WSR 03-12-064

EMERGENCY RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Economic Services Administration)

[ Filed June 2, 2003, 4:42 p.m. ]

Date of Adoption: May 27, 2003.

Purpose: On February 3, 2003, the Division of Child Support Services (DCS) adopted emergency rules to bring the regulations and procedures of DCS into agreement with statutory changes in the 2002 legislative session, namely changes to the Uniform Parentage Act (chapter 302, Laws of 2002) and changes regarding the jurisdiction of DCS (chapter 199, Laws of 2002). DCS anticipates that the proposed rules will be filed in May and must do this fourth emergency filing to continue the existing rules in place until the permanent rules become effective this summer.

Citation of Existing Rules Affected by this Order: Amending WAC 388-14A-3370, 388-14A-3100, 388-14A-3810, 388-14A-3102, 388-14A-3110, 388-14A-3115, and 388-14A-3120.

Statutory Authority for Adoption: RCW 34.05.350 (1)(b), 74.08.090, 34.05.220(1), 74.20A.055, 74.20A.056, and 74.20A.310, chapter 302, Laws of 2002, chapter 199, Laws of 2002.

Under RCW 34.05.350 the agency for good cause finds that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.

Reasons for this Finding: (1) Chapter 302, Laws of 2002, amends the Uniform Parentage Act regarding the affidavit or acknowledgment of paternity; (2) chapter 199, Laws of 2002, amends the statutory jurisdiction of DCS, with effective date of June 13, 2002; and (3) DCS continues to work with stakeholders to develop permanent policy.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 1, Amended 7, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 1, Amended 7, Repealed 0.
Effective Date of Rule: Immediately.

May 27, 2003

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

3110.4
AMENDATORY SECTION(Amending WSR 00-15-016 and 00-20-022, filed 7/10/00 and 9/25/00, effective 11/6/00)

WAC 388-14A-3100   How does the division of child support establish a child support obligation when there is no child support order?   (1) When there is no order setting the amount of child support a noncustodial parent (NCP) should pay, the division of child support (DCS) serves a support establishment notice on the NCP and the custodial parent. A support establishment notice is an administrative notice that can become an enforceable order for support if nobody requests a hearing on the notice.

(2) DCS may serve a support establishment notice when there is no order that:

(a) Establishes the noncustodial parent's support obligation for the child(ren) named in the notice; or

(b) Specifically relieves the noncustodial parent of a support obligation for the child(ren) named in the notice.

(3) Whether support is based upon an administrative order or a court order, DCS may serve a support establishment notice when parties to a paternity order subsequently marry each other and then separate, or parties to a decree of dissolution remarry each other and then separate. The remaining provisions of the paternity order or the decree of dissolution, including provisions establishing paternity, remain in effect.

(4) Depending on the legal relationship between the NCP and the child for whom support is being set, DCS serves one of the following support establishment notices:

(a) Notice and finding of financial responsibility (NFFR), see WAC 388-14A-3115. This notice is used when the NCP is either the mother or the legal father of the child. WAC 388-14A-3102 describes when DCS uses a NFFR to set the support obligation of a father who has signed ((a)) an acknowledgment or affidavit of paternity ((affidavit)).

(b) Notice and finding of parental responsibility (NFPR), see WAC 388-14A-3120. This notice is used when the NCP was not married to the mother but has filed an affidavit or acknowledgment of paternity. WAC 388-14A-3102 describes when DCS uses a NFPR to set the support obligation of a father who has signed ((a)) an acknowledgment or affidavit of paternity ((affidavit)).

(c) Notice and finding of medical responsibility (NFMR), see WAC 388-14A-3125. This notice is used when DCS seeks to set only a medical support obligation instead of a monetary child support obligation.

[Statutory Authority: RCW 34.05.220(1), 74.08.090, 74.20A.055, 74.20A.056. 00-15-016 and 00-20-022, 388-14A-3100, filed 7/10/00 and 9/25/00, effective 11/6/00.]


AMENDATORY SECTION(Amending WSR 00-15-016 and 00-20-022, filed 7/10/00 and 9/25/00, effective 11/6/00)

WAC 388-14A-3102   When the parents have signed ((a)) an acknowledgment or affidavit of paternity ((affidavit)), which support establishment notice does the division of child support serve on the noncustodial parent?    (1) When the parents of a child are not married, they may sign an affidavit of paternity, also called an acknowledgment of paternity. The legal effect of the affidavit or acknowledgment depends on when it is filed, in what state it is filed, and whether both parents were over age eighteen when the affidavit was signed.

(2) For ((paternity)) affidavits or acknowledgments filed on or before August 14, 1997 with the center for health statistics in the state of Washington, the division of child support (DCS) serves a notice and finding of parental responsibility (NFPR). See WAC 388-14A-3120.

(3) For paternity affidavits filed ((on or)) after August 14, 1997 with the center for health statistics in the state of Washington, ((it depends on how much time has elapsed since filing:

(a) If less than sixty days have passed since filing, DCS serves a NFPR under WAC 388-14A-3120, because the parents can rescind (withdraw) the affidavit within sixty days of filing and request genetic testing; or

(b) If sixty or more days has passed since filing,)) DCS serves a notice and finding of financial responsibility (NFFR) under WAC 388-14A-3115, because the affidavit or acknowledgment has become a conclusive presumption of paternity under ((RCW 26.26.040)) section 305, chapter 302, Laws of 2002.

(4) For ((paternity)) acknowledgments or affidavits filed with the vital records agency of another state, DCS determines whether to serve a NFFR or NFPR depending on the laws of the state where the affidavit is filed.

(5) DCS relies on ((paternity)) the acknowledgment or affidavit((s)), even if the mother ((and the)) or father were eighteen years of age or older at the time they ((signed)) entered the acknowledgment or affidavit, ((or have reached eighteen years of age since signing the affidavit. A party who was under eighteen at the time the affidavit was signed and filed in Washington after August 14, 1997 has sixty days after their eighteenth birthday to void the affidavit; for affidavits filed in other states, the law of the state of filing determines whether the affidavit is voidable)) under section 304, chapter 302, Laws of 2002.

(6) If the mother was married at the time of the child's birth, but not to the man acknowledging paternity, the man to whom she was married must also have signed ((the affidavit to deny)) and filed a denial of paternity within ten days of the child's birth.

(7) If the acknowledgment or affidavit is legally deficient in any way, DCS may refer the case for paternity establishment in the superior court.

(8) If the mother is the noncustodial parent, DCS serves a NFFR.

[Statutory Authority: RCW 34.05.220(1), 74.08.090, 74.20A.055, 74.20A.056. 00-15-016 and 00-20-022, 388-14A-3102, filed 7/10/00 and 9/25/00, effective 11/6/00.]


AMENDATORY SECTION(Amending WSR 00-15-016 and 00-20-022, filed 7/10/00 and 9/25/00, effective 11/6/00)

WAC 388-14A-3110   When can a support establishment notice become a final order?   (1) The notice and finding of financial responsibility (NFFR), notice and finding of parental responsibility (NFPR), or notice and finding of medical responsibility (NFMR) becomes a final, enforceable order if neither the custodial parent or the noncustodial parent objects and requests a timely hearing on the notice. An objection is also called a hearing request.

(2) If a timely objection is filed, the division of child support (DCS) cannot enforce the terms of the notice until a final order as defined in this section is entered.

(3) To be timely, the noncustodial parent must object within the following time limits:

(a) Within twenty days of service, if the noncustodial parent was served in Washington state.

(b) Within sixty days of service, if the noncustodial parent was served outside of Washington state.

(4) To be timely, the custodial parent must object within twenty days of service.

(5) An objection to a support establishment notice is a request for hearing on the notice.

(6) The effective date of the hearing request is the date the division of child support (DCS) receives the request for hearing.

(7) When an NFPR is served, the order will not become a final order if either parent requests genetic testing under WAC 388-11-048 (or as later amended) within the following time limits:

(a) The noncustodial parent must request genetic testing within twenty days of service, if the noncustodial parent was served in Washington state ((and the affidavit has not yet become a final determination of paternity)).

(b) The noncustodial parent must request genetic testing within sixty days of service, if the noncustodial parent was served outside of Washington state ((and the affidavit has not yet become a final determination of paternity)).

(c) The custodial parent must request genetic testing within twenty days of service ((and may request genetic testing only if the affidavit has not yet become a final determination of paternity.

(d) For parties who have filed paternity affidavits in Washington after August 14, 1997, a request for genetic testing does not by itself operate to rescind the affidavit)) of the notice.

(8) The noncustodial parent or custodial parent must make the hearing request or request for genetic testing, either in writing or orally, at any DCS office. See WAC 388-14-500 (or as later amended) regarding oral requests for hearing.

(9) After a timely request for hearing, the final order is one of the following, whichever occurs latest:

(a) An agreed settlement or consent order under WAC 388-11-150 (or as later amended);

(b) An initial decision for which twenty-one days have passed and no party has filed a petition for review (this includes an order of default if neither party appears for hearing); or

(c) A review decision.

[Statutory Authority: RCW 34.05.220(1), 74.08.090, 74.20A.055, 74.20A.056. 00-15-016 and 00-20-022, 388-14A-3110, filed 7/10/00 and 9/25/00, effective 11/6/00. Formerly WAC 388-11-210.]


AMENDATORY SECTION(Amending WSR 00-15-016 and 00-20-022, filed 7/10/00 and 9/25/00, effective 11/6/00)

WAC 388-14A-3115   The notice and finding of financial responsibility is used to set child support when paternity is not an issue.   (1) A notice and finding of financial responsibility (NFFR) is an administrative notice served by the division of child support (DCS) that can become an enforceable order for support, pursuant to RCW 74.20A.055.

(2) The NFFR:

(a) Advises the noncustodial parent and the custodial parent (who can be either a parent or the physical custodian of the child) of the support obligation for the child or children named in the notice. The NFFR fully and fairly advises the parents of their rights and responsibilities under the NFFR.

(b) Includes the information required by WAC 388-11-210 (or as later amended) and RCW 74.20A.055.

(c) Includes the noncustodial parent's health insurance obligation, as required by WAC 388-11-215 (or as later amended).

(d) May include an obligation to provide support for day care or special child-rearing expenses, pursuant to chapter 26.19 RCW.

(e) Warns the noncustodial parent and the custodial parent that at an administrative hearing, the administrative law judge (ALJ) may set the support obligation in an amount higher or lower than, or different from, the amount stated in the NFFR, if necessary for an accurate support order.

(3) After service of the NFFR, the noncustodial parent and the custodial parent must notify DCS of any change of address, or of any changes that may affect the support obligation.

(4) The noncustodial parent must make all support payments to the Washington state support registry after service of the NFFR. DCS does not give the NCP credit for payments made to any other party after service of a NFFR, except as provided by WAC 388-11-015 and 388-11-280 (or as these sections are later amended).

(5) DCS may take immediate wage withholding action and enforcement action without further notice under chapters 26.18, 26.23, and 74.20A RCW when the NFFR is a final order. WAC 388-14A-3110 describes when the notice becomes a final order.

(6) In most cases, a child support obligation continues until the child reaches the age of eighteen. WAC 388-11-155 (or as later amended) describes when the obligation under the NFFR can end sooner or later than age eighteen.

(7) If paternity has been established by an affidavit or acknowledgment of paternity ((filed in Washington state on or after August 14, 1997 becomes a legal finding of paternity under RCW 26.26.040 (1)(e) unless it is rescinded (withdrawn) within sixty days of filing. If sixty days have passed since the affidavit or acknowledgment was filed, DCS may serve a NFFR to establish a support obligation)), DCS attaches a copy of the acknowledgment, affidavit, or certificate of birth record information to the notice. A party wishing to challenge the acknowledgment or denial of paternity may only bring an action in court to rescind or challenge the acknowledgment or denial of paternity under sections 307 and 308, chapter 302, Laws of 2002.

(8) If the parents filed a paternity affidavit or acknowledgment of paternity in another state, and by that state's law paternity is therefore conclusively established, DCS may serve a NFFR to establish a support obligation.

(9) A hearing on a NFFR is for the limited purpose of resolving the NCP's accrued support debt and current support obligation. The NCP has the burden of proving any defenses to liability.

[Statutory Authority: RCW 34.05.220(1), 74.08.090, 74.20A.055, 74.20A.056. 00-15-016 and 00-20-022, 388-14A-3115, filed 7/10/00 and 9/25/00, effective 11/6/00. Formerly WAC 388-11-285.]


AMENDATORY SECTION(Amending WSR 00-15-016 and 00-20-022, filed 7/10/00 and 9/25/00, effective 11/6/00)

WAC 388-14A-3120   The notice and finding of parental responsibility is used to set child support when the father's duty of support is based upon an affidavit of paternity which is not a conclusive presumption of paternity.   (1) A notice and finding of parental responsibility (NFPR) is an administrative notice served by the division of child support (DCS) that can become an enforceable order for support, pursuant to RCW 74.20A.056.

(2) The NFPR differs from a notice and finding of financial responsibility (NFFR)(see WAC 388-14A-3115) because the parties may request genetic testing to contest paternity after being served with a NFPR.

(3) DCS serves a NFPR when:

(a) An affidavit acknowledging paternity is on file with the center for health statistics and was filed before August 14, 1997; or

(b) ((An affidavit acknowledging paternity is on file with the center for health statistics and was filed on or after August 14, 1997 but the sixty-day period for rescission has not yet passed; or

(c))) An affidavit acknowledging paternity is on file with the vital records agency of another state and the laws of that state allow the parents to withdraw the affidavit or challenge paternity.

(4) DCS attaches a copy of the acknowledgment of paternity or certification of birth record information to the NFPR.

(5) The NFPR advises the noncustodial parent and the custodial parent (who is either the mother or the physical custodian of the child) of the support obligation for the child or children named in the notice. The NFPR fully and fairly advises the parents of their rights and responsibilities under the NFPR. The NFPR warns the noncustodial parent and the custodial parent that at an administrative hearing on the notice, the administrative law judge (ALJ) may set the support obligation in an amount higher or lower than, or different from, the amount stated in the NFPR, if necessary for an accurate support order.

(6) The NFPR includes the information required by WAC 388-11-210 (or as later amended), RCW 74.20A.055, and 74.20A.056.

(7) The NFPR includes the noncustodial parent's health insurance obligation, pursuant to WAC 388-11-215 (or as later amended).

(8) The NFPR may include an obligation to provide support for day care expenses or special child-rearing expenses, pursuant to chapter 26.19 RCW.

(9) DCS may not assess an accrued support debt for a period longer than five years before the NFPR is served. This limitation does not apply to the extent that the noncustodial parent hid or left the state of Washington for the purpose of avoiding service.

(10) After service of the NFPR, the noncustodial parent and the custodial parent must notify DCS of any change of address, or of any changes that may affect the support obligation.

(11) The noncustodial parent must make all support payments to the Washington state support registry after service of the NFPR. DCS does not give the NCP credit for payments made to any other party after service of the NFPR, except as provided by WAC 388-11-015 and 388-11-280 (or as these sections are later amended).

(12) DCS may take immediate wage withholding action and enforcement action without further notice under chapters 26.18, 26.23, and 74.20A RCW when the NFPR is a final order. See WAC 388-14A-3110 for when the notice becomes a final order.

(13) In most cases, a child support obligation continues until the child reaches the age of eighteen. WAC 388-11-155 (or as later amended) describes when the obligation under the NFPR can end sooner or later than age eighteen.

(14) Either the noncustodial parent, or the mother, if she is also the custodial parent, may request genetic tests under WAC 388-11-048 (or as later amended), notwithstanding the language of WAC 388-11-048, which refers only to the father. A mother who is not the custodial parent may at any time request that DCS refer the case for paternity establishment in the superior court.

(15) DCS does not stop enforcement of the order unless DCS receives a timely request for hearing or a timely request for genetic tests. See WAC 388-14A-3110 for time limits. DCS does not refund any money collected under the notice if the noncustodial parent is later:

(a) Excluded from being the father by genetic tests; or

(b) Found not to be the father by a court of competent jurisdiction.

(16) If the noncustodial parent requested genetic tests and was not excluded as the father, he may request within twenty days from the date of service of the genetic tests in Washington, or sixty days from the date of service of the genetic tests outside of Washington:

(a) A hearing on the NFPR.

(b) That DCS initiate a parentage action in superior court under chapter 26.26 RCW.

(17) If the noncustodial parent was not excluded as the father, the mother, if she is also the custodial parent, may within twenty days of the date of service of the genetic tests request:

(a) A hearing on the NFPR; or

(b) That DCS initiate a parentage action in superior court under chapter 26.26 RCW.

(18) ((If the affidavit or acknowledgment was filed in Washington after August 14, 1997, but sixty days have not passed since filing, DCS serves a NFPR. If the NCP wishes to contest paternity he must rescind (withdraw) the acknowledgment at the center for health statistics before the sixty-day period ends or there will be a legal finding of paternity under RCW 26.26.040 (1)(e). A request to DCS for genetic testing is not sufficient to withdraw the paternity affidavit.

(19))) If the NCP is excluded by genetic testing, DCS may refer the case for paternity establishment in the superior court.

(((20))) (19) A hearing on a NFPR is for the limited purpose of resolving the accrued support debt, current support obligation and reimbursement to DCS for paternity-related costs. The NCP has the burden of proving any defenses to liability.

[Statutory Authority: RCW 34.05.220(1), 74.08.090, 74.20A.055, 74.20A.056. 00-15-016 and 00-20-022, 388-14A-3120, filed 7/10/00 and 9/25/00, effective 11/6/00. Formerly WAC 388-11-290.]


NEW SECTION
WAC 388-14A-3122   When the rescission period has not yet passed for an affidavit or acknowledgment filed between August 14, 1997 and June 13, 2002, which support establishment notice does the division of child support serve when the father is the noncustodial parent?   (1) The division of child support (DCS) serves a notice and finding of parental responsibility (NFPR) under WAC 388-14A-3120 if:

(a) The parents filed an affidavit or acknowledgment of paternity with the department of health between August 14, 1997 and June 13, 2002;

(b) The sixty-day rescission period has not yet passed; and

(c) The father is the noncustodial parent.

(2) Either the father or the custodial parent may request a hearing on the terms of the NFPR.

(3) The father, or the mother if she is also the custodial parent, may request genetic tests on the NFPR if the acknowledgment or affidavit of paternity has not yet become a final determination of paternity.

(4) A party who requests genetic testing from DCS on an acknowledgment or affidavit of paternity filed with the department of health between August 14, 1997 and June 13, 2002, but within the sixty-day rescission period, must also file a rescission with the department of health. Requesting genetic testing does not stop the acknowledgment or affidavit from becoming final.

[]


AMENDATORY SECTION(Amending WSR 01-03-089, filed 1/17/01, effective 2/17/01)

WAC 388-14A-3370   What legal defenses are available to a noncustodial parent when DCS seeks to enforce a support obligation?   (1) A noncustodial parent (NCP) who objects to a notice and finding of financial, parental, or medical responsibility has the burden of establishing defenses to liability. Defenses include, but are not limited to:

(a) Proof of payment;

(b) The existence of a superior court or administrative order that sets the NCP's support obligation or specifically relieves the NCP of a support obligation for the child(ren) named in the notice;

(c) The party is not a responsible parent as defined by RCW 74.20A.020(7);

(d) The amount requested in the notice is inconsistent with the Washington state child support schedule, Chapter 26.19 RCW;

(e) Equitable estoppel, subject to WAC 388-14A-6500; or

(f) Any other matter constituting an avoidance or affirmative defense.

(2) A dependent child's or a custodial parent's ineligibility to receive public assistance is not a defense to the assessment of a support obligation.

(3) An NCP may be excused from providing support for a dependent child ((receiving public assistance under chapter 74.12 RCW)) if the NCP is the legal custodian of the child and has been wrongfully deprived of physical custody of the child. The NCP may be excused only for any period during which the NCP was wrongfully deprived of custody. The NCP must establish that:

(a) A court of competent jurisdiction of any state has entered an order giving legal and physical custody of the child to the NCP;

(b) The custody order has not been modified, superseded, or dismissed;

(c) The child was taken or enticed from the NCP's physical custody and the NCP has not subsequently assented to deprivation. Proof of enticement requires more than a showing that the child is allowed to live without certain restrictions the NCP would impose; and

(d) Within a reasonable time after deprivation, the NCP exerted and continues to exert reasonable efforts to regain physical custody of the child.

[Statutory Authority: RCW 74.08.090, 74.20A.055, 74.20A.056. 01-03-089, 388-14A-3370, filed 1/17/01, effective 2/17/01. Formerly WAC 388-11-065.]


AMENDATORY SECTION(Amending WSR 01-03-089, filed 1/17/01, effective 2/17/01)

WAC 388-14A-3810   Once a child support order is entered how long does the support obligation last?   (1) A noncustodial parent's obligation to pay support under an administrative order continues until:

(a) A superior or tribal court order supersedes the order;

(b) The order is modified under WAC 388-14A-3925;

(c) The child reaches eighteen years of age;

(d) The child is emancipated;

(e) The child marries;

(f) The child becomes a member of the United States armed forces;

(g) The child or the responsible parent die;

(h) A responsible stepparent's marriage is dissolved; ((or))

(i) The parties to the order marry or remarry, as provided in WAC 388-14A-3100(3); or

(j) A superior court order terminates the responsible parent's liability as provided under RCW 26.16.205.

(2) As an exception to the above rule, a noncustodial parent's obligation to pay support under an administrative order continues and/or may be established for a dependent child who is:

(a) Under nineteen years of age; and

(b) A full-time student reasonably expected to complete a program of secondary school or the equivalent level of vocational or technical training before the end of the month in which the student becomes nineteen years of age.

(3) A noncustodial parent's obligation to pay support under an administrative order may be temporarily suspended when the:

(a) Noncustodial parent (NCP) resides with the child for whom support is sought for purposes other than visitation;

(b) NCP reconciles with the child and the custodial parent; or

(c) Child returns to the residence of the NCP from a foster care placement, for purposes other than visitation.

(4) When the NCP's obligation to pay current support on a case is suspended under subsection (3) of this section, the division of child support (DCS) informs the NCP that the obligation is suspended, in writing, sent by regular mail to the NCP's last known address.

(5) If circumstances causing an NCP's support obligation to be temporarily suspended change, the support obligation resumes. DCS sends the NCP a notice that the obligation to make current support payments has resumed.

[Statutory Authority: RCW 74.08.090. 01-03-089, 388-14A-3810, filed 1/17/01, effective 2/17/01. Formerly WAC 388-11-155.]

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