DOCUMENT RESUME ED 284 135 CG 020 068 AUTHOR Henry, Michael R.; And Others TITLE Essentials for Attorneys in Child Support Enforcement. INSTITUTION National Inst. for Child Support Enforcemert, Chevy Chase, HD. SPONS AGENCY Office of Child Support Enforcement (DHHS), Washington, DC. PUB DATE 86 CONTRACT 600-83-0001 NOTE 418p. PUB TYPE Guides - General (050) -- Legal/Legislative/Regulatory Materials (090) EDRS PRICE MF01/PC17 Plus Postage. DESCRIPTORS Children; *Child Welfare; *Court Litigation; Divorce; Ethics; *Family Problems; Financial Support; Law Enforcement; Laws; *Lawyers; Legal Problems; *Parent Responsibility; *Resource Materials IDENTIFIERS *Child Support; *Child Support Enforcement Program; *Paternity Establishment ABSTRACT This handbook presents a course developed to provide a national perspective for attorneys who represent state and local child support enforcement agencies operating under Title IV-D of the Social Security Act. The introduction provides an overview of the child support problem in the United States, citing causes and effects of the problem and explaining the current status of the Child Support Enforcement Program. Chapter 1 explores the federal role in the Child Support Enforcement Program and examines the functions of the federal Office of Child Support Enforcement. Chapter 2 focuseson state and local roles in the Child Support Enforcement Program. Chapter 3 looks at the role of the attorney in child support enforcement and addresses several specific ethical problems. Chapter 4 concerns the pretrial activities of interviewing witnesses, negotiation, and discovery. The establishment of support obligations is discussed in chapter 5 and enforcing those obligations is considered in chapter 6. Chapter 7 presents defenses to enforcement and chapter 8 looks at expedited processes. Chapter 9 addresses the problems associated with interstate cases. Chapter 10 is concerned with the establishment of paternity. Appendices contain information related to the legislative history of child support enforcement, scientific testing fora paternity establishment, and paternity probabilities: attack and rebuttal. (N8) *********************************************************************** * Reproductions supplied by EDRS are the best thatcan be made * * from the original document. * *********************************************************************** / ,:/ r.' r'-----**4,4. .....%_. ...- J ..7.- . , 11, S4 4: .41 1 A 14.041i a P14, .9(0. ego \ U.S. DEPAR1 Office of Educator TIONAL CE 7Thmdocumeril received from originating it. 0 Minor changes rtment of Health and Human Services reproduction ch iild Support Enforcement Points& view o ment do not n 1stitute fOr Child Support EnfOrcement OERI position c 2 BEST COPY AVAILAL Essentials for Attorneys in Child Support Enforcement Course Development Team Developers: Michael R. Henry, J.D. Victoria S. Schwartz, J.D. Managers: Dennis C. Cooper, M.P.A. Laurene T. McKillop, Ph.D. Athena M. Kaye Editor: Mark R. Reynolds, Ph.D. This publ;cation was prepared by the National Institute for Child Support Enforcement (NICSE) undercontract number 600-83-0001fromtheOffice ofChild Support Enforcement (OCSE). NICSE is operated for OCSE under this contract by University Research Corporation.All statements herein do not necessarily reflect the opinions, official policy, or positions of OCSE or the Department of Health arid Human Services. For further information, additional materials, or assistance in the use of these materials contact: National Institute for Child Support Enforcement 5530 Wisconsin Avenue Suite 1600 Chevy Chase, MD 20815 (301) 656-4092 All material contained in this Handbook is in the public domain and may be used and reprinted without special permission. Citation as to source, however, is appreciated. 4 TABLE OF CONTENTS LIST OF EXHIBITS ACKNOWLEDGMENTS XV PREFACE: xvii INTRODUCTION: THE CHILD SUPPORT PROBLEM IN AMERICA xix CAUSES OF THE CHILD SUPPORT PROBLEM xix Divorce xix Desertion xix Out-of-Wedlock Rates xx EFFECTS OF THE CHILD SUPPORT PROBLEM xx The Feminization of Poverty xx Increasing Welfare Expenditures xxi An Ovsrburdened Legal System xxii THE CHILD SUPPORT ENFORCEMENT PROGRAM xxii CURRENT STATUS OF THE CHILD SUPPORT ENFORCEMENT PROGRAM xxiv CHAPTER 1: THE FEDERAL ROLE IN THE CHILD SUPPORT ENFORCEMENT PROGRAM 1 INTRODUCTION 1 THE FEDERAL OFFICE OF CHILD SUPPORT ENFORCEMENT 2 The Organization of OCSE 3 OCSE Projects and Activities 4 The Federal Parent Locator Service 4 Publications 5 Research and demonstration projects 5 Training and public information 5 Audits of State and Local Programs 7 CHAPTER 2: STATE AND LOCAL ROLES IN THE CHILD SUPPORT ENFORCEMENT PROGRAM 9 INTRODUCTION 9 TITLE iV-A STATE PLAN REQUIREMENTS 9 Assignment of Rights to Support 10 Coc,)eration in Obtaining Support 10 TITLE IV-D STATE PLAN REQUIREMENTS AND OPERATIONS STANDARDS 12 Processsing a Child Support Case 13 Eligibility determination 13 Intake 15 Locate 15 Paternity Establishment 16 Assessment/Establishment 16 Monitoring/Enforcement 17 Maintaining Case Records 18 Distributing Collections 19 Safeguarding Information 20 THE CHILD SUPPORT ENFORCEMENT PROGRAM AND THE STATE COURT SYSTEM 21 CHAPTER 3: THE ROLE OF THE ATTORNEY IN CHILD SUPPORT ENFORCEMENT 23 INTRODUCTION 23 The Attorneyas Advisor 23 The Attorneyas Investigator 23 The Attorneyas Negotiator 24 The Attorneyas Advocate 24 The Attorneyas Officer of the Court 24 The Attorneyas Public Official 24 WHO IS THE CLIENT? 25 SPECIFIC ETHICAL PROBLEMS 27 Competence 27 Scope of Representation 28 Communication 30 Confidentiality 30 Conflicts of Interest 33 Maintaining Independent Professional Judgment 35 Expediting Litigation 36 Impartiality and Decorum of the Tribunal 36 Special Responsibilities of a Prosecutor 37 Truthfulness of Statements to Others 37 Communications with Absent Parents Represented by Counsel 37 Communications with Unrepresented Absent Parents 38 Non lawyer Assistants 38 CHAPTER 4: PRETRIAL ACTIVITIES: INTERVIEWING, NEGOTIATION, AND DISCOVERY 41 INTRODUCTION 41 INTERVIEWING WITNESSES 41 Preparing for the Interview 42 Reviewing case information 42 Indentifying interview objectives 42 Preparing necessary legal documents 43 Setting the stage 43 Conducting the Interview 44 6 iv Opening the interview 44 Conducting the interview 44 Taking notes 45 Posing questions and responses 45 Closing the interview 46 PREPARING WITNESSES TO TESTIFY 46 NEGOTIATION 48 Preparing to Negotiate 48 Review case information 48 Identify objectives 49 Prepare necessary legal documents 49 NEGOTIATION STRATEGIES 49 Traditional Strategy 50 Selecting an initial position 50 Adhering to the initial postion 50 Controlling and limiting the flow of information 51 Minimizing the importance of a continuing relationship 52 Collaborative Strategy 52 Focus on interest, not positions 52 Invent options for mutual gain 52 Insist on using objective criteria 53 Separate the people from the problem 54 Choosing a Negotiation Strategy 55 The payoff structdre 55 The size of the negotiation agenda 55 The expectations and sophistication of the opponent 56 Ethical considerations 57 Statutes and regulations 57 Continuing relationships 57 DISCOVERY Scope of Discovery Insurance Trial Preparation Materials Trial Experts The Fifth Amendment Discovery Devices Duty to Supplement CHAPTER 5: ESTABLISHMENT OF SUPPORT OBLIGATIONS 69 INTRODUCTION 69 GUIDELINES 69 Cost-Sharing Approach 71 Taxation Approach 72 Income Sharing Approach 74 7 Guidelines in the Appellate Courts 75 Establishing Need 77 Establishing Ability to Pay 78 MEDICAL SUPPORT i 3 JURISDICTION 80 JURISDICTION OVER MILITARY ABSENT PARENTS 81 REIMBURSEMENT CLAIMS 85 Statutory Remedies 85 The Common Law Remedy 85 The common law claim in the IV-D context 86 Elements of the cause of action 87 TEMPORARY ORDERS 88 DEFENSES TO ESTABLISHMENT 89 Bad Faith Nonpaternity Defenses 89 Presumption of paternity 89 Legitimation by marriage 90 Equitable estoppel or adoption 90 The Runaway Child 90 Release Agreements 90 MODIFICATIONS 91 Jurisdiction 91 Criteria 91 Automatic Modif icat ions 94 CHAPTER 6: ENFORCING CHILD SUPPORT OBLIGATIONS 103 INTRODUCTION 103 INCOME WITHHOLDING 103 JUDGMENTS 107 LIENS AGAINST REAL AND PERSONALPROPERTY 109 Procedure to Perfect 110 Satisfaction and Release 111 LEVY AND EXECUTION 112 Obtaining the Writ 112 Seizing the Property 113 Notice of Exemptions 113 Notice and Sale 114 Practical Considerations 114 vi 8 GARNISHMENT 115 Procedure 115 -Constitutional Limitations on Garnishment 116 Garnishing Wages 118 Garnishing Out-of-State Wages 119 Service of Process 119 Garnishing Bank Accounts 120 Garnishment Against Federal Employees 121 Garnishing Workers' Compensation Benefits 122 CIVIL CONTEMPT 123 Procedure 123 Notice Requirements 124 Bench Warrants 124 Right to Counsel 125 Elements of Contempt 125 Gurden of Proof 125 Punishment 127 Purgation Requirements and Commitment 127 CRIMINAL CONTEMPT 129 CRIMINAL NONSUPPORT 130 Pleadings 131 Elements 131 Defenses 133 Inability to pay 133 Child living apart from obligor without obligor's consent 133 Child supported by third party or independent means 133 Nonpaternity 133 Vagueness of the statute 133 Gender bias in statute 133 Selective prosecution 134 Evidence 134 Punishment 134 TAX REFUND INTERCEPTIONS 135 Federal Tax Refund Interception Program 135 Intrastate procedure 135 Interstate procedure 136 Distribution of intercepted tax refunds 137 Legal challenges 137 State Tax Refund Setoff Procedures 137 BONDS AND OTHER SECURITY 138 EQUITABLE REMEDIES 138 Ne Exeat 139 Receivership