Abstract
Child Support Enforcement Remedies
OCSE has two kinds of enforcement avenues it can take when a Non-custodial parent is not paying the child support that has been ordered by a court. The first avenue is through administrative actions. These administrative actions include: delinquency notice, wage withholding, license suspension, federal and state tax offset, unemployment (UIB), and workman’s compensation benefit interception, Financial Institution Data Match (FIDM/Child Support Lien Network (CSLN), medical insurance coverage, credit bureau reporting, and Uniform Interstate Family Support Act (UIFSA). If after these administrative enforcement actions have been taken and payments are not being received, then the second avenue of enforcement action will be taken. The second enforcement action is legal action taken through the OCSE attorneys in judicial court. The first step is State Criminal non-support proceedings. If the Non-custodial parent moves out of the state to avoid paying child support, then a Federal Criminal non-support proceeding will be started. This paper will conduct an overview of the administrative and legal enforcement actions that the Child Support Enforcement Agency has available to them for collection of child support.
Administrative Enforcement Actions
The administrative enforcement actions that Child Support Enforcement can take are any actions that can be taken without formal court proceedings. Below is a list of the administrative remedies and a description of what is involved in each of these actions.
Delinquency Notice
Once a Non-custodial parent fails to make payments equal to one month’s obligation, a delinquency notice is sent to the Non-custodial parent (Office of Child Support Enforcement policy manual, 2012, p. 34). The Non-custodial parent has the option of paying the obligated support that is past due, or he/she can provide a legitimate reason why he/she has not made the payments as court ordered. If the Non-custodial parent cannot pay and does not have a legitimate reason why he/she is not able to pay, the case can be sent for legal action.
Wage Withholding
Most court orders have wage withholding language in the order that requires employers and other payers to automatically withhold child support, medical support and spousal support obligations from an individual’s income. If the order does not have the wage withholding language, it can be modified to include wage withholding. Until wage withholding is included in the order, a notice of withholding will be sent to the Non-custodial parent. If no response is received within a certain time frame, a wage withholding can then be sent to the employer. Besides an individual’s wages, child support can also be taken out of a person’s commissions, bonuses, worker’s compensation, unemployment benefits, disability payments or retirement. An employer must pay a child support obligation before any other garnishment. The only exception would be if there was an IRS tax levy that had been entered before a child support order.
License Suspension
Arkansas Code authorizes and establishes procedures for the suspension of specified state-issued licenses including commercial driver’s and regular driver’s licenses, including motorcycles, permanent license plates, recreational licenses such as hunting and fishing licenses, and occupational, professional and business licenses of a Noncustodial parent. One of two conditions must be met before suspension of a driver’s license can occur. The Noncustodial parent is delinquent on a court-ordered child support payment or an adjudicated arrearage in an amount equal to three months’ obligation or more, or the Noncustodial parent is the subject of an outstanding failure to appear, body attachment, or bench warrant related to a child support proceeding. No action can be taken if the Non-custodial parent has filed bankruptcy until the OCSE attorney has reviewed the case.
Federal Tax Offset
The Federal Offset Program gives Arkansas Child Support Enforcement the ability to collect child support arrears through the Federal Income Tax Intercept program by intercepting federal tax refunds and administrative offsets. Once the Non-custodial parent has met the criteria which is having an open IV-D case and owing past-due support, including medical support, if the order gives a specific dollar amount, and once the Non-custodial parent has received the Pre-offset Notice, OCSE updates the information to the Federal Offset Program on a weekly basis.
The Federal Offset program also allows cases with arrears that exceed $2500 to be forwarded to the U.S. State Department where the Non-custodial parent will be flagged and a passport will be denied until the Non-custodial parent pays the amount owed in full.
State Tax Offset
The Arkansas State Offset Program allows Arkansas Child Support Enforcement to collect current support and past due child/medical support through the interception of State income tax refund. Just like the Federal Offset Program, the State Offset Program also provides a pre-offset notice to the Non-custodial parent who meets the criteria for their past due obligation. The criteria include arrearage of at least $50 for tanf or foster care cases, $100 for non-tanf cases, fees owed by the Non-custodial parent when the balance is at least $50 or a combination of fees and tanf arrears in the amount of $50. In an interstate case, Arkansas must be the responding state in order to intercept the State tax refund. Delinquent obligations are certified on an annual basis and reported to the Revenue Department by January 1st of every year.
UIB Intercept
Arkansas law allows the Arkansas Department of Workforce Services to exchange information with OCSE. If the withholding language is in the order, in addition to the withholding of UIB for court-ordered child support, an additional amount of 10% or 20% can be withheld to apply towards any arrears that may be owed. If there is no language in the order for UIB withholding, the Non-custodial parent can sign an agreement for child support to be withheld. If the Non-custodial parent will not sign an agreement, the court order must be sent to the legal office to be modified before OCSE can withhold from the Non-custodial parent’s UIB.
FIDM/CSLN
The FIDM and CLSN are both networks that provide data match information. The FIDM provides information on any financial entity in the State of Arkansas. A Non-custodial parent has to have an open IV-D case, owe at least $500 or equal to three months’ worth of arrears, whichever one is the greatest and no payment has been made in the past 45 days. The Non-custodial parent cannot be receiving tanf, he/she cannot have an active bankruptcy case and no Family Violence Indicator can be attached to the Non-custodial parent in order for the case to qualify for a levy action. With the CSLN, cases are matched with insurance carriers to identify claims that may be due to the Non-custodial parent. The Non-custodial parent has to have an open case for enforcement, arrears have to be at least $500 and the Non-custodial parent cannot have an active bankruptcy case and not be receiving tanf in Arkansas or another state.
Workers’ Compensation Withholding
Workers’ Compensation is an example of an insurance data match that is received. The law in Arkansas allows withholding of Workers’ Compensation benefits up to 25% of periodic payments or up to 50% of lump sum payments.
Credit Bureau Reporting
Once a Non-custodial parent reaches $1000 in child support arrears, OCSE reports these arrears to credit reporting agencies. A Notice of Reporting to Credit Reporting Agencies is sent to the Non-custodial parent to make him/her aware they have been reported. This also gives them the opportunity to contest the accuracy of the arrears. This is automatically updated on a monthly basis until the arrears are paid in full or the Non-custodial parent is manually excluded from the credit bureau reporting.
UIFSA
Uifsa is where both parties to a Child Support case live in two different states. The two Child Support agencies work together to establish paternity or an order for support or to enforce an order already established by a court. Arkansas is the initiating State, if the Child Support action begins in Arkansas and the Custodial parent and child reside in Arkansas. If the Non-custodial parent lives out of state and an order cannot be established using the Long-Arm Statute (En.wikipedia.org, 2018), which is when the court in one state can take jurisdiction and hear a case against the Non-custodial parent and enter a judgment against him/her even though he/she may be living outside the jurisdiction, Uifsa documents must be sent to the state where the Non-custodial parent/Putative father resides. So that state can establish/enforce the order for Arkansas. If another state sends a Uifsa packet to Arkansas, then Arkansas is considered the responding state because the Non-custodial parent is living in Arkansas and we will work the case for the other state.
Legal Enforcement Remedies
The judicial part of the enforcement remedies falls under the State and Federal Criminal Non-Support remedies. Contempt proceedings for non-payment of child support will be started if the Non-custodial parent does not pay and all administrative remedies to get the Non-custodial parent to pay have failed. If the Non-custodial parent is found in contempt, the court may order him/her to be placed in jail until a bond is paid or a certain amount of time has been served.
State Criminal Nonsupport
If a case is sent for State Criminal Nonsupport, the local prosecuting attorney’s office can accept or reject a case at their discretion. If the case has been open for 12 months and the Non-custodial parent owes more than $10,000 with no payments made within the past 180 days and the Custodial parent signs an affidavit giving the value of any items received instead of child support payments, or known employers, and request it be prosecuted, by law it is mandatory that the State Criminal Nonsupport be referred.
Federal Criminal Nonsupport
Like State Criminal Nonsupport, OCSE may refer a case to the U.S. Attorney’s office for federal criminal nonsupport if a Non-custodial parent is intentionally not paying support for a child in another state. The U.S. Attorney’s office can accept or reject a case at their own discretion. The criteria for federal criminal nonsupport is the child resides in another state, the Non-custodial parent has the ability to pay but willfully fails to pay and no payments have been made within the last year or has accrued arrears in the amount of at least $5,000. This remedy is the last resort after OCSE has exhausted all other available legal remedies.
Conclusion
When a Non-custodial parent has been court ordered to pay child support for the financial support of a child and does not make those payments in a timely manner or at all, enforcement actions will be taken to make sure the Non-custodial parent complies with the court order. The Non-custodial parent will first be notified of the delinquency and if the payments do not resume, then other administrative actions will be taken to try to get the Non-custodial parent to pay. If the administrative actions do not produce payments, the case will be referred for legal action. It is always in the best interest of the Non-custodial parent to pay the child support that has been court ordered for the child. If judicial measures have to be taken, the Non-custodial parent could sit in jail for non-payment and that is not beneficial to anyone since payments cannot be made while the Non-custodial parent is in jail.
References
- En.wikipedia.org. (2018). Long-arm jurisdiction. Retrieved October 2, 2018, from https://en.wikipedia.org/wiki/Long-arm_jurisdiction.
- Office of Child Support Enforcement policy manual (p. 34). (2012). Little Rock, AR: Office of Child Support Enforcement.
- Legislative history of the Social Services Amendments of 1974: P.L. 93-647: 88 Stat. 2337: January 4, 1975. (1975). Washington, D.C.: Covington & Burling.
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