On December 20, the U.S. Department of Health and Human Services announced new rules and regulations governing state child support agencies and child support establishment, modification and collections therein. The 2016 Flexibility, Efficiency, and Modernization in Child Support Enforcement Rule1 became effective one month later, on January 19, although states must only fully comply prior to the effective compliance date, which varies for each subsection of the rule.
The rule was promulgated to comply with President Obama’s directives in Executive Order 13563: Improving Regulation and Regulatory Review, as well as to comply with the 2011 U.S. Supreme Court ruling in Turner v. Rogers2 concerning the right to appointed counsel for indigent child support obligors facing incarceration in civil contempt actions. It also serves to update ancient child support guidelines, some of which are more than 30 years old, and to comport with new statistical information, intervening laws and modern society.
This new rule, while nationwide in scope, will result in changes in both child support law and Division of Child Support collection practices in Washington. This article is meant as a general overview only of the lengthy summary in the Federal Register and serves to discuss several main areas of the new rule that may affect private family law practice in Washington.
It is not meant to be a thorough summary of all areas impacted by the new rule, such as collections streamlining and administrative case closure changes, and the author suggests the practitioner interested in delving deeper read the rule and Federal Register summary in full to determine its myriad other potential impacts on family law practice in Washington.
Guidelines for Setting
The new rule modifies 45 CFR 302.56 as regards the guidelines for setting child support by stating, “if imputation of income is authorized,” the order must take into account:
the specific circumstances of the noncustodial parent … to the extent known, including such factors as the noncustodial parent’s assets, residence, employment and earning history, job skills, health, criminal record and other employment barriers and record of seeking work, as well as the local job market, the availability of employers willing to hire the noncustodial parent, prevailing earnings level in the local community, and other relevant background factors in the case.3
The impetus for expanding the consideration of factors in setting income for child support purposes is practical and based upon the availability of extensive research showing that setting an accurate child support order based upon the obligor’s ability to pay increases the ability to collect the obligation.4 Thus, if evidence of earnings is unavailable and income is imputed, the imputed amount “must reflect the specific circumstances of the noncustodial parent to the extent known, and [the court] may not order a standard amount imposed in lieu of fact-gathering in the specific case.”5
This new rule calls into question whether income can be imputed in a default case at the state minimum wage, the net median wage per the U.S. Census Bureau, or even the average wage for a person in the noncustodial parent’s given profession, as doing so would not be based upon evidence that reflects “the specific circumstances of the noncustodial parent’s” situation. It is thus clear that Washington child support guidelines, including RCW § 26.19.071, will need to be revised to encompass this rule change.
Civil Contempt of Court
The new rule also amends 45 CFR 303.6, incorporating due process requirements to comply with Rogers by providing criteria and streamlining procedures regarding which cases a state administrative agency refers to court for civil contempt litigation.6 These revisions are designed to “reduce the risk of erroneous deprivation of liberty without imposing significant fiscal or administrative burdens on the State.”7
Thus, if there is no evidence that a noncustodial parent has earnings or the ability to pay, the rule states that a state agency should not initiate civil contempt proceedings without further investigation, including determining whether the support order should be modified instead.8 This rule change is practical in nature and is based upon extensive research showing that routine use of contempt is “counterproductive to the goals of the child support program” and “all too often results in the incarceration of noncustodial parents who are unable to pay to meet their purge requirements.”9
The change also will affect how and when the Division of Child Support refers cases to state prosecutors for civil contempt filing, but also may affect how the courts view civil contempt in general. While Washington has heightened case law protections where potential loss of liberty for civil contempt is concerned,10 the language of the new rule may result in statutory modification or case law requiring a higher level of specific information for any contempt finding that imposes incarceration.
Modification Issues and
Noting that “the child support system is not meant to serve a punitive purpose,”11 changes to the portion of 45 CFR 302.56 governing this issue were motivated by many studies showing that “imposing high support payments on incarcerated parents serves as a punitive measure, becomes an additional collateral consequence of incarceration, and does not serve the best interest of the child by damaging the parent-child relationship and the prospect for consistent child support payments in the future.”12 The rule modifies 45 CFR 302.56 to prohibit the treatment of incarceration as “voluntary unemployment” when establishing or modifying child support.13
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