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Revised 12/04 |
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SECTION 4
The purpose of this section is to provide guidance to CSE staff in methods of contacting the Non-Custodial Parent (NCP), establishing paternity and establishing a support obligation.
Prior to preparing a legal referral, the Collection Officer is responsible for:
- Initial efforts to locate residence and employment
- Compiling documents
- Determining reimbursement amounts, if any
- Completing assessment of a case for referral
- Contacting the NCP
The Collection Officer is to attempt to contact the NCP (whether in person, by phone or in writing) prior to referring the case for legal action. The purpose of this initial contact is to explain the financial responsibilities of the NCP and explore the following:
- Acknowledgment of paternity
- Obligation for ongoing support
- Reimbursement of the child’s share of public assistance already provided
- Agreement to provide health insurance coverage and pay a proportionate share of any uninsured health expenses
- Reimbursement judgment for the mother for expenses of support and education of the child from the date of birth or the date a presumption of paternity first arose to the date an order is entered
4110 COMMUNICATION WITH ANY PERSON REPRESENTED BY COUNSEL See KCSEM 5110 - Communication with any Person Represented by Counsel.
The first step in successfully collecting child support is to define the responsible parties and their obligation. Where paternity has not been established, the process begins here.
An attempt must be made to establish paternity unless the alleged father cannot legally be pursued. If this is a permanent condition, the case may be closed (See KCSEM 1500 (c.)). Specific reasons why a case may not be processed must be documented in the case record.
Voluntary Acknowledgment of Paternity
Legal paternity is established by a signed voluntary acknowledgment of paternity that complies with the requirements of K.S.A. 38-1138.
Kansas Births
Since July 1, 1994, a voluntary acknowledgment, that provides the seven (7) legal notices required by K.S.A 38-1138(b) and is on file with the state registrar of vital statistics, establishes legal paternity for that child. For such a child CSE will proceed to a Petition for Support and/or a 718b recovery, alleging the NCP is the father of the child. CSE will not bring the action under the parentage act unless there are extenuating circumstances.
If, and when, an NCP files an answer to the Petition for Support denying paternity, it is his burden to defeat the acknowledgment (not ours). The rules that govern whether he can defeat or withdraw his acknowledgment are set out in K.S.A. 38-1138(b)(1). IV-D attorneys will defend the acknowledgment. The burden upon the NCP is much stronger than the mere rebuttal by clear and convincing evidence required to set aside a presumption of paternity as set out in K.S.A. 38-1114(b).
In cases where paternity is established by voluntary acknowledgment, recovery of costs of raising child since birth expenses for the mother would be based on the NCP’s common law duty to support. As a program CSE will not bring that common law action on behalf of the mother, unless there are exceptional circumstances.
Out-of-State Births
All states have adopted an in-hospital paternity provision. Specific requirements may differ from state to state. When a child was born out of wedlock in another state and a court order does not address the issue of paternity, the Service Provider needs to research the effect of that state’s law and obtain a copy of the affidavit. CSE should not assume that paternity is established if his name is on the birth certificate. K.S.A. 38-1114(d) requires CSE to give full faith and credit to a determination of paternity by another state whether by judicial order, administrative order or by voluntary acknowledgment.
Obtaining a voluntary acknowledgment of paternity at the time of birth generally depends on hospital staff to furnish (at minimum) a basic paternity brochure, standard acknowledgment forms, and an opportunity for the unmarried parents to sign them. Hospital staff should be familiar with assisting parents to complete the acknowledgment paperwork.
Birthing hospitals, through coordination with the Kansas Hospital Association, may direct new parents to the local CSE office for more information.
Collection Officers should only provide basic, general information about paternity unless KAECSES shows a CSE or public assistance case related to the mother and newborn. Callers should be clearly advised they, themselves, must make the decision about whether signing a voluntary acknowledgment is best for them and the child. If either parent has doubt about paternity of the child, it is best to resolve the question by doing genetic tests as near the birth of the child as possible.
In-hospital voluntary paternity acknowledgments are part of the process for registering the birth of the child with the Division of Vital Statistics. The information for birth registration must be transmitted by the hospital to Vital Statistics within five (5) days of birth. Nothing in the voluntary acknowledgment process may delay registration of the birth. If the completed acknowledgment is not received by the deadline set by the hospital, the registration will go forward without the name of the father on the birth certificate. The name of the father may be added later, under KSA 38-1130 or through other routine paternity procedures.
Federal law requires each state to assess in-hospital paternity establishment procedures annually.
4220 INTERSTATE PATERNITY ESTABLISHMENT
If the NCP is located out-of-state, an attempt to establish paternity is to be made using the administrative approach. If there is a lack of cooperation, legal assessment is to be made to determine if legal action is appropriate. The legal assessment should be documented in the CSE case record and should consider both the long-arm statute and Constitutional Due Process requirements (“minimum contacts” and other principles of personal jurisdiction).
If there is a legally sound case, federal regulations require that the state try to establish paternity using its long-arm statute before initiating a UIFSA paternity. If the state cannot obtain jurisdiction over the defendant using the long-arm statute, then a UIFSA paternity should be filed.4230 COSTS OF THE PATERNITY ACTION
The designation of a Kansas case or an interstate case determines who has responsibility for the cost of the action (including genetic testing). Responsibility for the cost of the action should not prohibit the action being pursued.
4230.1 Kansas Cases - Paternity Cost of Action
For TAF cases, CSE will pay costs associated with the establishment of paternity. As a part of the stipulation and order for genetic testing, the Establishment Attorney should require the alleged NCP to reimburse the costs if found to be the father. Costs may include reimbursement at the current state mileage rate if TAF recipients are required to travel out of county to provide testimony or to obtain genetic testing.
Payment for genetic testing should never be made using a medical card. If the CP/caretaker relative or alleged NCP has private medical insurance, he/she should contact the carrier to determine if genetic testing is covered.
For Non-TAF cases, CSE will pay the cost of genetic tests. All other cost associated with the establishment of paternity must be borne by the Non-TAF family unless the action was initiated while the child was a TAF recipient. IV-D attorneys should always attempt to have all costs assessed against the defendant (NCP).
4230.2 Interstate Cases - Paternity Cost of Action
Federal regulations require an initiating state to pay for costs of genetic testing, which includes only the cost of drawing and analyzing the genetic sample. The regulation does NOT allow the initiating state to refuse to pay for the defendant’s share. Other costs, such as expert witness fees and depositions, are to be borne by the responding state. The responding state is also responsible for seeking a judgment to reimburse the initiating state for genetic testing cost.
4240 DISMISSAL OF PATERNITY ACTION
Dismissal of a pending paternity action will be done only for legal reasons and the decision to dismiss will be made by the attorney filing the action.
In all circumstances, the mother should be advised of the ramifications of dismissing the case and apprised of all the alternatives available to her and the child.
Federal regulations require that the IV-D program have access to a laboratory which can perform legally and medically acceptable genetic tests. These tests should identify the father or exclude the alleged father. Federal regulations further require the parties involved in an appropriately contested paternity action be required to submit to such genetic tests.
Efforts must be made to obtain judgment for reimbursement of the costs of genetic testing from an alleged father who denies paternity or requests such tests.
4300 ESTABLISHING AN OBLIGATION
Action by a court is necessary to establish a child support obligation which is enforceable. Every attempt should be made to secure a court order. It is preferable to establish an agreed order for support through negotiations with the NCP and, as appropriate, the CP.
Using the administrative procedures developed in each region, the Collection Officer is expected to attempt to negotiate an agreed order which includes:
- An obligation for ongoing support
- Reimbursement of the child’s share of public assistance already provided
- An agreement for health insurance coverage by one or both parents and payment of proportionate shares of any uninsured health expenses
If either parent is not cooperative, a legal assessment must be made to determine if suit can be filed. If not, determine whether the condition is subject to change.
The case must continue to be reviewed annually. Specific reasons why a case may not be processed must be documented in the case record. If the case cannot legally be pursued and this is a permanent condition, the case may be closed.
Settlement Agreements
Settlement agreements should be conducted, in appropriate cases, in order to resolve pending cases and disputes quickly. A settlement may include compromising the amount to be paid on a debt. In this context, "compromise" means accepting less than 100% of the amount owed (or of total URA available for a KSA 39-718b action) as satisfaction of the full amount.
The CP must approve any compromise of a debt owed to them, including any debt for retro support/ cost of raising a child, which may be in excess of a State claim for reimbursement.4310 ACCRUING SUPPORT OBLIGATIONS
SRS has legal authority to establish a court order for support on behalf of a child pursuant to: KSA 39-755 and KSA 39-756.
Statewide Child Support guidelines apply to every Kansas child support order entered after October 1, 1987, and a Child Support Worksheet must be filed in every court case. The support obligation calculated on the Child Support Worksheet will be a prima facie evidence of a reasonable order – any party wanting a higher or lower order will have the burden of proving that a different amount is justified.
The guidelines apply to all new support orders and all modifications and require income information about both households.
4320 JUDGMENT FOR CHILD’S SHARE OF TAF AND/OR MEDICAL
Concurrent with the establishment of an ongoing order of support, it is possible to seek a civil judgment for the amount of unreimbursed medical assistance and TAF (URA) granted to the child of an NCP. Amounts paid by SRS for the birth related expenses of the child may also be considered in determining a judgment amount for which the NCP may be sued. This may also be done after a TAF case closes, although an order for current support may not be entered unless the former TAF recipient becomes a Non-TAF participant. See KSA 39-718b.
SRS will not establish a medical judgment for unpaid medical expenses that was not originally journalized. If the CP obtains a medical judgment, outside of SRS, for the unpaid medical expenses, SRS will enforce that judgment.
When there is no existing support order for an NCP in a foster care case, it is the policy of CSE to encourage negotiations before suit is filed. Except as otherwise approved by the CSE Program Administrator (and the caretaker of the child, where appropriate), the negotiated amount for current support is expected to be within Child Support Guidelines.
When the necessary information is available, the CO is required to calculate the “hypothetical obligation” of the NCP, described below, for use during negotiations. This should be done as early in the negotiation process as possible, preferably before the initial contact with the NCP.
If meaningful negotiations break down, or are otherwise unsuccessful, CSE will proceed to obtain a judgment for hypothetical child support effective upon the foster care opening and in accordance with child support guidelines.
4330.1 Hypothetical Obligation
Calculating the “hypothetical obligation” for the NCP gives an objective way to assess the fairness of SRS’ claim and the adequacy of offers made by the NCP.
As used in this section, “hypothetical obligation” means the total amount the NCP would have owed under Child Support Guidelines if a support order had been entered at the time the child went into SRS custody and the NCP had not made any payments.
If the CO has information about income of the NCP, it should be used to determine the hypothetical obligation of the NCP. If income information is unattainable, minimum wage should be imputed to the NCP. The Collection Officer should use the Child Support Worksheet on KAECSES to make the calculation as follows:
“Per month” support amount (from line 12, worksheet) x number of months in foster care = Hypothetical Obligation.If up-to-date income information is used to complete the Child Support Worksheet, this process will also tell the Collection Officer what the on-going support obligation needs to be.
4330.2 Foster Care Legal Referrals
When referring a foster care case to the Attorney, information about the “hypothetical obligation, should be provided. The referral packet should also include information about the contacts with the NCPs.
4340 MEDICAL SUPPORT ESTABLISHMENT
Whenever a support order is being established or modified, the attorney or contractor must petition the court to order medical support for the dependent child(ren) unless CSE has documented that there is already satisfactory health insurance coverage for the child(ren). A medical support order may be established against the CP, the NCP, or both. Medical support of some kind is required even if health insurance is not available at a reasonable cost or if coverage cannot be immediately acquired for the children.
For purposes of this section, a parent does not have access to group health insurance at a reasonable cost if:
- The parent is not employed and has not been identified as belonging to a group which commonly provides group health insurance
- The employer of the parent does not provide group health insurance and the parent has not been identified as belonging to a group which commonly provides group health insurance
- The group health insurance policy of the parent excludes coverage if Medicaid benefits are available. If such a policy exclusion is identified, the Collection Officer should notify CSE Central Office of the circumstances and, if possible, forward a copy of the policy which is out of compliance. Such exclusions violate federal regulations.
If a parent has access to group health insurance through the employer, it is presumed to be reasonable in cost regardless of the actual premium payments required for family coverage.
Once a parent has been identified as having access to health insurance at a reasonable cost, the CO must determine if the case falls under mandatory review and modification requirements or if circumstances have changed enough to justify filing a motion to add health insurance coverage. The change in circumstances must have occurred after the court set the current support order.
The following situations will usually constitute a material change of circumstances for modification of medical support:
- The parent gained access to group health insurance after the support order was entered
- The cost of the insurance is reasonable for the parent compared to what it was when the last support order was entered
- The medical needs of the child have increased
- The ability of the other parent to provide medical support has decreased significantly
The requirement for petitioning the court to order health insurance for the dependents is waived only if the children have satisfactory health insurance provided from a source other than medicaid.
There are time frames to which all IV-D attorneys (including SRS staff, Court Trustee and County and District Attorneys) must conform in order for CSE to comply with Federal regulations.
When a legal referral has been made, the only additional assessment to be made by the IV-D attorney would be whether or not to proceed with the referral. If the IV-D attorney decides not to proceed, the referral must be rejected or returned to the appropriate Collection Officer within five (5) working days of receipt, with an explanation as to why the referral was rejected or returned (i.e., inappropriate remedy, incomplete information, etc.). If the referral was for income withholding, it must be rejected or returned within one (1) working day of receipt.
4410 PATERNITY ESTABLISHMENT TIME FRAMES
The IV-D attorney is to complete service of process to establish paternity within sixty (60) days of receipt of an appropriate and complete referral in 90% of such cases and within ninety (90) days in 100% of such cases. If service of process necessary to commence paternity proceedings cannot be obtained within the above time frames, the IV-D attorney must document unsuccessful attempts in accord with the “Diligent Efforts” standards as explained in KCSEM 5300.2.
The IV-D attorney is to establish paternity or exclude an alleged father as a result of genetic tests and/or legal process within one (1) year of the later of:
- Successful service of process or
- The child reaching six (6) months of age.
If there are multiple alleged fathers, these requirements must be met for each alleged father.
4420 SUPPORT ORDER ESTABLISHMENT TIME FRAMES
The IV-D attorney is to complete service of process to establish a support order (including health insurance coverage) or seek reimbursement of public assistance and complete referral within ninety (90) calendar days of locating the alleged father or NCP, regardless of whether paternity has been established, and, if necessary, establish paternity. If service of process necessary to commence proceedings cannot be obtained within the above time frames, the IV-D attorney must document unsuccessful attempts in accordance with the “Diligent Efforts” standards set forth in KCSEM 5300.2.
It is the policy of the Child Support Enforcement Program to provide notice to all parties in a IV-D child support case of any proceeding which might establish a child support order. This includes the Non Custodial Parent, or the parent’s attorney, the Custodial Parent and the Guardian Ad Litem for the child, if any. The notice must include the case caption, issues to be addressed, the time, date and location of the hearing. The notice must be given, at least within the time frames set out in the Kansas Rules of Civil Procedure.
It is the policy of CSE to provide a copy to all parties of any order establishing a child support obligation within 14 days of the issuance of the order. If the hearing proceeding results in a finding that no order will be established, notice shall be sent to all parties within 14 days of that determination.
If the court dismisses a petition for a support order, the IV-D attorney must, at the time of the dismissal, examine the reasons for the dismissal. The IV-D attorney must also determine when and if it would be appropriate to seek such an order in the future and renew efforts at that time.
It is the policy of the Kansas IV-D Program to evaluate all open TAF cases every three years and, if appropriate, initiate modification process unless:
- In a IV-D public assistance case (Title IV-A, IV-E and/or XIX), there is good cause and neither parent has requested a review
- In a "medical only" case (i.e., the Medicaid Applicant/Recipient has refused full CSE services and only medical support rights are assigned) where there is already a health insurance order and neither parent has requested a review
Federal law requires the State, in IV-D cases including incoming Interstate cases, to provide a notice not less than once every three (3) years to parents subject to an order for current support. The notice must inform the parent (or caretaker relative) that (s)he has the right to request review and, if appropriate, adjustment of the current support order pursuant to the Child Support Guidelines.
The Kansas IV-D Program must provide this notice at least once every three (3) years, measuring from the date of the most recent current support order. The notice should be included in the text of the support order.4510 SUPPORT ORDER MODIFICATION TIME FRAMES
The IV-D attorney is to complete service of process to modify a support order (including health insurance coverage) within ninety (90) calendar days of notice of locating the NCP. If service of process necessary to commence proceedings cannot be obtained within the above time frame, the IV-D attorney must document unsuccessful attempts in accordance with the “Diligent Efforts” standards set forth in KCSEM section 5300.2.
It is the policy of the Child Support Enforcement Program to provide notice to all parties in a IV-D child support case of any proceeding which might establish a child support order. This includes the Non Custodial Parent, or the parent’s attorney, the Custodial Parent and the Guardian Ad Litem for the child, if any. The notice must include the case caption, issues to be addressed, the time, date and location of the hearing. The notice must be given, at least within the time frames set out in the Kansas Rules of Civil Procedure.
It is the policy of CSE to provide a copy to all parties of any order establishing a child support obligation within 14 days of the issuance of the order. If the hearing proceeding results in a finding that no order will be established, notice shall be sent to all parties within 14 days of that determination.
If the court denies a motion to modify, the IV-D attorney must, at the time of the denial, examine the reasons for the denial. The IV-D attorney must also determine when and if it would be appropriate to seek such an order in the future and renew efforts at that time.