laws §
44-30-11, showing
each spouse's
share of
the tax
and the
contribution to
the overpayment
of tax resulting
in the
refund.
5. Upon
final determination
of the
amount of
the claim
to be
setoff by default
for failure
to apply
for a
hearing, or
by decision
of the hearing
officer pursuant
to R.I. Gen. Laws
§ 44-30.1-5,
after being
held in
an escrow account
for 120
days, the
Division of
Taxation shall
transfer such funds
to the
claimant agency
and the
claimant agency
shall deposit such
funds and
credit such
amount to
the debtor's
obligation. The pendancy
of judicial
proceedings pursuant
to R.I. Gen. Laws
§ 42-35-15
to review the
administrative decision
shall not
stay nor
delay the
setoff, transfer, and
disbursement of
the tax
refund in
question.
G. Confidentiality
Exemption-Nondisclosure
The
Division of
Taxation may
provide to
the claimant
agency the
information necessary
to accomplish
and effectuate
the intent
of R.I.
Gen. Laws
Chapter 44-
30.1. The information
obtained by the
claimant agency
from the
Division of
Taxation in
accordance with
the provision
of this
article shall
retain its
confidentiality and
shall only
be used
by the
claimant agency
in pursuit
of its
past-due support or
obligation owed
collection duties
and practices,
and any employee
or prior
employee of
any claimant
agency who
unlawfully discloses any
such information
for any
other purpose,
except as
specifically authorized
by law,
shall be
subject to
the same
penalties specified by
R.I. Gen. Laws §
44-30-95(c).
H. Severability
of Provisions
If
any provision
of R . I.
Gen. Laws
Chapter 44 - 30.1,
or the
application thereof,
shall for
any reason
be judged
invalid, such a
judgment shall
not affect,
impair or
invalidate the
remainder of the
law, but
shall be
confined in
its effect
to the
provision or
application directly
involved in
the controversy
giving rise
to the judgment.
I. Criteria
for Submittal
1. Federal
and State
income tax
refunds that
are due
to non-custodial
parents may
be intercepted,
and the
refunded amount
applied (in
RIW cases) to
court ordered
past-due child
support or
maintenance (spousal
support) obligations,
owed for
a child
or a
parent with
whom the
child is living.
In non-assistance
(NA) cases,
the intercepted
amount is applied
to court
ordered past-due
child support
only. Any Federal
tax refund that
is intercepted
must be
used to
satisfy past-due
amounts, and may
not be
used to
satisfy current
obligations.
2. The
Office of
Child Support
Services policies
and procedures
are the same
for both
Federal tax
refund intercepts
and State
tax refund
intercepts with
the exception
that administrative
and State
tax refund
intercepts must
first be
applied to
current support
before being
applied to
past-due amounts.
Also, for
State tax
refund intercepts,
the Office
of Child
Support Services
submits the
certification file(s)
to the
RI Division
of Taxation
electronically.
J. RIW
and Foster Care Cases
1.
RIW and Foster Care cases must meet the following requirements to be
eligible for offset:
a. The
support obligation
will have
been established
under a
court or
administrative order
and will
have been assigned;
b. The
amount of
past-due support
will not
be less
than one hundred
fifty dollars
($150.00);
c. The
amount owed
will have
been delinquent
for three (3)
months or
longer;
d. The
delinquency is
for support
and maintenance
of a child,
or of
a child
and the
parent with
whom the child
is living;
e. Office
of Child
Support Services
has verified
the accuracy of
the arrears,
has a
copy of
the order
and any modifications
and has
a copy
of the
payment record or
an affidavit
signed by
the custodial
parent attesting to
the amount
of support
owed;
f. Office
of Child
Support Services
has verified
the accuracy of
the non-custodial
parent's name
and social
security number;
g. In
intergovernmental cases,
the request
may only
be made
by the Office
of Child
Support Services
when it
is the initiating
state.
K. Non-Assistance
(NA) and MAO Cases
1. Non-assistance
(NA) and
Medical Assistance
only cases
will meet
the following
requirements to
be eligible
for offset:
a. The
support obligation
will have
been established
under a
court or
administrative order,
and will
not have been
assigned;
b. The
amount of
past-due support
will not
be less
than five hundred
dollars ($500.00);
c. At
the State's option, amounts certified in NA cases may be limited to
past-due support which accrued since the Office of Child Support
Services began to enforce the support order;
d. The
support must
be owed
to or
on behalf
of a
minor child. Past-due
support due
adult handicapped
children may
be collected
through tax
offset if
there is a
support order
in effect
for the
child and
the child, while
a minor,
was determined
to be
disabled under the Social
Security Act , 42 U.S.C. Chapters II and XVI;
e. Spousal
support may be submitted if it is included with an order for child
support;
f. Office
of Child Support Services has verified the accuracy of the arrears,
has a copy of the order and any modifications, and has a copy of the
payment record or an affidavit signed by the custodial parent
attesting to the amount of support owed;
g. Office
of Child Support Services has checked its records to see if there are
assigned arrears;
h. Office
of Child Support Services has verified the accuracy of the
non-custodial parent's name and social security number;
i. Office
of Child Support Services will have the custodial parent's last known
address.
2. The
Office of Child Support Services may certify an intergovernmental
case only if Rhode Island is the initiating state.
L.
Pre-Offset Notices
1. On
or about
the second
weekend of
every month,
the Office
of Child Support
Services will
send a
one-time offset
notice to
any obligor
at the time
it is
determined that
s/he meets
the certification
requirements for
Federal and
State tax
refund offsets.
The system
will generate the
Pre-Offset Notice
automatically unless
the system
indicates otherwise.
2. The
Pre-Offset Notice
is sent
to the
non-custodial parent
at the address
recorded. It advises
him/her of
the State's
intent to
intercept, and
includes the
following information:
a. The
amount certified,
which represents
the arrearage
amount taken
from the
case;
b. The
date by
which the
obligor may
submit payment
to avoid being
included for
offset;
c. The
obligor's right
to contest
the proposed
action;
d. Procedures
and time frames for contacting the Office of Child Support Services
to contest the action;
e. The
obligor's right to an administrative hearing by the submitting state
or the state where the order was entered (if different);
f. The
local address and phone number to contact if (s)he desires to contest
the action or ask questions; and
g. The
fact that
the non-custodial
parent's arrearage
amount may
be submitted
to the
credit bureau.
3. When
a Pre-Offset
Notice is
returned as
undeliverable, it
will be logged
in and
retained. However, this
will not
prevent the
non-custodial parent's
name from
being included
for offset.
4. The
Office of
Child Support
Services will:
a. Send
notices to non-assistance custodial parents with RIW, Medical
Assistance only, or Foster Care arrears advising him/her that amounts
collected through Federal tax refund offset will be applied first to
satisfy any past-due support that has been assigned to the State;
b. Send
notices to
any other
State involved
in enforcing the
order; and
c. Notify
OCSS, weekly
of any
case deletions
or significant decreases
in the
amount of
past-due support
submitted.
M.
Non-Custodial Parent Responds to Pre-Offset
The
non-custodial parent may respond to the Pre-Offset Notice by:
1. Asserting
that the money is not owed;
2. Asserting
that the wrong amount was certified;
3. Paying
off the arrearage;
4. Requesting
a hearing on the proposed interception.
N. Non-Custodial
Parent Satisfies Arrearage
The
Pre-Offset Notice advises the non-custodial parent that (s)he can
avoid being intercepted by submitting a payment that satisfies or
reduces the arrearage balance to below the amount needed for
certification. The Agent must advise the non-custodial parent that
the payment will be applied first to any unpaid current support and
then to the amount certified for intercept. Once distribution takes
place the adjusted balance will appear in the CERT BAL (Certification
Balance) field on the OFST panel. The balance will be updated on the
weekly submission and update file sent to OCSS.
O. Non-Custodial
Parent Contests Offset
1. All
written hearing
requests for
the one-time
notice from
non-custodial parents
will be
forwarded to the
Executive Office of Health and Human Services Appeals Office
to schedule a hearing.
2. Prior
to sending the notice, the
appropriate agent will
review the
case to
determine whether
the case
was correctly certified.
A case
can be
deleted for
just cause,
such as
non-assistance and
all children
are over
the age
of eighteen
(18), or the
order was
ended with
no arrears
owed.
a. When
it is decided that a case should be deleted, the agent will:
(1) Take
the appropriate action in the child support computer system, and
(2) Send
the non-custodial parent a notice advising of Intercept
Removal;
b. If
a non-custodial parent requests a hearing after the expiration of the
period for contesting the proposed action, he/she must complete the
Late Request for Administrative Hearing form;
c. When
it is
decided that
a hearing
should proceed,
an Administrative Hearing
will be
scheduled by the Executive Office of Health and Human
Services. The system will
be flagged
to stay
offset until
the hearing
decision is
rendered and
recorded.
P. Administrative
Hearing
1. Scheduled
a. The
Executive Office of Health and Human Services Hearing Officer will
schedule and conduct the hearings.
b. Once
the hearing
date and
time are
scheduled, the
agent will:
(1) Prepare
for the hearing by completing an arrearage calculation going back to
the original date of the order, or the last date that the arrearage
was set;
(2) Attend
the hearing
as the
representative of
the Office of
Child Support
Services.
c. Any
rescheduling will
be handled
by the
designated Hearing
Officer.
2. The
Administrative Hearing
The
administrative hearing
shall be
conducted in
accordance with
the Executive Office of Health and Human Services (EOHHS),
Rules and Regulations.
3. Hearing
Decision Results in Adjustment
When
the decision
is to
amend or
delete the
certification amount,
a copy of
the decision
will be
sent to
the Office
of Child
Support Services
Accounting Office.
Q. Post
Intercept Notices
1. When
the non-custodial
parent's refund
is intercepted,
the IRS
and/or the Division
of Taxation
will notify
him/her that
the offset
has been made. In
joint returns,
the IRS
and/or Division
of Taxation
will notify any
individual who
filed jointly
with the
non-custodial parent
of the
steps to
take in
order to
secure his/her
proper share
of the refund.
2. The
joint obligor may complete a waiver form alleging that he/she has not
filed an injured spouse form and disclaims any rights to the refund.
The refund can then be distributed appropriately. The State reserves
the right to refer the matter to the Attorney General’s Office if
the waiver form was later found to be fraudulently completed.
R. Distribution
1. Collections
received by the Office of Child Support Services as a result of
refund offsets are applied only to the amount of past-due support.
The collections are distributed as outlined in § 1.24.4 of this
Part.
2. If
the amount
collected through
offset exceeds
the amount(s)
in the certified
past-due support balance, the
excess amount
will be
treated as
outlined in § 1.24.4 of this Part.
3. When
an offset
is being
made to
satisfy non-assistance
(NA) past-due
support and
the amount collected
is the
result of
a joint
return, the
state may
delay distribution until
notified that
the non-obligated
spouse's proper
share of
the refund
has been
paid, or
for a
period not
to exceed
six (6) months
from notification
of offset,
whichever is
earlier.
S. Fees
1. A
refund offset
fee to
reimburse the
IRS for
the full
cost of
the offset procedure
is deducted
from the
offset amount
and credited
to the IRS
appropriations which
bore all
or part
of the
costs involved
in making the
collection. However, the
full amount
of offset
will be credited
against the
non-custodial parent's
payment record.
The fee which
the Secretary
of the
Treasury may
impose with
respect to
non-assistance (NA)
cases submitted
cannot exceed
twenty-five dollars
($25) per submittal.
2. Each
state involved
in a
referral of
past-due support
for offset
will comply with
instruction issued
by OCSE. Per
federal regulations the IRS may only reverse offsets for fraudulent
returns within six (6) months from the offset, unless in a TANF case
the funds are still within the State registry.
1.21.12 Unemployment
Insurance (UI) Intercepts
A. Verifying
Unemployment Benefits
Unemployment
Insurance (UI) benefits are verified electronically through an
interface with the Department of Labor and Training. UI benefits
received by a non-custodial parent are considered income and are
subject to the same income withholding laws, policies and procedures
as any other income (s)he may receive (§ 1.21.1 of this Part).
B. Cooperative
Agreement with Department of Labor and Training
The
OCSS has a cooperative agreement with the Department of Labor and
Training. Upon discovery, through the New Hire Reporting process,
that a non-custodial parent is receiving unemployment benefits, an
income withholding order is automatically generated and sent
electronically to the Department of Labor and Training notifying them
to withhold the child support from the unemployment benefits and
remit payment electronically to the State Disbursement Unit.
1.21.13 Credit
Bureau Reporting
A. Advance
Notice
1. The
Office of
Child Support
Services makes
information regarding
the amount of
overdue support
owed by
a non-custodial
parent available
to consumer reporting
agencies. A non-custodial
parent will
be given advance
notice before
his/her name
is submitted. The
advance notice
advises the
non-custodial parent
of:
a. The
proposed release of the information to the consumer report agency;
b. The
procedures for
contesting the
accuracy of
the information.
2.
The Office
of Child
Support Services
will comply
with all
of the procedural
due process
requirements of
State law
before releasing
the information.
3. The
Office of
Child Support
Services shall
provide written
notice to the
non-custodial parent
ten (10)
days prior
to the
proposed release
of information to
consumer reporting
agencies.
4. The
notice shall
state the
procedures to
contest the
accuracy of
the information. The
Department shall
periodically inform
the consumer
reporting agencies
if the
overdue support
has been
paid in
full or
of the amended
amount of
due support.
B. Credit
Bureau Defined
1. A
credit bureau
is an
entity 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 for the
purpose of
furnishing consumer
reports to
third parties. A
primary source
of information
in a
consumer report
is the
consumer's financial
application, which
contains allegedly
verifiable residential,
employment, financial
and asset
data.
2. Other
sources of
information include
business establishments,
financial institutions,
and public
records.
C. Credit
Rating
Credit
bureaus are
hereby required
to take
into consideration
a non-custodial
parent's child
support obligations
and his
delinquencies in
this regard,
and these
delinquencies shall
be verified
by either
the court or
by the
Office of
Child Support
Services.
D. Report
a Non-Custodial Parent Name
1. Each
month an
advance notice
is system-generated
to non-custodial
parents:
a. With
a SSN
and verified
address recorded;
b. Who
are under
a court
order for
support; and
c. Who
have not
been notified
previously.
2. Non-custodial
parents who have more than one court ordered case will receive an
advance notice for each case.
3. A
monthly tape is submitted to the credit bureau with the names of
non-custodial parents who received an advance notice and did not
contest the action. The tape provides the credit bureau with:
a. The
non-custodial parent's
name, SSN,
and address;
b. The
amount of
periodic support
due each
month;
c. The
balance due;
and
d. The
date and
amount of
the last
payment.
1.21.14 License
Suspension
A.
The Office of
Child Support
Services is
authorized to
take steps leading
to the
certification of
an obligor
for noncompliance
with an order
of support
to an
appropriate board,
state agency,
or department.
Such board,
state agency,
or department
shall take
the following
actions against
an obligor:
1. Revoke/Suspend
a license to operate a motor vehicle;
2. Refuse
to renew or reissue a motor vehicle registration or license to
operate a motor vehicle;
3. Revoke/Suspend
the license, certification, registration, permit, approval, or other
similar document authorizing the obligor to engage in a profession,
occupation, business, or industry;
4. Refuse
to renew or reissue the license, certification, registration, permit,
approval, or other similar document authorizing the obligor to engage
in a profession, occupation, business, or industry.
B.
These actions
may be
requested only
when the
following conditions
are met:
1. An
obligor owes more than ninety (90) days worth of his/her total child
support obligation(s)(ex. current support order, arrears order, cash
medical order, etc.) in one or more of his/her child support cases;
or
2. An
obligor has failed to obtain or maintain health insurance for his/her
child(ren) pursuant to a court order; and
3. The
Office of
Child Support
Services has
fully complied with
the procedural
and notification
provisions.
C.
Professional License Suspension
1. Upon
receipt of
the certification
of noncompliance
with a
support order from
the Office
of Child
Support Services,
the licensing
agency or board
will revoke/suspend
the obligor's
license and/or
refuse to
issue or reissue
a license
until the
obligor provides
a release
from the Office
of Child
Support Services
that states
the obligor
is in compliance
with the
order for
support.
2. If
the obligor
has been
certified as
noncompliant to
any licensing
agency or
board, the
Office of
Child Support
Services will
provide obligor with
written confirmation
of compliance
with a
support order and
a release
from the
noncompliance penalty
of license
suspension/revocation within
five (5)
business days
after the
obligor has been
found to
be in
compliance with
the support
order. This release will
be mailed
to the
obligor by
first class
mail to
his/her address of
record as
indicated on
the child
support automated
system.
D. Motor
Vehicle License / Registration Suspension
1. The
Office of
Child Support
Services will
periodically each
year provide
the Rhode
Island Division
of Motor
Vehicles an
electronic report of
those individuals,
together with
other identifying
information, who
have a
child support
arrearage in
excess of
$500 as
of the date
of the
report as
shown on
the Office
of Child
Support Services
computer system.
2. This
listing to
the Division
of Motor
Vehicles will
be periodically
updated so
that individuals
whose arrearage
falls below
the prescribed level
for reporting
may be
removed from
the list
by the Division
of Motor
Vehicles.
3. No
individual whose
name appears
on this
list shall
be permitted
to:
a. Register
or renew
a registration
of any
motor vehicle,
and/or
b. Obtain
an original
license or
renewal of
a license
to operate a
motor vehicle
until all
such child
support arrearage
have been
paid in
full or
a satisfactory
arrangement for
payment has
been made
with the
RI Family Court
and such
payment or
arrangement to
pay has
been certified
to the Division
of Motor
Vehicles by
the Office
of Child
Support Services.
E.
Notice of Intent to Certify
1. The
Office of
Child Support
Services may
serve notice
of intent
to certify upon
a support
obligor who
is not
in compliance
as defined
in this section. The
notice informs
the obligor
of the
agency's intent to
submit the
obligor's name
to any
appropriate board,
state agency,
or department as
a licensee
who is
not in
compliance with
a court
order of support.
This notice
will be
mailed to
the obligor
by first
class mail to
his/her address
of record
as indicated
on the
child support
automated system. The
notice must
contain:
a. The
address and
telephone number
of the Office
of Child Support
Services;
b. A
statement of
the need
for the
obligor to
obtain a release
from that
office that
states that
the obligor is
in compliance
with his
or her
support order;
and
c. A
copy or
facsimile of
the obligor's
court order
for support.
2. The
notice must
inform the
obligor that
he/she can
avoid this
action by:
a. Paying
all past-due and current child support and/or any past-due arrearage
payments;
b. If
he/she is unable to pay all past-due support, the obligor may request
an appointment at the Office of Child Support Services to enter into
a Written Payment Agreement (if no previous Written Payment Agreement
has been entered);
c. The
obligor may request a Family Court compliance hearing to contest the
issue of compliance;
d. A
request for an appointment or compliance hearing must be made in
writing and must be received by the Office of Child Support Services
within thirty (30) calendar days of the date of the notice;
e. If
the obligor requests an appointment or compliance hearing within
thirty (30) calendar days of the date of the notice, the Office of
Child Support Services shall stay action to certify the obligor to
any board for noncompliance with a court order of support pending the
outcome of the appointment or compliance hearing decision;
f. If
the obligor does not request an appointment or compliance hearing
within thirty (30) calendar days of the date of the notice and is not
in compliance with a court order of support, the Office of Child
Support Services shall certify the obligor to the appropriate board,
state agency, or department for noncompliance with an order for
support;
g. If
the Office of Child Support Services certifies the obligor to a board
for noncompliance with a court order of support, the board, state
agency, or department shall revoke/suspend the obligor's license and
refuse to issue or reissue a license until the obligor provides the
board with a release from the Office of Child Support Services that
states that the obligor is in compliance with her/his support order.
A revocation/suspension by an agency or a refusal by an agency to
reissue, renew, or otherwise extend the license or certificate of
authority shall be deemed a final determination;
h. If
the obligor files a motion to modify support with the Family Court,
and duly serves the Office of Child Support Services with notice of
the motion to modify within thirty (30) calendar days of the date of
the notice, the Office of Child Support Services shall stay action to
certify the obligor to any board for noncompliance with a court order
of support; and/or
i. The
obligor must meet his/her health insurance obligation.
F. Family
Court Compliance Hearing
1. An
obligor may
request a
hearing before
a Magistrate
of the
RI Family Court
upon receipt
of the
notice of
intent to
certify the
obligor for
noncompliance. The request
for hearing
must be made
in writing
and received
by the
Office of
Child Support
Services within thirty
(30) calendar
days of
the date
of the
notice.
2. The
Office of
Child Support
Services in
conjunction with
Family Court shall
notify the
obligor in
writing of
the date,
time, and
place of
the hearing. Service of
the hearing
notice must
be made
by first
class mail or
by service
as specified
in the
Family Court Rules of
Domestic Relations Procedure.
3. The
issues that
may be
determined at
hearing are
limited to:
a. Whether
the obligor
is required
to pay
child support
under a
court or
administrative order;
and
b. Whether
the obligor
is in
compliance with
a court order
of support.
4. Nothing
herein shall
prohibit the
obligor from
filing other
appropriate motions for
relief, including
but not
limited to
a motion
to modify
a support order,
with the
Family Court.
5.
If an
obligor requests
a timely
hearing to
contest the
issue of
compliance, the
Office of
Child Support
Services may
not certify
the name of
the obligor
to a
board for
noncompliance until the
Office of Child
Support Services
receives a
decision or
order of
the Family
Court that finds
the obligor
is not
in compliance
with a
court order
of support.
G. Certification
of Noncompliance
1. The
Office of
Child Support
Services may
certify in
writing to
any appropriate board
that a
child support
obligor is
not in
compliance with a
court order
of support
if:
a. If
the obligor does not make a timely request for an appointment or
compliance hearing upon receipt of the notice of intent to certify
and is not in compliance with a court order of support thirty-one
(31) days after service of the notice; or
b.
RI Family
Court issues
a decision
or order
after hearing that
the obligor
is not
in compliance
with a court
order of
support, and
the obligor
has not appealed
the decision
within any
applicable appeal
period provided
by law
for appeals
of a
decision or order
of a
Magistrate of
the Family
Court; or
c. After
a decision
or order
of the
RI Family
Court has been
appealed, a
decision or
order from
the RI
Supreme Court which
determines or
affirms that
the obligor
is not in
compliance with
a court
order for
support,
2.
The Office
of Child
Support Service's
certification shall
include a copy
of the
decision or
order of
the court,
where applicable.
The Office of
Child Support
Services shall
send by
first class
mail a
copy of any
certification of
noncompliance filed
with a
board to
the obligor at
the obligor's
address of
record as
indicated in
the child
support automated system.
3. Upon
receipt of
the certification
of noncompliance
from the
Office of Child
Support Services,
a board
shall revoke/
suspend the
obligor's license and
refuse to
issue or
reissue a
license until
the obligor
provides the
board with
a release
from the
Office of
Child Support
Services which
states that
the obligor
is in
compliance with
his or
her support order.
4.
When such
an obligor
subsequently complies
with the
order of
support, the Office
of Child
Support Services
shall, within
five (5)
business days after
compliance, provide
the obligor
with written
confirmation and a
release that
the obligor
is in
compliance with
the order. A
revocation/suspension by
a board
or a
refusal by
a board
to reissue, renew,
or otherwise
extend the
license or
certificate of
authority shall be
deemed a
final determination.
5.
A board
shall notify
an obligor
certified by
the Office
of Child Support
Services without
undue delay
that the
obligor's application
for the issuance
or renewal
of a
license may
not be
granted or
that the obligor's
license has
been revoked/suspended
because the
obligor's name has
been certified
by the Office
of Child
Support Services
as a support
obligor who
is not
in compliance
with a
court order
of support.
6. Within
five (5)
business days
of receiving
written confirmation
that an obligor
is in
compliance with
the court
order of
support, the
board shall reinstate,
reissue, renew,
or otherwise
extend the
obligor's license or
certificate of
authority.
H.
Reporting Requirements of Licensing Boards
1. On
or before
November 1,
1995 and
during each
renewal period
thereafter, all
boards subject
to R.I. Gen. Laws
§ 15-11.1-2
must provide
the Office of
Child Support
Services with
specified information
about applicants for
licensure and
all current
licensees who
are residents
of this state. The
information to
be provided
must include
all the following
information to
the extent
that the
board maintains
such information:
a. Name;
b. Address
of record;
c. Federal
employer identification
number or
social security number;
d. Type
of license;
e. Effective
date of
license or
renewal;
f. Expiration
date of
license; and
g. Active
or inactive
status.
2. The
Office of
Child Support
Services requires
this information
in order to
implement the
requirements of
R.I. Gen. Laws Chapter
15-11.1 known
as the
R.I. Full
Enforcement of
Support Obligations
Act.
1.21.15
Interception of Insurance Payments
A. Every
domestic insurer
or insurance
company authorized
to issue policies
of liability
insurance and
any worker's
compensation insurer,
shall, within
thirty (30)
days prior
of making
any payment
equal to
or in excess
of five
hundred dollars
($500.00) to
any claimant
who is
a resident of
this state,
for personal
injury or
workers' compensation
benefits under
a contract
of insurance,
review information
provided by the
Office of
Child Support
Services pursuant
to R.I. Gen. Laws
§ 27-57-1 indicating
whether or
not the
claimant owes
past-due child
support.
B. The
Office of
Child Support
Services shall
electronically furnish
these insurers and
insurance companies
with a
report of
names of
individuals with last
known addresses
who as
of the
date of
the report,
have an unpaid
child support
arrearage in
excess of
five hundred
dollars ($500).
C. If
the insurer
determines from
the information
provided by
the Office of
Child Support
Services pursuant
to R.I. Gen. Laws
§ 27-56-4
that the
claimant or payee
owes past-due
child support,
the insurer
shall, except
to the extent
that payments
are subject
to liens
or interests
(i.e., health care
providers, attorney
fees, holders
of security
interests, or
the assignment of
rights under
R.I. Gen. Laws §
40-6-9), withhold
from payment
the amount of
past-due child
support and
pay such
amount to
RI Family
Court which shall
credit the
obligor's child
support obligation
account for the
amount so
paid. The insurer
shall pay
the balance
to the
claimant or other
person entitled
thereto, provided,
however, that
the insurer/insurance
company shall
provide written
notice to
the claimant and
his attorney
if any
and to
the Office
of Child
Support Services
of the payment
to RI
Family Court. RI
Family Court
shall deposit
the payment in
escrow in
the Registry
of the
Family Court
for a
period of
forty-five (45)
days or,
if an
application for
judicial review
has been filed,
until the
further order
of the
court, and
the date
and amount
thereof. The
notice shall
reflect the
date, name,
social security
number, case
number, and
amount of
the payment.
D. Any
claimant aggrieved
by any
action taken
under these
procedures may
within thirty
(30) days
of the
date of
the notice
to the
claimant seek
judicial review
in the
RI Family
Court which
may, at
its discretion,
issue a
temporary order
prohibiting the
disbursement of
funds pending
final adjudication.
E. The
Office of
Child Support
Services shall
send notice
to the
obligor that the
agency has
intercepted an
insurance settlement
at the
time it credits
the obligor's
account.
F. In
addition, the
Office of
Child Support
Services shall
follow the
procedures outlined
for placing
an administrative
lien at
the point
at which an
insurance claim
has been
filed.
1.21.16 Offset
of State Lottery Prizes
A. Any
person entitled to receive a cash prize or winning ticket in
excess of six hundred dollars ($600) from the Rhode Island Lottery
Commission and who has been identified by the Office of Child Support
Services as having an unpaid child support arrearage shall have an
amount set off against the amount due to such person after federal
and state tax withholding an amount up to the balance of such child
support arrearage(s). The lottery commission shall make the payment
directly to the RI Family Court which will deposit the amount set
off in
escrow into the
Registry of
the Family
Court for
a period
of forty-five
(45) days, or
if an
application for
review relating
to the
setoff has
been filed, until
final disposition
of such
application until
further order of
the court. The
lottery shall
pay to
such person
the remaining
balance of
the prize
or winning
ticket amount,
if any,
after the
amount set off
above by
child support.
B.
The Office
of Child
Support Services
will periodically
each year provide
the Rhode
Island State
Lottery Commission
an electronic
report of those
individuals, together
with other
identifying information,
who have a
child support
arrearage in
excess of
$500 as
of the
date of
the report as
shown on
the Office
of Child
Support Services
computer system.
C. Any
claimant aggrieved
by any
action taken
under these
procedures may
within thirty
(30) days
of the
date of
the withholding
of the
payment by the
lottery director
seek judicial
review in
the RI
Family Court which
may, at
its discretion,
issue a
temporary order
prohibiting the
disbursement of
funds pending
final adjudication.
1.22 Intergovernmental
Child Support Cases
A. Defined
An
intergovernmental child support case is, in general, one in which the
non-custodial parent and custodial parent do not live in the same
state or foreign country.
B.
Categories
There
are two broad categories of intergovernmental cases for OCSS:
1. Initiating
State
a. When
RI acts as the initiating state, it is generally because the
custodial parent resides in Rhode Island and the non-custodial parent
resides outside Rhode Island. However, the OCSS may also initiate a
petition on behalf of a non-custodial parent when a modification is
requested and the custodial parent resides in another state.
b. The
petition is prepared in RI and is forwarded to another state or
foreign country for processing.
2. Responding
State
When
RI acts as the responding state because the custodial parent resides
in another state or foreign country and the non-custodial parent
resides in Rhode Island. Another state or foreign country prepares
the petition and forwards it to RI to process. The non-custodial
parent may reside in, or have assets in, RI.
C.
Uniform Intergovernmental Family Support Act (UIFSA)
Both
Initiating State and Responding State cases are commonly referred to
as UIFSA (Uniform Intergovernmental Family Support Act) cases.
Federal law requires all states and foreign countries who have signed
on to The Hague Treaty, to provide child support services to all
families that have applied for such services, including location,
paternity establishment, establishment of support obligations,
regardless of where the non-custodial parent resides. Federal law
also requires states to meet specific timeframes in the provision of
these services, even when one parent is in a different state from
where children are living. This federal legislation sets out
procedures for enforcing child support orders across state lines and
establishes the concept of "Continuing Exclusive Jurisdiction."
UIFSA also simplifies income withholding across state lines by
requiring employers to honor wage assignments issued by another
state's court, tribunal or foreign country.
1.22.1 Authority
A.
In proceeding
to establish,
enforce, or
modify a
support order
or to determine
parentage, under
R. I. Gen. Laws § 15-23.1-201,
known as
"basis for
jurisdiction over
a nonresident”,
a tribunal
of this
state may
exercise personal
jurisdiction over a
nonresident individual
or the
individual's guardian
if:
1. The
individual is
properly served
within this
state;
2. The
individual submits
to the
jurisdiction of
this state by
consent, by
entering a
general appearance,
or by filing
a responsive
document, waiving
any contest
to personal jurisdiction;
3. The
individual resided
with the
child in
this state;
4. The
individual resided in this state and provided prenatal expenses or
support for the child;
5. The
child resides
in this
state as
a result
of the
acts or directives
of an
individual;
6. The
individual engaged
in sexual
intercourse in
this state and
the child
may have
been conceived
by that
act of intercourse;
7. The
individual acknowledged
paternity by
completing an
affidavit of
paternity signed
by both
parents; or
8. There
is any
other basis
consistent with
the state, and
the United
States for
the exercise
of personal jurisdiction.
B.
In public
assistance cases,
Rhode Island
has the
same right
to initiate a
proceeding as
an individual
RIW caretaker
relative for
the purpose
of establishing
paternity, establishing
a child
support and
medical order, and
enforcing those
orders administratively
or judicially. The
defense that the
parties are
immune to
a suit
because of
their relationship
as a married
couple or
parent and
child is
not available
to the
non-custodial parent.
1.22.2 The
OCSS Intergovernmental Unit/Central Registry
A.
The Central
Registry is
located at
the Office
of Child
Support Services. The
Central Registry
manages Rhode
Island's
intergovernmental case
load; both
initiating activities
and responding
to requests
from other states.
B. Within
10 working
days of
the receipt
of a
case from
an initiating
state or foreign country, the
OCSS Central
Registry will:
1. Review
the request
to ensure
that all
necessary documentation
is included
and complete.
When documentation is
inadequate and
cannot be
remedied by the
Intergovernmental Unit
without the
assistance of
the initiating state
or foreign country, the
Intergovernmental Unit
will forward
the case for
any action
which can
be taken,
pending action by
the initiating
state;
2. Forward
the case
to the
State Parent
Locater Service for
location services, or
to the
appropriate agency
for processing;
3. Send
acknowledgment of
the request
to the
initiating state or foreign country,
and request
any missing
documentation;
4. Inform
the IV-D
agency in
the initiating
state or foreign country
where the case
was sent
for action.
C. If
the documentation
received with
a case
is inadequate
and cannot
be remedied without
the assistance
of the
initiating State,
the central
registry shall
forward the
case to
an agent
for any
action that
can be taken
pending necessary
action by
the initiating
State. The central
registry shall
keep a
log of
these pending
cases so
that when
the needed documentation
is received
it may
be distributed
to the appropriate
agent.
D. The
central registry
must respond
to inquiries
from other
States or foreign
countries within five (5)
working days
of receipt
of the
request for
a case
status.
1.22.3 RIW
Intergovernmental Cases
A. Newly
opened RIW
cases will
be assigned
to the
appropriate
Intergovernmental child
support agent
through the
IV-A/IV-D interface
when an
out of
state address
for the
non-custodial parent
is entered.
B. If
the Intergovernmental
agent should
receive a
RIW case
transferred from
an instate unit,
(before an
instate agent
transfers a
RIW case
to the
Intergovernmental Unit,
there should
be verification
that the
non-custodial parent no
longer resides
in Rhode
Island and
that there
is no
basis for
exercising jurisdiction
over the
nonresident parent,
or that
the exercise of
personal jurisdiction
over a
non - resident
is impractical)
the agent
should examine
the case
to determine
whether a
new case should
be created
for intergovernmental
support activity.
If the
existing case does
not have
a docket
number assigned
to it
or anything
"financial",
(payments, obligation
balance etc.),
it will
not be necessary
to create
a new
case for
the intergovernmental
activity. The
existing suffix
should be
used for
the intergovernmental
case.
1.22.4 Non-Assistance,
MAO and FC Intergovernmental Cases
Non-assistance,
Medical Assistance
Only, and
Foster Care
cases will
be referred to
the Intergovernmental
Unit via
the referral
or application
process, or
transfers from
another OCSS
unit. The
Intergovernmental agent
will enter
new cases
and transfer
cases.
1.22.5 Petition
for Registration
A. When
the custodial
parent and
non-custodial parent
both reside
in the State
of Rhode
Island, and
there is
a foreign
court order
(an order entered
in a
jurisdiction outside
R.I.) for
which arrears
are owed,
the Child Support
Services agent
will register
the foreign
court order
with the Family
Court. Once the
order is
registered, it
can be
enforced the same
as any
other Rhode
Island order. To
register the
order the agent
will:
1. Produce
Registration of Foreign Support packet and order of confirmation for
modification and enforcement;
2. Refer
for service; and
3. Upon
service, refer all paperwork to Family Court.
B. If,
after twenty
(20) days
the non-custodial
parent fails
to petition to
vacate the
registration, the
order is
"confirmed". The
Judge/Magistrate signs
the Order
of Confirmation,
and copies
are sent to
the non-custodial
parent and
the Office
of Child
Support Services.
1.22.6 Petition
for Support
A. The
petition or
complaint shall
be verified
and shall
state the
name and, so
far as
known to
the custodial
parent, the
address of
the non-custodial
parent and
the persons
from who
support is
sought, and
all other pertinent
information. The
custodial parent
may include
in, or attach
to, the
UIFSA petition
information that
may help
in locating
or identifying the
non-custodial parent
including:
1. A
photograph of
the non-custodial
parent;
2. A
description of
any distinguishing
marks on
his/her person;
3. Other
names and
aliases by
which he/she
has been
or is known;
4. The
name of
his/her employer;
5. His/her
fingerprints;
6. His/her
social security
number.
1.22.7 Duty
of Initiating Court
A. Upon
the filing
of a
petition authorized
by UIFSA,
the Office
of Child Support
Services shall
forward three
(3) copies
of the
petition and
its accompanying
documents:
1. To
the responding
tribunal or
appropriate support
enforcement state, or
2. If
the identity of the responding tribunal is unknown, to the state
information agency of the responding state with a request that they
be forwarded to the appropriate tribunal and that receipt be
acknowledged.
1.22.8 Costs
and Fees
A. The
petitioner shall
not be
required to
pay a
filing fee
or other costs,
but OCSS
may request
the responding
court to
collect fees
and costs from
the non-custodial
parent. Those
costs may
include reasonable
attorney's fees,
and necessary
travel.
B. A
responding court
shall not require
payment of
a filing
fee or
other costs
from the
custodial parent, but
it may
direct that
all fees
and costs
requested by
the initiating court
and incurred
in this
state when
acting as
a responding
state, including
fees for
filing of
pleadings, service
of process,
seizure of
property, stenographic
or duplication
service, or
other service supplied
to the
non-custodial parent,
be paid
in whole
or in part
by the
non-custodial parent,
or by
the OCSS.
C. These
costs or fees do not have priority over amounts due to the custodial
parent.
1.22.9 OCSS
Responsibilities
A. As
the initiating
state agency,
the OCSS
will:
1. Attempt
to establish
paternity using
the State's
long arm statute,
whenever appropriate;
2. Refer
a case, within 20 calendar days of finding a non-custodial parent in
another state, to the responding State's Intergovernmental central
registry for action, including:
a. UIFSA
petitions to
establish paternity,
establish child
support and
medical orders,
modification of
orders if
appropriate, enforcement
of orders,
registrations and
administrative lien
requests;
b. Requests
for location
if location
efforts have been
exhausted;
c. Document
verification;
d. Administrative
reviews in
administrative offsets;
e. Income
withholding;
f. State
income tax
refund offset
in IV-D
cases;
3. Provide
the responding
state with
sufficient, accurate
information to
act on
the case
by submitting
with each case
any necessary
documentation with
the Child Support
Enforcement Transmittal
package;
4. Provide
the responding
state with
any additional
information requested.
When information
cannot be provided
immediately, the
intergovernmental agent
will notify the
responding state
that it
will be
provided within thirty
calendar days
of the
request. The agent
will submit an
updated form
or a
computer-generated
replica in the
same format
and containing
the same
information, and
any necessary
additional documentation;
5. Notify
the responding
state within
10 working
days of receiving
new information,
by submitting
an updated form
and any
related documentation
including court
orders;
6. Contact
the responding
state IV-D
agency for
a status update
when there
has been
no contact
for 90
calendar days.
1.22.10 Initiating
Paternity Establishment
In
cases where
a putative
father lives
out of
state, the
OCSS agency will
first determine
if there
is jurisdictional
basis to
establish paternity the
same as
if the
non-custodial parent
lives in
Rhode Island and if it is practical to do so.
This is
called the
"long arm
process". If
there is
no basis
to exercise long
arm jurisdiction,
or it would be impractical or cumbersome to do so,
the OCSS
will initiate
a petition
to establish paternity.
1.22.11 Long
Arm Cases
A. OCSS
may consider filing a long arm action in lieu of a UIFSA petition but
it is not required that we do so first. Under
Rhode Island
law, a
person who
has had
sexual intercourse in
this state
submits to
the jurisdiction
of the
court of this
state as
to any
action with
respect to
a child
who may
have been
conceived by
that act
of intercourse.
In addition,
the Uniform
Intergovernmental Family
Support Act
provides broad
provisions for
asserting jurisdiction
over a
non-custodial parent
for the
establishment of
paternity and
support.
B. The
long arm
statute is
one that
allows a
state to
gain jurisdiction
over an
individual residing
in another
state for
purposes of
determining parentage.
In paternity
establishment, it
allows Rhode
Island to
exercise jurisdiction
over a
non-resident alleged
father when the
custodial parent
claims that
conception occurred
in Rhode Island.
The OCSS
agent will
refer the
case to
the OCSS
Legal Unit
if any problems
arise.
C. The
Child Support
attorney is
available to
provide assistance
to the caseworker
when attempting
to determine
whether long
arm jurisdiction
can be
asserted over
an individual.
D. When
it has
been determined
that it is practical and reasonable to do so, and
that sufficient grounds
exist to
exercise long-arm
jurisdiction, the
procedures for
filing a
long-arm action
are:
1. The
child support
agent obtains
the necessary
information to
file a long
arm paternity
complaint from
the mother;
2. The
putative father
is served
with the
complaint generally
by certified mail;
3. The
Office of
Child Support
Services must
advise the
putative father of
the hearing
date;
4. If
the putative
father was
properly served
but fails
to appear
for the hearing,
the court
proceeds to
rule on
the issues
properly before
the court;
5. If
the non - custodial
parent defaults
on the
order at
a later
date, the judgment
(usually by
default) can
be enforced
by the
RI Family Court
or it
can be
registered for
enforcement in
the non-custodial
parent's state
of residence.
E. When
OCSS has
filed a
long-arm suit
but has
been unable
to obtain service
on the
putative father,
the Office
of Child
Support Services
can request
assistance with
service of
process from
the child
support agency where
the putative
father resides.
F. If
service cannot
be accomplished,
a petition
to establish
paternity and support
can be
forwarded to
the putative
father's state
of residence.
G. In
RIW cases,
when paternity
is an
issue, the
child support
services agent must
complete a
paternity affidavit.
If conception
took place outside
Rhode Island,
a UIFSA
petition asking
for paternity
to be established
and a
support order
entered should
be sent
to the responding
State.
1.22.12 Initiating
Paternity
A. When
long arm process is not practical, the OCSS agent will pursue
paternity establishment via the regular UIFSA process. The UIFSA
Petition will include the Paternity Affidavit to be signed by the
custodial parent.
B. Federal
regulations provide that the initiating state is responsible for
paying the costs for DNA testing. All other costs (such as expert
witness fees, depositions, or costs of a paternity trial) must be
borne by the responding state. When the personal testimony of the
custodial parent or custodial parent is required in a paternity
trial, a telephonic hearing may be scheduled upon request in order to
secure the testimony of the custodial parent.
C. The
responding state should coordinate the testing schedule with the
initiating state. Genetic testing laboratories send the genetic test
report to the agency that is making payment. The original test report
must be sent to the agency that is taking the case to court, since
the report is submitted as paternity evidence.
D. When
paternity is established by the responding state, the Office of Child
Support Services must attempt to obtain a judgment for the genetic
testing costs to reimburse the initiating state. The court order
should address the repayment of those costs to the initiating state.
1.22.13 Initiating
Support Order Establishment
A. The
OCSS agency will initiate a UIFSA action to obtain an order for
support when:
1. The
non-custodial parent is located out of state;
2. Paternity
is not an issue in the case;
3. There
is no order for support.
B. The
tribunal may issue a child support order if:
1. The
non-custodial parent
has signed
a verified
statement acknowledging
parentage;
2. The
non-custodial parent
has been
determined by
or pursuant to
law to
be the
parent; or
3. There
is other
clear and
convincing evidence
that the
non-custodial parent
is the
parent.
1.22.14 Initiating
Intergovernmental Enforcement
A.
The OCSS
agency will
determine what
type of
action to
take and/or
request in
an intergovernmental
case depending
upon certain
circumstances. Under
UIFSA and
other applicable
enforcement laws,
the case
may be enforced
by the
Office of
Child Support
Services or
forwarded to
another state
for enforcement.
If it
is determined
that such
measures or remedies
under state
law are
inadequate, or
that additional
measures are available
and practicable,
or that
there is
no basis
to exercise
jurisdiction over
a non-resident
or the
exercise of
jurisdiction is
impracticable, OCSS
may request
enforcement in
another jurisdiction.
The agent
may request
Intergovernmental Wage
withholding if
direct wage
withholding is
impractical.
B. A
UIFSA action to establish an arrears order is needed when the
non-custodial parent
is located
out of
state, there is
no arrears
order, or for Registration
for Enforcement.
1.22.15 Initiating
Intergovernmental Income Withholding
A. When
OCSS identifies cases where direct wage withholding is not practical,
and intergovernmental income withholding is appropriate, the agent
will initiate action to request the responding State to issue an
income withholding order. This request is made on the Child Support
Enforcement Transmittal Form.
B.
The packet sent to the responding State or foreign country includes:
1. A
verified place
of employment
for the
non-custodial parent;
2. An
original and
four copies
of the
support order. The
original must
be certified
with the
court seal;
3. An
affidavit of
arrears showing
the accumulation
of arrears on
month by
month basis. An
original and
four copies are
required. The
original and
the two
copies that will
be sent
to the
responding State
should all be
notarized and
stamped with
the notary
seal. Welfare
cases are
signed by
the agent
as the
OCSS representative and
on non-welfare
cases the
custodial parent must
sign.
C. In
a UIFSA proceeding, the OCSS will prepare the appropriate
intergovernmental forms and forward the petition and other documents
to the Central registry of the responding state.
1.22.16 Registration
of a Foreign Order
A.
There are
two types
of registration:
Registration for
Enforcement and
Registration for
Modification.
1.
Registration for Enforcement
a. A
support order
or income-withholding
order of
another state
or foreign country may be
registered for
enforcement in
Rhode Island
by sending
the following
documents and
information:
(1) A
letter of transmittal from the tribunal requesting registration and
enforcement;
(2) Two
(2) copies,
including one
certified copy,
of all orders
to be
registered, including
any modification
of an order;
(3) A
sworn statement
by the
party seeking
registration or
a certified statement
by the
custodian of
the records
showing the
amount of
any arrearage;
(4) The
name of the non-custodial parent and, if known;
(5) The
non-custodial parent's address, social security number,
name and
address of
the non-custodial
parent's employer, and
any other
source of
income of
the non-custodial
parent;
(6) A
description and
the location
of property
of the
non-custodial parent
in this
state not
exempt from
execution; and
(7) The
name and
address of
the custodial
parent.
b. Upon
receipt, the order shall be registered. The non-custodial parent
shall be served with a Petition to Register for enforcement and an
order of confirmation. The party then has twenty days to contest the
registration. There are very few defenses that can be raised such as:
the order has been obtained through fraud, the order has been vacated
or suspended, there has been full payment of the arrears, statute of
limitations has expired or other limited defenses as the law
provides. If the party does not have a valid defense or fails to
contest, the order is confirmed.
c. A
registered order
is enforceable
in RI
in the
same manner
and is subject
to the
same enforcement
as a
RI order.
2. Registration
for Modification
a. An
order may
be registered
for Modification
in Rhode
Island if
the following
requirements are
met:
(1) The
child, the individual custodial parent, and the non-custodial parent
does not reside in the state that issued the order;
(2) The
petitioner who
is a
nonresident of
this state
seeks modification; and
(3) The
respondent is
subject to
the personal
jurisdiction of the
state; or
(4) All
of the
parties have filed
a written
consent in
the issuing tribunal
for a
tribunal of
this state
to modify the
support order
and assume
continuing, exclusive
jurisdiction over
the order.
b. Modification
of a
registered child
support order
is subject
to the
same requirements,
procedures, and
defenses that
apply to
the modification
of an
order issued
by this
state and
the order
may be
enforced and
satisfied in
the same
manner.
C. Choice
of Law in Registration
The
law of
the issuing
state governs
the nature,
extent, amount,
and duration of
payments. In a
proceeding for
arrearages, the
statute of
limitation under
the laws
of this
state or
of the
issuing state,
whichever is
longer, applies.
D. Reconciliation
of Multiple Orders
Under
the Uniform
Reciprocal Enforcement
Act multiple
orders were
entered on
a case
involving the
same parties.
As the
parties moved
from state to
state new
orders were
entered, while
the orders
continued to run
and accrue
arrears. Under
UIFSA, only
one child
support order
is the controlling
order. Although
the non-custodial
parents would
receive credit for
all payments
made under
any order,
only one
order is
in effect. Rules
had to
be developed
to determine
which order
was controlling. The
following is
a simplified
version of
the rules
used to establish
which, of
many orders,
is the
controlling order:
1. If
only one
court has issued
a child
support order,
that order
controls.
2. If
two or
more child
support orders
have been
issued the following
applies:
a. If
a party lives in one of the states that issued the order that order
controls,
b. If
each party lives in a state that issued orders, the current home
state of the child controls.
c. If
there are multiple orders but no one resides in any of the states
that issued orders, this state can issue an order as long as there is
jurisdiction Within thirty (30) days after issuance of an order, the
party obtaining the order shall file a certified copy of it with each
tribunal that issued or registered an earlier order of child support
so that those orders can be suspended.
1.22.17
Rhode Island as the Responding State
A.
The OCSS agency will respond to requests from other states to locate
non-custodial parents, establish paternity, and establish a child
support and medical order and to enforce those orders judicially and
administratively.
B. Legal
Basis
Rhode
Island will serve as a responding state to accept the UIFSA Petition
forwarded by the initiating state to locate the non-custodial parent,
establish paternity, establish a child support and medical order and
to enforce those orders. The statutes governing Rhode Island as the
responding state in an intergovernmental action are found in the R.I.
Gen. Laws § 15-23.1-303.
C. Duties
of Court and DHS
1. Rhode
Island acting as a responding state may do one or more of the
following:
a. Issue
or enforce an order, modify an order, or determine parentage;
b. Order
a non-custodial
parent to
comply with
a support order
specifying the
amount and
manner of
compliance;
c. Order
income withholding;
d. Determine
the amount
of arrearages
and specify
a method of
payment;
e. Enforce
orders by
civil or
criminal contempt
or both;
f. Set
aside property;
g. Place
liens;
h. Order
the non - custodial
parent to
inform of
his whereabouts;
i. Issue
a body
attachment;
j. Order
to seek
employment;
k. Award
reasonable attorney's
fees;
l. Any
other relief
available.
2.
The OCSS will send a certified copy of all support orders entered by
the RI Family Court to the initiating agency and shall transmit all
support collected to that agency.
D. Hearing
and Continuance
If
the custodial parent is not present at the hearing and the
non-custodial parent denies owing the duty of support alleged in the
petition or complaint or offers evidence constituting a defense, the
Family Court, upon request of either party, may continue the hearing
to permit evidence relative to the duty to be adduced by either party
by telephonic hearing.
E. Inappropriate
Tribunal
If
a petition
is received
by the
Office of
Child Support
Services and it
is inappropriate
for the
case to
be processed
and heard
in Rhode Island,
OCSS shall
forward the
pleadings to
the appropriate
agency for
processing and
notify the
petitioner of
the forwarding
agency.
F. Limited
Immunity of Petitioner
Under
UIFSA, participation
of a
petitioner in
a proceeding
before a
responding tribunal,
does not
confer jurisdiction
for other
proceedings. A
petitioner may
not be
served while
present in
the state. This
does not
apply if
the petitioner
commits acts
while in
the state that
would subject
him/her to
civil litigation.
G. Evidence
of Marriage
Laws
attaching a privilege against the disclosure of communications
between a married couple are inapplicable to proceedings under the
R.I. Gen. Laws Chapter 15-15. A married couple are competent
witnesses to testify to any relevant matter, including marriage and
parentage.
H. Rules
of Evidence
1. The
physical presence
of the
petitioner in
this state
is not
required for the
establishment,
enforcement, or
modification of
a support
order or the
rendition of
a judgment
determining parentage.
The following
are admissible in
a hearing:
a. A
verified petition,
affidavit, and
substantiating documents
are admissible
in evidence
if given
under oath
by a
party or witness
residing in
another state.
b. A
copy of
the record
of child
support payments
certified is
evidence and
is admissible
to show
whether payments
were made.
c. Copies
of bills
for paternity
testing, and
for prenatal
and postnatal health
care of
the mother
are admissible.
d. Documentary
evidence transmitted
by telephone,
telecopy, or other
means. If requested,
Telephonic hearings
shall be arranged
by OCSS
to take
testimony. A party
called to testify
may refuse
to answer
but the
Court may
draw an adverse
inference.
2. There
is no privilege against disclosure between spouses.
I. Paternity
If
the obligor asserts as a defense that he is not the father of the
child for whom support is sought and it appears to the court that the
defense is not frivolous, and if both parties are present at the
hearing or the proof required indicates that the presence of either
or both of the parties is not necessary, the court may adjudicate the
paternity issue. Otherwise the court may adjourn the hearing until
the paternity issue has been adjudicated.
J. Non
Parentage as a Defense
A
party whose parentage has been previously determined may not plead
non parentage as defense. Any contest regarding parentage must be
brought in the state where the parentage was adjudicated.
K. Intrastate
Application
This
act applies if both the custodial parent and obligor are
domiciliaries and/or residents of this state.
L. Appeals
1. If
the Office of Child Support Services is of the opinion that an order
is erroneous, and presents a question of law warranting an appeal in
the public interest, it may:
a. Perfect
an appeal to the State Supreme Court if the support order was issued
by a court of this State; or
b. Cause
the appeal
to be
taken in
the other
state if
the support order
was issued
in the
other state.
2. In
either case, expenses of the appeal may be paid on its order from
funds appropriated for its office.
M. Foreign
Support Orders-Additional Remedies
If
the duty of support is based on a foreign support order, the
custodial parent has the additional remedies as provided in the R.I.
Gen. Laws § 15-14.1-5.
N. Representation
of Custodial parent by DHS
1.
Whether acting on its own behalf or on behalf of the custodial
parent, non-custodial parent, or initiating state, the Department of
Human Services OCSS attorneys do not represent the interests of any
individual person, and its attorneys represent only the department.
An attorney custodial parent relationship is not created between
department attorneys and any person or entity.
2. Nothing
precludes any party from retaining the services of a private attorney
to legally represent their interests.
O. Communication
Between States
The
Office of Child Support Services may communicate with another state
agency in writing, by telephone or other means, to obtain information
concerning the laws of that state, the legal effect of a judgment,
decree, or order of that tribunal, and the status of a proceeding in
the other state. OCSS must also reciprocate and provide information
upon request.
P. Assistance
with Discovery
The
Office of Child Support Services may request another state agency for
help in obtaining discovery; and the Rhode Island Family Court may
compel a person over whom it has jurisdiction to respond to a
discovery order issued by another state.
Q. Nondisclosure
of Information
Upon
a finding, which may be made by ex-parte , that the health,
safety, or liberty of a party or child would be unreasonably put at
risk by the disclosure of identifying information, or if an existing
order provides, the RI Family Court may order that the address of the
child or party or other identifying information not be disclosed in a
pleading or other document filed in a court file.
R. Employer's
Receipt of Income Withholding
An
income-withholding order issued in another state may be sent directly
to employer in this state without first filing a petition.
S. Case
Processing Time
Frames
1. Within
seventy-five (75) calendar days of receiving an Intergovernmental
Child Support Enforcement Transmittal form and documentation, the
intergovernmental agent will:
a. Provide
location services when requested or needed;
b. Notify
the initiating agency of the necessary additions or corrections if
unable to proceed with the case because of inadequate documentation;
c. Process
the case to the extent possible if the documentation received with a
case is inadequate and cannot be remedied by the Intergovernmental
Unit without the assistance of the initiating state, pending
necessary action by the initiating state.
2. Within
ten (10) working days of discovering that a non-custodial parent
resides in a different state, the OCSS agency must return the form
and documentation, including the new location, to the initiating
state, or if directed by the initiating state, forward the form and
documentation to the central registry in the state where the
non-custodial parent has been located.
1.23 Modification of Child Support
Orders
1.23.1 Introduction
A. Under
federal regulations and State statutes, the Office of Child Support
Services is required to provide for the review and
modification/adjustment of child support orders being enforced under
Title IV-D of the Social Security Act.
B. These
reviews will be conducted as a result of an appropriate request from
any party subject to a child support order in the State.
C. Although
requests for reviews will be evaluated by the Office of Child Support
Services staff, only the RI Family Court is authorized make a
decision to actually modify or adjust an order. The Office of Child
Support Service's decision whether or not to refer a request for a
review of a R.I. order to the RI Family Court will be made in
accordance with the criteria specified in § 1.23.2 of this Part.
D. The
same criteria will be applied in reviewing requests for reviews in
intergovernmental cases.
1.23.2 Criteria
for Modification-Requested Reviews
A. Criteria
and Response from OCSS
Under
federal regulations and State statutes, the Office of Child Support
Services is required to respond to requests for reviews of support
orders being enforced under Title IV-D of the Social Security Act
from either parent subject to a child support order in the State.
Requests by either parent for a review must be accompanied by
information that demonstrates a change in circumstances that meets
the criteria listed below.
B.
Denial of Request for Review
Referral
of requests for reviews to the RI Family Court for hearing may be
denied by the Office of Child Support Services because the request
fails to meet any of the criteria listed below. (see § 1.23.5 of
this Part for Office of Child Support Services responsibilities on
intergovernmental cases).
C. How
to Apply for a Review
1. A
request for a review must be made in writing. The request must
contain information that will enable the Office of Child Support
Services to determine if it meets any of the criteria listed below.
It should be mailed to:
Office
of Child Support Services
77
Dorrance St.
Providence,
RI 02903
2. The
Office of Child Support Services must make a decision whether or not
the order should be reviewed within fifteen (15) days of receipt of
all information needed to make a decision.
D. Criteria
for Referring Requests for Review to RI Family Court
The
Office of Child Support Service's response to a request for a review
will consist of evaluating the request to determine if there is
sufficient evidence/documentation to meet any of the following
criteria that would warrant a hearing in RI Family Court:
1. The
existing support
order would
deviate fifteen
percent (15%) or
more as
a result
of applying new
income information
to the
State's Child
Support Guidelines
or it
has been
thirty-six months
since the
order was
entered or
it was
last reviewed.
2. That
health insurance
is available
at reasonable
cost to the
non-custodial parent
and the
existing support
order makes
no provision
for the
health care
needs of the
children covered
by the
order or
does not otherwise
provide for
health care
coverage.
3. To
add an
additional child
of the
parties to
the order who
is not
covered by
the existing
support order.
4. There
has been
a custody
change or
a change
in the
responsibility for
care of
a child
covered by
the order.
5. Since
the entry
of the
order, the
party is
now incurring the
expenses of
an additional
minor dependent not
subject to
the existing
child support
order.
1.23.3 Requested
Reviews
A.
Custodial Parents
1. If
the Office of Child Support Service's evaluation of the custodial
parent's request for a review of the order determines that a hearing
before RI Family Court is warranted, a court date will be assigned
and the Office of Child Support Services will provide for the service
of process to both parties to the order. Once served, the custodial
parent will be required to appear and give testimony at the court
hearing. Attorneys for the Office of Child Support Services will only
represent the State of RI and will not legally represent either party
at the court hearing.
2. If
the Office of Child Support Services determines that circumstances do
not warrant a hearing in R.I., the Family Court and the requesting
custodial parent are notified. This notification will also inform the
custodial parent that s/he may submit additional information not
previously provided if s/he would like Office of Child Support
Services to reevaluate the request. Also, included in this notice
will be information about the self-represented process whereby the
custodial parent may file a motion for modification with the court
without the involvement of the Office of Child Support Services
provided that the custodial parent has not presently assigned his or
her right to support to the state in accordance with any and all
provisions as it relates to eligibility to collect RIW benefits.
B. Non-Custodial
Parents
1. The
request for relief form is found on the website at www.cse.ri.gov .
2. The
Office of Child Support Services will evaluate a written request from
a non-custodial parent to see if it meets any of the
modification/adjustment criteria listed in § 1.23.2 of this Part and
notify the non-custodial parent. If the request has been accepted,
OCSS will file a Motion for Relief on behalf of the non-custodial
parent and serve the custodial parent for the hearing date. If the
request has been rejected, a notice will be sent to the non-custodial
parent stating the reason for the rejection. It will also inform the
non-custodial parent of his/her right to file a self-represented
motion with the court. The forms are available on the website or at
Family Court.
3. All
decisions on whether or not to modify an order rest with the court.
1.23.4 Mandatory
Reviews
A. Under
federal regulations and State statutes, a review of an order is
required without the need of a request from either parent in the
following type cases; except as provided below, all RIW, Medical
Assistance Only, and IV-E Foster Care cases where it has been either
thirty-six (36) months since the order was entered or thirty-six (36)
months since the order was last reviewed.
B. RIW
and IV-E Foster Care cases will automatically be referred to R. I.
Family Court for adjustment hearings when they meet the above
criteria. No other criteria need be met before referral to court is
made. (see § 1.23.5 of this Part for procedures on intergovernmental
cases.)
C. Medical
Assistance Only cases will be referred to RI Family Court only if
there is either no court order providing for the health care needs of
a child or a cash medical support order where it has been either
thirty-six (36) months since the order was entered or thirty-six (36)
months since the order was last reviewed of a child who is included
in the Medical Assistance Only case. (see § 1.23.5 of this Part for
procedures on intergovernmental cases.)
D. Cases
with characteristics for mandatory review that need not be reviewed
are those where:
1. A
Case closure criterion exists. (see §§ 1.10.2 and 1.10.3 of this
Part.)
2. The
youngest child covered by the order is at least seventeen (17) years
six (6) months old, and there is no outstanding past due support.
3. There
has been a good cause granted in the case for not pursuing child
support. (see § 1.3.6 of this Part.)
E. All
other cases will be reviewed every three (3) years upon the request
of either party or upon the request of the state, and if appropriate,
the order will be adjusted in accordance with the child support
guidelines if the amount of the child support award under the order
differs from the amount that would be awarded in accordance with the
guidelines. The adjustment of the order shall be made without the
requirement for proof or showing a change in circumstances.
F. In
the case of a request for a review before the three (3) year period,
the amount of support may, in the court's discretion, shall be
modified if the court finds that a substantial change in
circumstances has occurred. The court, in its discretion, may modify
a child support order retroactively only to the date that notice of a
petition to modify was given to the adverse party if the court finds
that a substantial change in circumstances has occurred.
1.23.5 Review
and Modification - Intergovernmental Cases
A. R.I.
as the Responding State
1. If
all of the parties who are individuals reside in this state and the
child does not reside in the issuing state, a tribunal of this state
has jurisdiction to enforce and to modify the issuing state's child
support order in a proceeding to register that order. After a child
support order in another state has been registered and confirmed in
this state, the responding tribunal of this state may modify that
order if the above does not apply and, after notice and hearing it
finds that the following requirements are met:
a. The
child, the individual custodial parent, and the obligor do not reside
in the issuing state;
b. A
petitioner who is a nonresident of this state seeks modification; and
c. The
respondent is subject to the personal jurisdiction of the tribunal of
this state; or
d. The
child, or a party who is an individual is subject to the personal
jurisdiction of the tribunal of this state and all of the parties who
are individuals have filed a written consent in the issuing tribunal
for a tribunal of this state to modify the support order and assume
continuing, exclusive jurisdiction over the order.
2. Modification
of a registered child support order is subject to the same
requirements, procedures and defenses that apply to modification of
an order issued by a tribunal of this state and the order may be
enforced and satisfied in the same manner.
3. Within
thirty (30) days after issuance of a modified child support order,
the party obtaining the modification shall file a certified copy of
the order with the issuing tribunal that had continuing, exclusive
jurisdiction over the earlier order and in each tribunal in which the
party knows the earlier order has been registered.
4. On
issuance of an order modifying a child support order issued in
another state, a tribunal of this state becomes the tribunal of
continuing, exclusive jurisdiction.
5. Any
requested review of an order on a RIW case with a UR case status
where it has been three years since the order was entered or three
years since the last review, will automatically be referred to RI
Family Court for an adjustment hearing. No other criteria for review
need be met.
6. Notification
requirements and the time frames for completion of reviews are the
same as they are for instate cases. The Office of Child Support
Services is responsible for sending any required notices regarding
the review to the parent in R.I. and to the parent in the initiating
State through that State's local enforcement agency.
B. R.I.
as the Initiating State
1. When
acting as the initiating State (UI case status), Office of Child
Support Services must respond to a request for review of the order by
evaluating the request to determine whether it should be forwarded to
the responding State (the State where the order was entered). The
decision whether to forward the request to the responding State is
based on the same criteria used in determining whether instate
requests for reviews should be referred to R.I. Family Court.
2. Any
active RIW, or IV-E Foster Care case where it has been three (3)
years since the order was entered or three (3) years since the order
was last reviewed, will automatically be referred to the responding
State for review. There will be no need to evaluate whether the case
should be referred or not. Of course, the decision whether to adjust
the order or decide that no adjustment is warranted will rest with
the responding State.
3. For
MAO cases where it has been three (3) years since the order was
entered or three (3) years since the order was last reviewed, the
case will only be referred to the other jurisdiction if the existing
order does not provide for the health care needs of a child who is
included in the Medical Assistance Only household or has a cash
medical support order that has been entered or has not been reviewed
in the past three years.
4. In
each of these three (3) types of cases, RIW, MAO, and IV-E Foster
Care, the Office of Child Support Services will have met its
responsibilities under the federal regulations pertaining to the
periodic review and adjustment of support orders by making the
referral to the other State.
1.23.6 Retroactive
Modification of Child Support
A. Notwithstanding
the provisions of R.I. Gen. Laws § 15-5-16.2, the court in its
discretion may modify a child support order retroactively only to the
date that notice of a petition to modify was given to the adverse
party, if it finds that a substantial change in circumstances has
occurred. The court shall set forth in its decision the specific
findings of fact which show a substantial change in circumstances,
and upon which findings of fact the court has decided to make its
order of modification retroactive. The court in its discretion may
for good cause shown suspend payment of child support arrearages
until there is a finding by the court of financial ability to make
payment on arrearages.
1.23.7 Emancipation
A. Pursuant
to Rhode Island law, a child is emancipated upon his or her
eighteenth birthday. However, the court may, if in its discretion it
deems it necessary or advisable, order child support and education
costs for children attending high school at the time of their
eighteenth birthday and for ninety (90) days after graduation, but in
no case beyond their nineteenth birthday. The court may order child
support to continue in the case of a child with a severe physical or
mental impairment until the child reaches the age of twenty-one (21).
Furthermore, a non-custodial parent is obligated to continue paying
current child support until s/he has obtained a modification
terminating that obligation. Therefore, the Child Support Services
agent will continue to enforce an order until such time as
notification is received, from the Family Court, that the order has
been terminated.
1.23.8 Modification
A. An
order may be modified prior to the three (3) year review period if
the court finds that a substantial change in circumstances has
occurred in accordance with R.I. Gen. Laws § 15-5-16.2.
B. An
order may be modified in one of two ways:
1. Filing
a Motion to Modify when only a modification is being sought. The
non-custodial parent is making payments as ordered;
2. Filing
a Motion to Adjudge in Contempt and to Modify, when both a
modification and enforcement of the order are needed.
C. In
non-assistance (NA) cases, the Child Support agent will get prior
approval of the Office of Child Support Services attorney before
filing for a modification.
D. Motion
to Modify
An
income and expense sheet will be served upon the custodial and
non-custodial parent along with the Motion to Modify. Both parties
are required to complete the form called the Statement of Income and
Assets (OCSS-1) and file it with the Court.
E. Motion
for Relief
1. If
a non-custodial parent has been placed under a child support or
medical order, and becomes unemployed or otherwise is receiving no
other income or benefits, or he becomes underemployed, the Office of
Child Support Services can assist in filing an action to modify
called a Motion For Relief. The non-custodial parent may complete a
Request to file a Motion for Relief. Legal counsel for the Office of
Child Support Services does not legally represent either party.
2. The
State of Rhode Island is the moving party. The non-custodial parent
is entitled to relief only as of the date of notice of the motion.
The Court is prohibited, by law, from giving the non-custodial parent
retroactive relief back to the date of unemployment. The Motion
therefore should be filed immediately upon termination from
employment or when the unemployment benefits stop. A hearing date
will be assigned. Once before the Court, the non-custodial parent
must present the reasons he/she is seeking a modification or
suspension of his/her order. The Court will calculate a new order
based upon the Child Support Guidelines.
F. Motion
to Adjudge in Contempt and to Modify
The
Office of Child Support Services may decide when it is appropriate to
file a Motion to Adjudge in Contempt and to Modify. The custodial
parent does not make that decision but certainly may file the motion
at any time as a self-represented litigant. The agent will obtain an
arrearage affidavit if appropriate and will follow procedures as
outlined under § 1.21.2 of this Part, Contempt Processing.
G. Modification
of Order Upon Termination of Rights
1. A
termination of parental rights does not necessarily terminate a
parent's obligation to pay child support. However, if a child is
adopted, a parent's obligation to pay child support is terminated as
of the date of adoption.
2. In
order to modify a pre-existing child support order upon termination
of parental rights, the following must occur:
a. The
non-custodial parent must file a motion with the Rhode Island Family
Court seeking to modify or terminate his or her child support
obligation
b. The
child has individual interest that must be represented in a child
support hearing before the order can be modified. The Office of Child
Support Services may request a Guardian Ad Litem to represent the
child in a case that the parent is not the recipient of either RIW
benefits or Medical Assistance
c. In
accordance with Rhode Island general law, the Office of Child Support
Services will take the position that a child support petition for a
child should be terminated upon the date of the child's adoption
d. The
Office of Child Support Services will seek a hearing in these
circumstances and will not agree to a suspension of the child support
order solely because the non-custodial parent's rights have been
terminated. The focus of the hearing will be the income and assets of
the non-custodial parent and his or her ability to pay child support.
3. In
the above circumstances, it is the position of the Office of Child
Support Services that it would be contrary to policy to waive any
child support arrears that were due prior to the adoption of the
child.
1.24 Child Support Financial
Management
1.24.1 Legal
Basis
A. Whenever
an individual assigns his/her support rights to the State, that
assignment constitutes an obligation owed to Rhode Island by the
individual responsible for providing such support.
B. Such
an obligation is collectible under all applicable State and local
processes. Likewise, whenever the Department of Children, Youth and
Families (DCYF) or such other department, agency, society,
institution or person having the charge, care or custody of a child
must pay for the support and maintenance of a child, the parents of
the child are liable for the support and maintenance of the child and
are liable for the reimbursement to the DCYF or other department,
agency, society, institution or person having the charge, care, or
custody of a child for the support and maintenance of the child. It
is within the discretion of DCYF, in accordance with their policy and
regulations, to determine which cases to refer.
1.24.2 Collections
by the State
A. The
State Disbursement Unit is operated by the Office of Child Support
Services and utilizes the automated procedures, electronic processes,
including electronic funds transfer (EFT) provisions and computer
driven technology for the collection and disbursement of support
payments, including procedures for receipt from parents, employers
and other states, and for disbursement to custodial parents and other
custodial parents for:
1. accurate
identification of payments;
2. to
ensure prompt disbursement of the custodial parent's share of any
payment; and
3. to
furnish any parent, upon request, timely information on the current
status of support payments.
B. The
Office of Child Support Services shall distribute all amounts payable
within two (2) business days after receipt from the employer or other
source of periodic income. In cases in which support is assigned to
the state and where there is an existing child support order made
payable to the custodial parent, after notice to the obligor and
custodial parent, the state disbursement unit shall direct the
obligor through a wage withholding order to change the payee to the
appropriate instate or intergovernmental government entity without
the necessity for a court order or hearing.
C. Arrearage
An
arrearage is a debt that results because of an unpaid support
obligation. An arrearage accrues at the rate of the unpaid periodic
child support amount.
D. Unreimbursed
Assistance
The
Department of Human Services shall not seek reimbursement for RIW
remitted either from the custodial or non-custodial parent, except in
cases of fraud.
E. Interest
on Arrearages
All
alimony and support obligations established under R.I. Gen. Laws
Chapter 15-5 that are in arrears shall be subject to the imposition
of interest at the rate of 1% per month on the unpaid balance.
F. Fees
1. A
fee represents an amount due as payment for services rendered.
2. IV-D
fees include but are not limited to DNA testing fees, non-assistance
(NA) fees, and services for location only.
1.24.3 Verification
of Child Support Payments
A. When
calculating a child support debt, the Child Support Services agent
will document any information used to determine the debt amount. In
addition, s/he will explain how, why, and when the information was
obtained and exactly what it verifies.
B. The
following resources can be used in calculating the amount of child
support owed:
1. The
amount of assistance paid on behalf of the payee and each child;
2. The
amount of court ordered support due. This will be calculated by using
the original court order and any subsequent modifications;
3. The
non-custodial parent's payment receipts, the custodial parent's
Affidavit of Arrearage, and/or the court payment records.
1.24.4 Distribution
A. Distribution
refers to the act of collecting child support payments and disbursing
those payments to the proper individual or agency.
B. Prior
to October 1, 1998, for purposes of distribution in IV-D cases,
amounts collected, other than collections made through Federal or
State income tax offset, are treated first as payment on the required
child support obligation for the month in which the support was
collected, next applied to any applicable "A" (RIW)
arrearage, and then "N" (Non-RIW) arrearage.
C. Amounts
collected through Federal and State income tax refund offset must be
applied to arrears owed to the State ("A"), then applied to
arrears owed to the custodial parent ("N"), unless
otherwise specified in a support order(s).
D. On
or after October 1, 1998, distribution is subject to new criteria
based on the custodial parent's RIW or former RIW status, assignment
requirements, and priority ordering of arrearages as outlined in the
following subsections.
E. The
Office of Child Support Services will re-process child support
collections under the(se) new rules, and to the extent that
additional monies are owed to families, such payments will be
authorized. If families are adversely affected by the new rules, no
amount will be owed for any collection made prior to July, 1999.
F. Date
of Collection
This
section is
divided into
policy and
procedures to
be followed
based on support
collected before
October 1,
1998 and
on or
after October
1, 1998.
1. Support
collected before October 1, 1998:
a. Intergovernmental
Cases
For
collection and distribution purposes, an intergovernmental case is
one in which one of the parties resides in Rhode Island and the other
resides out of state. The following rules shall be used for
determining the date a child support payment is made by a
non-custodial parent in intergovernmental cases:
(1) The
date of collection for distribution purposes in IV-D
intergovernmental cases shall be the date on which the payment is
received by the IV-D agency in Rhode Island or the legal entity of
any State or political subdivision actually making the collection,
whichever is earliest. For intergovernmental cases, the responding
IV-D agency must include sufficient information to identify the case
and indicate when the payment was received at the initial point of
receipt by the IV-D agency or legal entity of the State or political
subdivision actually making the collection, whichever is earlier. In
the absence of sufficient information, the Office of Child Support
Services must promptly obtain this data.
(2) When
the custodial parent turns in support payments which were received
directly from the non-custodial parent, the Office of Child Support
Services will use the date on the check or money order as the date of
collection unless the custodial parent can provide proof that the
payment was made at another time. If the support payments were
forwarded to the custodial parent from another jurisdiction, the
Office of Child Support Services must contact the other jurisdiction
to ascertain the date the collection was made in that jurisdiction.
b. In-State
Cases
An
in-state case is one in which both parties reside in Rhode Island.
The following rules shall be used for determining the date a child
support payment is made by a non-custodial parent in in-state cases:
(1) With
respect to in-state payments made through wage or other income
withholding that are received by the IV-D agency, the date of
collection for distribution purposes shall be the date the wages or
other income are withheld (pursuant to a court or administrative
order for income withholding) to meet the support obligation. If the
employer fails to report the date of withholding, the IV-D agency
must reconstruct that date by contacting the employer, or comparing
actual amounts collected with the pay schedule specified in the court
or administrative order;
(2) With
respect to
in-state payments
(except for
tax offset, income
withholding collections,
and payments
made in
person at the
RI Family Court or
any DHS
office), the
date of collection
for distribution
purposes shall
be the
date the payment
is mailed
as evidenced
by a
legible U.S.
Postal Service postmark
or a
legibly dated
receipt from
a commercial carrier.
For payments
made in
person at
the RI Family Court or
any DHS
office, the
date of
collection is the
date the
payment is
tendered;
(3) The
policy on
support payments
made directly
to the custodial
parent from
either the
non-custodial parent
or another jurisdiction
is the
same for
in-state cases
as it is
for intergovernmental
cases. (See above
policy for
intergovernmental cases.)
(4) If
none of
the above
is applicable,
the date
of collection
shall be
the date
the payment
was actually
received by
the Department of
Human Services
or its
agent, RI Family
Court.
2. Support
Collected On or After October 1, 1998:
For
support collected
on or
after October
1, 1998,
the date
of collection is,
for amounts
collected and
distributed under
title IV-D of
the Act,
the date
of receipt
by the
State disbursement
unit, except when
current support
is withheld
by an
employer in
the month
when due and
is received
by the
State disbursement
unit in
a month
other than the
month due. When
this occurs,
the date
of withholding
is deemed
to be the
date of
collection.
G. Payment
Received
1. Prior
to October
1, 1998
Any
amount collected
in a
month is
considered payment on
the required
support obligation
for the
month in
which the support
was collected
and will
be sent
to the
family within
fifteen (15) calendar
days of
the date
of initial
receipt by
the State.
2. On
or after October 1, 1998
Any
amount collected is distributed according to the order of
distribution based on the family's RIW, non-RIW, or former RIW status
as outlined in § 1.24.4 of this Part and any payment distributed to
the family shall be sent to the family within two (2) business days
of the determination that the amount is due and owing.
H. Distribution
for Current RIW Recipients
1. All
child support
amounts collected,
except for
amounts collected
through Federal
income tax
refund offset,
must be
treated first
as payment on
the required
support obligation
for the
month in
which the support
was collected
and if
any amounts
are collected
which are
in excess of
such amount,
these excess
amounts shall
be treated
as amounts which
represent payment
on the
required support
obligation for
previous months.
2. The
State shall
retain all
collections of
child support
up to
the amount of
unreimbursed assistance
while a
family receives
cash assistance under
the RIW
Program.
3. Any
collections on
or after
October 1,
1998 shall
be distributed
in the following
order, to satisfy:
a. Current
support and, as appropriate, current spousal support;
b. RIW
arrears, temporary arrears, and spousal arrears;
c. MA
reimbursement;
d. Non-assistance
arrears if there are active SSI children;
e. Non-MA
reimbursement.
4. Hard-copy
reports of
cases receiving
Excess of
Grant payments
and Excess
of Unreimbursed
Assistance payments
are generated monthly
electronically and placed in the document repository.
5. If
the IV-A
agency determines amounts
are sufficient
to make
families ineligible
for an
assistance payment,
agency representative
closes the
case. The eligibility
system automatically
codes the
case as
“Non-assistance” and
issues a
Continuation of
Services letter
explaining that
the Child
Support Services
agency will
continue to
provide IV-D
services.
6. In
any case
in which
direct support
payments are
received by
a RIW recipient
with respect
to whom
an assignment
is in
effect, such
payments shall
be endorsed
over to
the Office
of Child
Support Services
or Family
Court, as
appropriate, and
not retained
by the
family.
I. Payment
of Pass Through to RIW Families
1. All
child support collections made on behalf of current RIW custodial
parents shall be retained by the state up to the cumulative amount of
un-reimbursed assistance.
2. For
any month in which a non-custodial parent makes a child support
payment in the month when due and the support is collected by the
Office of Child Support Services for a child or children receiving
RIW cash assistance, the first fifty dollars ($50) of the child
support payment, or the actual amount of the child support payment if
the payment is less than fifty dollars ($50), shall be paid to the
family in which the child resides. If more than one non-custodial
parent makes a child support payment to children living in the same
family, there shall be only one (1) payment not to exceed fifty
dollars ($50) paid to the family from the child support collected.
This payment is known as the "pass through" payment and
shall be sent to the family within two (2) business days of the
determination of the amount that is due and owing and no later than
within two (2) business days of the end of the month in which the
support was collected.
3. Pass
through payments are excluded from income in calculating the family's
RIW cash assistance amount. However, the fifty dollars ($50) pass
through is counted as income in the Food Assistance Program.
J. Payment
in Excess of Grant
1. Any
amount collected during the month which represents payment on the
required support obligation for that month, and is in excess of the
fifty dollars ($50) pass through, shall be retained by the State to
reimburse, in whole or in part, the assistance payment for the month
in which the support was collected.
2. If
the monthly amount owed and collected is greater than the assistance
payment for the month, DHS authorizes payment to the family an amount
equal to the difference between the assistance payment for the month
and the court ordered amount for that month. This payment will be
made in the month following the month in which the amount of the
collection was used to re-determine eligibility for a RIW payment. If
the court-ordered amount is less than the RIW payment, no amount
shall be paid to the family. In cases in which there is no court
order, the family shall not be paid any amount under this section.
3. Any
month in which the amount collected exceeds the current support due,
the State will retain such amount as reimbursement of past assistance
payments up to the cumulative amount of unreimbursed assistance.
4. Any
payment made under this section must be sent to the family within two
(2) business days of the determination that the amount is due and
owing.
K. Future
Payments
If
an amount collected represents payment on the required support
obligation for future months, the amount will be applied to future
months only after amounts which have been collected fully satisfy the
support obligation assigned for the current month and all past
months.
L. Federal
or State Tax Offset-Active RIW Cases
1. Prior
to October 1, 1998, amounts collected through Federal or State tax
offset are applied first to RIW arrears. Any balance remaining is
applied to the past-due support owed to the family in the amount
certified to the federal and state governments.
2. Any
collection received as a result of Federal or State income tax refund
offset, which is due to a RIW family, must be sent within thirty (30)
calendar days of the date of initial receipt by the IV-D agency.
3. For
amounts collected under Federal income tax offset on or after October
1, 1998, the amount collected in active RIW cases will be distributed
as outlined below. Any collection received from tax offset, which is
due to a RIW family, must be sent within two (2) business days of
receipt.
4. The
State shall retain all collections of child support while a family
receives cash assistance under the RIW Program. Any collections from
Federal income tax offset on or after October 1, 1998 shall be
distributed in the following order, to
satisfy:
a. RIW
arrears;
b. Temporary
arrears;
c. Spousal
arrears;
d. Reimbursement;
and
e. Non-assistance
arrears if there are active SSI children.
5. Amounts
collected through
state income
tax offset
will be
applied and
distributed in
accordance with
§ 1.24.4(G) of this Part.
M. Payment
in Excess of Required Support
1. Prior
to October 1, 1998
Any
amount collected in a month which exceeds the required monthly
support amount is treated as payment on the required support
obligation for previous months (past-due support). The State will
retain such amounts to satisfy arrears that have accrued while the
family was on assistance when:
a. There
is no specific arrears order on the case; or
b. There
is no arrearage priority set on the case to distribute to non-RIW
arrears first.
2. After
October 1, 1998, any amount collected in excess of the required
current monthly support obligation for active RIW cases and for
former RIW cases, as outlined in § 1.24.4(G) of this Part.
N. Former
AFDC/RIW Cases
1. Prior
to October 1, 1998
a. When
a family ceases to receive RIW, amounts collected that represent
payment on the current support obligation will be sent to the family
within fifteen (15) calendar days of the date of initial receipt in
the State.
b. However,
support collected in a month after any month in which the support
collected made the family ineligible for an assistance payment, but
prior to or in the month in which the family receives its last
assistance payment, shall be used to reimburse the State for any
assistance paid in such months with any excess being paid to the
family. This provision will not apply when a hearing is requested
pursuant to 45 C.F.R. § 205.10. In these cases, when the hearing
results in a determination that the family was ineligible for an
assistance payment, the Office of Child Support Services will:
(1) Determine
the total amount of support paid in the last month assistance was
paid;
(2) Determine
the total amount of assistance paid in the month; and
(3) Pay
the excess amount to the family.
c. If
the family is determined to be eligible for assistance, distribution
will continue as outlined in § 1.24.4(G) of this Part.
2. On
or after October 1, 1998
Other
than collections through Federal
income tax
refund offset,
the State
will:
a. Distribute
the amount collected to satisfy the current monthly support
obligation and pay that amount to the family;
b. Distribute
any amount above the current monthly support obligation to satisfy
never-assigned arrearages and pay that amount to the family;
c. Distribute
any amount in excess of the amounts distributed in a. and b. to
satisfy unassigned pre-assistance arrearages and
conditionally-assigned arrearages and pay that amount to the family.
d. Distribute
any amount above amounts distributed in §§ 1.24.4(N)(2)(a) through
(c) to satisfy permanently-assigned arrearages.
e. Reduce
the cumulative amount of un-reimbursed assistance by the total amount
distributed under § 1.24.4(N)(2)(d) of this Part, distribute
collections exceeding the cumulative amount of un-reimbursed
assistance to satisfy unassigned during-assistance arrearages and pay
those amounts to the family.
O. Federal
or State Tax Offset-Former RIW Cases
1. Prior
to October 1, 1998
a. Amounts
collected through Federal or State tax offset are applied first to
RIW arrears. Any balance remaining is applied to the past-due support
in the amount certified to the federal and state governments.
b. Any
collection received as a result of Federal or State income tax refund
offset that is due to a family must be sent within thirty (30)
calendar days of the date of initial receipt by the IV-D agency.
2. On
or After October 1, 1998
Any
collection received from tax offset that is due to a custodial parent
must be sent within two (2) business days of receipt. The amount
collected in former RIW cases are distributed as outlined below, to
satisfy:
a. RIW
arrears and conditional arrears;
b. Reimbursement,
not including past liability;
c. Non-assistance
arrears and unassigned during assistance arrears;
d. Past
liability; and
e. Spousal
arrears.
3. Amounts
collected through state income tax offset will be applied and
distributed in accordance with § 1.24.4(G) of this Part.
P. Never-Assistance
Cases
1. Prior
to October 1, 1998
a. All
support collected is first applied to the required support obligation
for the month in which the support is collected and is sent to the
family within fifteen (15) calendar days of the date the collection
is received by the Family Court.
b. Any
amount collected in excess of the required current support amount is
applied to past-due support. Payments are sent to the family within
fifteen (15) calendar days of the date the collection is received by
the State.
2. On
or after October 1, 1998
All
support collections must be paid to the family within two (2)
business days.
Q. Foster
Care Distribution
1. For
distribution purposes, amounts collected in Foster Care maintenance
cases shall be treated first as payment on the required support
obligation for the month in which the support was collected and if
any amounts are collected which are in excess of such amount, these
excess amounts shall be treated as amounts which represent payment on
the required support obligation for previous months.
2. Effective
June 9, 1988, the date of collection shall be the date on which the
payment is received by the Office of Child Support Services or the
legal entity of any State or political subdivision actually making
the collection, whichever is earliest. In any case in which
collections are received by an entity other than the agency
responsible for final distribution under this section, the entity
must transmit the collection within ten (10) days of receipt.
3. Payment
Received
Any
amount collected in a month which represents payment on the required
support obligation for that month will be retained by the State to
reimburse itself for foster care maintenance payments.
4. Payment
in Excess of Required Support
a. If
the amount collected is in excess of the monthly amount of the foster
care maintenance payment but is not more than the monthly support
obligation, the State will pay the excess to the state agency
responsible for supervising the child's placement and care.
b. If
the amount collected exceeds the amount required to be distributed as
described above, but is not greater than the total unreimbursed
foster care maintenance payments provided or unreimbursed assistance
payments the State will retain the excess to reimburse itself for
these payments. If past foster care payments are greater than the
total support obligation owed, the maximum amount the State may
retain as reimbursement for such payments is the amount of such
obligation.
c. If
amounts are collected which represent the required support obligation
for periods prior to the first month in which the family received
public assistance or foster care maintenance payments, such amounts
may be retained by the State to reimburse the difference between such
support obligation and such payments.
d. Any
balance remaining is paid to the State agency responsible for
supervising the child's placement and care and is used to serve the
best interest of the child.
5. Future
Payments
If
an amount collected as support represents payment on the required
support obligation for future months, the amount will be applied to
those future months. However, no amounts can be applied to future
months unless amounts have been collected which fully satisfy the
support obligation for the current month and all past months.
6. Foster
Care Maintenance Payments Cease
When
a State ceases making foster care maintenance payments the assignment
of support rights terminates except for the amount of any unpaid
support that accrued under the assignment. The Office of Child
Support Services will attempt to collect such unpaid support.
7.
Intergovernmental Cases
When
a non-custodial parent is making payments to one state IV-D agency
for a family residing in another state, amounts collected by the
responding agency must be forwarded to the initiating State within
fifteen (15) calendar days of the initial point of receipt in the
responding State. Amounts will be distributed as outlined within this
section.
1.24.5 SSI
Child Having Special Needs
A. Title
XVI of the Social Security Act provides funding to states to pay
benefits to indigent, aged, blind, and/or disabled individuals. This
program, known as Supplemental Security Income, is commonly referred
to as SSI. There may be instances in which an SSI child is a member
of a family where all other members are eligible for and in receipt
of RIW benefits.
B. The
SSI child is not included in the RIW grant and his/her resources are
not included in determining RIW eligibility.
C. The
SSI child is not included in any assignment of support rights and
therefore, support received on behalf of an SSI child cannot be
retained by the State and must be disbursed to the family.
Distribution of support must occur within five (5) days of receipt by
the Office of Child Support Services according to the requirements
outlined below:
1. If
the SSI child is the only person covered by the support order, one
hundred percent (100%) of the support collected shall be paid to the
custodial parent.
2. If
the SSI child is not the only person covered by the child support
order, a per capita proportion of the amount collected shall be paid
to the custodial parent, unless otherwise specified in the court
order.
D. Child
support distributed to a custodial parent on behalf of an SSI child
is not considered income for purposes of determining RIW eligibility
or payment level for members of the RIW household. However, child
support distributed to a custodial parent on behalf of an SSI child
is considered unearned income in the Food Assistance Program.
E. The
Office of Child Support Services will provide to the custodial parent
of an SSI child a monthly statement that discloses the amount of
child support collected and distributed during the month on behalf of
the child. The statement includes notification of the custodial
parent's right to a hearing with regard to disputes involving the
collection and distribution of the child support.
1.24.6 Recovering
Erroneously Disbursed Support
A. Mispostings
/ Overpayments
1. Erroneously
disbursed support payments are those payments collected by Office of
Child Support Services and distributed in error to a custodial parent
for a variety of reasons. It may occur because the posting was made
to the wrong child support account or the payment may have been
received and posted at an incorrect date or amount. When signing an
application for child support services, or accepting benefits through
the RIWorks program, the custodial parent has agreed that child
support distributed in error will be repaid from future child support
at the rate of 25% per future child support payment until the
overpayment is paid in full. There is no need to have the custodial
parent sign a separate agreement permitting OCSS to recoup.
2. Whenever
the Office of Child Support Services discovers that an erroneous
amount of support has been disbursed to a custodial parent that
results in an overpayment, the Office of Child Support Services shall
recoup the overpayment at the rate of 25% per payment.
B. A
notice will be sent to the custodial parent to advise that:
1. 25%
of each future child support payment will be retained until the
overpayment is recouped; and
2. That
full repayment may be made within thirty (30) days of the date of the
notice in lieu of the weekly 25% recoupments.
C. Any
notice to the custodial parent about recovery of erroneously
disbursed support will also inform him/her of:
1. The
right to an informal review with Office of Child Support Services to
discuss the overpayment. This meeting will allow the custodial parent
to discuss any disagreement about the correctness of the overpayment
without the need to file for a formal, administrative hearing.
2. The
right to an administrative hearing. This may be requested regardless
of whether the custodial parent has had an informal meeting with
Office of Child Support Services as described in the preceding
paragraph.
1.24.7 Insufficient
Funds (Bounced Check)
A. If
an employer or non-custodial parent makes a child support payment via
a check, which is then posted to the child support case, disbursed to
the custodial parent via KIDS card or via direct deposit to his/her
checking account, and it is later found to have insufficient funds,
those funds must be recouped from the non-custodial parent or
employer. OCSS will send a notice requesting that the employer or
non-custodial parent remedy the situation by sending a money order or
certified check for that payment and any future payments to be made.
The notice shall advise the non-custodial parent that the amount of
past due support shall be increased by the amount of the payment made
with insufficient funds and all enforcement actions shall apply. The
notice shall outline the procedures for filing a request for an
administrative hearing to contest the action.
B. The
State reserves the right to file a Motion to Adjudge the appropriate
party in contempt and to refer the matter to the Attorney General’s
Office for possible criminal prosecution.
C. If
the child support payment was disbursed to the Kids Card or via
direct deposit to the custodial parent’s checking account within
five (5) days of discovery, the OCSS reserves the right to reverse
the payment.
1.24.8 Recovering
Tax Offsets
A. Whenever
either the Federal Internal Revenue Service (IRS) or the State
Division of Taxation requires the Office of Child Support Services to
return all or a part of a tax refund intercepted by the IRS or the
State Division of Taxation which had been sent to Office of Child
Support Services by either of these tax collection agencies, and
subsequently disbursed by Office of Child Support Services to a
custodial parent in accordance with Federal or State tax refund
offset requirements, the Office of Child Support Services shall:
1. Provide
notice to the custodial parent that IRS or the State Division of
Taxation has demanded a return of all or a part of the tax refund
that was intercepted.
2. Indicate
in the notice the amount of the refund being requested to be
returned, and the date of the disbursement to the custodial parent.
3. If
the refund has been deposited to the Kids Card or via direct deposit
to the custodial parent’s checking account, and the reversal occurs
within 5 days, the OCSS will reverse the payment.
4. Notify
the custodial parent that the amount shall be recouped at the rate of
25% of each future child support payment if the total amount of the
tax refund intercept that is being requested by either IRS or the
State Division of Taxation, within thirty (30) days of the date of
the notice.
B. Tax
refund intercepts that are sent to custodial parents erroneously
because of mispostings to accounts will be recovered under the
procedures outlined in § 1.24.6 of this Part.
1.25 Hearing and Post Hearing
Activities
After
the hearing, the Office of Child Support Services staff will enter
the order on the state’s electronic system, generate a copy for
mailing for each party, respective attorneys, intergovernmental
agency if appropriate, and for filing with the Court.
1.25.1 Body
Attachments
A. Issued
The
Family Court Judge/Magistrate may issue a warrant for a body
attachment when a non-custodial parent/putative father or custodial
parent fails to appear in court. The warrant instructs the Sheriff or
Constable to apprehend the individual for the purpose of bringing
him/her to court.
B. Executed
1. When
a body attachment is executed (defendant is apprehended by the
sheriff), the individual is either taken:
a. Directly
to court, if it is in session; or
b. To
the ACI until the next session of court;
2. The
Family Court will execute the body attachment and may address the
underlying motion pending before the court on that date or schedule
the matter for a hearing.
C. Withdrawn
When
the individual appears on his/her own, the Judge/Magistrate will
withdraw the order.
1.25.2 Constable
Service
A. The
Office of Child Support Services enters into service contracts with
Constables who are independent contractors for the purpose of process
service.
B. All
constables must:
1. Be
licensed by the Chief Judge of the Rhode Island District Court and by
the Chief Judge of the Family Court as required by law;
2. Have
a bond for District Court and Family Court with sufficient sureties
in the sum of five thousand dollars ($5,000) for the faithful
performance of the duties of his/her office;
3. Comply
with any and all administrative requirements set by either the
District Court or Family Court; and
4. Comply
with any and all rules and procedures established by OCSS.
1.25.3 Notice
and Hearing Procedures
A. Notice
1. The
Office of Child Support Services shall provide a monthly notice
either (computer generated) or an electronic notice to RIW recipients
and non-assistance (NA) recipients for whom a child support
obligation has been established, and for whom a child support
collection has been made.
2. The
monthly notice shall specify at a minimum the amount of support paid,
the date such payment was made, the date such payment was received by
the Office of Child Support Services or the RI Family Court, the date
and amount of pass through and/or child support paid to the RIW
custodial parent, and an explanation of the recipient's rights to a
hearing, which must be requested within thirty (30) days of the date
of the notice. When a pass through payment is not sent to a recipient
in a particular month, the monthly notice will include an explanation
as to why it was not made. A hearing request form is enclosed with
the monthly notice.
B.
Hearing Request
The
following constitute the Office of Child Support Services hearing
procedures:
1. The
recipient of the monthly notice will mail the request form to the
Office of Child Support Services Business office, 77 Dorrance Street,
Providence, RI 02903. The form will be date stamped and logged in a
central location by the Business Office. The Business Agent shall
research the records to determine all pass through payments made for
the months the recipient was on RIW, if applicable. The agent shall
refer the hearing request form packet to the EOHHS Legal Unit for
scheduling of a hearing, indicating in their log the date the matter
was so referred;
2. EOHHS
staff will date stamp the packet, log the case in a central log, and
schedule the matter for hearing. A notice shall be mailed to the
custodial parent advising her/him of the hearing date. Notice of
scheduled hearings shall be given to OCSS;
3. The
business officer or other Office of Child Support Services
representative will be present and will be available to answer the
custodial parent's relevant questions relating to the information
provided to the custodial parent in the monthly notice. The custodial
parent will then have an opportunity to present when s/he believed
s/he should have received a child support payment and/or pass through
in a given month. The business officer or other Office of Child
Support Services representative will then be given an opportunity to
respond by presenting testimony and/or evidence with respect to the
child support and/or pass-through payments and periods contested by
the custodial parent;
4. The
hearing officer may, in his or her discretion, grant a continuance to
any party for good cause, including, but not limited to, a party's
reasonable request to obtain, review, and present additional relevant
evidence. The custodial parent will be advised s/he will receive a
written decision by mail within thirty (30) days following the close
of the hearing;
5. A
decision letter will be prepared by the EOHHS hearing officer. The
original will be sent to the custodial parent, with copies to her or
his representative, master file, hearing file, and business office;
6. Any
person who has exhausted all available administrative remedies, and
who is aggrieved by a final order of the agency, is entitled to
judicial review pursuant to R.I. Gen. Laws § 42-35-15. If a
custodial parent appeals the decision of the hearing officer to the
Superior Court, the hearing officer will be responsible to obtain a
transcript of the hearing, assemble the evidence (exhibits), and
forward the material to the Chief Legal Counsel, Office of Child
Support Services.
C. Kenyon
Notice and Hearing Procedures
The
Department of Human Services, as a result of Federal Court Civil
Action, No. 89-0553P, Kenyon et al v. Sullivan, has been
ordered to provide special notices to recipients. The Court required
that all members of the Kenyon class (all individuals who received
AFDC and for whom the state was collecting child support from 1984
forward) be notified by mail and publication of their right to an
accounting and hearing. Accordingly, the DHS Rhode Island Child
Support Services Agency has implemented the normal procedures for
requesting an appeal with the OHHS legal office.
1.26 Legal Representation
A. In
any legal proceeding, legal counsel for the child support agency
shall represent the Office of Child Support Services or, when acting
on behalf of the Department of Children, Youth and Families,
Department of Human Services, or other state agency, shall represent
the interests of those entities. The attorneys do not represent the
interest of any individual person (R.I. Gen. Laws Chapter 15-30).
B. There
is no attorney-client relationship between legal counsel and either
party. The Department shall provide specified services to both the
custodial and non-custodial parents. Either party may retain
representation by a private counsel. Each party applying for services
shall be given a notice regarding legal representation.
C. For
those existing cases where a prior attorney-custodial parent
relationship was established, appropriate notice as described above
and a waiver regarding legal representation shall be mailed. No
further services will be rendered until the waiver is returned. Legal
counsel shall either withdraw as counsel, or, upon receipt of a
signed waiver, continue to provide services only. However, in no
event will legal representation continue.