Child Support Directors Association

September 19-22, 2016

2016 Legal College

SLACK!Be less busy

Tex Ritter

Ronald J. Ladage

Veronica Roberts

Lisa Saporito

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and discuss how new laws or

developing case law will impact

the practice of law in the LCSA.

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Child Support Purpose

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• Primarily attorneys (in the

DCSS arena, including

DCSS and LCSA

attorneys)

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Ron Ladage

Principal Attorney

Sacramento County LCSA

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• How do you proceed when you know the

Voluntary Declaration of Paternity was

signed when the mother was married?

• Is a Voluntary Declaration of Paternity

signed by a married woman valid?

Question

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• Family Code § 7612(f): A VDP is invalid if

– The child already had a presumed parent under section 7540

– The child already had a presumed parent under section 7611(a),

(b) or (c)

– The man signing the VDP is a sperm donor consistent with

section 7613(b)

• A VDP signed by a married woman is voidable.

(H.S. v. Superior Court (2010) 183 Cal.App.4th 1502).

The Law

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• A VDP is invalid if child has a presumed parent

under Family Code § 7611(a)

• FC § 7611(a) states the presumed parent and the

mother are or have been married to each other

and the child is born during the marriage or within

300 days after the marriage is terminated

Discussion

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VDP signed by a married woman

(even if not cohabitating with her

husband) is invalid

• Different treatment based on the facts of the

case

• If there is a VDP signed by a married CP and

– FC § 7540 applies (CP cohabitating with husband,

who is not impotent or sterile)

– FC § 7540 does not apply, but CP states she had

intercourse with husband within 300 days before the

birth of the child

– There has been no contact between CP and husband

for more than 300 days before the birth of the child

Sacramento County Proposal

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• How do you proceed if the mother names

multiple putative fathers?

• Does the law give guidance in your

decision?

Question

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• No legal authority on point

• FC §17405 – DCSS “shall’, within 10 days,

interview the CP to obtain information

about the NP

• FC §17505 – uses the term “putative

parents” (plural)

The Law

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• Which of the putative fathers should we

file the S&C against?

• Should these cases receive any special

treatment?

Discussion

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• If the case is aided, we file against the “absent parent”

on the welfare case first

• If the case is non-aided, we have the CP complete an

interview questionnaire for each of the putative fathers

• If we do not have limited information, we initiate a case

against the putative father with the best locate

• We try not to request a default judgment unless we have

made contact with the NP

Sacramento County Proposal

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• How do you proceed when you receive a

demand from a title company?

• Is the LCSA required to provide a Matured

Satisfaction or Full Satisfaction of Judgment?

• Does a Partial Satisfaction meet our

requirements under CCP § 724.220?

Question

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• CCP § 724.040. Procedure after satisfaction where

abstract of judgment recorded

• CCP § 724.050. Demand upon judgment creditor

• CCP § 724.110. Demand upon judgment creditor for

acknowledgement of partial satisfaction of judgment

• CCP § 724.120. Form and contents of acknowledgment

• CCP § 724.220. Demand for acknowledgement of

satisfaction of matured installments

• CCP § 724.250. Form and contents of

acknowledgement; child or spousal support orders

The Law

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• Are the accounts correct?

• Are there orders for other payments that may

not be satisfied (i.e., half of uncovered

medical expenses)?

• Was a direct payment history provided by CP

when the case was opened? (Or are there

past time periods that we have not been

collecting?)

Discussion

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• We will always do a property specific release of

lien for when the obligor is SELLING the property.

• If the obligor is refinancing, we do an

Acknowledgment of Satisfaction of Judgment –

Matured Installment

• The caseload attorney may request a Partial

Satisfaction on a case-by-case basis

Sacramento County Proposal

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Veronica Roberts

Child Support Attorney

Central Sierra Child Support Agency

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An order states:

"Child support shall be paid at the rate of

$100 a month total from both parents due by

the 1st of each month following entry of this

Decree."

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Question

Enforcement - Interpreting Orders

• Who do you enforce against?

• How much do you enforce?

Questions

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• Based on the principal of joint & several

liability, the full amount is enforceable against

either parent.

• An obligation is presumed to be joint and

several where the promise is in the singular

but executed by several, or where all the

parties receive some benefit.

1 Witkin, Summary of Cal. Law (10th), Contracts §108

Discussion and The Law

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• Payment of the obligation by one of the obligors will

extinguish the liability of the other in regard to the child

support agency.

• If a party to the joint and several obligation satisfies more

than his or her share of the obligation, that party may

have a right to pursue a proportionate contribution from

the other.

1 Witkin, Summary of Cal. Law (10th), Contracts §113

• That is a separate matter - not the LCSA’s responsibility.

The LCSA only has to collect $100 per month from

whichever parent can or will pay it.

Discussion and the Law

Performance (Payment) and Contribution

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• NP isn’t providing health insurance for the child or for

himself but it is available through his employer.

• Employer will require coverage for employee if the child

is to be covered. The difference in cost exceeds 5% of

the NP’s net (after tax) income; 5% is $70.00.

• Cost for health insurance and child support together is

likely to exceed 50% of NP’s net in some months (NP’s

income fluctuates).

Question

Calculating Guideline for Establishment

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Do you include the cost of health insurance

for NP and child in your calculation?

Question

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• Leave it out

• It is not voluntarily provided now.

• It is not likely to be enforced based on the

application of the 5% and 50% rules.

Discussion

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5% Rule

• Children’s health coverage is

only required when available at

no cost or reasonable cost.

• Reasonableness of cost is

measured as not exceeding 5

percent of parent’s gross

income.

• Measuring only the difference

between self-only and family

coverage.

Family Code §3751

The Law50% Rule

• The total amount employer

deducts for employee’s

support obligation and health

premiums may not exceed

50% of parent’s net disposable

income.

DCSS Statewide Policies

Manual §3550 p. 18

• Net disposable income = gross

income – required deductions

for taxes, FICA, SDI/SUI,

Mandatory retirement.

15 U.S. Code §1672

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• Mom opens case. Facts suggest pressure from

possible bio-dad (let's call him Rick).

• Mom and Rick had a relationship while Mom

was also residing with another man (Mick).

Mom was sexually active with both men.

• Mom becomes pregnant and ends her

relationship with both men.

• Before the child is born, Mom marries a third

man (Vic).

Question

Establishment of Paternity – The Facts

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• Vic is present at child's birth.

• Vic is named as child’s father on birth

certificate.

• Mom is naming Rick as the child’s father and

wants full services

• Mom does not believe Mick is the father

because he was away for 2 weeks at or near

the time of conception

Facts Continued

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• The child has never resided with Rick or Mick

but Rick believes he is the dad and wants a

relationship with the child.

• Mom and Vic are both willing for Rick to be

part of the child’s life.

• Vic is holding the child out as his own.

• Mom and Vic continue to reside together as

an intact family.

Facts Continued

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• Can the LCSA pursue paternity against

Rick?

Question

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• FC §7540 presumption does not apply.

• Vic’s name on birth certificate is not

conclusive as to paternity.

• There is no presumption in favor of Mick.

• FC §7611(a) presumption applies in favor

of Vic.

The Law

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• V.S. v. M.L. (2013) 222 Cal.App.4th 730

• Adoption of Kelsey S. (1992) 1 Cal.4th 816

• J.R. v. D.P. (2012) 212 Cal.App.4th 374

• Michael M. v. Giovanna F. (1992) 5

Cal.App.4th 1272

• Gabriel P. v. Suedi D. (2006) 141

Cal.App.4th 850

The Law

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• LCSA can pursue establishment against Rick

without having to first exclude Vic, since it did

not make sense to try to exclude a parent

against whom no support order would be

made.

• Additionally, we did not want to preclude the

child's rights, if any, that might develop as a

result of the parental role that Vic assumes.

• Any thoughts?

Discussion

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• You are enforcing against NP who

receives trust income.

• The trust is a discretionary trust which

trustor set up with a major bank before

trustor’s passing.

• NP can receive distributions under the

trust for a period of 16 more years.

Question - Enforcement

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• The monthly distribution to the NP is then

determined in the discretion of the

trustees.

• The child support order is based on NP’s

trust income but insufficient information

was obtained about the trust.

Facts

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• NP is required to provide the trustees with a

budget every year showing NP’s need for the

next 12 months. A representative of the

trustees has indicated that the budget NP

provided at their last annual review included

the child support obligation.

• The monthly distribution NP receives was

intended to include enough for NP to pay the

child support, but NP is now in default.

More Facts

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• You’ve sent an NTW to the bank’s trust

division whose representative refuses to

pay on the NTW unless you provide

documentation that NP has failed to pay.

The Issue

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• Do you send the trustees a record verifying

non-payment in an attempt to coax them to

pay under the NTW?

• Do you seek to obtain an order against the

trustees to compel payment?

• Would that be accomplished through joinder

of the bank to the child support action or

through a separate action in probate?

What Do You Do?

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• What if you do not know the actual name of

the trust and the bank refuses to give it to you

and the NP is not certain of the title?

• Additionally, the NP claims a representative

of the trust refused the NP’s request for the

trustees to make direct payment of the child

support to the SDU on the NP’s behalf.

The Trust Dilemma Continues

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• The case worker is urging legal staff to not

take extraordinary action against the trust

because the case worker believes we

finally have NP’s attention through the

SLMS processes and there is concern that

the trustees may exercise discretion to

reduce or refuse future distributions to the

NP.

But wait, there’s more…

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• I’m actually not certain of the answer. This

is a situation that we are actually facing

currently at Central Sierra and the problem

is so multi-faceted that it poses a

significant dilemma. Any ideas?

Discussion

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Lisa Saporito

Managing Attorney

San Francisco LCSA

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• A CP and minor child both provide genetic samples for

paternity purposes to County A. The named father is

ultimately excluded. Later, the same CP and minor child show

up on a different case in a different county, County B. County

B’s case involves a different named father. There is now no

reliable locate for CP. Is County A able to share genetic

testing information, or genetic samples, with County B?

• Any privacy, ownership or ethical issues?

Question

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The Law

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• CA Family Code addresses and allows for genetic tests:

– FC § 7570 – Acknowledges the government’s interests in establishing paternity

– FC §§ 7558 and 7648.2 – Administrative orders for genetic tests

– FC § 7551 – Providing the Court the power to order genetic tests

– FC § 7647.7 – Genetic testing as it relates to requests for set-asides

• Limited Case Law

– County of San Diego v. Michel Mason, 209 Cal.App.4th 376 (2012)

establishes one’s privacy rights in regards to genetic material/information.

However, such rights are subject to yielding to compelling government interests.

– The People v. Troy Corsby Thomas, 200 Cal.App.4th 338 (2011) confirms

one’s privacy rights to genetic material/information as it relates to criminal

proceedings. The case brings into question the issue of consent.

Discussion

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• Most case law acknowledges genetic material may be protected under Constitutional

privacy laws (search and seizure; 4th Amendment). However, case law also

addresses the issue of consent.

• Cases not dealing with criminal matters focuses on the manner in which genetic

material is submitted – whether voluntarily or not; whether there is consent or not.

• Child support cases are classified as civil cases. Consent may be the crucial factor in

dealing with this issue as it relates to child support cases.

• Current practice – LCSAs share genetic material/information with other LCSAs.

– Contracts w/ G/T providers/labs may not necessarily mention case participants

as a party to the contract.

• Contracts may have specific provisions as to who owns the genetic

material/information resulting from the genetic test.

– G/T providers may have their own forms (signed by case participants at the time

of g/t sample drawing).

• It is prudent for an individual LCSA to be proactive in

reviewing/assessing contracts with G/T providers/labs.

– Whether in the contract drafting or contract renewal stage

– Coordinate with County Counsel, Board of Supervisors, Counsel

for G/T provider/lab, etc.

• LCSA should also review any forms being used by the G/T

provider/lab when drawing genetic samples

– Consent/waiver forms?

• Tailor genetic appointment letters/notices to inform case participants

of G/T consent issues

– The impact of Senate Bill 222; 2013-2014 session (if enacted).

San Francisco County’s Approach

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San Francisco’s G/T Provider Consent Form

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• When seeking a QDRO, are notices and a

hearing required prior to the Commissioner

approving/signing the proposed QDRO?

Question

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The Law

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• Statutory Authority

– Federal level

• 42 U.S.C. § 666 authorizes individual States to implement

policy/law rendering public or private retirement attachable for the

purposes of collecting support arrearages.

• 29 U.S.C. § 1001 et seq. [ERISA] acknowledges limitations in

collecting against retirement plans. However, limitations do not

apply when there is an approved/signed Qualified Domestic

Relations Order [QDRO];

– State level

• CA Family Code § 5103 allows LCSAs to collect support

payments against employee benefit plans; does not require the plan

administrator be joined as a party.

• There is statutory authority allowing for a QDRO to be signed/approved

prior to the Obligor parent (or the plan administrator) being provided notice

• However, there are Commissioners that may require an actual notice of

hearing (and a hearing) prior to approving a QDRO.

– Most Family Law Judges deal with stipulated QDROs.

• Stipulated QDROs may not be feasible for child support purposes

– Obligor parents may choose to withdraw funds once given notice

– Obligor parents may withhold retirement plan information

– Obligor parents may not wish to sigh the QDRO

• Obligor parents are afforded sufficient notice and opportunity post

approval/signing of the QDRO

– According to statutory authority

Discussion

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• Include a Points & Authorities to requests for a

QDRO.

– Cite appropriate authority supporting the need

for a QDRO without the normal notice

requirements

• Confer with the Commissioner (of course, in

general terms!)

San Francisco County’s Approach

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No Ex Parte Communications!!!!

• A case participant has been ordered to provide health coverage.

The LCSA has information indicating that, if the participant enrolls in

vision and dental coverage (but omits health coverage), the

additional cost still falls below the statutory 5% threshold. Adding all

three (vision, dental and health coverage) exceeds the 5%

threshold. Is the LCSA able to compel the participant to enroll in

vision and dental coverage?

• Is the LCSA able to dictate what insurance coverage(s) the

participant should enroll in?

– What if the insurance provider follows an “all or nothing” policy

(where the participant has to enroll in health coverage, dental

AND vision coverage)?

Question

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The Law

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• 22 CCR § 110414 “Health insurance coverage at a reasonable

cost means employment-related group health insurance or other

group health insurance, regardless of the service delivery

mechanism.”

• CA Family Code § 3750 (a) defines health insurance coverage as

“vision care and dental care coverage whether the vision or dental

care coverage is part of existing health insurance coverage or

is issued as a separate policy or plan.” [emphasis added]

• CA Family Code § 3751 (a) (2) “Health insurance coverage shall

be rebuttably presumed to be reasonable in cost if the cost to the

responsible parent providing medical support does not exceed 5

percent of his or her gross income.” [emphasis added]

• Arguably, a literal reading of the CFR and the CA FC indicates both

acknowledge insurance coverage for medical, vision and dental may be

brokered into individual/separate types of coverage.

– This is largely dependent on the 1) employer, 2) insurance provider and 3)

available plans offered by the particular insurance provider.

• A literal reading would suggest a case participant may be required to enroll in

the available services that would still fall under the statutory 5% threshold.

– Difficulties:

• Is the LCSA then placing a hierarchy on services?

• Because this issue depends on individual employer/providers, may lead

to different outcomes on a wide range of cases.

• There is no clear direction (federal and state level) or on-point case law on the

issue.

• Affordable Care Act issues?

Discussion

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San Francisco County’s Approach

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• Key factors:

– The availability of separate plans to the case participant.

• Is case participant able to enroll in either medical, vision or

dental coverage?

• All or nothing policy followed by employer/provider?

• In situations where the participant is able to enroll in separate plans

for medical, vision or dental coverage, the LCSA is still required to

assess whether enrollment in any plan will meet the 5% threshold.

• Each LCSA should note that the inclusion of the Low-income

adjustment (LIA) to the support order/calculation renders the

medical coverage requirement unreasonable unless there is a court

order stating otherwise.

Become part of the LCSA attorney team

and join us on

Download the app at Slack.com or

Then contact Gina Johnston (gjohnston@sjgov.org) or

Tex Ritter (tex.ritter@co.nevada.co.us

for an invitation to join

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Tex Ritter, Sierra-Nevada LCSA

tex.ritter@co.nevada.co.us

Ronald J. Ladage, Sacramento LCSA

ladager@saccounty.net

Veronica Roberts, Central Sierra LCSA

roberts.veronica@centralsierra.cse.ca.gov

Lisa Saporito, San Francisco LCSA

lisa.saporito@sfgov.org

Contact us:

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