WSR 03-13-092

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Economic Services Administration)

[ Filed June 16, 2003, 4:32 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 02-24-069 and 02-13-042.

Title of Rule: Chapter 388-14A WAC, this filing encompasses two rule-making projects, both of which require changes to the same rule, namely WAC 388-14A-3110. The Division of Child Support (DCS) is enacting rules dealing with finality of administrative orders (see WSR 02-24-069) and rules dealing with legislative changed from the 2002 session, mostly involving changes to the Uniform Parentage Act, which affect support establishment (see WSR 03-13-042).

Amending WAC 388-14A-3100 How does the division of child support establish a child support obligation when there is no child support order?, 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?, WAC 388-14A-3110 When can a support establishment notice become a final order?, 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-3131 What happens if neither parent appears for the hearing?, 388-14A-3132 What happens if only one parent appears for the hearing?, 388-14A-3133 What happens when the noncustodial parent and the custodial parent both appear for the hearing?, 388-14A-3370 What legal defenses are available to a noncustodial parent when DCS seeks to enforce a support obligation?, 388-14A-3600 The parties may resolve any child support case by entering a consent order or an agreed settlement, and 388-14A-3810 Once a child support order is entered how long does the support obligation last?; and new sections WAC 388-14A-6105 What is the difference between an initial order and a final order in a hearing involving the division of child support?, 388-14A-6110 When must an ALJ enter an initial order in a DCS hearing proceeding?, 388-14A-6115 When must an ALJ enter a final order in a DCS hearing proceeding?, 388-14A-6120 What can I do if I do not agree with an initial order or final order entered by an administrative law judge?, and 388-14A-6125 When does an initial order or final order entered by an ALJ become enforceable?

Purpose: (1) DCS is adopting new rules in chapter 388-14A WAC dealing with administrative orders and appeals therefrom, determining when the Office of Administrative Hearings (OAH) issues an initial order, which is subject to review, or a final order, which is not subject to review. Also, minor amendments are proposed to existing rules regarding the finality of orders and other related rules.

(2) DCS is adopting rules to bring the regulations and procedures of the DSHS Division of Child Support 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).

Statutory Authority for Adoption: RCW 34.05.220(1), 74.08.090, 74.20A.056, and 74.20A.310.

Statute Being Implemented: 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, and 74.20A.310.

Summary: See Purpose above.

Reasons Supporting Proposal: The proposed amendments and new rules are needed to bring DCS rules into agreement with other DSHS hearing rules and with changes in statute.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Nancy Koptur, DCS Headquarters, P.O. Box 9162, Olympia, WA 98507-9162, (360) 664-5065.

Name of Proponent: Department of Social and Health Services, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: (1) Changes to chapter 388-02 WAC adopted effective November 15, 2002, under WSR 02-20-061 make it necessary for DCS to adopt rules regarding this subject to preserve due process rights of those affected by DCS rules. The Division of Child Support is adopting new rules in chapter 388-14A WAC dealing with administrative orders and appeals therefrom, determining when OAH issues an initial order, which is subject to review, or a final order, which is not subject to review.

(2) DCS is adopting rules to bring the regulations and procedures of the DSHS Division of Child Support (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).

Proposal Changes the Following Existing Rules: (1) Except for initial decisions entered from administrative hearings regarding address disclosure, the initial decisions in DCS cases entered by an ALJ will be final orders, not subject to review by the DSHS Board of Appeals, pursuant to changes in chapter 388-02 WAC.

(2) Changes in the Uniform Parentage Act and in the statutes regarding DCS' jurisdiction require changes in the rules regarding administrative establishment of support orders for unmarried parents, and for parties who marry and then separate after the entry of a court order such as a paternity order or decree of dissolution; the defense of wrongful deprivation is extended to nonassistance cases after having been restricted to cases where the child received welfare.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule does not have an economic impact on small businesses. It only affects individuals who have support obligations or individuals who are owed child support.

RCW 34.05.328 does not apply to this rule adoption. Proposed rules amended to be in agreement with chapter 388-02 WAC amend hearing procedures and are "procedural rules" per RCW 34.05.328 (5)(c)(i)(A). These rules do not meet the definition of "significant legislative rules" under RCW 34.05.328.

Proposed rules implementing the Uniform Parentage Act and to clarify the jurisdiction of DCS do meet the definition of a significant legislative rule but DSHS/DCS is exempt from preparing further analysis under RCW 34.05.328 (5)(b)(vii), which exempts rules relating concerning liability for care of dependents.

Hearing Location: Blake Office Park East (behind Goodyear Courtesy Tire), 4500 10th Avenue S.E., Rose Room, Lacey, WA 98503, on August 5, 2003, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Andy Fernando, DSHS Rules Coordinator, by August 1, 2003, phone (360) 664-6094, TTY (360) 664-6178, e-mail fernaax@dshs.wa.gov.

Submit Written Comments to: Identify WAC Numbers, DSHS Rules Coordinator, Rules and Policies Assistance Unit, deliver to 4500 10th Avenue S.E., Lacey, WA, mail to P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 664-6185, e-mail fernaax@dshs.wa.gov, by 5:00 p.m., August 5, 2003.

Date of Intended Adoption: No earlier than August 6, 2003.

June 13, 2003

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

3241.2
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 the 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 or acknowledgments 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)) 26.26.320.

(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 affidavits)) the acknowledgment or affidavit, even if the mother ((and the)) or father were not yet eighteen years of age ((or older)) at the time they signed ((the)) or filed 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)) as provided in RCW 26.26.315(4).

(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))) 388-14A-3120(14) 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))) 388-14A-6100 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))) 388-14A-3600;

(b) An initial decision as defined in WAC 388-14A-6105 and further described in WAC 388-14A-6110, 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 final order as defined in WAC 388-14A-6105 and further described in WAC 388-14A-6115; or

(d) 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 26.23.050 and 74.20A.055.

(c) Includes the noncustodial parent's health insurance obligation, as required by ((WAC 388-11-215 (or as later amended))) 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 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))) 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 ((388-11-155 (or as later amended))) 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 ((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 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 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 26.23.050, 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))) 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 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))) 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 ((388-11-155 (or as later amended))) 388-14A-3810 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.]


AMENDATORY SECTION(Amending WSR 01-24-081, filed 12/3/01, effective 1/3/02)

WAC 388-14A-3131   What happens if neither parent appears for the hearing?   (1) If neither parent appears at the scheduled hearing after being sent a notice of hearing, the administrative law judge (ALJ) enters an ((initial decision and)) order on default, declaring the support establishment notice's claim for support to be final and subject to collection action. See WAC 388-14A-6110 and 388-14A-6115 to determine whether the ALJ issues an initial order or a final order.

(2) ((The initial decision and)) As provided in WAC 388-14A-6125, an initial order on default is subject to collection action on the twenty-second day after the order ((of default)) was mailed by the office of administrative hearings, and a final default order is enforceable immediately upon entry.

(3) A parent that did not appear may petition to vacate the default order pursuant to WAC 388-14A-6150.

(a) If the ALJ vacates the order of default, the ALJ then conducts a full hearing on the merits of the NFFR, NFPR or NFMR. All parties may participate in the hearing.

(b) If the parent who did not appear at the hearing is unsuccessful in the motion to vacate the default order, the ALJ may treat the petition as a petition to modify the support order.

[Statutory Authority: RCW 34.05.220(1), 74.08.090, 74.20A.055, 74.20A.056. 01-24-081, 388-14A-3131, filed 12/3/01, effective 1/3/02; 00-15-016 and 00-20-022, 388-14A-3131, 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 01-24-081, filed 12/3/01, effective 1/3/02)

WAC 388-14A-3132   What happens if only one parent appears for the hearing?   (1) If one parent appears at the hearing, but the other parent fails to appear after being sent a notice of hearing, the administrative law judge (ALJ) enters an order of default against the parent that did not appear. The hearing proceeds as described in WAC 388-14A-3140. See WAC 388-14A-6110 and 388-14A-6115 to determine whether the ALJ issues an initial order or a final order.

(2) The division of child support (DCS) and the parent that did appear may enter a consent order, but not an agreed settlement. The obligation in the consent order may be higher or lower, or different from, the terms set forth in the notice, without further notice to the nonappearing parent, if necessary for an accurate support order. The terms of the consent order become final ((on the twenty-second day after the mailing of)) when the order of default to the parent that did not appear becomes final, as provided in WAC 388-14A-6125.

(3) DCS and the parent that did appear may proceed to hearing. The ALJ may enter an initial decision setting an obligation which is higher or lower, or different from, the terms set forth in the notice, without further notice to the nonappearing parent, if necessary for an accurate support order. See WAC 388-14A-6110 and 388-14A-6115 to determine whether the ALJ issues an initial order or a final order.

(4) The parent that did not appear may petition to vacate the order of default pursuant to WAC 388-14A-6150.

(5) If the ALJ vacates the order of default, the ALJ then conducts a full hearing on the merits of the notice and finding of financial responsibility (NFFR), notice and finding of parental responsibility (NFPR) or notice and finding of medical responsibility (NFMR). All parties may participate in the hearing.

(6) If the parent who did not appear at the hearing is unsuccessful in the motion to vacate the default order, the ALJ may treat the petition as a petition to modify the support order.

[Statutory Authority: RCW 34.05.220(1), 74.08.090, 74.20A.055, 74.20A.056. 01-24-081, 388-14A-3132, filed 12/3/01, effective 1/3/02; 00-15-016 and 00-20-022, 388-14A-3132, 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 00-15-016 and 00-20-022, filed 7/10/00 and 9/25/00, effective 11/6/00)

WAC 388-14A-3133   What happens when the noncustodial parent and the custodial parent both appear for the hearing?   If both parents appear at the hearing:

(1) All parties may enter an agreed settlement or consent order. ((WAC 388-11-150 (or as later amended))) 388-14A-3600 describes when an agreed settlement or consent order is a final order.

(2) All parties may proceed to hearing, after which the ALJ issues an ((initial decision and)) order. The ALJ may enter an ((initial decision)) order setting an obligation which is higher or lower, or different from, the terms set forth in the notice, if necessary for an accurate support order. See WAC 388-14A-6110 and 388-14A-6115 to determine whether the ALJ issues an initial order or a final order.

(3) In a hearing under this section, the division of child support (DCS) ((shall proceed)) proceeds first to document the support amount that DCS believes to be correct. Following ((DCS's)) DCS' presentation, the custodial parent (CP) and the noncustodial parent (NCP) may proceed in turn to show why the DCS position is wrong.

[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-3133, 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 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 order, tribal court order, 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 01-24-082, filed 12/3/01, effective 1/3/02)

WAC 388-14A-3600   The parties may resolve any child support case by entering a consent order or an agreed settlement.   (1) The division of child support (DCS) may enter a consent order or agreed settlement to finalize any dispute in which a party requests a hearing. DCS attempts to settle matters through agreement when possible.

(a) An agreed settlement is signed only by the parties (DCS, the custodial parent and the noncustodial parent).

(b) A consent order must be signed by the parties and by an administrative law judge (ALJ) provided that:

(i) In a telephone hearing, the ALJ may sign on behalf of any party if that party gives their consent on the record; and

(ii) The ALJ approves a consent order without requiring testimony or a hearing, unless entry of the order would be unlawful.

(2) An agreed settlement or consent order is final and enforceable on:

(a) The date the last party signs the agreed settlement, if all parties signed the agreed settlement;

(b) The date the ALJ signs the consent order; or

(c) If the ALJ defaults one of the parties to the proceeding, the latest of the following dates:

(i) The date the ALJ signed the consent order;

(ii) The date the last party signed the agreed settlement; or

(iii) The date the order of default is final. See WAC 388-14A-6110 and 388-14A-6115 to determine whether the ALJ issues an initial order or a final order.

(3) A party to a consent order or an agreed settlement may:

(a) Not petition for review of the settlement or order under WAC 388-02-0560;

(b) Petition for modification under WAC 388-14A-3925; and

(c) Petition to vacate the settlement or consent order under WAC 388-14A-3700. However, the ALJ may only vacate a settlement or consent order after making a finding of fraud by a party, or on any other basis that would result in manifest injustice.

(4) If a hearing has been scheduled, DCS files a copy of the agreed settlement or consent order with the office of administrative hearings (OAH), and OAH issues an order dismissing the hearing. There are no hearing rights on the order dismissing the hearing.

[Statutory Authority: RCW 74.08.090, 34.05.220(1). 01-24-082, 388-14A-3600, filed 12/3/01, effective 1/3/02. Statutory Authority: RCW 74.08.090, 34.05.220(1), 74.20A.055, 74.20A.056. 01-03-089, 388-14A-3600, filed 1/17/01, effective 2/17/01. Formerly WAC 388-11-150 and 388-11-430.]


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.]


NEW SECTION
WAC 388-14A-6105   What is the difference between an initial order and a final order in a hearing involving the division of child support?   (1) In an administrative hearing involving the DSHS division of child support (DCS), the administrative law judge (ALJ) enters either an initial order, which is subject to review, or a final order, which is not subject to review.

(2) The terms "initial order," "final order" and "review" are defined in WAC 388-02-0010, and those definitions are repeated here for ease of reference:

(a) "Initial order" is a hearing decision made by an ALJ that may be reviewed by a review judge pursuant to WAC 388-02-0215(4). An initial order is sometimes called an "initial decision."

(b) "Final order" means an order that is the final DSHS decision.

(c) "Review" means the act of reviewing initial orders and making the final agency decision as provided by RCW 34.05.464.

(3) WAC 388-14A-6110 and 388-14A-6115 describe how to determine what kind of order is entered. Whether the ALJ enters an initial order or a final order does not depend on the date the hearing is held or the date the order is entered.

(4) WAC 388-14A-6120 describes what you can do if you disagree with an initial order or final order.

(5) WAC 388-14A-6125 describes when DCS may take enforcement action on an initial order or final order.

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NEW SECTION
WAC 388-14A-6110   When must an ALJ enter an initial order in a DCS hearing proceeding?   An administrative law judge (ALJ) must enter an initial order in a division of child support (DCS) hearing proceeding if:

(1) The case involves the disclosure of a party's address under WAC 388-14A-2114 through 388-14A-2140;

(2) A custodial parent (CP) or noncustodial parent (NCP) files a hearing request before November 15, 2002;

(3) A CP or NCP files a petition for modification with DCS or the office of administrative headings (OAH) before November 15, 2002; or

(4) DCS petitions for modification of an administrative order, and either the NCP or the CP is served with the notice of hearing before November 15, 2002.

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NEW SECTION
WAC 388-14A-6115   When must an ALJ enter a final order in a DCS hearing proceeding?   Except for cases regarding address disclosure under WAC 388-14A-2114 through 388-14A-2140, an administrative law judge (ALJ) must enter a final order in a DCS hearing proceeding if:

(1) A custodial parent (CP) or noncustodial parent (NCP) files a hearing request on or after November 15, 2002;

(2) An NCP or CP files a petition for modification with DCS or the office of administrative hearings (OAH) on or after November 15, 2002;

(3) DCS petitions for modification of an administrative order, and neither the NCP nor the CP is served before November 15, 2002.

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NEW SECTION
WAC 388-14A-6120   What can I do if I do not agree with an initial order or final order entered by an administrative law judge?   (1) Except for the DCS representative, any party to an initial order entered by an administrative law judge (ALJ) has the right to request review pursuant to chapter 388-02 WAC.

(2) No party may request administrative review of a final order entered by an ALJ.

(3) Any party to an initial order or a final order may petition to vacate an order of dismissal or default, pursuant to WAC 388-14A-3700 and 388-14A-6150.

(4) Any party to an initial order or final order may request correction of a clerical error in the order, pursuant to WAC 388-02-0540 through 388-02-0555.

(5) Any party to a final order may request reconsideration of the order, pursuant to WAC 388-02-0605 through 388-02-0635.

(6) Except for the DCS representative, any party to a final order may petition for judicial review, pursuant to RCW 34.05.510 through 34.05.598. You do not need to request reconsideration of the order before you petition for judicial review.

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NEW SECTION
WAC 388-14A-6125   When does an initial order or final order entered by an ALJ become enforceable?   (1) If no party requests review within twenty-one days of the date OAH mailed an initial order, the DSHS division of child support (DCS) may take enforcement action on the twenty-second day after OAH mailed the order.

(2) DCS may take enforcement action on a final order immediately upon entry of the order.

(a) Even if a party files a request for reconsideration, a request to correct a clerical error, a petition to vacate, or a petition for judicial review, DCS does not stop enforcement of the order.

(b) To stop DCS from enforcing a final order, you must obtain a court order staying (stopping) enforcement of the order.

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