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Child Support Improvements; Big Progress in Missouri

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May 5, 2016

NPO Logo National Parents Organization improves the lives of children and strengthens society by protecting every child's right to the love and care of both parents after separation or divorce. We seek better lives for children through family court reform that establishes equal rights and responsibilities for fathers and mothers.
NPO Optimistic about Passage of HB 1550 in Missouri
By Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
May 5, 2016 By Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Our National Parents Organization in Missouri reports that they’re optimistic about passage of HB 1550 sponsored by Representative Jim Neely.

HB 1550 won’t start a revolution in family law, but it makes needed changes. First, it requires judges to issue Findings of Fact and Conclusions of Law in any custody case in which the parents don’t agree on all aspects of custody, parenting time, etc. Judges are required to consider the need of children for “frequent, continuing and meaningful contact” with each parent. They’re also required to consider, in issuing an order of custody and parenting time, which parent is more likely to provide the other “frequent, continuing and meaningful contact” with the child.

Requiring judges to issue Findings of Fact and Conclusions of Law may not sound important, but it can be. Judges don’t like to spend their time toiling over those documents and neither do lawyers. That encourages parents to agree and judges to order the requisite parenting time prescribed in the law.  More importantly, it makes the appeals process far more effective. Without written findings, appeals court judges can’t know why a trial court judge issued the order that’s on record. Since those appellate judges don’t know the facts or what the trial judge relied on, overturning an order is almost impossible. HB 1550 changes that so trial judges will be able to act with much less impunity.

Second, no judge may consider the gender of the parent in deciding custody or parenting time. That’s self-explanatory.

Third, HB 1550 makes filing a Motion for Contempt or for Family Access much easier and cheaper. Circuit clerks are required to provide simple forms for parents to use when the other has interfered with custody or parenting time. Every order issued by a judge will be required to include a notice that such a form exists and that it’s not necessary to hire a lawyer to file it. Finally, the clerk is required to publish a handbook explaining to parents the procedure for filing and arguing a motion. Read more...


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Department of Justice Warns State Child Support Enforcement Agencies of Illegal Practices
By Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
Five years ago, the United States Supreme Court ruled in Turner v. Rogers that state judges are required to hold a hearing to determine whether a parent who’s behind on his/her child support obligations should be jailed for contempt. In some cases, the parent may be entitled to an attorney paid for by the state. But in all cases, prior to committing him to jail, the court must find not only that the parent hasn’t paid, but that failure to do so is willful, i.e. he/she has the ability to pay, but hasn’t.

But all too often, state bureaucrats in the child support enforcement authority and family court judges simply ignore the requirements laid down by the Court in Turner.

Now the Department of Justice (DOJ) has issued a “Dear Colleague” letter informing recipients that their failure to follow the dictates of Turner can subject them to civil liability under federal Civil Rights Statute, 42 U.S.C. §1983. In due course, Commissioner Vicky Turetsky of the federal Office of Child Support Enforcement (OCSE) informed state officers of their responsibility to find a willful refusal to pay before a noncustodial parent can be sent to jail:

“One purpose of the DOJ letter is to address “some of the most common practices that run afoul of the United States Constitution and other federal laws and to assist court leadership in ensuring that courts at every level of the justice system operate fairly and lawfully.”…

The letter states that courts may not incarcerate a person for nonpayment of fees and fines without first conducting an indigency determination and establishing that the failure to pay was willful. In addition, courts must consider alternatives to incarceration for indigent defendants who are unable to pay. 

The letter provides that courts also must provide meaningful notice and, in appropriate cases, counsel, when enforcing fines and fees, and must not use arrest warrants or license suspensions as a means of coercing the payment of court debt when individuals have not been afforded constitutionally adequate procedural protections…

OCSE’s Action Transmittal 12-01 provides clarity to courts regarding their legal duty to inquire about a parent’s ability to pay prior to incarceration for nonpayment, which specifically refers to the Turner v. Rogers ruling. “Civil contempt that leads to incarceration is not, nor should it be, standard or routine child support practice. By implementing procedures to individually screen cases prior to initiating a civil contempt case and providing appropriate notice to alleged contemnors concerning the nature and purpose of the proceeding, child support programs will help ensure that inappropriate civil contempt cases will not be brought.”
Did you ever think you would live to see the day when the head of the top child support enforcement agency in the country would acknowledge that some of the collection practices of the states have been illegal, and even unconstitutional??? Read more...

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Office of Child Support Enforcement Corrects State Enforcement Offices
By Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
On April 15, Commissioner Vicky Turetsky of the federal Office of Child Support Enforcement (OCSE) issued a letter to state child support enforcement authorities informing them that many of them are charging non-custodial parents amounts in excess of their child support orders and in violation of federal law.
“For employers that pay weekly or biweekly, some child support agencies are adding an amount due, in addition to the monthly amount ordered by a tribunal, to the Office of Management and Budget (OMB)-approved Income Withholding for Support (IWO) form. This causes confusion and leads to errors in withholding. 

Withholding an amount that is not based on the underlying child support order is inconsistent with federal law and regulations and causes the following consequences:

The annual withholding amount is greater than the amount ordered by the tribunal.

Allocation of payments among multiple child support orders may result in reduced payments to other states’ support orders when the employer is required to apply Consumer Credit Protection Act (CCPA) withholding limits.

Payments for overdue support may exceed amounts specified in the underlying child support order.

There is a lack of uniform withholding process among child support agencies.”
Why child support enforcement authorities would add the extra amounts is anyone’s guess, but apparently many of them do. Turetsky’s letter orders them to stop. It also provides information so basic that many might consider it too obvious to require stating.
Read more...
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Recent NPO Blog Posts

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Part 4: Logic and Scientific Rigor vs. Tornello

 

 
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