On behalf of The Marks Law Firm, L.L.C. posted in Child Support on Friday September 20, 2013
Child support has long been a necessary component of divorce or paternity matters. Ending relationships produces multiple wounded people, but none more innocent and needy than children. The least each parent owes those children is a reasonable financial contribution to their upbringing. Most parents pay their obligations, even if they would prefer otherwise because they think the sum too high or burdensome. But some parents do not pay, and this can become particularly hard on persons already on low incomes or perhaps even receiving government aid.
Because of the impact caring for dependent children can place on government budgets, Congress passed several statutes over the last forty years that require states to develop systems of child support enforcement. In Missouri, that task falls to the Family Support Division (FSD), formerly known as the Division of Child Support Enforcement (DCSE).
Originally, FSD had one overriding responsibility – providing a registry of parents who are delinquent in child support and a mechanism to force them to pay, usually through wage withholdings and liens against property and bank accounts. But many parents, particularly those of children born out of wedlock and receiving government aid, did not have the means to pursue the other parent (usually the father) and put that parent under a child support order. So, FSD obtained its second task – establishing a quick, efficient and inexpensive method of locating these parents and putting them under an order of child support.
How does FSD do this? Through an administrative, rather than judicial, process – a critical distinction we will discuss more in a moment. FSD receives applications for support from parents, usually mothers. After receiving the paperwork, FSD sends the other parent a notice of an administrative proceeding. It can take a variety of measures to determine paternity and obtain financial information. If the parents reach an agreement with FSD, a consent order will follow, and may include a wage withholding order. If the parents do not agree, FSD holds a hearing, but not the type you see in court. Instead, FSD holds telephone hearings conducted by a hearing officer who is an attorney and usually works for Legal Aid. The hearing officer receives exhibits that parents offer – these exhibits may not meet the standards of a court proceeding and may be rather deficient in their scope, allowing a party to overstate or understate income. Attorneys can participate if a party can afford to retain one, but the rules of evidence are loosely followed at best. At the conclusion of the hearing, the hearing officer will issue a decision in writing. If a party is upset with the decision, that party has 15 days to file a Petition for Judicial Review in the circuit court, which reviews what transpired and can hold a new evidentiary hearing if deemed necessary. Importantly, if the party does not timely file for review, the administrative order becomes registered in the circuit court and has the same effect as a judgment of support. So, if you question the decision in any way, you absolutely should seek judicial review with the assistance of an attorney.
FSD has limited authority. It cannot and should not take the place of a judicial proceeding. A married spouse cannot seek an order of child support through FSD against the other spouse, even if they are separated and live in different homes – only a circuit court has authority to enter an initial order of support for married couples. However, FSD can enter initial orders of support in paternity cases if no other court order exists and one parent seeks out enforcement services. Note – the FSD determination is not a judgment of paternity and may later be contested in circuit court.
What about modifications? FSD may modify its own orders as circumstances change. But for support judgments entered by a trial court, unless one of the parties seeks out FSD enforcement services, FSD cannot modify a court order of support. Furthermore, if FSD does enter such a modification, it may not have any force or effect in displacing the judgment of the court. This is a very confusing area of the law at the moment, and any party seeking certainty in support orders should go to court rather than to FSD.
So why use FSD at all? First of all, for enforcement, it can save parents money in retaining an attorney to get a withholding order on a delinquent parent. And, for non-married parents with limited income, FSD offers a reasonable method of getting the other parent to contribute to the support of the child.
But if you have obtained a child support judgment through a circuit court and you want to modify that judgment, the smartest course of action is to go back to the circuit court. The court already has your complete file and knows your case; the rules of evidence apply and the child support statutes are strictly followed; the court has contempt powers unavailable to FSD, including the ability to have the other party pay attorney’s fees. Any proceeding started in FSD could end up in a Petition for Judicial Review and essentially voided, requiring starting from square one – perhaps at some expense on legal fees. And any proceeding started in FSD remains in legal limbo, subject to having no binding effect over a court judgment. So, for most parties operating under an existing court ordered judgment of support, the wisest move is to retain an attorney and return to court for modification.
If you have questions about FSD and child support orders, whether initial or modification, contact us – we can help.