S-1252.1 _______________________________________________
SUBSTITUTE SENATE BILL 5369
_______________________________________________
State of Washington 57th Legislature 2001 Regular Session
By Senate Committee on Judiciary (originally sponsored by Senators Kline, Long and Costa; by request of Department of Social and Health Services)
READ FIRST TIME 02/07/01.
AN ACT Relating to jurisdiction in child support matters; amending RCW 26.09.170, 26.09.175, 26.23.130, 74.20.065, 74.20A.055, and 74.20A.056; adding a new section to chapter 26.23 RCW; adding a new section to chapter 74.20A RCW; and repealing RCW 74.20A.058.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1. RCW 26.09.170 and 1997 c 58 s 910 are each amended to read as follows:
(1) Except as otherwise
provided in subsection (7) of RCW 26.09.070, the provisions of any decree
respecting maintenance or support may be modified: (a) Only as to installments
accruing subsequent to the petition for modification or motion for adjustment
except motions to compel court-ordered adjustments, which shall be effective as
of the first date specified in the decree for implementing the adjustment; and,
(b) except as otherwise provided in subsections (((4), (5), (8), and (9)))
(5), (6), (9), and (10) of this section, only upon a showing of a
substantial change of circumstances. The provisions as to property disposition
may not be revoked or modified, unless the court finds the existence of
conditions that justify the reopening of a judgment under the laws of this
state.
(2) Unless otherwise agreed in writing or expressly provided in the decree the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.
(3) Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child are terminated by emancipation of the child or by the death of the parent obligated to support the child.
(4) Unless expressly provided by an order of the superior court or a court of comparable jurisdiction, the support provisions of the order are terminated upon the marriage to each other of parties to a paternity order, or upon remarriage to each other of parties to a decree of dissolution. The remaining provisions of the order, including provisions establishing paternity, remain in effect.
(5) An order of child support may be modified one year or more after it has been entered without showing a substantial change of circumstances:
(a) If the order in practice works a severe economic hardship on either party or the child;
(b) If a party requests an adjustment in an order for child support which was based on guidelines which determined the amount of support according to the child's age, and the child is no longer in the age category on which the current support amount was based;
(c) If a child is still in high school, upon a finding that there is a need to extend support beyond the eighteenth birthday to complete high school; or
(d) To add an automatic adjustment of support provision consistent with RCW 26.09.100.
(((5))) (6)
An order or decree entered prior to June 7, 1984, may be modified without
showing a substantial change of circumstances if the requested modification is
to:
(a) Require health insurance coverage for a child named therein; or
(b) Modify an existing order for health insurance coverage.
(((6))) (7)
An obligor's voluntary unemployment or voluntary underemployment, by itself, is
not a substantial change of circumstances.
(((7))) (8)
The department of social and health services may file an action to modify an
order of child support if public assistance money is being paid to or for the
benefit of the child and the child support order is twenty-five percent or more
below the appropriate child support amount set forth in the standard
calculation as defined in RCW 26.19.011 and reasons for the deviation are not
set forth in the findings of fact or order. The determination of twenty-five
percent or more shall be based on the current income of the parties and the
department shall not be required to show a substantial change of circumstances
if the reasons for the deviations were not set forth in the findings of fact or
order.
(((8))) (9)(a)
All child support decrees may be adjusted once every twenty-four months based
upon changes in the income of the parents without a showing of substantially
changed circumstances. Either party may initiate the adjustment by filing a
motion and child support worksheets.
(b) A party may petition for modification in cases of substantially changed circumstances under subsection (1) of this section at any time. However, if relief is granted under subsection (1) of this section, twenty-four months must pass before a motion for an adjustment under (a) of this subsection may be filed.
(c) If, pursuant to (a)
of this subsection or subsection (((9))) (10) of this section,
the court adjusts or modifies a child support obligation by more than thirty
percent and the change would cause significant hardship, the court may
implement the change in two equal increments, one at the time of the entry of
the order and the second six months from the entry of the order. Twenty-four
months must pass following the second change before a motion for an adjustment
under (a) of this subsection may be filed.
(d) A parent who is receiving transfer payments who receives a wage or salary increase may not bring a modification action pursuant to subsection (1) of this section alleging that increase constitutes a substantial change of circumstances.
(e) The department of social and health services may file an action at any time to modify an order of child support in cases of substantially changed circumstances if public assistance money is being paid to or for the benefit of the child. The determination of the existence of substantially changed circumstances by the department that lead to the filing of an action to modify the order of child support is not binding upon the court.
(((9))) (10)
An order of child support may be adjusted twenty-four months from the date of
the entry of the decree or the last adjustment or modification, whichever is
later, based upon changes in the economic table or standards in chapter 26.19
RCW.
Sec. 2. RCW 26.09.175 and 1992 c 229 s 3 are each amended to read as follows:
(1) A proceeding for the modification of an order of child support shall commence with the filing of a petition and worksheets. The petition shall be in the form prescribed by the administrator for the courts. There shall be a fee of twenty dollars for the filing of a petition for modification of dissolution.
(2) The petitioner shall serve upon the other party the summons, a copy of the petition, and the worksheets in the form prescribed by the administrator for the courts. If the modification proceeding is the first action filed in this state, service shall be made by personal service. If the decree to be modified was entered in this state, service shall be by personal service or by any form of mail requiring a return receipt. If the support obligation has been assigned to the state pursuant to RCW 74.20.330 or the state has a subrogated interest under RCW 74.20A.030, the summons, petition, and worksheets shall also be served on the attorney general; except that notice shall be given to the office of the prosecuting attorney for the county in which the action is filed in lieu of the office of the attorney general in those counties and in the types of cases as designated by the office of the attorney general by letter sent to the presiding superior court judge of that county. Proof of service shall be filed with the court.
(3) The responding party's answer and worksheets shall be served and the answer filed within twenty days after service of the petition or sixty days if served out of state. The responding party's failure to file an answer within the time required shall result in entry of a default judgment for the petitioner.
(4) At any time after responsive pleadings are filed, either party may schedule the matter for hearing.
(5) Unless both parties stipulate to arbitration or the presiding judge authorizes oral testimony pursuant to subsection (6) of this section, a petition for modification of an order of child support shall be heard by the court on affidavits, the petition, answer, and worksheets only.
(6) A party seeking authority to present oral testimony on the petition to modify a support order shall file an appropriate motion not later than ten days after the time of notice of hearing. Affidavits and exhibits setting forth the reasons oral testimony is necessary to a just adjudication of the issues shall accompany the petition. The affidavits and exhibits must demonstrate the extraordinary features of the case. Factors which may be considered include, but are not limited to: (a) Substantial questions of credibility on a major issue; (b) insufficient or inconsistent discovery materials not correctable by further discovery; or (c) particularly complex circumstances requiring expert testimony.
Sec. 3. RCW 26.23.130 and 1991 c 367 s 43 are each amended to read as follows:
The department shall be given twenty calendar days prior notice of the entry of any final order and five days prior notice of the entry of any temporary order in any proceeding involving child support or maintenance if the department has a financial interest based on an assignment of support rights under RCW 74.20.330 or the state has a subrogated interest under RCW 74.20A.030. Service of this notice upon the department shall be by personal service on, or mailing by any form of mail requiring a return receipt to, the office of the attorney general; except that notice shall be given to the office of the prosecuting attorney for the county in which the action is filed in lieu of the office of the attorney general in those counties and in the types of cases as designated by the office of the attorney general by letter sent to the presiding superior court judge of that county. The department shall not be entitled to terms for a party's failure to serve the department within the time requirements for this section, unless the department proves that the party knew that the department had an assignment of support rights or a subrogated interest and that the failure to serve the department was intentional.
Sec. 4. RCW 74.20.065 and 1983 1st ex.s. c 41 s 31 are each amended to read as follows:
If the legal custodian has been wrongfully deprived of physical custody, the department is authorized to excuse the custodian from support payments for a child or children receiving or on whose behalf public assistance was provided under chapter 74.12 RCW, or for a child or children on behalf of whom the department is providing nonassistance support enforcement services.
Sec. 5. RCW 74.20A.055 and 1997 c 58 s 940 are each amended to read as follows:
(1) The secretary may,
((in the absence of a superior court)) if there is no order((,))
that establishes the responsible parent's support obligation or specifically
relieves the responsible parent of a support obligation or pursuant to an
establishment of paternity under chapter 26.26 RCW, serve on the responsible
parent or parents and custodial parent a notice and finding of financial
responsibility requiring ((a responsible parent or)) the parents
to appear and show cause in an adjudicative proceeding why the finding of
responsibility and/or the amount thereof is incorrect, should not be finally
ordered, but should be rescinded or modified. This notice and finding shall
relate to the support debt accrued and/or accruing under this chapter and/or
RCW 26.16.205, including periodic payments to be made in the future. The
hearing shall be held pursuant to this section, chapter 34.05 RCW, the
Administrative Procedure Act, and the rules of the department. A custodian
who has physical custody of a child has the same rights that a custodial parent
has under this section.
(2) The notice and finding of financial responsibility shall be served in the same manner prescribed for the service of a summons in a civil action or may be served on the responsible parent by certified mail, return receipt requested. The receipt shall be prima facie evidence of service. The notice shall be served upon the debtor within sixty days from the date the state assumes responsibility for the support of the dependent child or children on whose behalf support is sought. If the notice is not served within sixty days from such date, the department shall lose the right to reimbursement of payments made after the sixty-day period and before the date of notification: PROVIDED, That if the department exercises reasonable efforts to locate the debtor and is unable to do so the entire sixty-day period is tolled until such time as the debtor can be located. The notice may be served upon the custodial parent who is the nonassistance applicant or public assistance recipient by first class mail to the last known address. If the custodial parent is not the nonassistance applicant or public assistance recipient, service shall be in the same manner as for the responsible parent.
(3) The notice and finding of financial responsibility shall set forth the amount the department has determined the responsible parent owes, the support debt accrued and/or accruing, and periodic payments to be made in the future. The notice and finding shall also include:
(a) A statement of the
name of the ((recipient or custodian)) custodial parent and the
name of the child or children for whom support is sought;
(b) A statement of the amount of periodic future support payments as to which financial responsibility is alleged;
(c) A statement that
the responsible parent or custodial parent may object to all or any part
of the notice and finding, and file an application for an adjudicative
proceeding to show cause why ((said responsible parent should not be
determined to be liable for any or all of the debt, past and future)) the
terms set forth in the notice should not be ordered;
(d) A statement that,
if neither the responsible parent ((fails)) nor the custodial
parent files in a timely fashion ((to file)) an application
for an adjudicative proceeding, the support debt and payments stated in the
notice and finding, including periodic support payments in the future, shall be
assessed and determined and ordered by the department and that this debt and
amounts due under the notice shall be subject to collection action;
(e) A statement that the property of the debtor, without further advance notice or hearing, will be subject to lien and foreclosure, distraint, seizure and sale, order to withhold and deliver, notice of payroll deduction or other collection action to satisfy the debt and enforce the support obligation established under the notice.
(4) A responsible
parent or custodial parent who objects to the notice and finding of
financial responsibility may file an application for an adjudicative proceeding
within twenty days of the date of service of the notice or thereafter as
provided under this subsection. ((An adjudicative proceeding shall be held
in the county of residence or other place convenient to the responsible parent.))
(a) If the responsible
parent or custodial parent files the application within twenty days, the
((department)) office of administrative hearings shall schedule
an adjudicative proceeding to hear the parent's or parents' objection
and determine the ((parents')) support obligation for the entire period
covered by the notice and finding of financial responsibility. The filing of
the application stays collection action pending the entry of a final
administrative order;
(b) If both the
responsible parent ((fails)) and the custodial parent fail to
file an application within twenty days, the notice and finding shall become a
final administrative order. The amounts for current and future support and the
support debt stated in the notice are final and subject to collection, except
as provided under (c) and (d) of this subsection;
(c) If the responsible
parent or custodial parent files the application more than twenty days
after, but within one year of the date of service, the ((department)) office
of administrative hearings shall schedule an adjudicative proceeding to
hear the parent's or parents' objection and determine the ((parent's))
support obligation for the entire period covered by the notice and finding of
financial responsibility. The filing of the application does not stay further
collection action, pending the entry of a final administrative order, and does
not affect any prior collection action;
(d) If the responsible
parent or custodial parent files the application more than one year
after the date of service, the ((department)) office of
administrative hearings shall schedule an adjudicative proceeding at which
the ((responsible)) parent who requested the late hearing must
show good cause for failure to file a timely application. The filing of the
application does not stay future collection action and does not affect prior
collection action:
(i) If the presiding
officer finds that good cause exists, the presiding officer shall proceed to
hear the parent's objection to the notice and determine the ((parent's))
support obligation;
(ii) If the presiding
officer finds that good cause does not exist, the presiding officer shall treat
the application as a petition for prospective modification of the amount for
current and future support established under the notice and finding. In the
modification proceeding, the presiding officer shall set current and future support
under chapter 26.19 RCW. The ((responsible)) petitioning parent
need show neither good cause nor a substantial change of circumstances to
justify modification of current and future support;
(e) If the responsible parent's support obligation was based upon imputed median net income, the grant standard, or the family need standard, the division of child support may file an application for adjudicative proceeding more than twenty days after the date of service of the notice. The office of administrative hearings shall schedule an adjudicative proceeding and provide notice of the hearing to the responsible parent and the custodial parent. The presiding officer shall determine the support obligation for the entire period covered by the notice, based upon credible evidence presented by the division of child support, the responsible parent, or the custodial parent, or may determine that the support obligation set forth in the notice is correct. The division of child support demonstrates good cause by showing that the responsible parent's support obligation was based upon imputed median net income, the grant standard, or the family need standard. The filing of the application by the division of child support does not stay further collection action, pending the entry of a final administrative order, and does not affect any prior collection action.
(f) The department shall retain and/or shall not refund support money collected more than twenty days after the date of service of the notice. Money withheld as the result of collection action shall be delivered to the department. The department shall distribute such money, as provided in published rules.
(5) If an application for an adjudicative proceeding is filed, the presiding or reviewing officer shall determine the past liability and responsibility, if any, of the alleged responsible parent and shall also determine the amount of periodic payments to be made in the future, which amount is not limited by the amount of any public assistance payment made to or for the benefit of the child. If deviating from the child support schedule in making these determinations, the presiding or reviewing officer shall apply the standards contained in the child support schedule and enter written findings of fact supporting the deviation.
(6) If either the responsible parent or the custodial parent fails to attend or participate in the hearing or other stage of an adjudicative proceeding, upon a showing of valid service, the presiding officer shall enter an order of default against each party who did not appear and may enter an administrative order declaring the support debt and payment provisions stated in the notice and finding of financial responsibility to be assessed and determined and subject to collection action. The parties who appear may enter an agreed settlement or consent order, which may be different than the terms of the department's notice. Any party who appears may choose to proceed to the hearing, after the conclusion of which the presiding officer or reviewing officer may enter an order that is different than the terms stated in the notice, if the obligation is supported by credible evidence presented by any party at the hearing.
(7) The final administrative order establishing liability and/or future periodic support payments shall be superseded upon entry of a superior court order for support to the extent the superior court order is inconsistent with the administrative order.
(8) Debts determined pursuant to this section, accrued and not paid, are subject to collection action under this chapter without further necessity of action by a presiding or reviewing officer.
Sec. 6. RCW 74.20A.056 and 1997 c 58 s 941 are each amended to read as follows:
(1) If an alleged father has signed an affidavit acknowledging paternity which has been filed with the state registrar of vital statistics before July 1, 1997, the division of child support may serve a notice and finding of parental responsibility on him and the custodial parent. Procedures for and responsibility resulting from acknowledgments filed after July 1, 1997, are in subsections (8) and (9) of this section. Service of the notice shall be in the same manner as a summons in a civil action or by certified mail, return receipt requested, on the alleged father. The custodial parent shall be served by first class mail to the last known address. If the custodial parent is not the nonassistance applicant or public assistance recipient, service shall be in the same manner as for the responsible parent. The notice shall have attached to it a copy of the affidavit or certification of birth record information advising of the existence of a filed affidavit, provided by the state registrar of vital statistics, and shall state that:
(a) The alleged father or
custodial parent may file an application for an adjudicative proceeding at
which ((he)) they both will be required to appear and show cause
why the amount stated in the finding of financial responsibility as to support
is incorrect and should not be ordered;
(b) An alleged father or mother, if she is also the custodial parent, may request that a blood or genetic test be administered to determine whether such test would exclude him from being a natural parent and, if not excluded, may subsequently request that the division of child support initiate an action in superior court to determine the existence of the parent-child relationship; and
(c) If neither
the alleged father ((does not request)) nor the custodial parent
requests that a blood or genetic test be administered or file an
application for an adjudicative proceeding, the amount of support stated in the
notice and finding of parental responsibility shall become final, subject only
to a subsequent determination under RCW 26.26.060 that the parent-child
relationship does not exist.
(2) An alleged father or custodial parent who objects to the amount of support requested in the notice may file an application for an adjudicative proceeding up to twenty days after the date the notice was served. An application for an adjudicative proceeding may be filed within one year of service of the notice and finding of parental responsibility without the necessity for a showing of good cause or upon a showing of good cause thereafter. An adjudicative proceeding under this section shall be pursuant to RCW 74.20A.055. The only issues shall be the amount of the accrued debt, the amount of the current and future support obligation, and the reimbursement of the costs of blood or genetic tests if advanced by the department. A custodian who is not the parent of a child and who has physical custody of a child has the same notice and hearing rights that a custodial parent has under this section.
(3) If the application for an adjudicative proceeding is filed within twenty days of service of the notice, collection action shall be stayed pending a final decision by the department. If no application is filed within twenty days:
(a) The amounts in the notice shall become final and the debt created therein shall be subject to collection action; and
(b) Any amounts so collected shall neither be refunded nor returned if the alleged father is later found not to be a responsible parent.
(4) An alleged father
((who denies being a responsible parent)) or the mother, if she is
also the custodial parent, may request that a blood or genetic test be
administered at any time. The request for testing shall be in writing, or
as the department may specify by rule, and served on the division of child
support ((personally or by registered or certified mail)). If a request
for testing is made, the department shall arrange for the test and, pursuant to
rules adopted by the department, may advance the cost of such testing. The
department shall mail a copy of the test results by certified mail, return
receipt requested, to the alleged father's and mother's, if she is also the
custodial parent, last known address.
(5) If the test excludes the alleged father from being a natural parent, the division of child support shall file a copy of the results with the state registrar of vital statistics and shall dismiss any pending administrative collection proceedings based upon the affidavit in issue. The state registrar of vital statistics shall remove the alleged father's name from the birth certificate and change the child's surname to be the same as the mother's maiden name as stated on the birth certificate, or any other name which the mother may select.
(6) The alleged father or
mother, if she is also the custodial parent, may, within twenty days after
the date of receipt of the test results, request the division of child support
to initiate an action under RCW 26.26.060 to determine the existence of the
parent-child relationship. If the division of child support initiates a
superior court action at the request of the alleged father or mother and
the decision of the court is that the alleged father is a natural parent, the
((alleged father)) parent who requested the test shall be liable
for court costs incurred.
(7) If the alleged
father or mother, if she is also the custodial parent, does not request
the division of child support to initiate a superior court action, or ((if
the alleged father)) fails to appear and cooperate with blood or genetic
testing, the notice of parental responsibility shall become final for all
intents and purposes and may be overturned only by a subsequent superior court
order entered under RCW 26.26.060.
(8)(a) If an alleged father has signed an affidavit acknowledging paternity that has been filed with the state registrar of vital statistics after July 1, 1997, within sixty days from the date of filing of the acknowledgment:
(i) The division of child support may serve a notice and finding of parental responsibility on him and the custodial parent as set forth under this section; and
(ii) The alleged father or any other signatory may rescind his acknowledgment of paternity. The rescission shall be notarized and delivered to the state registrar of vital statistics personally or by registered or certified mail. The state registrar shall remove the father's name from the birth certificate and change the child's surname to be the same as the mother's maiden name as stated on the birth certificate or any other name that the mother may select. The state registrar shall file rescission notices in a sealed file. All future paternity actions on behalf of the child in question shall be performed under court order.
(b) If neither
the alleged father ((does not)) nor the custodial parent files
an application for an adjudicative proceeding or ((rescind his)) rescinds
the acknowledgment of paternity, the amount of support stated in the notice
and finding of parental responsibility becomes final, subject only to a
subsequent determination under RCW 26.26.060 that the parent-child relationship
does not exist.
(c) An alleged father or custodial parent who objects to the amount of support requested in the notice may file an application for an adjudicative proceeding up to twenty days after the date the notice was served. An application for an adjudicative proceeding may be filed within one year of service of the notice and finding of parental responsibility without the necessity for a showing of good cause or upon a showing of good cause thereafter. An adjudicative proceeding under this section shall be pursuant to RCW 74.20A.055. The only issues shall be the amount of the accrued debt and the amount of the current and future support obligation.
(i) If the application for an adjudicative proceeding is filed within twenty days of service of the notice, collection action shall be stayed pending a final decision by the department.
(ii) If the application for an adjudicative proceeding is not filed within twenty days of the service of the notice, any amounts collected under the notice shall be neither refunded nor returned if the alleged father is later found not to be a responsible parent.
(d) If an alleged father or mother, if she is also the custodial parent, makes a request for genetic testing, the department shall proceed as set forth under RCW 74.20.360.
(e) If neither
the alleged father ((does not)) nor the custodial parent requests
an adjudicative proceeding, or if neither the alleged father ((fails
to rescind his)) nor the mother rescinds the filed acknowledgment of
paternity, the notice of parental responsibility becomes final for all intents
and purposes and may be overturned only by a subsequent superior court order
entered under RCW 26.26.060.
(9) Affidavits acknowledging paternity that are filed after July 1, 1997, are subject to requirements of chapters 26.26 and 70.58 RCW.
(10) The department and the department of health may adopt rules to implement the requirements under this section.
NEW SECTION. Sec. 7. A new section is added to chapter 26.23 RCW to read as follows:
If this chapter requires service in the manner prescribed for service of a summons in a civil action or by certified mail, valid service also includes delivery by a parcel delivery service that returns the signature of the addressee on a return receipt.
NEW SECTION. Sec. 8. A new section is added to chapter 74.20A RCW to read as follows:
If this chapter requires service in the manner prescribed for service of a summons in a civil action or by certified mail, valid service also includes delivery by a parcel delivery service that returns the signature of the addressee on a return receipt.
NEW SECTION. Sec. 9. RCW 74.20A.058 (Adjudicative proceeding contesting parental responsibility--Notice to mother) and 1989 c 55 s 5 are each repealed.
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