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Child Support: Fundamentals for Social Services Attorneys Fundamentals of Social Services Law Institute of Government The University of North Carolina.

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Presentation on theme: "Child Support: Fundamentals for Social Services Attorneys Fundamentals of Social Services Law Institute of Government The University of North Carolina."— Presentation transcript:

1 Child Support: Fundamentals for Social Services Attorneys Fundamentals of Social Services Law Institute of Government The University of North Carolina at Chapel Hill

2 Institute of Government, UNC-Chapel Hill © 20042 Voluntary Paternity Affidavit (VPA) GS 110-132 Child “out of wedlock” Clerk of superior court No judicial approval Rescind within 60 days Mother or father One year: fraud, etc. Admission of paternity Same effect as judgment Child support only GS 130A-101(f) Unmarried mother Child born in NC only Vital records No judicial approval Rescind within 60 days Putative father only? One year: fraud, etc. Admissible as evidence Rebuttable presumption

3 Institute of Government, UNC-Chapel Hill © 20043 Posthumous Paternity Statute of limitations Before father’s death Within claims period Estate opened within 1 yr. of father’s death Father’s estate Administrator/executor Intervention Heirs don’t have standing (Stockton) Genetic testing Required if contested GS 8-50.1(b1) Can’t order testing of father’s relatives Subpoena Party or nonparty Produce tangible thing Existing genetic sample Father or relative

4 Institute of Government, UNC-Chapel Hill © 20044 Genetic Paternity Testing GS 8-50.1(b1) Any civil action If paternity at issue Res judicata Flaskrud, Manning Required If paternity contested and child over 3 yrs Admissible Chain of custody Verified documentation Khatod & Shaffer Davis & Lombroia Authenication Testimony not required Presumption Rebutted clear evidence Williams

5 Institute of Government, UNC-Chapel Hill © 20045 Res Judicata & Paternity Prior final judgment Default judgment Involuntary dismissal Voluntary dismissal Same claim or issue VPA Criminal nonsupport Divorce decree Against same party Or different party With shared legal interest (privity) Frinzi, Settle, Whitener, Tidwell, & Lewis

6 Institute of Government, UNC-Chapel Hill © 20046 Paternity & Rule 60 Mistake or fraud Within 1 yr of judgment VPA (Adams) New evidence Couldn’t be obtained Genetic test results (Adams, Cole) Within 1 yr of judgment Lack of jurisdiction No time limit Other good cause Not legal error Rule 60(b)(6) can’t be used as “end run”

7 Institute of Government, UNC-Chapel Hill © 20047 Child Support Guidelines Presumptive May be rebutted All orders VSA Consent order Default judgment Temporary UIFSA Criminal Juvenile Not applicable Step-parent Income $240,000+ “Prior maintenance” Public assistance debt GS 110-135 Separation agreement Unincorporated Patacky

8 Institute of Government, UNC-Chapel Hill © 20048 Deviating from the Guidelines Exceeds child’s needs Third party support Doesn’t meet needs Parent’s ability Spouse’s medical care Obligor’s income < $800 Obligor pays insurance and all basic support Alimony paid by parent Tax exemption (NCP) Low income obligor if either parent pays child care or insurance Procedure Motion or sua sponte Amount as per guidelines Child’s needs Parents’ ability Basis for deviation Basis for support award

9 Institute of Government, UNC-Chapel Hill © 20049 Income in Child Support Cases Both parents’ income Unless low-income Worksheet A Child’s social security Disabled/retired parent Any source Gross income Net income (business) In-kind income Nonrecurring income Don’t count Nonparent’s income Parent’s spouse’s income Child’s income Except social security Alimony Received from other party Public assistance

10 Institute of Government, UNC-Chapel Hill © 200410 Actual vs. Imputed Income Actual income At time order entered Imputed income Prior income Earnings capacity Initial support order Motion to modify Changed circumstances Modified support order Bad faith Deliberate disregard Obligation to support Intent to avoid paying Quit job without cause Not looking for job Not accepting job Depressing income

11 Institute of Government, UNC-Chapel Hill © 200411 Imputing Income OK to impute Early retirement Mason (wife won lottery) Osborne (able to work) Quit job without cause King Fired (predictable) Wolf Start own business Askew Insufficient to impute College or grad school Williams Patacky, Schroader Change career Cook Change jobs Mittendorff, Sharpe New job after lay off Chused, O’Neal

12 Institute of Government, UNC-Chapel Hill © 200412 Modifying Child Support Orders GS 50-13.7 Two-step process Changed circumstances Since order entered Amount of new order Guidelines (deviate) Registered order Vested arrearages Not modifiable Per issuing state’s law GS 50-13.10 Can’t retroactively modify Due before motion filed Exceptions Disability Indigency Misrepresentation Incarceration Compelling reason

13 Institute of Government, UNC-Chapel Hill © 200413 Jurisdiction for Modification GS 50-13.7 NC child support order Issuing court If party or child in NC Venue may be waived Motion Interested person Not judge sua sponte Bankruptcy No stay UIFSA Registered order Issuing court no CEJ No resident party (child) Written consent by all NC court Petitioner is nonresident “Play away” Personal jurisdiction Necessary, not sufficient

14 Institute of Government, UNC-Chapel Hill © 200414 Changed Circumstances 3 yrs. & 15% Presumption Child’s needs Increase or decrease Parent’s income Involuntary reduction Voluntary + child’s need Changed custody Emancipation Health insurance Parent’s income Increase Voluntary reduction & no change in child’s needs Bad faith reduction Remarriage Support for other child

15 Institute of Government, UNC-Chapel Hill © 200415 Enforcing Child Support Orders Jurisdiction Personal jurisdiction Continuing jurisdiction In rem (property) Controlling order Current & arrearages Full faith & credit Arrearages only Registered order Amount, scope, duration Issuing state’s law NC court can’t modify Defenses limited Jurisdiction Arrearage amount Statute of limitations Remedies NC law

16 Institute of Government, UNC-Chapel Hill © 200416 Defenses to Enforcement Appeal Statute of limitations Payment Waiver or release Bankruptcy Controlling order Not willful, delinquent Laches Equitable estoppel Exemption Collateral disputes Visitation & custody Marital property Paternity

17 Institute of Government, UNC-Chapel Hill © 200417 Civil and Criminal Contempt Civil Coerce compliance Present conduct Present compliance Willful Right to counsel Indefinite incarceration No fixed or maximum Release through purge Present ability Criminal Punish noncompliance Past conduct Not present compliance Willful Right to counsel Thirty days maximum Fine ($500) Probation OK Not purge

18 Institute of Government, UNC-Chapel Hill © 200418 Issues in Contempt Proceedings Failure to appear Arrest (civil & criminal) Appearance bond Not compliance bond Commitment (civil) Findings & purge Burden of proof Criminal Reasonable doubt Motion for civil contempt Probably preponderance Show cause (civil) Present vs. persuade Schumaker

19 Institute of Government, UNC-Chapel Hill © 200419 Problems Using Contempt Overused Other remedies Better or more direct Inappropriately used “Dead beat” (stubborn) Not “dead broke” Order for arrest Bond vs. compliance Orders Don’t specify Confuse civil vs. criminal Purge in criminal Maximum term in civil Inappropriate purge Exceeds present ability Future or continuing Delayed incarceration

20 Institute of Government, UNC-Chapel Hill © 200420 Other Enforcement Remedies Income withholding Extrajudicial Unemployment benefits Insurance lien Extrajudicial Judicial lien Equivalent to judgment Enforced via execution Freeze & seize Not checking accounts Joint bank accounts License revocation Injunction Obligor or agent only Tax refund offset Military allotment

21 Child Support: Fundamentals for Social Services Attorneys Fundamentals of Social Services Law Institute of Government The University of North Carolina at Chapel Hill


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