This topic contains information on the following subjects:
3. Unity orders;
4. Prorated orders;
A "support order" is a judgment, decree, or order (whether temporary, final, or subject to modification) that is issued by a court or an administrative agency. It establishes the legal obligation for support or maintenance of a child up to the age of majority under the under the law of the issuing state.
However, if the child reaches the age of majority under the law of the issuing state and a support order has never been established, the case should be closed. See “Case Closure” in the Case Management chapter.
CSS does not establish spousal support orders. However, spousal support can be collected in conjunction with the collection of child support for that responsible parent's child.
All civil or criminal child support orders that are established or modified must contain the following:
1. A provision requiring the noncustodial parent (NCP) to keep the CSS agency informed of his/her current residence and mailing address;
2. A provision requiring the NCP to keep the CSS agency informed of the name and address of any sources of disposable income and of the amount and effective date of any substantial change in his/her disposable income;
3. A provision to provide for implementation of immediate income withholding procedures as provided for in NCGS 110-136.4;
4. The address of the custodial parent (CP) or the address of the child(ren), if different from the address of the CP. This requirement DOES NOT apply, if:
Prior to a court hearing or the preparation of a Voluntary Support Agreement and Order (VSA) or other consent order, determine if any domestic violence issues exist and request guidance from the CSS agency attorney on whether an address should be included in an order.
5. A provision requiring the NCP under order to provide medical insurance when available at a reasonable cost, to keep the CSS agency informed of any changes in the availability of health insurance, and to submit written notice of any change in the insurance coverage to the CSS agency and to the CP. (Per NCGS 50-13.11.)
If the defendant is not present and has not appeared at a prior hearing for the case, signifying awareness of the action, CSS must file an affidavit with the court that indicates whether or not the defendant is in the military or that CSS does not know whether or not the defendant is in the military before a default order establishing support is entered. For more information, see the “Military” Chapter.
All child support orders established must be on a monthly basis, due and payable on the first day of each month.
The court could enter a temporary support order to allow time to address any issues that could affect a support obligation. A temporary order can be entered as the initial support order or as a subsequent order. Temporary orders must contain:
“Unity orders” are child support orders for which the amount of child support is defined as a lump sum obligation. For example, an order for $300 per month that does not assign a specific amount to any child would be considered a unity order.
If the unity order is CSS-initiated (originated by the CSS agency), CSS can redirect the support to the appropriate party if all of the children who are included in the order remain with one custodian. If the children are with multiple custodians, CSS needs to petition the court for modification of the order so that support can be properly allocated, distributed, and disbursed among the different custodians.
If a unity order with multiple children is not CSS-initiated and a child moves to the household of a new custodian or a change in a child's Public Assistance (PA) status requires a change of the recipient of child support payments, CSS petitions the court for a modification of the order to allocate specific amounts of support per child and to direct how money is to be disbursed based on the child's PA status. All the child support continues to go to the plaintiff who is listed in the original until the order is modified. In these situations, it is imperative that court action be initiated as quickly as possible.
"Prorated orders" are child support orders which specify that a portion of the total support obligation be allocated for each child listed in the order. For example, if the court orders the noncustodial parent (NCP) to pay $300 per month for three (3) children, the court can specify that the $300 be divided equally among the children. Whenever possible, it is recommended to include language in the order specifying that the obligation be equally divided among the children. This can reduce the amount of CSS agents' time and effort that is spent petitioning the court to modify child support orders whenever a child leaves the home.
If the order is prorated and CSS-initiated, local CSS can redirect the support to the appropriate custodian without court intervention.
If the order is prorated and not CSS-initiated, local CSS must intervene in that order to redirect child support to the appropriate party.
If a child receiving TANF becomes a SSI recipient or moves in with a new custodian, it is necessary to examine the existing support order to determine what course of action to pursue in order to disburse child support payments. Children receiving SSI are considered Non-Public Assistance (NPA) for the purposes of child support disbursement. When a child moves in with a custodian, the CSS case needs to be examined to determine that child's share of the obligation and how it is to be disbursed. The establishment of prorated orders facilitates the disbursement of child support when these situations occur.
The establishment of paternity or support by CSS is not bound by a bankruptcy court's automatic stay. (An automatic "stay" prohibits creditors from attempting to collect debts of the individual, unless approved by the bankruptcy plan.) Bankruptcy legislation (PL 109-8) allows that actions to establish paternity and actions to establish child support are exempt from such automatic stays.
For more information, see the “Bankruptcy” topic in the Enforcement Chapter.
For CSS cases involving minor (under 18 years of age) putative fathers who are in school and have no resources or means to provide support, the issue of paternity can be resolved, provided the conditions stated in the Paternity chapter of this manual have been met.
Establishment of a support obligation for any minor parent must be based on the verification of income and resources to provide support.
"Retroactive support" is a support amount established for a time period before the start date (or effective date) of a child support obligation. The start date is the date when the first payment is due. Support that is effective on or after the start date is considered to be "ongoing support". A retroactive support amount is owed to the State when custodial parents (CPs) assign their rights to support to the State when they receive Public Assistance (PA) for their children. A retroactive support amount is owed to the CP if CSS establishes a support amount based on the noncustodial parent’s (NCP’s) fair share of specific expenses that were incurred by that CP for the child(ren) prior to the start date of the support obligation.
Since June 30, 1975, acceptance of PA on behalf of a child creates a debt due and owing the state. Under the authority of NCGS 110-135, if child support was required to be paid for a period when PA was received, that support is owed to the State. CSS must address retroactive support owed to the State if PA was received for a child whenever an ongoing support obligation is being established.
If an ongoing obligation is not established, CSS does not pursue retroactive support owed to the State. (For example: The court establishes paternity but does not order ongoing support because the NCP is 17 years old and in school, or the CP and NCP reunite after the establishment process has begun and no ongoing support is established. In these situations, an obligation for retroactive support that is owed to the State should not be established.) If ongoing support is established at a later date and the statute of limitation has not been reached, CSS addresses the establishment of retroactive support owed to the State.
NOTE: Establishing retroactive support is not to be confused with establishing ongoing support with an effective date in the past (prior to the filing date of the complaint).
Retroactive support is owed to the State if Public Assistance (PA) was paid on behalf of the child during any period(s) prior to the start date of the support order. When custodial parents (CPs) receive PA, they assign their rights to support to the State. Because of the legal principles of "res judicata" and "collateral estoppel", CSS must address the issue of retroactive support owed to the State when establishing the initial child support obligation. If retroactive support owed to the State is not included in the initial order, the opportunity to collect it is lost.
The CSS program is entitled to pursue retroactive support owed to the State for assistance paid after June 30, 1975 (NCGS 110-135). In accordance with 45 CFR 302.45, support must be based on the child support guidelines and must take into consideration the earnings and income of the parties in the CSS case.
Retroactive support owed to the State must be determined based on:
Prior to the establishment of the initial child support order, CSS receives verification from IV-A that the client received TANF for six (6) months.
In accordance with NCGS 110-135, retroactive support owed to the State must be established within five (5) years of the receipt of the last grant of PA. If the child has received at least one (1) TANF payment within the past five (5) years, retroactive support owed to the State can be established from the child's birth date to the present time, even if there were breaks in the PA periods or changes in payee.
Although support can be established retroactively and owed to the State, the total amount of Unreimbursed Public Assistance (URPA) might not be recovered because support must be based on the NCP's ability to pay during the time when the PA was paid to the family. NCPs who were physically or mentally incapacitated would not be expected to pay support for any period of time when they did not have the ability to pay.
Prior to the establishment of the initial child support order, CSS receives verification from IV-A that the CP received TANF for eight (8) months.
Based on this information, retroactive support owed to the State can be established only for the four (4) months when the NCP was not incarcerated. The total retroactive support amount owed to the State can be established at $1100.00 ($275.00/month X 4 months).
When making a decision to pursue payment of retroactive support, it is also important to evaluate the NCP's current ability to provide support. It is not appropriate to reduce a parent's current support obligation in an attempt to increase the ability to pay retroactive support. If the court attempts to do so, the agency attorney should state the agency's objection since such action is contrary to federal regulations.
Retroactive Support Owed to the Custodial Parent (CP) Policy –
Retroactive support owed to the CP (previously called "prior maintenance") is a support amount that is established to reimburse a CP for expenses incurred for the child(ren) prior to the establishment of a child support order. The issue can be addressed using a voluntary support agreement (VSA) through other legal proceedings.
The statute of limitations allows claims for retroactive support to extend no further than three (3) years prior to the date of filing of the support action. This should not be confused with the 10-year statute of limitations for recovering a judgment entered for the retroactive support claim.
If a CP requests that retroactive support be addressed, CSS must ensure that:
Exceptions to the Establishment of Retroactive Support to the CP –
If support has already been addressed in either a court order or separation agreement, CSS must not pursue the inclusion of retroactive support in the child support order.
Determining the Amount of Retroactive Support –
Under the NC Child Support Guidelines, the amount of retroactive support can be determined, based on either:
If retroactive support is based on actual expenses, an affidavit listing the reasonably necessary past expenditures made on behalf of the child during the relevant period must be completed by the CP. The Affidavit Of Income, Assets and Expenses (DSS-4666) can be used for this purpose. This affidavit should be signed, notarized and all appropriate supporting documentation (bills, receipts, etc.) should be attached.
The Guidelines do not require a specific approach to determining a parent's fair share of the expenses. An amount can be calculated to be the same percentage of the total expenses as the parent's share of the combined incomes of both parents or another amount as determined by the court
If retroactive support is determined in accordance with the Guidelines that were in effect at the beginning of the retroactive period for which support is being sought, calculations must be made in accordance with information in the version of AOC-A-162 that was in effect at that time. Calculation of support obligations with prior versions of AOC-A-162 must be made manually using worksheets that were in effect at that time.
Federal regulations at 45 CFR 303.4 require that within ninety (90) days of locating a noncustodial parent (NCP), the local CSS agency must:
To comply with this requirement, a state must meet this requirement for ninety percent (90%) of all its open cases.
Additionally, federal regulations at 45CFR303.101(b)(2)(i) require the CSS program to process establishment cases, either administratively or judicially, within the following prescribed time frames. From the date of service of process, support must be established:
Once the noncustodial parent (NCP) has been located, the first step in establishing a support order is to contact him/her. CSS caseworkers can schedule an interview with the NCP immediately, or they can request that the NCP call the office first.
For questions or clarification on any of the policy contained in these manuals, please contact your local county office.