California Child Support Administrative Hearings CCWRO 1901 Alhambra

California Child Support Administrative Hearings CCWRO 1901 Alhambra Blvd. Sacramento, CA 95816 -7012 Tel. : (916) 736 -0616 Fax: (916) 736 -2645 Cell: (916) 712 -0071 e email: kevin. aslanian@ccwro. org ATTENTION : This Power. Point presentation is intended to be presented with an oral presentation to fill in the blanks left vacant. If you want a presentation, please contact CCWRO at 916 -736 -0616 or complete our “training request form” at: http: //www. ccwro. org/index. php? option=com_content& view=article&id=47&Itemid=55

Legal Framework of Hearings California Family Code (FC) §§ 17800 -17804 Title 22, Code of California Regulations (CCR) §§ 120100 et. seq.

Administrative Hearing (AH) Jurisdiction Application for Child Support has been denied Application has not been acted upon within required timeframes County Child Support (CCS) Actions are in violation of state laws and regulations CCS services have not been performed in the required timeframes such as: A. Child support establishment B. Requested modification C. Enforcement of Child Support Order D. Child support distribution accounting

Administrative Hearing (AH) Jurisdiction Child support payments not distributed CCS decision to close the child support case Child support payments disbursed incorrectly Inaccurate calculation of arrears child support NOTE: The amount of arrears is not subject to an AH.

Issues for Administrative Hearings Federal – 42 USC § 651 et. seq. 45 CFR §§ 303 et. seq. California Family Code (FC) §§ 1700 et. seq. 22 CCR §§ 110000 et. seq. CDSS Child Support Regulations MPP 82 -500 et. seq.

DCSS Single State Agency The Department of Child Support Agency is the single state agency for child support enforcement in California (FC § 17202) Local Child Support Agencies (LCSA) must comply with all regulations and lawful directives of DCSS (FC § 17400) DCSS or LSCAs have no attorney-client relationship with the custodial or noncustodial parent (FC § 17406) LSCA must have a system to monitor compliance with child support order. (FC § 17520(a)(4). )

Distribution The first $50 of all child support received for the current month shall be paid to the Cal. WORKs CP. (FC § 17504) The $50 shall be paid within two (2) business days from the date it is collected. (42 USC § 654(c); CDSS MPP § 12 -108. 8) If CP is not receiving Cal. WORKs, CP gets al current support. Distribution when payment is more than current support and/or more than one CP for payments by NCP. CP should get notice of collection and distribution (Barnes Notice) (22 CCR § 119184)

Allegations of Overpayment (OP) to CP New regs allow DCSS to ask for permission to recoup alleged OP from future collections ( 22 CCR § 119900) If no response from CP to three (3) demand letters, DCSS presumes consent and withholds 50% of future collections. (Id. ) CP can withhold consent to recoup from future collections, but then DCSS will take other enforcement actions. (Id. )

Case Opening LSCA must make application available to the public ( 22 CCR § 112100) LSCA must mail an application, if requested, within 5 days. LSCA must accepts applications LSCA must open case within 20 days of receipt of application. (45 CFR § 303. 2 & 22 CCR 112130) Cal. WORKs cases are automatically referred to LCSA for opening. ( 22 CCR § 11250)

Cal. WORKs Cooperation Cal. WORKs recipients must cooperate with LCSA unless has good cause. ( 22 CCR § 112200) Good Cause includes domestic violence. (22 CCR § 112210)

Location of Absent Parents LSCA must access all appropriate location sources within 75 days of determining location is necessary. (45 CFR § 303. 3(b)(3) & 22 CCR 112100(b)) Must repeat location efforts quarterly or immediately upon receipt of information which may aid in location. (45 CFR § 330. 3(b)(5) & 22 CCR § 113100 (c))

Establishment of Orders Must establish order within 90 days of locating NCP. ( 45 CFR § 303. 4(d)

Paternity Establishment Must provide opportunity for voluntary paternity acknowledgement (POP declaration). ( 45 CFR § 303. 5(a) Must use legal process to establish paternity. (45 CFR § 303. (a)(2)) Must do genetic testing upon request of party unless good cause. ( 45 CFR § 303. 5(d) & 22 CCR 117401)

Interstate Cases Receiving State must take action on case within 10 days of receipt. ( 45 CFR § 303. 7(a)(2) & 22 CCR § 117502 Initiating State refer case within 20 days of learning NCP is in another State. ( 45 CFR § 303. 7(b)(2) & 22 CCR 117400(d) Initiating State must provide requested information within 30 days. ( 45 CFR § 303. 7(b)(4) & 22 CCR § 117400(d)(2). ) Initiating State must provide new information to receiving State within 10 business days. ( 45 CFR § 303. 7(b)(5) & 22 CCR § 117400(d)(3). )

Case Closure 12 possible reasons to close case. ( 45 CFR § 303. 11(b) & 212 CCR § 118203 LSCA must give CP 60 days notice of case closure. ( 45 CFR ^330. 11(c). )

Modifying Child Support Order A change in circumstances should trigger consideration for a modification. ( 45 CFR § 303. 8; FC § 115525 & 22 CCR § 1155500. )

What constitutes a Change in Circumstances? A change in the CR or NCP’s employment status or income The CP or NCP’s begins or stops getting UIB, DIB or Worker’s Compensation. ( 22 CCR § 115520(a). ) When the LCSA becomes aware, during communication with a party to a child support order with a current obligation of a change in circumstance. ( 22 CCR § 115510. )

What constitutes a Change in Circumstances? (con’t) NCP is in a county jail, state or federal prison or court ordered rehab facility. ( 22 CCR 115530(a)(1) NCP begins to SSI or other public social services programs ( FCCC §§ 17400. 4 & 17516; 22 CCR 115530(a)(2). ) Either party request modification and there is a change in circumstances (order would change by more than $50) NOTE: LCA has 180 days to complete modification. (45 CFR § 303. 8(e) & LSCA must review the Order every three (3) years. ( 45 CFR 303. 8(b)(1). )

Enforcing Child Support Orders LCSA ahs various methods of enforcement, some required advance notice to NCP. Wage Assignments through electronic fund transfer ( FC § 17508 & 22 CCR 116100(c)(2). ) Employer must notify the State promptly when the NCP starts or terminates employment and provide last known address, and the name and address of the NCP’s new employer, if known. (45 CFR § 303. 100. (f)(1)(X)

Enforcing Child Support Orders (con’t) The Board serves notice on the NCP at last known address that the license will be automatically suspended unless the child support arrearage is paid. (FC § 17520(d)(3)(B)) Levies against personal property or real property belonging to the NCP or who owe any debt to the NCP at the time they receive the notice of levy. (45 CFR § 303. 103; FC§§ 17522; 17523 & 22 CCR. § 116130) LCSA must send advance notice of statement of support arrearages to NCP at last known address via 1 st class mail advising of the amount owed. If NCP requests a judicial determination within 20 days from date of notice mailed, LCSA doesn’t issue levy. Tax Intercepts are automatically requested for federal or state tax refund offset once a year. (45 CFR § 303. 6 (c)(3); MPP § 12 -107. 4)

Enforcing Child Support Orders (con’t) License Revocation and Suspension which include certificates, permits, registrations, driver's license and professional license. (FC § 17520) Each month, the list of noncompliant NCP are sent to DCSS. The lists are combined and sent to licensing agency. ( FC § 17520(b)) The License Board authority to withhold license of NCPs on the list. (FC § 17520(e)(1)) Board serves a notice of intent to withhold issuance or renewal of license at last known address. (Family Code §l 750(e)(2)). Temporary licenses are issued for 150 days. (FC § 17520(e)(2)(D)

Enforcing Child Support Orders (con’t) After advance notice to the NCP, delinquent child support by federal or state tax refund offset can be collected if there is an assignment of support rights; the amount of support not less than $150 and support has been delinquent for 3 months or longer (45 CFR § 303. 72(a)(2)(ii); 45 CFR § 303. 100(d)) Consumer Reporting Agencies can be used when delinquent child support exceeds $1, 000. (45 CFR § 303. 105 b)) LCSA must provide advance notice about proposed release of the information and of the methods for contesting accuracy of the information. (45 CFR § 303. 105(d)) Posting security, bond or guarantee to secure payment of overdue support (45 CFR § 303. 104(a)) Order of Examination. (C. C. P. § 708. 110)

Enforcing Child Support Orders (cont’d) Advanced notice must be given to the NCP regarding the outstanding amount due and inform the absent parent of the methods available for contesting the impending action. (45 CFR § 303. 104(b)) California Parent Locator Services Central Registry collects and disseminates personal history, employment history, assets, income tax return information, etc. (FC § 17506) Financial Institution Data Matches (FIDM) compares list of NCPs to customers of the financial institutions doing business in California. (FC § 17453) Upon notice of the order for withholding from the account, the funds are forwarded to the LCSA. (FC § 17450; 17500; 17453; 17454(d)(2)) the first $3, 500 is exempt from levy.

Enforcement Timeframes The LCSA must monitor compliance with the support obligation. (45 C. F. R. § 303. 6(a)) The LCSA must identify cases where the full amount of the child support payment is 30 days late. (MPP § 12 -107. 1; 45 C. F. R. § 303. 6(b)) When a case is identified as being 30 days late, other appropriate enforcement techniques shall be initiated within 30 days if service of process is not necessary (45 C. F. R §§ 303. 61. (b) and 303. 6(c); Family Code § 17400(c); M. P. P. § 12 -107. 2

Enforcement Timeframes - (con’t) Exception: If service of process is necessary, the LCSA must complete services of process within 60 calendar days necessary to enforce the support order and initiate Appropriate enforcement action. (45 C. F. R. § 303. 61(c); M. P. P. § 12107. 2) e. g. , License revocation or suspension (Family Code § 17520) Liens (Family Code § 17522) Tax intercepts (Family Code § 17452) Within 15 days of establishing a child support order, the LCSA must send the employer notice to initiate wage withholding (45 C. F. R. § 303. 100(f)(2); 22 C. C. R. § 116100(c). ) When the NCP has a new employer, LCSA must send the income withholding order to the employer within two business days (22 C. C. R. § 116100©(2). )

Complaint Resolution (CR) The CR must be filed with the LCSA within 90 days after the complainant knew or should have known of the child support action complained of. ( FC § 17800 & 22 CCR § 12010(b) Request for CR form – LCR 001 This form can be downloaded at: www. childsup. ca. gov/Portals/0/resources/docs/forms/LCR 001 pdf

What to put on the form The specific actions or inactions of the LCSA Specific dates that action was requested Specific information that was not acted upon Within 5 working days the LSCA must mail the complainant a “Request for Complaint Resolution Acknowledgement” LCR 002 – (22 CCR § 120102)

Complaint Resolution (CR) LSCA Response The LSCA must respond within 30 days of the receipt of the LCR 001. (FC § 17800 & 22 CCR § 120105(a). ) The response, Form LCR 006 should include: a. A brief description of the complaint and receipt date LSCA’s decision and is reasoning including cites to applicable laws. b. Actions that the LCSA will take to resolve the complaint

Potential Litigation Issue FC 17801 (e) requires the hearings “… to be provided in the same manner in which hearings are provided in Welfare and Institutions Code 10950 through 10967 and the CDSS regulations implementing and interpreting those sections. ”

State Hearing (SH) Process Complainant has 90 days to request a state hearing (SH) from the date of the response of the CR. (22 CCR § 120120(d)(2). ) If the LSCA does not respond to the CR, then the complainant has 90 days to ask for a SH following the end of the 30 days of requesting the CR, (22 CCR § 120120(d)(2). ) The “Request for a State Hearing“ can be downloaded at: www. childsup. ca. gov/Portals/0/resources/docs/forms/SH 001 pdf The hearing request should be in writing and should include the Request for Complaint Resolution and the CR decision – the LCRC 006

State Hearing (SH) Process The state hearing shall be scheduled within 30 of the request for a hearing by the Office of Administrative Hearing (OAH). (FC § 17801(d)(1) & 22 CCR § 120202 OAH assigns a dedicated administrative law judge (ALJ) to the hearing. PRACTICE TIP: When the case is transferred to OAH, a case manager is assigned. The case manager transmits documents to both the LCSA and complainant. The case manager makes reasonable accommodation for the hearing.

Authorized Representative (AR) The complainant has a right to appoint an AR. ( 22 CCR § 1201122) The AR does not have to be a lawyer The hearing request has a section for the appointing of an AR.

Withdrawing the Hearing Complainant can drop the hearing in writing or orally anytime before the Directors decision is issued. (22 CCR § 120212)

Setting the Hearing The DCSS notifies the complainant the date, time and place of the hearing 10 days in advance of the hearing. ( FC 17801(d)(1) & 22 CCR § 120203) Hearing are usually done telephonically. If the Complainant requires special accommodations, the Complainant goes to the LCSA offices for the hearing. Judges call from one of the offices located in Los Angeles, Oakland, Sacramento or San Diego

State Hearing (SH) Dismissals? 22 CCR § 120201 The complainant withdraws the hearing request There is no jurisdiction. (FC § 17801 )(g) & 22 CCR 120201(b). ) The request is beyond the time limits The issue was raised and a decision rendered in a prior hearing The issue is moot. The complainant ha 15 days to object to the dismissal. Must submit (preferably in writing) reasons why dismissal is wrong If the complainant fails to respond, the dismissal is entered. (22 CCR § 120211)

OAH Prior to Hearing Requirements OAH mandates at least five (5) days before the hearing complainant provide OAH : 1. Written Position Statement 2. Written Evidence 3. If the evidence is not made available 5 days before the hearing the ALJ can refuse to accept the evidence

DSS Prior to Hearing Requirements DSS requires CWD to make Position statement available two (2) working days prior to hearing. If there is not a Position Statement available, claimant can postpone the hearing: If the evidence is not made available 5 days before the hearing the ALJ cannot refuse to accept the evidence DSS does not require claimants to provide the CWD or the ALJ with hearing documents 5 days before the hearing, such as (a) written position statement from claimant; (b) documentary evidence; and (c) witness list and what he testimony will be. (FC § 17801(d)(1) - WI&C § 10950 through 10967 & Division 22)

Effects of Non-Appearance If the complainant does not show up at the hearing without good cause, the hearing will be deemed abandoned (22 CCR 120213) A 15 -day notice is mailed to the complainant to show good cause for non-appearance (22 CCR 120213) If the complainant does not respond there is no further notice (22 CCR 120213)

What happens at the Hearing The hearing is recorded Witnesses are sworn The ALJ identifies the issue and state the order in which the evidence will be taken (22 CCR § 120207) The ALJ considers jurisdiction The judge may voluntarily withdraw from the hearing if she or he can’t do an impartial and fair hearing ( 22 CCR 120214)

Issuance of Hearing Decision The Hearing decision shall be issued within 75 days from the date of the filing of the hearing

Rehearing The complainant or the LCSA has a right to ask for a rehearing within 30 days of the hearing decision The basis of the rehearing can be: ◦ ◦ ◦ ◦ The complainant has new evidence to present The new evidence must be identified Explain why it was not available at the hearing Explain materiality How the evidence would change the outcome of the hearing The decision is inconsistent with the law The decision is not supported by the evidence in the record See W&IC § 10962 for rehearing

Remedies After Hearing or Rehearing CCP § 1094. 5 – Administrative Writ of Mandate and WI&C § 10960 Complainant has one (1) year to file for a Writ; No filing fee – (W&IC § 10960) If complainant prevails in the 1094. 5 action, they are entitled to reasonable attorney fees – (W&IC § 10960)

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