WSR 06-09-015

PERMANENT RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Economic Services Administration)

[ Filed April 10, 2006, 4:36 p.m. , effective May 11, 2006 ]


Effective Date of Rule: Thirty-one days after filing.

Purpose: The division of child support (DCS) is amending its rules dealing with administrative support orders to provide that the administrative law judge may set the amount of support arrears, but that DCS sets the monthly repayment schedule for the debt. This rule-making project amends the following sections of chapter 388-14A WAC: WAC 388-14A-3115 The notice and finding of financial responsibility is used to set child support when paternity is not an issue, 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, 388-14A-3140 What can happen at a hearing on a support establishment notice?, 388-14A-3320 What happens at a hearing on a notice of support owed?, and 388-14A-6300 Duty of the administrative law judge in a hearing to determine the amount of a support obligation.

Citation of Existing Rules Affected by this Order: Amending WAC 388-14A-3115, 388-14A-3120, 388-14A-3140, 388-14A-3320, and 388-14A-6300.

Statutory Authority for Adoption: RCW 34.05.220(1), 74.08.090, 74.20A.160.

Adopted under notice filed as WSR 06-06-038 on February 23, 2006.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 5, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 5, Repealed 0.

Date Adopted: April 5, 2006.

Andy Fernando, Manager

Rules and Policies Assistance Unit

3619.2
AMENDATORY SECTION(Amending WSR 03-17-013, filed 8/12/03, effective 9/12/03)

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 RCW 26.23.050 and 74.20A.055.

(c) Includes the noncustodial parent's health insurance obligation, as required by RCW 26.18.170 and 26.23.050.

(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 (NCP) and the custodial parent (CP) 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)) NCP and the ((custodial parent)) CP must notify DCS of any change of address, or of any changes that may affect the support obligation.

(4) The ((noncustodial parent)) NCP 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 388-14A-3375.

(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 388-14A-3810 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, 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 RCW 26.26.330 and 26.26.335.

(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 hearing is not for the purpose of setting a payment schedule on the support debt. The NCP has the burden of proving any defenses to liability.

[Statutory Authority: RCW 34.05.220(1), 74.08.090, 74.20A.056, 74.20A.310, 26.26.315, 26.26.320, 26.26.330, 26.26.335, 74.20A.055, 2002 c 302, and 2002 c 199. 03-17-013, 388-14A-3115, filed 8/12/03, effective 9/12/03. 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 05-12-136, filed 6/1/05, effective 7/2/05)

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 July 1, 1997; or

(b) 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 (NCP) 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)) NCP and the custodial parent (CP) 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 RCW 26.23.050, 74.20A.055, and 74.20A.056.

(7) The NFPR includes the ((noncustodial parent's)) NCP's health insurance obligation, pursuant to RCW 26.18.170 and 26.23.050.

(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)) NCP hid or left the state of Washington for the purpose of avoiding service.

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

(11) The ((noncustodial parent)) NCP 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 388-14A-3375.

(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 388-14A-3810 describes when the obligation under the NFPR can end sooner or later than age eighteen.

(14) Either the ((noncustodial parent)) NCP, or the mother, if she is also the ((custodial parent)) CP, may request genetic tests. A mother who is not the ((custodial parent)) CP 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)) NCP 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)) NCP 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)) NCP was not excluded as the father, the CP (or the mother, if she is also the ((custodial parent)) CP), 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 NCP is excluded by genetic testing, DCS may refer the case for paternity establishment in the superior court.

(19) A hearing on a NFPR is for the limited purpose of resolving the ((accrued support debt,)) NCP's current support obligation, accrued support debt and amount of reimbursement to DCS for paternity-related costs. The hearing is not for the purpose of setting a payment schedule on the support debt. The NCP has the burden of proving any defenses to liability.

[Statutory Authority: RCW 26.26.315, 26.26.320, 26.26.330, 26.26.335, 34.05.220(1), 74.08.090, 74.20A.055, 74.20A.056, 74.20A.310. 05-12-136, 388-14A-3120, filed 6/1/05, effective 7/2/05. Statutory Authority: RCW 34.05.220(1), 74.08.090, 74.20A.056, 74.20A.310, 26.26.315, 26.26.320, 26.26.330, 26.26.335, 74.20A.055, 2002 c 302, and 2002 c 199. 03-17-013, 388-14A-3120, filed 8/12/03, effective 9/12/03. 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.]


AMENDATORY SECTION(Amending WSR 03-20-072, filed 9/29/03, effective 10/30/03)

WAC 388-14A-3140   What can happen at a hearing on a support establishment notice?   (1) When a parent requests a hearing on a notice and finding of financial responsibility (NFFR), notice and finding of parental responsibility (NFPR), or notice and finding of medical responsibility (NFMR), the hearing is limited to resolving the ((accrued support debt,)) NCP's current ((support)) and future support obligation and the accrued support debt. The hearing is not for the purpose of setting a payment schedule on the support debt.

(2) The noncustodial parent (NCP) has the burden of proving any defenses to liability. See WAC 388-14A-3370.

(3) Both the NCP and the custodial parent (CP) must show cause why the terms in the NFFR, NFPR, or NFMR are incorrect.

(4) The administrative law judge (ALJ) ((or review judge)) has authority to enter a support obligation that may be higher or lower than the amounts set forth in the NFFR, NFPR, or NFMR, including the support debt, current support, and the future support obligation. The ALJ ((or review judge)) may enter an order that differs from the terms stated in the notice, including different debt periods, if the obligation is supported by credible evidence presented by any party at the hearing, without further notice to any nonappearing party, if the ALJ ((or review judge)) finds that due process requirements have been met.

(5) The ALJ has no authority to determine custody or visitation issues, or to set a payment schedule for the arrears debt.

(6) When a party has advised the ALJ that they will participate by telephone, the ALJ attempts to contact that party on the record before beginning the proceeding or rules on a motion. The ALJ may not disclose to the other parties the telephone number of the location of the party appearing by phone.

(7) In certain cases, there is no "custodial parent" because the child or children are in foster care.

(a) If the NCP fails to appear for hearing, see WAC 388-14A-3131.

(b) If the NCP appears for hearing, see WAC 388-14A-3133.

(8) In certain cases, there can be two NCPs, called "joint NCPs." This happens when a husband and wife are jointly served a support establishment notice for a common child who is not residing in their home.

(a) If both NCPs fail to appear for hearing, see WAC 388-14A-3131;

(b) If both NCPs appear for hearing, see WAC 388-14A-3133; or

(c) One joint NCP may appear and represent the other joint NCP.

(9) When the CP asserts good cause level B (see WAC 388-422-0020), DCS notifies the CP that they will continue to receive documents, notices and orders. The CP may choose to participate at any time. Failure to appear at hearing results in a default order but does not result in a sanction for noncooperation under WAC 388-14A-2041.

(10) If any party appears for the hearing and elects to proceed, absent the granting of a continuance the ALJ hears the matter and enters an initial decision and order based on the evidence presented. The ALJ includes a party's failure to appear in the initial decision and order as an order of default against that party. The direct appeal rights of the party who failed to appear shall be limited to an appeal on the record made at the hearing.

[Statutory Authority: RCW 74.08.090, 34.05.310 (4)(d), 34.05.220(1), 74.20A.055, 74.20A.056. 03-20-072, 388-14A-3140, filed 9/29/03, effective 10/30/03. 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-3140, filed 7/10/00 and 9/25/00, effective 11/6/00. Formerly WAC 388-11-400 and 388-11-425.]


AMENDATORY SECTION(Amending WSR 05-07-059, filed 3/11/05, effective 4/11/05)

WAC 388-14A-3320   What happens at a hearing on a notice of support owed?   (1) A hearing on a notice of support owed is only for interpreting the court order for support and any modifying orders and not for changing or deferring the support provisions of the order.

(2) The hearing is only to determine:

(a) The amount of monthly support as a fixed dollar amount;

(b) Any accrued arrears through the date of hearing; and

(c) If a condition precedent in the court order to begin or adjust the support obligation was met.

(3) The hearing is not for the purpose of setting a payment schedule on the support debt.

(((2))) (4) Either the noncustodial parent (NCP) or ((custodial parent (CP))) payee may request a hearing on a notice of support owed. The party who requested the hearing has the burden of proving any defenses to liability that apply under WAC 388-14A-3370 or that the amounts stated in the notice of support owed are incorrect.

(((3))) (5) The office of administrative hearings (OAH) sends a notice of hearing to the ((noncustodial parent ())NCP(())), to the division of child support (DCS), and to the payee. The NCP and the payee each may participate in the hearing as an independent party.

(((4))) (6) If only one party appears and wishes to proceed with the hearing, the administrative law judge (ALJ) holds a hearing and issues an order based on the evidence presented or continues the hearing. See WAC 388-14A-6110 and 388-14A-6115 to determine if the ALJ enters an initial order or a final order.

(a) An order issued under this subsection includes an order of default against the nonappearing party and limits the appeal rights of the nonappearing party to the record made at the hearing.

(b) If neither the NCP nor the payee appears or wishes to proceed with the hearing, the ALJ issues an order of default against both parties.

(((5))) (7) If the payee requests a late hearing on a notice of support owed, the payee must show good cause for filing the late hearing request.

[Statutory Authority: RCW 74.08.090, 26.23.035, 34.05.220(1), 74.20A.310, 26.23.110, and 74.20A.040. 05-07-059, 388-14A-3320, filed 3/11/05, effective 4/11/05. Statutory Authority: RCW 74.08.090. 01-03-089, 388-14A-3320, filed 1/17/01, effective 2/17/01.]


AMENDATORY SECTION(Amending WSR 05-14-102, filed 6/30/05, effective 7/31/05)

WAC 388-14A-6300   Duty of the administrative law judge in a hearing to determine the amount of a support obligation.   (1) A support order entered under this chapter must conform to the requirements set forth in RCW 26.23.050(3) and 26.23.050(5).

(2) In hearings held under this chapter to contest a notice and finding of financial responsibility or a notice and finding of parental responsibility or other notice or petition, the administrative law judge (ALJ) must determine:

(a) The noncustodial parent's obligation to provide support under RCW 74.20A.057;

(b) The names and dates of birth of the children covered by the support order;

(c) The net monthly income of the noncustodial parent (NCP) and any custodial parent (CP);

(d) The NCP's share of the basic support obligation and any adjustments to that share, according to his or her circumstances;

(e) If requested by a party, the NCP's share of any special child-rearing expenses in a sum certain amount per month;

(f) The NCP's obligation to provide medical support under RCW 26.18.170;

(g) The NCP's accrued debt and order payments toward the debt in a monthly amount to be determined by the division of child support (DCS);

(h) The NCP's current and future monthly support obligation as a per month per child amount and order payments in that amount; and

(i) The NCP's total current and future support obligation as a sum certain and order payments in that amount.

(3) Having made the determinations required in subsection (2) above, the ALJ must order the NCP to make payments to the Washington state support registry (WSSR).

(4) The ALJ must allow ((the division of child support ())DCS(())) to orally amend the notice at the hearing to conform to the evidence. The ALJ may grant a continuance, when necessary, to allow the NCP or the CP additional time to present rebutting evidence or argument as to the amendment.

(5) The ALJ may not require DCS to produce or obtain information, documents, or witnesses to assist the NCP or CP in proof of defenses to liability. However, this rule does not apply to relevant, nonconfidential information or documents that DCS has in its possession.

[Statutory Authority: RCW 26.23.050, 34.05.220, 74.08.090, 74.20A.310. 05-14-102, 388-14A-6300, filed 6/30/05, effective 7/31/05. Statutory Authority: RCW 74.08.090, 26.23.050, 34.05.220, 74.20A.055, 74.20A.056, 45 CFR 303.11, 45 CFR 303.100. 01-03-089, 388-14A-6300, filed 1/17/01, effective 2/17/01. Formerly WAC 388-11-100 and 388-11-210.]

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