Paternity and. Law in Iowa. A Guide to How Courts Determine in Iowa. Visit our Website for More Self-Help Resources iowalegalaid.

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1 Paternity and Child Support Law in Iowa A Guide to How Courts Determine Child Support in Iowa Visit our Website for More Self-Help Resources iowalegalaid.org

2 IMPORTANT NOTICE: READ THIS INFORMATION BEFORE USING ANY PART OF THIS BOOKLET This booklet is a general summary of the law. It is not meant to completely explain the subjects in this booklet. IT IS NOT A SUBSTITUTE FOR LEGAL ADVICE. The information in this booklet was correct as of the date it was printed (see the back cover). The laws may have changed. DO NOT ASSUME THAT THE INFORMATION IN THIS BOOKLET IS NOW CORRECT. You should see a lawyer to get complete, correct, and up-todate legal advice. Do not rely on the general information in this booklet for your specific case. If you need a lawyer but can t afford one, contact Iowa Legal Aid. You may be able to get free legal help. Call or write Iowa Legal Aid. The address and phone numbers are on the back cover. AS YOU READ THIS BOOKLET, REMEMBER IT IS NOT A SUBSTITUTE FOR LEGAL ADVICE.

3 Contents INTRODUCTION... 5 THE CHILD SUPPORT RECOVERY UNIT...5 What Does the Child Support Recovery Unit Do?... 5 Can People Contact the Child Support Recovery Unit If They Are Not on Public Assistance (Family Investment Program/FIP or Medical Assistance)?... 5 CSRU Fees for Non-FIP Cases... 6 What Does the Parent Owe the Department of Human Services Once Public Assistance is Received for the Child?... 6 How Does the State Keep Track of Support Payments?... 6 ESTABLISHMENT OF PATERNITY...6 What If the Mother Won t Reveal the Father s Name?... 6 What Happens After the Mother Suggests a Father?... 6 What If He Doesn t Think He Is the Father?... 7 What Will Happen If He Ignores the Notice and Fails to Contact CSRU?... 7 How Much Does It Cost To Get the Genetic Tests?... 7 How Are the Tests Done?... 7 What Will the Tests Show?... 7 How Accurate Are the Tests?... 8 How Long Does It Take to Get Results?... 8 Can the Test Results Be Challenged?... 8 Are Genetic Tests the Only Way to Establish Paternity?... 8 What If the Genetic test Shows That He Is the Father or What If the Man Does Not Contest Paternity?... 8 Can Paternity Be Disestablished?... 8 ESTABLISHMENT OF SUPPORT ORDERS...9 What If Paternity Is Not An Issue?... 9 What If the Parent Gets a Notice of Support Debt from CSRU?... 9 Sample Letter to Child Support Recovery Unit... 9 Sample Letter Regarding Paternity...10 Is the Non-Custodial Parent (Debtor or Obligor) Entitled to a Hearing?...10 What If the Notice Is Ignored?...11 How Is the Amount of Child Support Determined?...11 What if the parents share custody?...12 What is Considered Income?...13 How Does CSRU Calculate Accrued Support?...13 What is Medical Support?...13 How is cost defined?

4 Can the custodial parent be required to buy health insurance?...13 How is the insurance premium paid?...14 What if reasonable cost insurance is not available to either parent?...14 Are there any exceptions to having to pay Cash Medical Support?...14 What If the Noncustodial Parent Is 19 Years Old or Younger?...14 FOSTER CARE Do Parents Have To Pay Support If the Child Is In Foster Care?...14 HOW CHILD SUPPORT IS ENFORCED What If the Non-Custodial Parent Won t Pay?...15 How Much Can Be Withheld? ) Challenges to Income Withholding ) Garnishment ) Seek Work Orders ) Administrative Levy ) Contempt of Court ) License Sanctions ) Reports to Credit Bureaus ) Centralized Employee Registry ) Tax Refund Intercept...18 Are There Other Ways to Collect Child Support?...18 What If the Are No Longer Minors?...18 MODIFYING CHILD SUPPORT ORDERS Review and Adjustment of Child Support Orders...18 Administrative Modification...19 What if the Parent Paying Support Becomes Disabled?...19 Suspension and Reinstatement of Support...19 Petition to Modify Support...20 Motion to Release Support Judgment...20 What If More Than One State is Involved?...20 Where Is the Law On Child Support Found?...20 Where Can I Find Out More About the Child Support Recovery Unit (CSRU)?...21 How Do I Contact the Child Support Recovery Unit?...21 Offices, Addresses and Service Areas...21 Obligation to Provide Information...22 GLOSSARY OF CHILD SUPPORT AND PATERNITY TERMS Motion to Quash/Change Income Withholding Order...25 Information Form...27 Child Support Guidelines

5 INTRODUCTION whose parents do not live together should still get support from both of them. Either the State of Iowa or custodial parent can get an order setting how much support the non-custodial parent must pay to the custodial parent. If the parent without custody does not pay this support voluntarily, there are ways to force payment. Orders for child support are issued by a judge or by the Child Support Recovery Unit. Orders issued by a judge most often occur in a divorce. A general booklet on divorce called Divorce Law in Iowa is available from Iowa Legal Aid. Contact Iowa Legal Aid at the address or phone number on the back cover if you want to get a copy. Support orders may also arise when a marriage is annulled or a couple separates. Support can be ordered when domestic abuse injunctions are issued and through paternity actions. Once the order has been obtained, it can be enforced by the parent who is owed support. It can also be enforced by the State of Iowa, usually through the Child Support Recovery Unit. THE CHILD SUPPORT RECOVERY UNIT The Child Support Recovery Unit (CSRU) is an office of the Department of Human Services. Their purpose is to help establish support orders and collect child support payments. What Does the Child Support Recovery Unit Do? The CSRU can provide the following services: 1) Help locate an absent parent or anyone else who has to support the child of the custodial parent. 2) Help prove paternity and get a court order for support. 3) Help get support payments that a court has already ordered. 4) Help get income from a non-custodial parent to pay any money owed to the Department of Human Services or to a household not on public assistance. 5) Modify and suspend child support orders. Can People Contact the Child Support Recovery Unit If They Are Not on Public Assistance (Family Investment Program/FIP or Medical Assistance)? Yes. By law, CSRU must make its child support and paternity determination services available to all households. The parent does not have to be on the Family Investment Program or FIP. (FIP used to be called the ADC Program). If CSRU refuses to help, or says there will be a long delay, contact a lawyer. If the parent cannot afford a lawyer, he or she may be able to get free legal help from Iowa Legal Aid. 5

6 CSRU Fees for Non-FIP Cases Fees are charged by the Child Support Recovery Unit. An application fee may be charged. The parent may also have to pay other fees to cover the actual costs to collect the support and determine paternity. What Does the Parent Owe the Department of Human Services Once Public Assistance is Received for the Child? People who get Public Assistance agree to assign (meaning to give) to the Department of Human Services all right to child support owed. The amount of the assignment is limited to the amount of public assistance paid to the child s family. How Does the State Keep Track of Support Payments? Support to Public Assistance households must be sent to the Collection Services Center in Des Moines. Support to non-public Assistance households may be sent either to the Collection Services Center or to the County Clerk of Court. It depends on whether CSRU is enforcing the support order and whether there is an income withholding order in place. If there is an income withholding order, payments must go to the Collection Services Center. If not, payments go to the Clerk of Court. If the money is paid directly to the custodial parent instead of the Collection Services Center or to the Clerk of Court, it is not credited as paid. Therefore, the noncustodial parent should not pay the custodial parent directly. ESTABLISHMENT OF PATERNITY Paternity is often established through marriage or by operation of law. This means that the husband is automatically the father of every child his wife gives birth to. Even if the husband and wife are separated or if the wife admits her husband is not the father, he will still be considered the dad. If the parents are not married, paternity is established by court order or affidavit. Many paternity actions are private actions, that is, the mother of the child can sue the man she believes to be the father. However, this booklet deals with paternity actions where the state is involved. It is about cases where the State of Iowa is suing the possible father. The State is trying to get money for expenses and support of a child who gets FIP (Family Investment Program) benefits or medical assistance. FIP used to be called Aid to Families with Dependent. Paternity actions often begin when a parent who does not get child support contacts the Department of Human Services to apply for FIP or Medical Assistance. These payments are then sent to the Child Support Recovery Unit (CSRU). The mother must usually give the name of the father (if known) or the names of several men who could be the father. What If the Mother Won t Reveal the Father s Name? A mother may have good cause reasons for not revealing who the father is. However, if the mother cannot prove good cause, the mother could be charged with failure to cooperate and lose her FIP (but not the child s). What Happens After the Mother Suggests a Father? Once the mother has given the CSRU the father s name (or several names), the CSRU will serve each man a Notice of Alleged Paternity and Support Debt. The man can do one of two things at this point. If he believes that he is the father, he can admit paternity. He can work out support payments and any other related issues. To work out support payments, he can request a conference with CSRU and/or a hearing. On the other hand, if he does not think that he is the father, he can challenge it. 6

7 What If He Doesn t Think He Is the Father? If the man does not believe that he is the father, he needs to tell this to CSRU and request a genetic test. He must contact the CSRU in writing within 20 days after receiving the original Notice of Alleged Paternity. (See sample letter on page 10). CSRU will then arrange for the test to be done. An order will be entered requiring the mother, the child and the alleged father to submit to genetic testing. There will be only one chance to reschedule the testing appointment. If you cannot go to the appointment, be sure and contact CSRU beforehand to reschedule. The test results will be mailed to the alleged father. A conference can also be requested to discuss paternity but it is important not to miss the 20- day deadline to deny paternity. What Will Happen If He Ignores the Notice and Fails to Contact CSRU? Most alleged fathers do contact CSRU. IF HE DOES NOT ANSWER (meaning respond within the time stated in the notice), HIS PATERNITY IS ESTABLISHED BY DEFAULT. That means the court will rule that he is the father because he did not deny it. He can challenge the default by filing with the Clerk of Court a written application to set aside the default within 60 days. After the 60 days, there is another court proceeding (called disestablishment. See the next page) that can be started as long as the child is not 18 years old. If he wants to challenge the default order, he should contact an attorney immediately. Do not ignore the notice or paternity will be established by default. If this happens, CSRU will enter an administrative order for support. The order will state an amount of monthly support to be paid and an amount of past due support. Also, at this point, income, wages, driver licenses and property can be taken. This means that the state can take and even sell personal property to help pay the child support. Read all notices carefully. Pay attention to all deadlines. Keep copies of all papers sent by you or CSRU. How Much Does It Cost To Get the Genetic Tests? If the man cannot afford to pay for the tests, the state will advance the costs for the tests. He has to sign a sworn statement about why he can t pay the costs of the genetic tests. If the tests show that he is the father of the child, he will be required to pay the costs for the test. The costs are usually around $600. How Are the Tests Done? Most communities specify a place where genetic samples are taken. Some Child Support Recovery Unit locations are equipped to take samples. Genetic samples can be obtained from blood or tissue. One of the most common ways is using a cotton swab to take a sample of cells from inside the person s mouth. The samples are then sent to approved test laboratories. What Will the Tests Show? The tests used to determine paternity are scientific and accurate. The testers look at many factors to determine genetic makeup. The tests will show one of two things: 1. It is genetically impossible for an alleged father to be the true father, or 2. There is some chance (for example 91.2% or 96.8%) that the alleged father is the father. If the chance of paternity is 95% or more, the alleged father is presumed (meaning assumed) to be the father. This presumption of paternity means that, in most cases, the judge will rule the alleged father is the father based on the test alone. The judge could rule that the man is not the father if there is clear and convincing evidence to prove it. The alleged father has only 20 days to challenge a test. The 20 days start on the date the test results are filed at the courthouse. To challenge the results, a written notice challenging them has to be filed with the Clerk of Court. 7

8 If the genetic test shows a less than 95% chance the alleged father is the father, the judge may still find him to be the father. The judge must look at all the evidence including the test to decide if he is the father. In this case, the alleged father also has 20 days to challenge the test. No matter what the probability of paternity is, the alleged father (or mother or CSRU) can ask the judge for another genetic test. The judge must order another genetic test if the request for another test is reasonable. How Accurate Are the Tests? Thanks to scientific developments, the accuracy of genetic tests has greatly improved. The test results will be filed with the Clerk of Court, and the man will be sent a copy, too. How Long Does It Take to Get Results? Results are usually reported within four to six weeks. Can the Test Results Be Challenged? Yes. But the objection must be filed in writing with the court within 20 days after the test results were mailed and advance payment for additional testing must be made. A hearing will then be held in district court to resolve the issue of paternity. Are Genetic Tests the Only Way to Establish Paternity? No. If the parents were not married to each other at the time of the conception and birth, they can sign an Affidavit of Paternity. The only form that can be used is the one by the Iowa Department of Public Health. The form is a sworn and notarized statement that the man is the biological father. The hospital and the Clerk of Court will have the forms. The Affidavits have the same effect as a judge s decision, which means the father can be ordered to pay child support without any genetic testing. The father should not sign the affidavit unless he is sure he is the father. It is possible to rescind or cancel a paternity affidavit. This must be done by filing a signed form with the state registrar. It must be filed either 60 days from when the affidavit was signed or before entry of a court order in a case involving the child, whichever comes first. Either parent can file the rescission. There may be a fee to file it. Filing the rescission will take the father s name off the birth certificate. What If the Genetic test Shows That He Is the Father or What If the Man Does Not Contest Paternity? If the genetic tests show that he is the father, or if the man agrees that he is the father, he can meet with CSRU and/or request a hearing (see below). This meeting is called a conference and must be requested within certain time frames. The CSRU will ask him for financial information. CSRU will then tell him how much they believe he should pay in support. This amount is based on the Uniform Child Support Guidelines (see pages 29 through 38). If he disagrees, he can ask for a court hearing. This also must be done within certain time limits. (See Establishment of Support Orders on the next page.) Can Paternity Be Disestablished? Yes. A court action is needed to do this. Certain requirements must be met. These include: 1. the child must still be a minor (under age 18); 2. a guardian ad litem (or attorney) must be appointed for the child; 3. genetic tests have not already been done; 4. genetic tests are done which show the established father is not the biological father; or 5. if paternity was established by a signed affidavit, it was based on fraud, duress or material mistake of fact. 8

9 The person requesting that paternity be disestablished is responsible for paying for the genetic tests. The court action can be filed by the mother, the father or the child. If the court does enter an order overcoming or disestablishing paternity, no more child support will be owed. Any unpaid, past due, or accrued support will be waived. This means it will not have to be paid. However, any support already paid will not be refunded. Even if the tests show the man is not the father, the court can still decide not to overcome paternity. To do this, the father must request that the parent-child relationship continue. Also, the court must conclude that continuing the relationship is in the best interest of the child. Paternity can also be disestablished in a divorce proceeding if both the husband and wife sign a statement saying husband is not the father of a child from their marriage. ESTABLISHMENT OF SUPPORT ORDERS What If Paternity Is Not An Issue? Sometimes the question of who the father is has already been decided. For example, the parents are married but are no longer living together; or the children are living with the father; or genetic tests say he is the father. Then the only thing for CSRU to decide is the amount of support. To make this decision, CSRU first sends a Notice of Support Debt to the parents. What If the Parent Gets a Notice of Support Debt from CSRU? When the CSRU intends to establish a support order requiring the non-custodial parent to pay child support, it will send that parent a notice called a Notice of Support Debt. The parent from whom child support is sought is called the debtor or obligor. Sample Letter to Child Support Recovery Unit 9

10 Sample Letter Regarding Paternity A debtor who gets notice of a support debt from the CSRU should know the amount of the support debt listed could be misleading. The figure listed may show how much FIP the state has been paying to the debtor s family, instead of the amount paid just for the children. Also, the support debt could be less than the amount of FIP paid for the children if the debtor s income is too low. The notice of support debt will include a request that the parent provide financial information. The parent will be asked to complete a financial statement. It is very important to tell CSRU accurate income information. Under the law, CSRU can estimate or assume the parent s income if they don t know for sure. This can result in support orders that are too high. Once a debtor gets notice of a support debt from CSRU, the debtor may request a negotiation conference. This must be done within ten days. It is in a debtor s best interest to contact CSRU in writing to ask for a meeting (negotiation conference). A sample letter is on page 9. At this time, the debtor will have a chance to discuss his/her specific case with the CSRU. He or she can also try to work out a plan for repayment of the support debt. After the conference, CSRU will issue a new notice or a conference report. Is the Non-Custodial Parent (Debtor or Obligor) Entitled to a Hearing? A debtor can request a court hearing instead of participating in a negotiation conference. The request for a hearing must be made within 30 days after receiving the first notice. Also, a debtor can request a hearing after taking part in a negotiation conference if he or she disagrees with the findings at the conference. This must be done within the time limit. 10

11 The non-custodial parent who gets a notice of a support debt from CSRU has a right to a hearing. By law, the debtor need only ask (in writing) the CSRU to arrange such a hearing. See the sample letter on page 9. What If the Notice Is Ignored? If a debtor does not contact CSRU within the time limit, CSRU will enter a default judgment. The default judgment is a child support order and may include the full amount of support shown on the notice. The debt may be taken from the debtor s wages (wage assignment). At this time, a debtor s property may also be subject to collection action. It may be possible to set aside (remove) a default judgment, but it is very hard to do. How Is the Amount of Child Support Determined? The incomes of both parents determine the amount of child support in Iowa. In most cases, the Child Support Recovery Unit and judges must use the Child Support Guidelines which include a chart called the Iowa Schedule of Basic Support Obligations (Schedule). The Schedule uses the combined net monthly income of the parents. It also uses the number of children. Based on the combined income amount and the number of children, a total amount of child support is found on the Schedule. Each parent will pay a percentage or share of this total amount. The share is equal to the parent s percentage of their combined incomes. For example, if both parents earn the same, each share is 50%. If one earns $1000 and the other one earns $1500, the shares would be 40%($1000 is 40% of the total $2500) and 60% ($1500 is 60% of $2500). A copy of the Guidelines (effective as of July 1, 2009) is at the back of this booklet. The Guidelines must be reviewed every four years. The reviews may change the Guidelines and how child support is figured. To get a copy of the current Guidelines, contact a lawyer or CSRU. CSRU has a website you can use to get information about the current Guidelines. It is The CSRU website includes a link to an online Child Support Estimator. The url of the Child Support Estimator is 11

12 The important part of the Guidelines is each parent s net monthly income. The following items are subtracted from gross income to determine net monthly income. 1. federal income tax; 2. state income tax; 3. Social Security; 4. mandatory pension deductions; 5. union dues; 6. actual medical support paid under court order or administrative order; 7. cash medical support ordered in this specific case; 8. child support or alimony that is being paid and was ordered before this specific case; 9. qualified additional dependent deduction; and 10. actual child care expenses while the custodial parent is employed minus the income tax credit. After this is all subtracted from gross income, the amount left is the net monthly income. The amount for each parent is combined. The basic support obligation is found on the Schedule. The non custodial parent will pay his/her share as described above. An example using the Guidelines will help. A couple has one child. Assume Mom is the custodial parent. Dad s net income is $1600 a month. Mom s net income is $400 a month. The total of their combined incomes is $2000. The Schedule says that the basic support obligation is $490. Dad s income is 80% of the $ Dad would pay 80% of the $490 or $392 (492 x.8). For low-income parents, ONLY the income of the noncustodial parent is used. The incomes are NOT combined. The parents do not each pay a share of the basic support obligation. The noncustodial parent pays the full amount. The Schedule shows these low income amounts by having a shaded area. Example: If the noncustodial parent s net income is only $1000 a month, and there is one child, the parent would pay $95. What if the parents share custody? When the parents share custody about equally (joint physical care) support is decided a little different. After figuring each parent s share of support, that amount is multiplied by 1.5 and that amount is multiplied by 50%. Support is calculated this way even if low income parents share custody. A parent can ask a judge not to use the Guidelines to set support. This is called a Request to Deviate from the Guidelines. For example, the parent can tell the judge that the support amount set by the Guidelines is too high or too low. In the past it was very unlikely that the judge would deviate. Changes to the Guidelines in 2009 may make this a little easier. According to the rules, adjustments can be made to the support amount to do justice between the parties...under the special circumstances of the case. Because the Supreme Court has said to use the Guidelines except in very unusual cases, you will need to ask for a hearing to request a deviation. CSRU will not do it without a judge telling them to. If the noncustodial parent has no income, he or she will still be ordered to pay child support. If the noncustodial parent s net monthly income is less than $500 per month, the Judge probably will order the parent to pay $50 per month if there is one child, $75 per month if there are two children, $100 for three children, and $125 for four or more children. 12

13 If a noncustodial parent s court-ordered visitation exceeds 127 overnights per year, the non-custodial parent will be able to pay less in child support. It is important for parents to tell the Child Support Recovery Unit (CSRU) how much money they make. CSRU usually asks the parent to complete a financial statement. If CSRU does not know how much money the noncustodial parent makes, the CSRU searches for information on the parent s income. They will view records at Workforce Development, Department of Revenue and other agencies. When financial information is not available, CSRU estimates income according to the median income of all people who work in the same type of job as the obligor. If the obligor s occupation is not known, CSRU may use the median income of the people on CSRU s caseload. What is Considered Income? The only type of money not considered income is welfare or public assistance. Therefore, CSRU will consider social security benefits, veterans benefits, pensions, unemployment benefits, wages, etc. as income but not FIP or SSI benefits. How Does CSRU Calculate Accrued Support? It may take several months (or even years) for CSRU to get a support order after a child is born (or the parents separate). That does not mean no support will be owed for this time period. CSRU may go back 36 months from the date the parent is served papers or back to the month the child began receiving FIP, whichever is shorter. If the child has not received FIP or Medical Assistance it is quite likely no accrued support will be required. If accrued support is ordered, this must be paid in addition to the current obligation. A payment schedule or income withholding order will usually require an additional 10% or 20% of the current amount to pay on this accrued debt. What is Medical Support? The law says that support means more than just child support. It also means medical support. More emphasis is being placed on requiring the parent to provide health insurance and/or pay medical bills for the children. CSRU can obtain an order for just medical support and not child support. Usually both will be ordered at the same time. Until July of 2009, Obligors could be ordered to buy health insurance even if it was very expensive As long as it was available through his or her job, it was considered reasonable in cost. Oligors would have to enroll the children in the plan. All of that changed effective July 1, The definition of reasonable changed drastically. Now, the cost of the health insurance cannot be more than a set percentage of the parent s gross income. The percentage will be between 1% and 5% depending on how much the parent earns. There is a Medical Support Table now in the Guidelines which lists the correct percentage. How is cost defined? Cost is the child s portion of the premium. To figure out this amount, you take the difference between the price of family coverage and the price of single coverage. So, if the family coverage costs $200 and the single coverage costs $125, $75 is the cost that must be reasonable under the facts of the case. Can the custodial parent be required to buy health insurance? Yes. This is a big change in medical support. However, this would only happen if the noncustodial parent can t get insurance at reasonable cost and the custodial parent can. 13

14 How is the insurance premium paid? The parents share the cost according to their proportionate share of their combined incomes. For example, assume the cost of the insurance is $75, Dad s income is $2,000 a month and Mom s is $1500. Dad will pay 57% of the premium because his income is 57% of their combined incomes ($3500). The actual child support amount will go up or down depending on who is buying the insurance to account for this sharing. What if reasonable cost insurance is not available to either parent? The Court must order cash medical support. This is defined as a cash amount that must be paid in addition to the child support and instead of buying health insurance. Only a reasonable amount can be required. What is reasonable is figured the same way as what would be reasonable to pay for health insurance. The same Medical Support Table is used to find out what percentage of gross income is correct. Cash Medical Support will be collected the same way that child support is and will be sent to the custodial parent. If the custodial parent is on Title 19, the money will go to the State just like child support does when the custodial parent is on FIP. ( support is assigned to the State when parent received public assistance) Are there any exceptions to having to pay Cash Medical Support? Yes. If the parent is very low income they cannot be required to pay cash medical support. As of July 1, 2009 if the parent s net income is below $850 a month, no cash medical can be ordered. Medical support orders can be challenged and may be lowered if the cost of insurance is too high. What If the Noncustodial Parent Is 19 Years Old or Younger? A noncustodial parent who is 19 years old or younger and who is still going to high school or getting a GED, will have support set according to guidelines unless special circumstances justify deviation. FOSTER CARE Do Parents Have To Pay Support If the Child Is In Foster Care? Yes, both the mother and father will be ordered to pay child support. The question of child support will not be part of the ChINA case (Child in Need of Assistance) or the juvenile delinquency case. Child support will be decided in a separate case started by the Foster Care Recovery Unit. The Foster Care Recovery Unit will use the Child Support Guidelines (see pages 29 to 38 of this booklet) to decide the amount of support. There will be an order for the father to pay and a second order for the mother to pay. To determine the mother s support, she will be considered the noncustodial parent on the Guidelines, and they will use $0 for the custodial parent. Then to decide how much the father will pay in support, the same process will be used. If the case plan is to return the child to one of the parents, then that parent may be able to argue that he or she should not have to pay any child support. This area of the law is not clear, and the parent should talk to an attorney immediately. If the parents separated before the child went into foster care, there may already be a support order in effect. If so, the amount of support payable on behalf of that child is automatically assigned to the State. Unless otherwise set out in the Order, the amount of support payable on behalf of each child means that each child will get an equal share of the support ordered. For example, assume Dad has been ordered to pay $200 a month in support for two children. When one of these children is placed in foster care, one-half of that $200 (or $100) will automatically go to the State. It will not go to the mother as it did previously. 14

15 HOW CHILD SUPPORT IS ENFORCED What If the Non-Custodial Parent Won t Pay? There are many ways to enforce a child support order. The following list includes the most common ways this is done. 1) Income Withholding Child Support can be taken directly from wages or other income. Other income includes Social Security benefits, Worker s Compensation benefits, unemployment and disability. Income is not withheld from payments received from the SSI or FIP programs. MANDATORY. The law used to say if the parent who owes support is at least one month behind, the custodial parent can ask the Clerk of Court to take a certain amount of money directly from the wages of the parent who owes support. This is called a wage assignment. This usually is equal to the current monthly amount plus a percentage of this amount to go towards the past-due support. (See How Much Can Be Withheld? below.) It can be done without a hearing because notice is given in the original support order and final decree. IMMEDIATE. Since November 1, 1990, immediate withholding of income became automatic for child support orders entered on or after that date. It will not be necessary to be behind in support first. There are two exceptions to this rule: 1. If good cause exists, which means it is in the best interest of the child; or 2. A written agreement exists between the parties providing for an alternative. This becomes void if child support is assigned to the state. Child support payments ordered before November 1, 1990, can also be subject to immediate withholding, even if no arrearages are owed, if proper notice is given. Either parent may request immediate withholding or CSRU may determine it is necessary. If back-due support is owed, the amount withheld under immediate withholding will probably be the current amount plus 10% of the current amount. The extra 10% is applied to the back-due amount. How Much Can Be Withheld? If there is a delinquency (back child support), there are rules that state how much money can be taken through a wage assignment. Under the old law, the amount withheld will be the current support obligation plus 50 percent more of this amount. Since July 1, 1998, Orders usually require the current amount plus 20% of the current amount. However, if the total amount to be withheld is more than the amount allowed under federal law (50-65 percent of income), the federal limits will be followed. Also a payor can request that less money be taken to pay on the delinquency on the grounds of hardship. Hardship means income below 200 percent of the poverty level for one person. (The poverty level for 2010 for one person is $10,830 income per year). There is a complicated formula for figuring how much the amount should be reduced, but the amount withheld on delinquency will never be less than $5.00. Also, the request must be made within 15 days after receiving notice of the withholding. Obligors who are receiving disability benefits can request a hardship reduction after the 15-day deadline has passed. 1) Challenges to Income Withholding It is possible to contest the withholding by filing a motion to quash in court and/or requesting an informal conference with CSRU. The issues to be reviewed are limited in an informal conference but include: the identity of the payor is wrong, the amount of the obligation (current or delinquent) is wrong, or the hardship criteria are met (discussed above). There is no appeal from the decision 15

16 resulting from the informal conference. The conference must be requested within 15 days after the income withholding order is issued. Under Iowa law, it is not clear what can be challenged by a motion to quash. The grounds for challenging an assignment are limited to mistakes of fact. Someone who is having money assigned (taken) from their wages for back due child support can challenge the assignment if one of the following errors has occurred: 1. The stated amount of back due or late support is not correct; 2. The stated amount of back due or late support has been paid; 3. The payment was not late; 4. The amount exceeds the limits allowed under federal law; or 5. The person whose money is being assigned is not the one who actually owes the money. Some recent court cases suggest that you may be able to challenge wage assignments for other reasons as well. One example of a successful challenge was when a non-custodial parent claimed that he could not afford to pay back-due child support, because he also had to support two other children presently in his custody. If the parent questions the amount of wage assignment, contact a lawyer. A sample Motion to Quash/ Change Income Withholding Order is on pages 25 and 26. 2) Garnishment Garnishment has the same results as income withholding. But it is different from income withholding in several ways. It tends to be used for non-wage income and taking of assets such as bank accounts, investments, business assets, etc. Also, garnishment may take more time because a party who seeks to garnish must go to court. So garnishment is less preferable if there are wages, but it is still an option. The court is supposed to consider each case so that all of the non-custodial parent s money would not be taken if he or she has no other money. 3) Seek Work Orders If someone is not making child support payments and CSRU cannot verify that they are working, a court order can be entered requiring that person to look for a job. The order is entered by a judge ex parte. This means without the noncustodial parent being there. The order becomes effective 15 days after it is issued. The order can last up to three months. It will require the parent to look for a job and to report to CSRU the attempts to find a job. This report must be done weekly and show at least five new attempts to find work. Under certain circumstances the parent may be excused from these work search requirements. 4) Administrative Levy This law allows CSRU to levy or seize money in bank accounts of people who are behind in their support payments. Notices are sent to the bank and the parent. The parent then has ten working days to challenge the levy. CSRU will then review their information and send a second notice. The parent can then request a court hearing which will be held within ten days. It is difficult to stop the levy. Sometimes arguments can be made that CSRU is taking too much or that the amount of alleged delinquency is not right. 5) Contempt of Court When a person willfully or deliberately fails or refuses to pay child support, they can be found in contempt of court. They can also be found in contempt if they don t obey a Seek Work Order (see 16

17 the section 3 above). Contempt is similar to being charged with a crime. The process starts with a rule to show cause being served on the person. This will include a hearing date and time. At the hearing the parent has a chance to explain why they haven t paid support. If they have a good reason such as being sick or disabled, they may not be found in contempt. If found in contempt of court, the judge can impose a number of penalties including: jail time, fines, payment of child support into special accounts, community service or stopping the parent from doing anything that requires a license (such as practicing medicine, operating a business). Because of the possibility of a jail sentence, the parent may have the right to a court appointed attorney. It is best to ask for a court appointed attorney before the hearing date by contacting the clerk of court s office. 6) License Sanctions CSRU can cause certain licenses to be taken away (suspended, revoked, not issued or not renewed) for failure to pay child support. These licenses include business or professional licenses as well as licenses to drive and register vehicles and recreational licenses. The parent must be behind in his or her payments three months and must meet certain other criteria. A notice is given to the parent that a Certificate of Noncompliance will be sent to the agency or department that issues that license. Later, that agency will also send a notice to the parent and start proceedings to take the license. The parent can challenge this and possibly stop or lift the sanction. They should first request a conference with CSRU. After the conference, CSRU will issue a written decision. CSRU will not send a Certificate of Noncompliance or will withdraw it if certain conditions are met including: If the parent enters into a written agreement with CSRU regarding payments; or If the parent pays the delinquency; or Other facts exist which make the sanctions inappropriate. If CSRU does issue the Certificate or won t withdraw one, a hearing can be requested in district court. The deadline for requesting such a hearing is 30 days after the Notice from the agency or department that grants the license. 7) Reports to Credit Bureaus Any parent who owes overdue support of more than $1,000 will be reported to consumer reporting agencies (credit bureaus). This is a requirement imposed by federal law. A notice is sent to the parent explaining that the report will be made in 30 days. The parent can request a review within 15 days from the date of the Notice. At the review CSRU will look at the evidence presented by the parent and decide if more than $1,000 is actually owed. If so, the report will still be made. This decision cannot be appealed through CSRU. Once the report is made, it is not possible to withdraw it even if the delinquency gets below $1,000. The only way to prevent the report is to get the delinquency below $1,000 before the report is made or bring the account current (pay full amount). 8) Centralized Employee Registry All employers must report to CSRU all the people they hire. These reports are due ten days from the date the person is hired. The report must include information on whether health insurance is available. The goal is to help CSRU find and keep track of parents who change jobs frequently so that wage assignments can be imposed quicker. 17

18 9) Tax Refund Intercept Both federal and state refunds can be taken to pay past due support. For federal refunds, the amount of past due support that triggers the offset is either $150 or $500 depending on whether the custodial parent is on public assistance or not. For state refunds, the amount is $50 and applies to all cases. Other criteria must also be met and notices are sent both before the offset occurs and at the time of the offset. An administrative review by CSRU and/or an appeal hearing can be held to contest the offset but certain deadlines must be met. Also, the law does not allow obligors very many reasons to undo the offset. According to CSRU, tax offset is one of the most effective and successful collection tools they have. Are There Other Ways to Collect Child Support? The nine ways listed above are not the only ways to collect child support, but they are the most common. Other ways include taking payments owed to the parent by a state agency (debtor offset) and seizure of property. What If the Are No Longer Minors? Child support is usually no longer payable after a child is 18 years old. The support will continue until age 19 if the child is still in high school or working on a G.E.D. However, if there is still back-due support owed, CSRU can continue to take steps to collect it. Also, either parent in a divorce can be ordered to pay a post-secondary education subsidy. This is to help with educational expenses for a child ages who is regularly attending college or involved in a vocational-technical program through school. The subsidy is paid to the child or the school or to both. Before ordering the subsidy, the court considers the educational costs, the income of the parents and the child and whether or not the child has disowned the parent. CSRU does not obtain or enforce orders for an education subsidy. MODIFYING CHILD SUPPORT ORDERS Child support debts that have not been paid cannot be reduced or forgiven. Once a child support debt exists, it cannot be lowered. However, future payments can be lowered if the financial situation of the one who pays support changes a great deal or if other circumstances change that would justify a change in child support. A person who owes support must modify the support order to change the amount of support owed. Review and Adjustment of Child Support Orders At the request of either parent, CSRU will review the amount of the support ordered and adjust the amount if certain conditions are met. They will look only at orders being enforced by CSRU, however. The conditions include: 1. The current amount varies from the Guidelines by more than 20 percent, or the net monthly income of the parent ordered to pay support does not fall within the income limits of the Guidelines, and 2. The variation is due to financial circumstances which have lasted for three months and can reasonably expect to last for an additional three months. Or, 3. Health coverage is available to the parent and the children are not already covered (does not include Title XIX). Notice will be sent to the parents that a review is being conducted. There is no time limit on how long the reviews can take. After the review is completed, parents will get a written decision. The decision will tell them whether CSRU will file a Petition in court or an Administrative Order to change the child 18

19 support amount. If a parent is not happy with the decision, they have ten days to request a review by CSRU. After that, a final decision is made by CSRU. If changing the child support is not appropriate, CSRU will not do anything more but parents can ask a court to review CSRU s decision. If, after initial or final review, adjustment is recommended, the CSRU attorney will review this recommendation. Then that attorney will file the Petition or an Administrative Order in court. However, if CSRU believes there is material misrepresentation of fact involved or that the reduction in income is voluntary, no Petition or Administrative Order will be filed. The parent can have an attorney in this proceeding. CSRU will only let people request review every two years except in certain circumstances. Administrative Modification This is a second way to change child support. It is available only in special circumstances. These include: 1. 50% change in income of either parent 2. A child needs to be added to the order; 3. The non-custodial parent is no longer a minor; 4. Clerical or typographic errors need to be corrected; or 5. The original order set support at zero or not at all. The process is the same as in Review and Adjust but the two-year minimum does not apply. What if the Parent Paying Support Becomes Disabled? When a parent receives Social Security Disability benefits (or retirement), dependent children may also receive a monthly check from the Social Security Administration. These benefits to the children can be used to help satisfy or pay the child support. They should contact CSRU right away if they become eligible for Social Security Disability or retirement. However, because of a change in the law, CSRU will change or modify the order for support and will count the amount paid to the children as income to the parent. The parent can still get credit (deduction) for the amount the children received, but the support order must be changed to include the credit. Suspension and Reinstatement of Support In some cases, the people involved in a child support order experience a change in circumstances. For example, the parents may reconcile and start living together again or the children may go to live with the person ordered to pay child support. When things like that happen, CSRU can be required to suspend or stop the support obligation. To do this, certain conditions must be met. These include: 1. The request to suspend the support obligation must be signed by both parents. 2. The reason for the suspension or the change in circumstances must be expected to continue for at least six months. 3. If the request for suspension applies to at least one, but not all of the children affected by the order, the order must contain a step change. This means that the order already says what amount will be paid as the number of children entitled to support changes. (for example, $200 for 3 children; $150 for 2 and $100 for 1). 4. No prior request for suspension has been filed with the unit during the two-year period preceding the request. If the conditions are met, CSRU will approve the request. They will then prepare an Order for the judge to sign suspending the support. This is a temporary order which becomes effective the date it is filed. After six months, this temporary order becomes final by operation of law and the support obligation is ended. 19

20 During the six month waiting period, either person involved or CSRU can request Reinstatement of the order. This is done by submitting a written request to CSRU. A hearing will be scheduled if any person objects to the Reinstatement. The objections have to be filed with the clerk of court. Sometimes support will keep adding up for a while before it can be suspended. The parent who is owed this support can ask that this amount be satisfied (forgiven or considered paid) as part of the suspension process. This means that the person previously ordered to pay support will not have to pay this amount. People who have already gone through the suspension may need to file a Motion with the Court to get rid of this back support. (See Motion to Release Support Judgment below.) Petition to Modify Support Child support orders can also be changed if one parent files a Petition to Modify in Court. This is like starting a new lawsuit and a filing fee must be paid. To modify the Order there must be a substantial and material change in circumstances. The change must also be permanent or long term. If the change involves reduced income, the reduction must be involuntary. For example, the parent cannot quit a good paying job just to pay less support. This process usually requires an attorney and can take several months to finish. Motion to Release Support Judgment Sometimes parents start living together again or the child goes to live with the parent ordered to pay support. The support will continue to add up unless the order is changed by the court. This can be done through the Suspension process (explained above). However, sometimes a lot of time passes before parents ask for the suspension. The problem of what to do about the support that adds up during this waiting time can now be solved as part of the suspension process. This is because of a 1998 change in the law (explained above). However, if this new law did not apply or take care of the back support it will be necessary to file a Motion. When the Motion is filed, the parent who is owed the support signs a release. The release tells the court to forgive the debt of support owed to that parent. Most of the time people need a lawyer to help file this Motion. Note: any support owed to the state because the other parent was on FIP will not be forgiven. What If More Than One State is Involved? Recent changes in federal law make it mandatory that each state adopt the Uniform Interstate Family Support Act (UIFSA). This law explains what to do in cases where the parents do not live in the same state. The purpose of this law is to prevent several different orders for support being entered which involve the same family. It contains rules about which state has to decide the amount of support, how to collect support in other states and which state can modify the order. It is a very complicated law. If your case involves more than one state, contact CSRU or a lawyer. Where Is the Law On Child Support Found? The area of child support law includes many different statutes in the Iowa Code: 252A, 252B, 252C, 252D, 252E, 252F, 252G, 252H, 252I, 252J, 252K, 598, and 600B. This is an area of the law that changes often. The Code of Iowa can be found at a local library or courthouse. Recent changes in the law are kept in special books which are usually kept with the Code itself. Talk to a librarian about using these books, but when in doubt, see a lawyer. You can also find the Code of Iowa on the Internet. Go to the website of the Iowa State Legislature at 20