Child Support Payers Bill of Rights

Addendum to testimony of Mark Rogers to House Ways and Means Committee, March 16, 2000

By Mark Rogers, FAPT


Full text of Mr. Rogers testimony to House Ways and Means Committee

A CHILD SUPPORT PAYER’S BILL OF RIGHTS

I. Use of Child Support

1. Child support shall be used solely for support of the child, not support of the parent’s lifestyle.

II. Calculation of Child Support

1. Generally Accepted Cost Accounting Principles shall be employed in developing child support guidelines. Child support estimates shall be based on the incremental cost of supporting a child. Those cost estimates shall control the finder of fact in determining the amount of child support to be allocated between the parents.

2. Individualized estimates of child support to be awarded shall employ Generally Accepted Cost Accounting Principles and shall be based on the incremental costs of supporting the child.

3. If a parent has multiple children from multiple marriages, child support shall be calculated only on the incremental cost of supporting each child.

4. Child support shall not reduce a parent’s income to a level that entitles that parent to any form of need-tested government entitlement.

5. A non-parent shall not collect more child support from both parents than either parent would be obliged to pay separately.

III. Who Shall Pay Child Support

1. Child support may not be imposed on any individual other than the biological father or mother or an adoptive parent.

2. No parent who has been shown by DNA testing to not be the father shall be obliged to pay child support for that child.

IV. Payment through a Financial Intermediary

1. Child support shall be treated as any conventional debtor-creditor relationship.

2. Separation of duties shall be accomplished by utilizing lockbox, automatic transfer, or other commercial banking services to receive and deposit funds.

3. Funds shall be handled in accordance with good fund accounting practice and with Generally Accepted Accounting Principles.

4. Child support collection operations shall comply with all statutes and regulations that apply to financial intermediaries in general.

5. All payments received shall be credited to the obligor’s account within two business days and posted as of the date received.

6. The obligor may direct application of payments: The recordkeeper shall apply payments to current and past obligations as directed in writing by the obligor. Those writings shall be accepted and acted upon as if they were endorsements to a financial instrument as described in the Uniform Commercial Code whether the obligor pays directly or through some intermediary, e.g., through income deduction.

7. All funds received by a child support receiver or its contractor by 2 PM shall be assembled into a deposit to a commercial bank and physically deposited in that bank the same day.

8. All payments shall be disbursed within two business days.

9. No child support payment may be deposited to any account where it might be commingled with any funds excepting other child support payments.

10. Child support collection activities and workers shall be subject to fiduciary obligations as they apply in general to governmental officers or employees who handle or control funds. All individuals who handle or control funds shall be bonded in the same manner and amounts as other government officials and employees with similar fund handling duties.

11. An arms-length relationship shall be maintained between the organization that receives, posts, and disburses payments and the organization that enforces collections.

12. Upon inception of any child support order requiring payment through any financial intermediary, and upon any change of organizational address or telephone number of the organization(s) (governmental office or contractor) that maintain(s) records of that payor’s payments received, application of those payments to obligations, and disbursement of payments to the ordered recipient, the obligor shall be notified of the identity of the organization(s) which maintain(s) authoritative records of that information.

13. The obligor shall be notified at inception, and upon any change, of the address for mail and in-person requests, and phone numbers for telephonic and (if available) facsimile requests. The recordkeeping organization shall accept written requests for information telephonically, by in-person delivery and by facsimile transmission during their entire working day. Mail delivery by U.S. Postal Service employees directly to the recordkeeping unit shall be maintained.

14. The obligor shall, on request, be permitted to inspect and optionally, to copy, a history of posting dates and amounts of child support payments posted, application of those payments to current and past-due obligations, and amounts and dates of payments disbursed to the recipient in the most concise form available to the recordkeeper. For any account paid through income deduction, the recordkeeper shall retain and permit inspection and permit copying at no charge of the employer’s transmittal letters detailing payments remitted on the employee’s behalf.

15. If the child support recordkeeping organization is unable to provide employer transmittal letters, the employer shall, at the obligor’s request, provide copies of transmittal letters and canceled remittance checks endorsed by the child support receiving organization within 7 working days after the request.

V. Collection Operation Audit

1. Each such individual child support recordkeeping unit (including all contractors) shall operate in accordance with Generally Accepted Accounting Principles and individual obligors accounts shall be audited annually applying “Standards for Audit of Governmental Organizations, Programs, Activities and Functions,” issued by the U.S. Comptroller General and, supplementally, state administrative policies and procedures manuals.

2. A separate annual audit shall be performed at each child support recordkeeping location of individual obligor accounts, using those same definitions and requirements. The audit shall be unannounced and shall test the timeliness and accuracy of posting of obligations and payments, and of disbursement of remittances to obligees, and accuracy of obligor’s account balances and transactions. Substantive tests of balances and transactions shall be performed in sufficient number to support an opinion based on an estimate to a 95% confidence level of the maximum number of accounts in which errors will be found and the percentage such number of accounts bear to the total number of currently active accounts. Substantive tests shall be performed to estimate the average and maximum days from receipt of a payment to posting for each recordkeeping location to a 95% confidence level. For all locations for which obligees disbursements are issued, one hundred percent testing by EDP auditing shall be performed to determine the average and maximum days from posting of a payment to its disbursement for each recordkeeping location.

3. An audit report and management letter incorporating recommended improvements shall be issued for each recordkeeping location. A copy of all audit reports and management letters shall be made available for inspection at the recordkeeping location upon walk-in request during regular working hours and copies shall be made available to the general public at a cost no higher than that charged for FOIA requests.

4. Certified copies of such records of obligations, payments and application of payments maintained by a recordkeeping location for which an audit in each of the two previous years estimates errors of less than 1% to a confidence level of 95% shall, without further proof, be admitted into evidence in any legal proceeding in this state. Records showing a failure to meet these standards shall be admissible in court in support of a defense of inaccurate recordkeeping.

VI. Child Support Determination

1. There shall be no ex parte child support decisions.

2. A parent is entitled to a jury trial in a request for modification of child support.

3. Child support obligations shall not be exempt from generalized statutes of limitations.

VII. Alternative Payment Arrangements

1. Both parents may agree to binding arbitration in any matter concerning child support by any individual who is not a government employee or grantee directly or indirectly. That arbitration shall be binding upon the courts and child support collection and enforcement personnel. Parents may agree to direct child support payments without the intervention of any governmental collection process.

2. Payers shall be permitted to authorize any federally insured financial institution to automatically deduct child support that may be disbursed either directly to the recipient or to another (government-sponsored) financial intermediary.

VIII. Income Deduction Orders and Implementation

1. An income deduction order shall not emanate from a criminal proceeding. Child support is a civil obligation.

2. The term of an income deduction orders shall not extend beyond the term of the underlying obligation.

3. There shall be no statutory exclusion of defenses to income deduction orders.

4. The payor shall be notified in the manner of personal service two weeks before an employer is notified of an income deduction order.

5. An employer may not take any action against an employee because of an income deduction order.

6. Existence of an income deduction order may not be inquired about nor taken into consideration in hiring decisions.

7. While an income deduction order is subject to appeal, all funds deducted shall be held in escrow pending a final determination.

8. The income deduction order shall state all fees or interest that have accrued and shall be accompanied by a computation of the components of those amounts.

9. Proof of deduction from a paycheck shall be a complete defense to non-payment by the obligor. Proof of remittance shall be a complete defense to non-payment by the employer.

10. Employers shall permit employees to inspect and copy records of withholding and remittance of child support withheld from the employee no less than once per year and whenever an allegation arises as to status of child support.

11. Annotations on pay stubs shall clearly indicate “child support” so as to facilitate legal defense.

12. Child support payments in controversy may be collected but shall be held in escrow until the controversy is resolved.

IX. Enforcement

1. Administrative Procedures prescribed by HHS OCSE publication “Essentials for Attorneys in Child Support Enforcement” shall be employed.

2. Any notice issued in enforcement of child support obligations shall be accompanied by a summary of obligations met and unmet, payment history, and application of payments sufficient to permit a finder of fact to review the relevant transactions.

3. Obligors in arrears shall be notified if the arrearage exceeds one month’s obligation. The arrearage shall be treated as unknown to the obligor until notified by certified mail.

4. In addition to any other adjudicatory authority, an adjudicatory officer with the authority to temporarily restore license privileges shall be available in the same times and business locations as is authority to issue an arrest warrant.

5. No government employee or contractor may act in a matter of law on behalf of a parent who is not a current recipient of needs-tested governmental entitlement.

6. Payers and recipients files shall be merged and both parties shall have access to all contents of the merged file.

7. Warrantless searches for financial information shall not be permitted in the context of child support. Financial institutions shall not divulge information without a court order. Financial institutions shall not divulge under the guise of child support enforcement any personal financial information concerning persons merely alleged to owe child support or persons who are not alleged to owe child support.

8. Levies upon property shall not issue without notice and hearing.

9. Collection organizations shall be liable for withdrawal penalties and loss in market value in the case of unjustified liquidation of financial instruments, securities, and accounts.

10. No license may be revoked or suspended without personal service on the licensee nor without hearing and a showing of arrearage at the time of the hearing.

X. Paternity

1. Accused fathers shall have access to all DNA testing work product and shall be permitted to obtain an opinion by an analyst of their choice as to the indications of that test. That analyst shall be permitted to testify. An accused father shall be entitled to a jury trial.

XI. Enforcement of These Rights

1. A child support recipient and a child support obligor shall be entitled to take legal action in any court of record in the state in which an alleged violation occurs.

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[1] The speaker presents this testimony as an expert as a member of the 1998 Georgia Commission on Child Support (not necessarily representing other commissioners' views), as an economist published on child costs and other areas of economics, and as a representative of non-custodial parents as an officer of the Atlanta, Georgia based advocacy group, Fathers Are Parents Too. Presenter’s email: rmrogers@mindspring.com.


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