The newsletter of the ISBA’s Standing Committee on Women and the Law
Reiteration on child suppot
Every few years it seems appropriate to repeat the basics of the child support enforcement system we have in Illinois, primarily for the benefit of new practitioners. Our system is very similar to that which exists in other states and is also akin to that which is in place in many other countries. The law in Illinois is a uniform one, to the extent that it conforms to the Uniform Interstate Family Support Act, which has been enacted in all 50 states. This does not mean that all state laws regarding child support and its enforcement are the same. Far from it. However, they are “substantially similar,” which places them under the UIFSA aegis. It was not easy getting to that point.
The child support enforcement system which is operated through the Illinois Department of Public Aid is based in Title IV of the Social Security Act, a federal law. Title IV enables states to establish an appropriate mechanism whereby responsible parents (read: those who have a duty to pay support) can be held to account and can be required to conform to certain standards with respect to when and where payments of child support will be made. Initially, enforcement through Title IV was confined to those cases in which the custodial parent received some form of public assistance, such as a money grant, a medical card, etc. Now, any custodial parent, regardless of his/her financial situation, can apply for, and receive, services through the child support agency. In Lake County, legal services are provided by the State’s Attorney’s Office. This is a point seemingly lost even on some seasoned practitioners. One need not receive public assistance to avail oneself of the services of the Child Support Division of the State’s Attorney’s Office. For those who do not receive public assistance, a nominal fee may be charged for the service by the Department of Public Aid. This charge is $25.
The child support enforcement agency in Lake County is the Illinois Department of Public Aid. This agency provides all intake services for the program, monitors withholding by employers, prepares petitions for various actions, reviews records of payments and acts in many other ways to facilitate the program of collection of child support. This agency has, by law, the ability to establish paternity, child support and sanctions for non-payment on an administrative basis, as well as going through the State’s Attorney’s Office. Administratively determined actions have the same force as other administrative regulations, that is, have the force of law. To overcome administrative decisions by the agency, it is necessary to exhaust all administrative remedies, just as with any other such agency. The agency also prepares for interstate service those cases in which the payor parent lives or works in another state, and the agency receives and processes requests from other states to enforce for child support, establish paternity, and so forth, against residents of Illinois.
The State’s Attorney’s Office of Child Support Enforcement is a division of the State’s Attorney’s Office which performs the legal actions necessary to uphold the enforcement program. This office initiates petitions for establishing and enforcing child support orders, rules to show cause for failure to follow support orders, paternity actions to determine parentage, efforts to obtain medical insurance coverage for the children subject to the orders of support, arrest warrants for those who fail to appear for rule hearings and assorted other legal activities concomitant to the enforcement of child support. At this writing, Thursday is the day when the child support group heads to court. Consequently, any action undertaken by private counsel in a child support case should be set on Thursday, either morning or afternoon, and served on the State’s Attorney’s Child Support Division. We represent the Illinois Department of Public Aid for the benefit of the named Petitioners in the child support case.
When a child support issue comes to your office from a custodial parent, it is probably wise to consider whether it would be economically more feasible, both for the client and for you, to send the client through the child support enforcement program than to handle it yourself. For the client, there is little or no cost and for you, there is no headache, particularly in trying to collect fees from people who frequently have no resources to pay them. One adverse side is often that of time. It takes three to four weeks, sometimes, before a call to the agency results in an interview which begins the case. Then it may be two or three weeks more before the State’s Attorney’s Office receives the case and sets it for hearing. After that, service by the Sheriff, if necessary, takes some weeks, as does mail service. Clients are often put off by these time frames. If time is somehow of the essence, an attorney’s intervention may be indicated, although for persons receiving public assistance, the State’s Attorney’s Office must represent the case in court, except for issues unrelated to child support, such as custody or visitation.
When the prospective client is a non-paying obligor parent, there may well be issues which would be worth the investment in an attorney’s services. Certainly, some people have or perceive themselves to have legitimate reasons for non-payment of the ordered support amount. For these, the assistance of private counsel may well be worth the outlay for attorney fees. To be remembered is the fact that the Illinois Department of Public Aid is the party in interest in areas of child support itself. When custody or visitation is at issue, the Petitioner him/herself must be noticed in. For any child support issue, the Department, through its representative, the State’s Attorney’s Office of Child Support Enforcement, must be noticed in. The State’s Attorney’s Office, as long as the matter is in the child support enforcement program, remains the entity to be noticed for motions, petitions, etc.
Sanctions for those who do not pay child support as ordered are few under the statute. The State’s Attorney’s Office generally pursues civil rather than criminal sanctions; however, the most egregious cases may be pursued in the criminal court. This varies from county to county and may also be different in those areas served by the Attorney General in Illinois. It should be noted that the non-paying parent can be subject to federal law if the amount of unpaid child support reaches certain high levels, even in Lake County, where criminal sanctions are not generally sought as remedy. Such cases would be prosecuted by the criminal division of the office.
When an individual is brought before the court on a rule to show cause why he/she should not be held in contempt for failure to pay support as ordered, the law requires that the amount of the delinquency of child support shall be the amount of purge of any contempt found by the court. Delinquency consists of that portion of arrearages which has accumulated since the last order for support entered. It is not, in most instances, the entire arrearage owing, but it can be. Judges are sometimes chary of imposing extremely large purges, but the delinquency amount is what the State’s Attorney’s Office seeks and what the statute requires. The possibility exists that an individual will opt for the six months in jail instead of paying the purge. The arrearage remains, though, and accumulates six months’ worth of payments unpaid while the person languishes at the Babcox Hilton. In addition, there may be another rule entered shortly after the person is released from jail.
Interstate cases present a particularly difficult situation when the obligor parent is in Illinois and has had a substantial reduction in income through no fault of the individual. The UIFSA laws require that only one order for support may exist for enforcement in any given case at any given time. In the normal course, the initial order for support would follow the case from state to state, if the obligor moved, unless and until certain circumstances arise to divest the original court of jurisdiction. These can be reviewed in the Act. It is possible, though, for the initiating state to give the receiving state its okay to alter the order of support. It is also possible for the Petitioner to domesticate the order of another jurisdiction in this state so that changes can be made to the support order. The caveat with domestication is that other aspects of the initial order may be open to alteration too, a result not usually favored by the Petitioner. The interstate act provides for contact between what are called “tribunals,” a term referring not only to courts, but also to agencies, so as to reduce the number and size of problems with interstate enforcement. This would usually be done by telephone communication. It is a process not used to any extent at present in Lake County, but remains a possibility. Interactive television is utilized in some jurisdictions to provide a greater atmosphere of actual hearings.
Under the UIFSA laws, any order for support received by an employer from anywhere in the country must be enforced for child support and related matters, such as medical insurance coverage. Failure to withhold portions of the obligor’s income after the receipt of a notice to do so can result in sanctions against the employer. The requirements of the federal Consumer Protection Act as to what percentage of disposable income may be withheld from any person must be adhered to by the employer. Therefore, if an employer has several orders for several children of separate mothers or fathers in the case of a specific individual obligor, that employer must make an effort to pay what it can on the various orders, but not go over the percentage established in the Consumer Protection Act. This is often seen as an onerous provision by employers, of course, but must be adhered to, lest the employer subject him/herself to sanctions for failure to withhold. Ideally, any obligor with numerous support orders will act to seek reduction of the entire group so as to qualify under the Consumer Protection Act for payment of the court orders.
Some time ago, I promised to discuss what the attorney or individual should do when in receipt of “The Letter” from IDPA, the IRS or the State Department of Revenue concerning amounts owed or believed to be owed by the obligor parent on child support. I really do intend to write about that, but this article is too long now. Next month? If the issue arises from any reader in the interim, please call me and we can talk about the options.