TITLE ____ - FAMILY AND DOMESTIC RELATIONS (2025)
Tribal code
Ask Donna
What actually matters in this document.
Text
TITLE ____ - FAMILY AND DOMESTIC RELATIONS
This Title is authorized and immediately effective by the passage of Resolution 18-03 enacted by
the Delaware Tribal Council on January 23, 2018.
ARTICLE 1 - GENERAL PROVISIONS
Section 1-101 Authority.
Section 1-102 References to this Title of the Delaware Tribe of Indians Law and Order Code.
Section 1-103 Prior Ordinances Repealed.
Section 1-104 Jurisdiction.
Section 1-105 Continuing Jurisdiction.
ARTICLE 2 - MARRIAGE
Section 2-101 Actions Available Under this Title; Remedies.
Section 2-102 Definition of Marriage; Common Law Marriage.
Section 2-103 Prohibited Marriages.
Section 2-104 Marriage License.
Section 2-105 Fees.
Section 2-106 Solemnization of Marriage Contract.
Section 2-107 Grounds for Annulment or Voidable Marriage.
ARTICLE 3 - DIVORCE AND CUSTODY
Section 3-101 Grounds for Dissolution of Marriage.
Section 3-102 Petition; Response; Summons.
Section 3-103 Temporary Orders During Pendency of Divorce or Separate Maintenance Action.
Section 3-104 Pleadings, Defenses and Objections; Motions.
Section 3-105 Notice of Action.
Section 3-106 Answer May Allege Cause or New Matters; Verified Signature Required.
Section 3-107 Divorce, Separate Maintenance and Annulment Cases; Waiting Period; Waivers;
Exceptions.
Section 3-108 Action to Void Marriage Due to Incapacity.
Section 3-109 Best Interest of Child Considered in Awarding Custody or Appointing Guardian.
Section 3-110 Evidence of Domestic Abuse Considered - Rebuttable Presumption.
Section 3-111 Orders Concerning Child Custody; Visitation.
Section 3-112 Preference of Child Considered in Custody of Visitation Actions.
Section 3-113 Child Support Orders.
Section 3-114 Orders Concerning Spousal Support.
Section 3-115 Spousal Support Without Divorce.
Section 3-116 Orders Concerning Property and Debt Division.
Section 3-117 Restoration of Maiden or Former Name.
Section 3-118 Unlawful to Marry Within 6 Months from the Date of Divorce Decree.
Section 3-119 Modification of Divorce Decree, Custody, Child Support and Judgment.
Section 3-120 Indirect Contempt.
Section 3-121 Fees and Costs.
ARTICLE 4 -CHILD SUPPORT
Section 4-101. Title.
Section 4-102. Authority.
Section 4-103. Purpose.
Section 4-104. Construction, Uniformity, and Interpretation; Severability.
Section 4-105. Definitions.
Section 4-106. Designation of the Delaware Tribe of Indians Child Support Services Program as
a Title IV-D Program.
Section 4-107. Powers and Duties of the Delaware Child Support Services Program.
Section 4-109. Eligibility, Assignment.
Section 4-110. Application Fee.
Section 4-111. Intergovernmental Procedures, Full Faith, and Credit.
Section 4-112. Confidentiality of Records.
Section 4-113. Attorneys.
Section 4-114. Locating Parents.
Section 4-115. Financial Disclosure.
Section 4-116. Applicant Cooperation.
Section 4-117. Reasonable Costs.
Section 4-118. Overpayment.
CHAPTER 2
JURISDICTION, CIVIL PROCEDURE, FULL FAITH, AND CREDIT,
SOVEREIGN IMMUNITY
Section 4-119. Jurisdiction.
Section 4-120. Transfer.
Section 4-121. Venue.
Section 4-122. Civil Procedure.
Section 4-123. Filing Fees.
Section 4-124. Full Faith and Credit.
Section 4-125. Sovereign Immunity.
CHAPTER 3
PATERNITY AND GENETIC TESTING
Section 4-126. General.
Section 4-127 No Effect on Tribal Enrollment.
Section 4-128. Parent-Child Relationship.
Section 4-129. Rights Valid Until Terminated.
Section 4-130. Presumption of Paternity - Marriage.
Section 4-131. No Discrimination Based on Marital Status.
Section 4-132. Voluntary Acknowledgment of Paternity.
Section 4-133. Denial of Paternity.
Section 4-134. Rules for Acknowledgment and Denial of Paternity.
Section 4-135. Proceedings for Rescission, Rescission by Minor.
Section 4-136. Challenges After Expiration of Period for Rescission.
Section 4-137. Procedures for Rescission or Challenge.
Section 4-138. Ratification Barred.
Section 4-139. Full Faith and Credit.
Section 4-140. Exceptions to the Establishment of Paternity.
2
CHAPTER 3A
GENETIC TESTING
Section 4-141. General.
Section 4-142. Order for Testing.
Section 4-143. Requirements for Genetic Testing.
Section 4-144. Report on Genetic Testing, Chain of Custody.
Section 4-145. Genetic Testing Results, Rebuttal.
Section 4-146. Costs of Genetic Testing.
Section 4-147. Additional Genetic Testing.
Section 4-148. Genetic Testing When Specimen Is Not Available.
Section 4-149. Identical Brothers, Non-genetic Evidence to Determine Father.
Section 4-150. Release of Report of Genetic Testing.
CHAPTER 3B
PROCEEDINGS TO ADJUDICATE PARENTAGE
Section 4-151. Civil Proceeding to Adjudicate Parentage.
Section 4-152. Standing to Maintain Proceeding.
Section 4-153. Parties to Proceeding.
Section 4-154. No Limitation: Child Having No Presumed, Acknowledged or Adjudicated
Father.
Section 4-155. Limitation: Child Having Presumed Father.
Section 4-156. Authority to Deny Motion for Genetic Testing, Factors to Consider.
Section 4-157. Limitation: Child Having Acknowledged or Adjudicated Father.
Section 4-158. Joinder of Proceedings.
Section 4-159. Commencement of Proceeding.
Section 4-160. Child as Party: Representation.
Section 4-161. Admissibility of Results of Genetic Testing.
Section 4-162. Consequences of Declining Genetic Testing.
Section 4-163. Admission of Paternity Authorized.
CHAPTER 3C
SPECIAL RULES FOR PROCEEDING TO ADJUDICATE PARENTAGE
Section 4-164. Rules for Adjudication of Paternity.
Section 4-165. Court Shall Adjudicate.
Section 4-166. Hearings, Records, Reports, Public Record.
Section 4-167. Default Order.
Section 4-168. Dismissal Only Without Prejudice.
Section 4-169. Order Adjudicating Parentage.
CHAPTER 4
CHILD SUPPORT ESTABLISHMENT
Section 4-170. General.
Section 4-171. Child Support, Age of Majority, Minor Parents, Emancipation.
Section 4-172. Child Support Obligations and Guidelines.
Section 4-173. Address Requirement for Service.
Section 4-174. Child Support Order.
Section 4-175.
Section 4-176.
Section 4-177.
Section 4-178.
Section 4-179.
Section 4-180.
Section 4-181.
Section 4-182.
Section 4-183.
Section 4-184.
Arrearage.
Non-cash Support.
Payments.
Judge’s Signature.
Voluntary Agreement.
Rebuttable Presumption.
Liability for Past Support.
Termination of Parental Rights, Adoption.
Modification.
No Retroactive Modification. A child support order shall not be modified
retroactively.
Section 4-185. Temporary Orders.
Section 4-186. Prior Born Children.
Section 4-187. Past Due Support.
Section 4-188. Review of Child Support Orders, Review of Guidelines.
Section 4-189. Redirection of Child Support Upon Change in Physical Custody.
Section 4-191. TANF Money Owed to a State or Tribe.
Section 4-192. Income Assignment.
Section 4-193. Voluntary Income Assignment.
Section 4-194. Employer, Notice of Income Assignment, Requirements.
Section 4-195. Registration of Foreign Child Support Oder.
CHAPTER 5
CHILD SUPPORT ENFORCEMENT
Section 4-196. General.
Section 4-197. Judgment For Arrearage.
Section 4-198. Arrearage.
Section 4-199. Liens, Workers Compensation, Release.
Section 4-200. Tribal and Individual Exempted Property.
Section 4-201. Initiated Income Assignment, Notice, Hearing.
Section 4-202. Spousal Support.
Section 4-203. Revocation or Suspension of Licenses.
Section 4-204. Probation.
Section 4-205. Reinstatement, Termination of Orders.
Section 4-206. Employment, Find-job Order.
Section 4-207. Passport Denial.
Section 4-208. Reporting to Consumer Reporting Agency.
Section 4-209. State and Federal Tax Offset Programs, Administrative Offset.
Section 4-210. Indirect Civil Contempt.
Section 4-211. Purge Fee, Referral.
Section 4-212. Waivers or Credits, Payments to Children.
Section 4-213. Exceptions to Enforcement Proceedings.
Section 4-214. Interest.
Section 4-215. Expedited Procedures.
Section 4-217. Bankruptcy
4
ARTICLE 1. GENERAL PROVISIONS
1-101 Authority.
This Title shall be referred to as the Family and Domestic Relations Code and is adopted pursuant
to the authority vested in the Delaware Tribe of Indians Tribal Council as the duly elected
governing body of the Delaware Tribe of Indians, a federally recognized Indian Tribe.
1-102 References to this Title of the Delaware Tribe of Indians Law and Order Code.
This title of the Delaware Law and Order Code may be referred to as the “Delaware Tribe of
Indians Family and Domestic Relations Code,” or where the context suitably identifies it as the
“Family and Domestic Relations Code.”
1-103 Prior Ordinances Repealed.
All resolutions or other enactments of the Tribal Council that conflict with the provisions of this
Title is hereby repealed to the extent of such conflict.
1-104 Jurisdiction.
Territorial jurisdiction, subject matter jurisdiction and personal jurisdiction shall be in accordance
with the Delaware Tribe of Indians Law and Order Code.
1-105 Continuing Jurisdiction.
1. Upon determination by the Court that jurisdiction exists in matters addressed by this Title, the
Court may retain jurisdiction over all issues so long as outstanding issues remain between the
parties.
2. Consents, once given, may not be withdrawn. A person requesting affirmative relief in writing
is deemed to have consented to the jurisdiction of the Court, whether plaintiff or defendant.
ARTICLE 2. MARRIAGE
2-101 Actions Available Under This Chapter; Remedies.
A. Actions available under this Article include actions for divorce, annulment, legal separation, or
custody. Appropriate remedies regarding divorce, annulment, custody of minor children,
separate maintenance and division of property, and debt shall be available as provided in this
Title.
B. The jurisdiction established consistent with any purpose of this Act shall provide the Court
jurisdiction to settle all claims made between the parties.
2-102 Definition of Marriage, Common Law Marriage.
A. “Marriage” means a personal relationship in which two people enter a consensual and
contractual relationship as recognized by law.
B. “Common Law Marriage” means a personal relationship arising out of tribal customs and
traditions or from common laws of a tribe, state, or nation wherein the union was entered with
the intent of being married.
2-103 Prohibited Marriages.
A. The Court shall not recognize marriages which are prohibited by the laws of the Delaware Tribe
of Indians. Marriages that are prohibited include those between ancestor and descendant;
relationships of the first degree of consanguinity; first cousins; bigamous; instances where one
party is weak-minded; unsound mind, or under the influence of alcohol or drugs; or induced by
fraud or duress.
1. Persons related within the first degree of consanguinity are prohibited. Bigamy and polygamy
are expressly prohibited as well.
2. In order to marry, a person must have the same legal capacity necessary to enter into a contract,
provided that no person under the age of 18 shall enter into a marital relationship except upon the
consent and authority expressly given by the parent or guardian of such underage individual.
a. Incapacity means that a spouse is unable to formulate the requisite understanding of the
consequences and nature of the relationship.
b. Persons under the influence at the time of entering the marriage shall be deemed to lack capacity
to be married.
3. Duress, coercion or fraud shall render a marriage invalid, provided that the person seeks
annulment at the time of the discovery of the untruthfulness that precipitated the marriage. The
right to an annulment on the grounds of duress, coercion or fraud is waived if the individual
willingly continues the marriage after discovering the untruthfulness.
4. No marriages shall be contracted while either of the parties is lawfully married to another person.
5. Persons may not marry where there exists a lawful objection or insurmountable impediment as
perceived by the Court.
6. No person who is or has been a party to an action for divorce in any court may marry again until
six (6) months after judgment of the divorce is granted, and the marriage of any such person
solemnized before the expiration of six (6) months from the date of the granting of judgment of
divorce shall be void.
2-104 Marriage License.
A marriage license shall be issued by the Delaware Tribe of Indians Court upon receiving a
completed application form from unmarried persons and in the absence of any showing that the
proposed marriage would be invalid under any provision of this Title.
2-105 Fee.
A fee of $40.00 shall be charged for the issuance of a marriage license.
2-106 Solemnization of Marriage Contract.
A marriage shall be validly solemnized and contracted by a Delaware Tribe of Indians’ Judge, in
the presence of at least two competent adult witnesses, after the issuance of license and by the
mutual declarations of the two parties involved that they agree to become husband and wife.
2-107 Grounds for Annulment or Voidable Marriage.
A marriage may be voided or annulled by the Court for any one of the following reasons upon the
application of one of the parties to the marriage:
(1) When either party to the marriage was incapable of consenting thereto.
(2) When the consent was obtained by force or fraud.
6
(3) When either party was, at the time of the marriage, incapable of consummating the
marriage and the incapacity is continuing.
(4) Any other grounds consistent with the laws of these Codes and for which the Court
makes a specific finding that the marriage is void for cause and an annulment is the appropriate
remedy in law.
ARTICLE 3. DIVORCE AND CHILD CUSTODY
3-101 Grounds for Dissolution of Marriage.
The Court may grant a dissolution of marriage on the grounds of irreconcilable differences between
the parties when either party is a resident of Delaware Tribe of Indians territory for at least six (6)
months or is a member of the Delaware Tribe of Indians who has resided within the States of
Oklahoma or Kansas for at least six (6) months.
3-102 Petition; Response; Summons.
A. Actions for a dissolution of marriage shall be initiated by the filing of a petition by either party
of the marriage.
1. The Petition for dissolution of marriage must contain sufficient information which will allow
the Court to ascertain the true and correct identity of the parties, length of marriage, the existence
of children as well as their exact identity and age, whether the wife is currently pregnant,
existing property and debt, and the grounds upon which relief is sought.
2. The Petition shall include a relief for request.
3. The Petition shall include an allegation of irreconcilable differences which render the dissolution
of marriage unavoidable.
4. There shall be a declaration as to whether there is currently pending an action for divorce or
legal separation by either party in any other court.
5. The person requesting relief shall be required to verify the petition under oath and subject to the
penalties of perjury.
B. Actions for dissolution may be brought jointly or separately. If brought jointly, both parties
shall verify the petition under oath and subject to the penalties of perjury. If the action is brought
by one party against the other, the responding party shall have 20 days after the date of service to
file a response to the Petition for Dissolution or file a counterclaim. Responsive pleadings or
counterclaims shall be served immediately upon the Petitioner.
C. Upon initiation of the dissolution of marriage action, a Summons shall be issued by the Court
Clerk and shall be served upon the responding party. The Summons shall be returned for filing
upon completion of service of process.
3-103 Temporary Orders During Pendency of Divorce or Separate Maintenance Action.
A. After an action for dissolution of marriage or separate maintenance has been filed, either party
may request the Court to issue:
1. A temporary order:
a. regarding child custody, support, or visitation.
b. regarding spousal maintenance.
c. regarding the disposition or possession of property.
d. regarding maintenance of debt.
e. regarding attorney fees.
f. enjoining a party from molesting or disturbing the peace of the other party or child.
g. excluding a party from the family home or from use of specific property.
h. enjoining a party from removing a child from the jurisdiction of the Court.
i. providing any other injunctive relief the Court deems necessary in consideration of the
circumstances.
a. All applications for temporary orders shall set forth the factual basis for the application and shall
be verified by the party seeking relief.
b. Notice of hearing for temporary orders shall be served upon the responding party with no order
being entered for a period of at least five (5) days, unless such testimony or evidence is sufficient
to warrant an emergency order; provided, that an emergency order shall be effective for a period
of no more than ten (10) days before a temporary order hearing is held. An emergency order may
be extended for good cause if both parties agree to the extension of time.
B. Temporary orders may be vacated or modified prior to or in conjunction with a final decree on
a showing by either party of the facts necessary for vacation or modification. Temporary orders
terminate upon the final judgment.
C. Upon the final order being entered, the Court may require either party to pay such reasonable
expenses of the other as may be just and proper under the circumstances.
3-104 Pleadings, Defenses and Objections; Motions.
All pleadings seeking application of the Court, providing defenses and/or objections, or motions
requesting specific relief shall be filed in accordance with the provisions enumerated in the
Delaware Tribe of Indians Civil Code.
3-105 Notice of Action.
Every person against whom an action is filed, or relief sought, shall be entitled to due process
including notice and the opportunity to respond. Such notice shall be perfected in accordance with
the Delaware Tribe of Indians Civil Code.
3-106 Answer May Allege Cause or New Matters; Verified Signature Required.
The respondent, in his or her answer, may allege a cause or new matters against the plaintiff, and
may be entitled to the same relief as if he or she were the petitioner. When a cause or new matter
is alleged in the answer, the answer shall be verified under oath and subject to the penalties of
perjury.
3-107 Divorce, Separate Maintenance and Annulment Cases; Waiting Period; Waivers;
Exceptions.
A. No divorce, separate maintenance or annulment shall be heard on its merits until the petition
shall have been on file for at least ten (10) days if there are no minor children or at least ninety
(90) days if there are minor children.
1. An exception to the waiting period shall be allowed if an emergency is duly shown by
application, both parties agree, and the Court finds reconciliation is unlikely.
B. Responding parties may file an entry of appearance and waiver to the proceedings. The entry
of appearance and waiver shall be in writing and verified under oath and subject to the penalties
of perjury. The Court shall not grant greater relief than is requested when a waiver is filed unless
the respondent consents in writing.
8
3-108 Action to Void Marriage Due to Incapacity.
When either of the parties to a marriage shall be incapable, from want of age or understanding, of
contracting such marriage, the same shall be declared void by the Court, in an action brought by
the incapable party or by the parent of guardian of such party. Cohabitation after such incapacity
ceases, shall be a sufficient defense to any such action.
3-109 Best Interest of Child Considered in Awarding Custody or Appointing Guardian.
A. In awarding custody, the Court shall make a determination based upon the best interests of the
minor child(ren)
B. The Court may grant custody to either parent, to the parents jointly or to a third-party guardian.
C. The Court may terminate a joint custody decree upon the request of either party or in situations
where the Court determines the decree is no longer in the best interests of the child(ren). If a
joint custody decree is modified, the Court shall make a new determination as to what custody
arrangement is in the best interest of the minor child(ren).
3-110 Evidence of Domestic Abuse Considered - Rebuttable Presumption.
In every case involving the custody of, or visitation with a child, the Court shall consider evidence
of ongoing domestic abuse which is properly brought before it. If the occurrence of ongoing
domestic abuse is established by clear and convincing evidence, there shall be a rebuttable
presumption that it is not in the best interests of the child(ren) to have custody or unsupervised
visitation granted to the abusive person.
3-111 Preference of Child Considered in Custody of Visitation Actions.
In any action for divorce, legal separation, or annulment in which the Court must determine
custody or visitation, the child may express a preference as to which of its parents the child wishes
to have custody. Provided, however, the child is of sufficient age and emotional ability to
understand the nature and consequences of their testimony. The Court may consider the expression
of preference by the child; however, the Court shall not be bound by the child’s choice and may
take other factors into consideration in awarding custody and/or visitation.
3-112 Orders Concerning Child Custody; Visitation.
A. The court shall award custody and visitation of the minor child(ren) pursuant to the best interests
of the child(ren). Effort shall be made to assure the minor child(ren) have continuing and frequent
contact with parents, providing that the best interest of the children will not be compromised by
having such contact.
B. Custody and visitation orders that are interfered with or disobeyed, may provide grounds for
modification of the court’s order.
C. In any action for divorce, legal separation, or annulment in which the court must determine
custody or visitation, the court may consider the child’s preference; however, the court’s
determination of custody and/or visitation shall be based upon best interest of the minor child(ren).
3-113 Child Support Orders.
The Court shall refer actions involving minor children to the Delaware Child Support Services
program for computation of support and subsequent enforcement. All support orders shall be made
pursuant to the Delaware Child Support Code.
3-114 Orders Concerning Spousal Support.
A. The Court may award, where evidence supports the necessity of, spousal support for the
maintenance of either party.
B. Court ordered spousal support shall be made in the form of a judgment with said amount
determined using the following factors:
1. The length of marriage.
2. The age, physical and emotional health of the parties.
3. The education level of each party at the time of the marriage and at the time the action
commences.
4. The earning capacity of the party seeking maintenance, including educational
background, training, employment skills, work experience, length of absence from the job market,
custodial responsibilities for children and the time and expense necessary to acquire sufficient
education or training to enable the party to find appropriate employment.
5. The feasibility that the party seeking maintenance can become self-supporting at a
standard of living which is comparable to that enjoyed during the marriage, and if so the length of
time necessary to achieve this goal.
6. The tax consequences to each party.
7. Any mutual agreement made by the parties before or during the marriage concerning
any arrangement for financial support of the parties.
8. Such other factors as the Court may determine to be relevant.
3-115 Spousal Support Without Divorce.
The wife or husband may obtain spousal support from the other without a divorce, in an action
brought for that purpose in the Court. Either may make the same defense to such action as they
might to an action for divorce, and may, for sufficient cause, obtain a divorce from the other in
such action.
3-116 Orders Concerning Property and Debt Division.
A. The Court shall make specific determinations as to the division of communal property and debt
based upon notions of equity in both temporary and final orders.
B. In actions filed under this Title, neither husband nor wife has any interest in the separate
property of the other.
3-117 Restoration of Maiden or Former Name.
When a divorce is granted, a party shall be restored to their maiden or former name is so desired.
3-118 Unlawful to Marry Within 6 Months from the Date of Divorce Decree.
It shall be unlawful for either party to an action for divorce whose former husband or wife is living
to marry a person other than the divorced spouse within six (6) months from the date of decree of
divorce granted by the Delaware Tribe of Indians.
3-119 Modification of Divorce Decree, Custody, Child Support and Judgment.
A. Upon petition of either party, the Court may modify its domestic relations order, Divorce or
Separate Maintenance, after a show cause hearing, provided that:
10
1. There exists evidence that the modification is necessary due to a substantial and material
change of circumstances affecting the physical or emotional well-being of the minor child(ren) or
the party who is seeking the modification.
2. Orders of modification shall require the same consideration as if the order were an
original decree or judgment.
B. There exists a rebuttable presumption that:
1. Continuing the current order of custody, support or judgment are in the best interests of
the children and the parties.
2. A change in the economic circumstances or marital status of either party is not sufficient
to meet the standards for modification, unless otherwise specified in these Codes.
3-120 Indirect Contempt.
Any provisions of the court’s orders willfully disobeyed, whether temporary or final, shall be
enforced as an indirect contempt of court.
3-121 Fees and Costs.
The payment of fees and costs shall be the responsibility of the party incurring the expense, unless
for good cause shown, the Court shall make specific orders concerning the payment or
reimbursement of such fees and costs.
ARTICLE 4. CHILD SUPPORT
4-101. Title.
This article may be referred to as the “Delaware Tribe of Indians Child Support
Enforcement Code” or “Child Support Code.”
4-102. Authority.
Article V of the Constitution of the Delaware Tribe of Indians (hereafter the “Tribe”)
enumerates the responsibility and duties of the Tribal Council to exercise lawmaking powers.
Among other powers, the Tribal Council shall have the duty “to represent the Delaware Tribe and
act in all matters that concern the general welfare of the tribe, and to make decisions not
inconsistent with or contrary to this Constitution and Bylaws or the Constitution and laws of the
United States of America.”
4-103. Purpose.
The purpose of this chapter is to:
(A)
Establish a tribal child support enforcement program as authorized under section
455 (f) of the Social Security Act.
(B)
Designate the Tribe’s Child Support Enforcement Program (DCSS) as the child
support enforcement agency for the Tribe with the authority granted to it in accordance
with Title IV-D of the Social Security Act, 42 U.S.C. 651§651 et. seq., as amended, and
Title IVD rules and regulations.
(C)
Provide for the establishment of paternity in accordance with the laws, customs,
and traditions of the Delaware Tribe of Indians.
(D)
Provide for the establishment, modification, and termination of child support
orders.
(E)
Provide for the enforcement of child support orders.
(F)
Provide for the collection and distribution of child support payments.
(G)
Provide for the location of parents and assets; and
(H)
Provide for the administrative and judicial procedures for the establishment,
modification, termination, and enforcement of child support.
4-104. Construction, Uniformity, and Interpretation; Severability.
(A)
Interpretation. This chapter shall be liberally construed to provide child support
for minor children under the jurisdiction of the Tribe.
(B)
Consistency with Other Laws. This chapter and in congruence with all the law
and order codes of the Delaware Tribe establishes the Tribe’s child support laws as
mandated under Title IV-D of the Social Security Act and in a form generally consistent
with Oklahoma and Kansas statutes concerning child support in order to provide uniformity
in the child support laws applied by the Tribe, other tribes and the States of Oklahoma and
Kansas, unless otherwise expressly provided.
(C)
Other Laws. If there is a child support issue that this chapter does not address, the
Tribe’s Judiciary may apply any other applicable law of the Tribe and/or any federal law
concerning such child support issue to the extent mandated by Title IV-D of the Social
Security Act. If a child support issue is not addressed by the Tribe’s law or federal law, the
Judiciary may consider any state or other tribal law concerning such child support issue as
a guideline to make a determination in a child support action.
(D)
Severability. If any provision of this chapter is determined by a court of competent
jurisdiction to be invalid for any reason, the remainder of the provisions shall remain in
full force and effect and shall not be affected.
4-105. Definitions.
(A)
“IV-D Child Support Enforcement Program” means the federal, state and tribal
child support programs established under Title IV-D, 42 USC §651 et seq., as amended,
and Title IV-D rules and regulations, 45 CFR 302.00 et seq.
12
(B)
“IV-D Services” means the services that are authorized or required for: the
establishment of paternity; establishment, modification, and enforcement of support
orders; and location of noncustodial parents under Title IV-D, 42 USC §651 et seq., as
amended, and Title IV-D rules and regulations, 45 CFR 302.00 et seq.
(C)
“Acknowledged Father” means a man who has established a father-child
relationship.
(D)
“Adjudicated Father” means a man who has been adjudicated by a court of
competent jurisdiction to be the father of a child.
(E)
“Alleged Father” means a man who alleged himself to be, or is alleged to be, the
genetic father or a possible genetic father of a child, but whose paternity has not been
determined. The term does not include a.) a presumed father, b.) a man whose parental
rights have been terminated or declared not to exist, or c.) a male donor.
(F)
“Administrative Procedure” means a method by which support orders are made
and enforced by an executive agency rather than by courts and judges.
(G)
“Arrearage” means the total amount of an unpaid child support obligation by a
parent who is obligated to pay.
(H)
“Assignment” means any transfer of rights to child support by a custodial parent
to the Tribe or other state or federal agency.
(I)
“Assignment of Support Rights” means the legal procedure by which a person
receiving public assistance agrees to turn over to the Tribe or state any right to child
support, including arrearages, paid by the obligated parent in exchange for receipt of a cash
assistance grant and other benefits. The money is used to defray the public assistance costs.
(J)
“Child” means an individual of any age whose parentage may be determined under
this Act.
(K)
“Child Support” means the financial obligation a noncustodial parent has towards
his or her child(ren) whether entered into voluntarily or ordered by a court or administrative
agency.
(L)
“Child Support Order and Child Support Obligation” means a judgment,
decree or order, whether temporary, final or subject to modification, issued by a court of
competent jurisdiction, tribunal or an administrative agency for the support and
maintenance of a child, including a child who has attained the age of majority under the
law of the issuing jurisdiction, or of the parent with whom the child is living, which
provides for monetary support, health care, arrearages, or reimbursement, and which may
include related costs and fees, interest and penalties, income withholding, attorney’s fees
and other relief.
(M) “Child Support Enforcement (CSE) Agency” means an agency that exists under
Title IV-D of the Social Security Act that locates noncustodial parents or putative fathers,
establishes, enforces, and modifies child support, and collects and distributes child support
money. A CSE agency is operated by state, local or tribal governments according to the
Child Support Enforcement Program guidelines as set forth in Title IV-D of the Social
Security Act.
(N)
“Consumer Credit Protection Act (CCPA)” means the federal law that limits the
amount that may be withheld from earnings to satisfy child support obligations under
§303(b) of the CCPA, 15 USC §1673(b).
(O)
“Consumer Reporting Agency” means any person which for monetary fees, dues,
or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of
assembling or evaluating consumer credit information or other information on consumers
for the purpose of furnishing consumer reports to third parties, and which uses any means
or facility of interstate commerce for the purpose of preparing or furnishing consumer
reports under 15 USC §1681a(f).
(P)
“Court” means the Delaware Tribe of Indians Judiciary.
(Q)
“Custodial Parent (CP)” means the parent with legal custody of the child(ren) or
who exercises physical custody of the child(ren), may be a parent, relative, legal guardian,
or custodian appointed by a court.
(R)
“Default” means failure of a defendant to appear or file an answer or response in a
civil case, after having been properly served with a summons and complaint.
(S)
“Default Judgment” means a decision made by the tribunal when the defendant
fails to respond.
(T)
“Disestablishment” means a procedure by which a tribunal can nullify an order or
a determination of paternity generally.
(U)
“Delinquency” means any payment under an order for support which becomes due
and remains unpaid. See Arrearage.
(V)
“Department” means, unless otherwise indicated, the Tribal Child Support
Enforcement Program.
(W) “Determination of Parentage” means the establishment of the parent-child
relationship by the signing of a valid acknowledgment of paternity or adjudication by the
court.
(X)
“Judge” means the presiding judge of the sitting Court of the Delaware Tribe of
Indians.
14
(Y)
“Enforcement” means the application of remedies to obtain payment of a child
support or medical support obligation contained in a child and/or spousal support order.
(Z)
“Establishment” means the process of determining paternity and/or obtaining a
court or administrative order for child support.
(AA) “Genetic Testing” means an analysis of genetic markers to exclude or identify a
man as a father or a woman as the mother of the child. The term includes an analysis of
one or a combination of the following: a.) deoxyribonucleic acid, b.) blood-group antigens,
red-cell antigens, human-leukocyte antigens, serum enzymes, serum proteins, or red-cell
enzymes.
(AB) “Income Assignment” means an assignment by operation of law or by court or
administrative order of a portion of the monies, income, or periodic earning and due and
owing to the noncustodial parent, to the person entitled to the support or to another person
designated by the support order or assignment. An income assignment may be for payment
of current support, arrearages, or both.
(AC) “Income Withholding” means the automatic deductions made from wages or
income to pay a debt such as child support. Income withholding usually is incorporated
into the child support order and may be voluntary or involuntary. An employer must
withhold support from a non-custodial parent’s wages and transfer that withholding to the
appropriate agency.
(AD) “Indian Country” as defined in 18 USC §1151.
(AE) “Indian Tribe” means any Indian or Alaska Native tribe, band, nation, pueblo,
village, or community that the Secretary of the Interior acknowledges to exist as an Indian
Tribe and includes in the list of federally recognized Indian Tribal governments as
published in the Federal Register pursuant to 25 U.S.C. §479a-1.
(AF) “Intercept” means a method of securing child support by taking a portion of nonwage payments made to a non-custodial parent. Non-wage payments subject to
interception include federal tax refunds, state tax refunds, unemployment benefits, and
disability benefits.
(AG) “Location” means information concerning the physical whereabouts of the
noncustodial parent, or the noncustodial parent’s employer(s), other sources of income or
assets, as appropriate, which is sufficient and necessary to take the next appropriate action
in a case.
(AH) “Lien” means a claim upon property to prevent sale or transfer of that property
until a debt is satisfied.
(AI) “Medical Support” means health or dental insurance coverage or health benefits
ordered to be paid by a parent(s) for the benefit of a minor child(ren).
(AJ) “Minor Child” means any infant or person who is under the age of 18 which is
herein considered the age of legal competence.
(AK) “Non-Custodial Parent” means a parent who does not have legal or physical
custody of the child(ren) and has an obligation to pay child support. Also referred to as the
obligor.
(AL) “Non-Cash Support” means support provided to a family in goods and/or services,
rather than in cash and has a certain and specific dollar value.
(AM) “Obligee” means a person or entity to whom child support is owed. Also referred
to as the custodial parent or CP.
(AN) “Obligor” means the person who is obligated to pay child support. Also referred
to as the non-custodial parent or NCP.
(AO) “Offset” means an amount of money intercepted from a noncustodial parent’s state
or federal tax refund or from an administrative payment such as federal retirement benefits
to satisfy a child support debt.
(AP) “Past Support” means past-due support or support for a prior period.
“Arrearage.”
See
(AQ) “Paternity Judgment” means legal determination of fatherhood.
(AR) “Payment Plan” means, but is not limited to, a plan approved by a judicial or
administrative court or a child support enforcement agency to make periodic payments of
past due support to reduce the obligor’s arrearage. A payment plan usually consists of a
monthly payment plan that includes current support and past due support. The plan may
provide for an income assignment or similar plan to insure the past due support will be
paid.
(AS) “Presumed Father” means a man who, by operation of law, is recognized as the
father of a child until that status is rebutted or confirmed in a judicial proceeding.
(AT) “Public Assistance” means benefits granted from tribal, federal or state programs
to aid eligible recipients (eligibility requirements vary between particular programs).
Applicants for certain types of public assistance (e.g. TANF) are automatically referred to
their tribal or state IV-D agency for child support services.
(AU) “Signatory” means an individual who authenticates a record and is bound by its
terms.
(AV) “State” means a State of the United States, the District of Columbia, Puerto Rico,
the United States Virgin Islands, or any territory or insular possession subject to the
16
jurisdiction of the United States.
(AW) “Temporary Assistance for Needy Families” means the Temporary Assistance
for Needy Families program as found at section 401 et seq. of the Social Security Act (42
U.S.C. 601 et seq.).
(AX) “Tribunal” means a court or administrative agency authorized to establish, enforce
or modify support orders, or determine parentage.
4-106.
Designation of the Delaware Tribe of Indians Child Support Services Program
as a Title IV-D Program.
The Delaware Tribe of Indians Child Support Services Program (DCSS) shall be the
designated Title IV-D agency for the Delaware Tribe of Indians with all the authority granted to it
in accordance with Title IV-D of the Social Security Act, 42 USC §651 et seq., Title IV-D rules
and regulations, and applicable laws of the Tribe, including these Codes.
4-107. Powers and Duties of the Delaware Child Support Services Program.
The DCSS shall be authorized to provide Title IV-D child support services that include,
but are not limited to:
(A)
Administer and manage the plan and services of its tribal IV-D program.
(B)
Establish administrative procedures for paternity establishment and establishment,
modification, termination, and enforcement of child support orders consistent with these
Codes and the rules and regulations set forth by Title IV-D of the Social Security Act, 42
USC §651 et seq.
(C)
Establish paternity in accordance with this Code.
(D)
Establish, modify, and terminate child support orders through court or
administrative action.
(E)
Enforce child support orders through court or administrative actions.
(F)
Initiate legal action to provide child support services, including appeals.
(G)
Adopt policies and procedures for the Tribe for child support services.
(H)
Adopt rules and regulations for child support services, subject to the approval of
the Delaware Tribal Council.
(I)
Negotiate agreements and or contracts as necessary for child support services under
tribal and federal law, subject to the approval of the Delaware Tribal Council.
(J)
Establish and maintain child support records, files, and accounting.
(K)
Provide location services for parents and assets; and
(L)
Collect and distribute child support payments.
4-108. Services.
(A)
Services Provided. The Delaware Child Support Enforcement program may
provide the following Title IV-D services that include, but are not limited to:
(1)
The location of the parents and their assets through local, state, and federal
agencies and private sources.
(2)
The establishment of paternity through court or administrative action in
accordance with these Codes and the rules and regulations of Title IV-D of the
Social Security Act, 42 USC §651 et seq.
(3)
The establishment and modification of child support obligations through
court or administrative action.
(4)
The enforcement of child support orders through court or administrative
action.
(5)
A review of child support orders for modification; and
(6)
The collection and distribution of child support payments.
(B)
Services Not Provided. The Delaware Child Support Services program shall not
provide services for the following:
(1)
(2)
(3)
(4)
(5)
The establishment or modification of visitation rights or custody.
The establishment or modification of spousal support.
The dissolution of a marriage.
Enforce marital property settlements, or
Provide legal advice to custodial and non-custodial parties.
(C)
Termination of Service. The Delaware Child Support Services program may
terminate child support services under the following circumstances:
(1)
When the Program receives a written request for termination of services
from the person to whom services are being provided.
(2)
When the minor child is no longer eligible for child support or entitled to
child support, or
(3)
When an applicant receiving services has violated any term or condition set
forth by the DCSS program.
4-109. Eligibility, Assignment.
(A)
Eligibility and Application. Child support services are available to an applicant
who qualifies under Title IV-D laws and regulations.
18
(B)
Assignment. An applicant for child support services shall assign his/her child
support rights to the Tribe, which shall distribute the payment to the appropriate agency or
individual.
(C)
Tribe has Priority. An assignment of child support to the Tribe shall have priority
over any prior or subsequent assignments.
4-110. Application Fee.
The DCSS shall not charge an application fee for child support services.
4-111. Intergovernmental Procedures, Full Faith, and Credit.
(A)
Intergovernmental Procedure. DCSS Child Support Program shall extend the
full range of services available under its Tribal IV-D plan to respond to all requests from
and cooperate with other tribal and state IV-D agencies.
(B)
Full Faith and Credit. The Tribe shall recognize child support orders issued by
other tribes and tribal organizations and by states, in accordance with the requirements
under the Full Faith and Credit for Child Support Orders Act, 28 U.S.C. 1738(B).
4-112. Confidentiality of Records.
(A)
All applications, information and records received or obtained by the DCSS are
confidential and shall only be opened under authorized tribal or federal laws in accordance
with Title IV-D rules and regulations.
(B)
The use or disclosure of personal information received or maintained by the DCSS
is limited to purposes directly connected with the administration of the program, or Titles
IV-A and XIX with the administration of other programs or purposes prescribed by the
Secretary in regulations.
(C)
No employee or agent of the DCSS Child Support Program shall provide any
information referred to in this Act, except as provided, to any public or private agency or
individual. Information may be disclosed and shared between a state, tribal or federal
agency as necessary in the collection of child support in accordance with Title IV-D rules
and regulations.
(D)
Information shall not be released on the whereabouts of one party or the child to
another party against whom a protective order with respect to the former party or the child
has been entered.
(E)
Information shall not be released on the whereabouts of one party of the child to
another person if there is reason to believe that the release of the information to that party
could result in physical or emotional harm to the party or the child.
(F)
Unauthorized disclosure of any such information may subject the disclosing party
to criminal and/or civil liability. Criminal Prosecution may result in conviction, punishable
by a fine of up to $5,000.00 per offense.
4-113. Attorneys.
(A)
Attorneys. An attorney employed by or under contract with the Tribe shall
represent and act on behalf of the Tribe when providing child support. An attorney-client
relationship shall not exist between the attorney and any other party other than the Tribe,
regardless of the name in which the action is brought.
(B)
No Representation of Parties by Tribal Attorneys. An attorney employed to
represent the Tribe in child support and related proceedings shall not provide any form of
legal representation to any person who is a party, an interested party, or a beneficiary in a
matter in which the Tribe is providing services. Such attorney shall not represent any party,
an interested party, or a beneficiary in any other legal matters or proceedings which could
reasonably be deemed a conflict of interest.
(C)
Information to be Provided to Applicants and Recipients Regarding Legal
Representation. The DCSS shall inform the applicant or recipient of child support
services that no attorney-client relationship exists between the attorney and the applicant
or recipient, and that the attorney does not provide legal representation on behalf of the
applicant.
4-114. Locating Parents.
(A)
Parent Locator Service. The Tribe’s parent locator service may be used to obtain
information for paternity establishment and for other child support related proceedings.
(B)
Attempts to Locate. Attempts to locate custodial or noncustodial parents and/or
sources of income and assets shall be made when location is required to take necessary
action in a case. Reasonably available sources of information and records shall be used to
locate custodial or noncustodial parents and their sources of income and assets.
4-115. Financial Disclosure.
The parents shall provide a complete disclosure of assets on a financial affidavit for
purposes of child support and related proceedings, except as otherwise provided.
4-116. Applicant Cooperation.
An applicant shall cooperate with the DCSS in child support and related proceedings. Noncooperation may result in the closure of the applicant’s case for failure to cooperate. If notification
is required for non-cooperation by other state, tribal or federal agencies, the DCSS shall notify the
appropriate agency of the non-cooperation of the applicant.
20
4-117. Reasonable Costs.
The Court may assess reasonable costs against a party in child support and related
proceedings. These costs include, but are not limited to: court filing fees, process server fees,
mailing fees, and genetic testing fees performed in accordance with this Code.
4-118. Overpayment.
When an obligor has overpaid a child support obligation and there are no arrearages, the
DCSS shall seek a refund of the amount from the obligee.
CHAPTER 2
JURISDICTION, CIVIL PROCEDURE, FULL FAITH AND CREDIT, SOVEREIGN
IMMUNITY
4-119. Jurisdiction.
(A)
General. The Court shall have jurisdiction over child support and related
proceedings involving an individual who is the subject of such proceedings if one or more
of the following prescribed conditions are fulfilled:
(1)
The individual is an Indian, or eligible for membership of a federally
recognized tribe who resides within lands subject to the jurisdiction of the Tribe.
(2)
A child(ren) who is a member or is eligible for membership of a federally
recognized tribe who resides within lands subject to the jurisdiction of the Tribe.
(3)
The individual resided with the child in lands subject to the jurisdiction of
the Tribe.
(4)
The individual resided on lands subject to the jurisdiction of the Tribe and
provided pre-natal expenses and/or other support for the child.
(5)
The child resides on lands subject to the jurisdiction of the Tribe as a result
of the acts or directives of the individual.
(6)
The individual engaged in sexual intercourse on lands subject to the
jurisdiction of the Tribe and the child may have been conceived by that act of
intercourse.
(7)
The individual asserted parentage in a putative father registry maintained
by any state or tribal registry agency.
(8)
The individual is a member of the Delaware Tribe of Indians, or the child is
a member or eligible for membership in the Delaware Tribe of Indians.
(9)
The individual submits to the jurisdiction of the Court by consent, by
entering a general appearance, or by filing a responsive document having the effect
of waiving any contest to personal jurisdiction; or
(10) There is any basis consistent with the law-and-order codes, or the
Constitution of the Delaware Tribe of Indians, the United States, or the States of
Oklahoma or Kansas for the exercise of personal jurisdiction.
(B)
Personal Jurisdiction Over All Interested Parties Not Required. Lack of
personal jurisdiction over a child and the custodial parent does not preclude the Court from
making a child support order binding on the noncustodial parent who is subject to the child
support order.
4-120. Transfer.
The DCSS may accept transfer cases from other state and tribal IV-D agencies and may
transfer cases to other state and tribal IV-D agencies, if appropriate.
4-121. Venue.
The venue for all child support actions initiated by the DCSS shall be the Tribe’s District
Court.
4-122. Civil Procedure.
The civil procedure to be followed shall be those set forth in the Delaware Tribe of Indians
Law and Order Code, unless otherwise specified herein.
4-123. Filing Fees.
The Clerk of the Court shall not charge filing fees for pleadings made by and for the DCSS.
4-124. Full Faith and Credit.
The Tribe shall give full faith and credit to a valid court order from other tribal and state
administrative bodies and courts in accordance with the federal Full Faith and Credit for Child
Support Orders, 28 USC §1738B.
4-125. Sovereign Immunity.
Nothing in this chapter shall be deemed a waiver of the sovereign immunity of the Tribe.
CHAPTER 3
PATERNITY AND GENETIC TESTING
4-126. General.
(A)
Applicability. This article governs the establishment of parentage for any child up
to and including at least 18 years of age as defined herein.
(B)
Authority. The adjudicating court is authorized to adjudicate parentage under this
Code.
22
(C)
Adjudication of parent-child relationship. The adjudicating court shall apply the
laws of the Tribe to adjudicate the parent-child relationship. The applicable laws do not
depend on:
(1)
(2)
The place of birth of the child, or
The past or present residence of the child.
4-127 No Effect on Tribal Enrollment.
Determination of paternity under this chapter has no effect on tribal enrollment or
membership.
4-128. Parent-Child Relationship.
(A)
The mother-child relationship is established between a woman and a child by:
(1)
(2)
(3)
(B)
The woman’s having given birth to the child.
Adoption of the child by the woman; or
As otherwise provided by law.
The father-child relationship is established between a man and a child by:
(1)
An un-rebutted presumption of the man’s paternity of the child under this
Code herein.
(2)
An effective acknowledgment of paternity by the man in accordance with
these codes, unless the acknowledgment has been rescinded or successfully
challenged.
(3)
An adjudication of the man’s paternity.
(4)
Adoption of the child by the man; or
(5)
As otherwise provided by law.
4-129. Rights Valid Until Terminated.
Unless parental rights are terminated, a parent-child relationship established under this
Title applies for all purposes, except as otherwise specifically provided by other laws of the Tribe.
4-130. Presumption of Paternity - Marriage.
(A)
A man is presumed to be the father of a child if:
(1)
He and the mother of the child are married to each other, and the child is
born during this marriage; or
(2)
He and the mother of the child were married to each other, and the child is
born within three hundred (300) days after the termination of the marriage by death,
annulment, declaration of invalidity, divorce or dissolution of marriage, or decree
of separation is entered by the court; or
(3)
Before the birth of the child, he and the mother of the child married each
other in apparent compliance with the law, even if the attempted marriage is or
could be declared invalid, and the child is born during the invalid marriage or within
three hundred (300) days after its termination by death, annulment, declaration of
invalidity, divorce or dissolution of marriage, or decree of separation is entered by
the court; or
(4)
After the birth of the child, he and the mother of the child married each other
in apparent compliance with law, whether the marriage is or could be declared
invalid, and he voluntarily asserted his paternity of the child, and:
(a)
The assertion is on record filed with the state agency maintaining
birth records.
(b)
He agreed to be and is named as the child’s father on the child’s
birth certificate; or
(c)
He admitted paternity of the child under oath or by sworn testimony.
(B)
A presumption of paternity established under these Codes may be rebutted only by
an adjudication of paternity.
4-131. No Discrimination Based on Marital Status.
A child born to parents who are not married to each other has the same rights under this
Title as a child born to parents who are married.
4-132. Voluntary Acknowledgment of Paternity.
(A)
A man claiming to be the genetic father of the child and the mother of the child,
together may sign an acknowledgment of paternity with the intent to establish the man's
paternity.
(B)
An acknowledgment of paternity must:
(1)
Be in a record (oral or written);
(2)
Be signed, or otherwise authenticated, under penalty of perjury by the
mother and by the man seeking to establish paternity.
(3)
State that the child whose paternity is being acknowledged:
(a)
Does not have a presumed father, or has a presumed father whose
full name is stated; and
(b)
Does not have another acknowledged or adjudicated father.
(4)
State whether there has been genetic testing and, if so, that the
acknowledging man’s claim of paternity is consistent with the results of the testing;
and
(5)
State that the signatories understand that the acknowledgment is the
equivalent of a judicial adjudication of paternity of the child; and, that a challenge
24
to the acknowledgment is permitted only under limited circumstances and is barred
after two (2) years.
(C)
An acknowledgment of paternity is void if it:
(1)
States that another man is a presumed father, unless a denial of paternity
signed or otherwise authenticated by the presumed father is filed with the state
agency maintaining birth records.
(2)
States that another man is an acknowledged or adjudicated father; or
(3)
Falsely denies the existence of presumed, acknowledged, or adjudicated
father of the child.
(D)
A presumed father may sign or otherwise authenticate an acknowledgment of
paternity.
(E)
Except as otherwise provided in this Title, a valid acknowledgment of paternity
filed with the state agency maintaining birth records is equivalent to an adjudication of
paternity of a child and confers upon the acknowledged father all of the rights and duties
of a parent.
4-133. Denial of Paternity.
(A)
A presumed father may sign a denial of his paternity. The denial is valid only if:
(1)
An acknowledgment of paternity signed, or otherwise authenticated, by
another man is filed pursuant to these Codes.
(2)
The denial is in a record, and is signed, or otherwise authenticated, under
penalty of perjury; and
(3)
The presumed father has not previously:
(a)
Acknowledged his paternity, unless the previous acknowledgment
has been rescinded, or successfully challenged pursuant to these Codes; or
(b)
Been adjudicated to be the father of the child.
(4)
The denial is signed not later than two (2) years after the birth of the child.
(B)
Except as otherwise provided in these codes, a valid denial of paternity by a
presumed father filed with the state agency maintaining birth records in conjunction with
a valid acknowledgment of paternity is equivalent to an adjudication of the non-paternity
of the presumed father and discharges the presumed father from all rights and duties of a
parent.
4-134. Rules for Acknowledgment and Denial of Paternity.
(A)
An acknowledgment of paternity and a denial of paternity may be filed separately
or simultaneously. If the acknowledgment and denial are both necessary, neither is valid
until both are filed.
(B)
An acknowledgment of paternity or denial of paternity may be signed before the
birth of the child.
(C)
Subject to subsection A of this section, an acknowledgment or denial of paternity
takes effect on the birthdate of the child or the filing of the document with the state agency
maintaining birth records, whichever occurs later.
(D)
An acknowledgment of paternity or denial of paternity signed by a minor is valid
if it is otherwise in compliance with this Act.
4-135. Proceedings for Rescission, Rescission by Minor.
(A)
A signatory may rescind an acknowledgment of paternity or denial of paternity by
commencing a proceeding to rescind before the earlier of:
(1)
Sixty (60) days after the effective date of the acknowledgment or denial; or
(2)
The date of the first hearing, in a proceeding to which the signatory is a
party, before a court to adjudicate an issue relating to the child, including a
proceeding that establishes support.
(B)
A signatory who was a minor at the time of execution of the acknowledgment
may rescind an acknowledgment of paternity within sixty (60) days of reaching the age
of eighteen.
4-136. Challenges After Expiration of Period for Rescission.
(A)
After the period for rescission under Section 310 of this chapter has expired, a
signatory of an acknowledgment of paternity or denial of paternity may commence a
proceeding to challenge the acknowledgment or denial only:
(1)
On the basis of fraud, duress, or material mistake of fact; and
(2)
Within two (2) years after the acknowledgment or denial is filed with the
state agency maintaining the birth records.
(B)
A party challenging an acknowledgment of paternity or denial of paternity has the
burden of proof.
26
4-137. Procedures for Rescission or Challenge.
(A)
Every signatory to an acknowledgment and any related denial of paternity must be
made a party to a proceeding to rescind or challenge the acknowledgment or denial.
(B)
For the purpose of a rescission, or challenge to, an acknowledgment of paternity or
denial of paternity, a signatory submits to personal jurisdiction of the adjudicating court by
signing the acknowledgment or denial effective upon the filing of the document with the
state agency maintaining birth records.
(C)
Except for good cause, during the pendency of a proceeding to rescind or challenge
an acknowledgment of paternity or denial of paternity, the court may not suspend the legal
responsibilities of a signatory arising from the acknowledgment, including the duty to pay
child support.
(D)
A proceeding to rescind or to challenge an acknowledgment of paternity or denial
of paternity must be conducted in the same manner as a proceeding to adjudicate parentage
under this chapter.
(E)
At the conclusion of a proceeding to challenge an acknowledgment of paternity or
denial of paternity, the court shall order the state agency maintaining birth records to amend
the birth record of the child, if appropriate.
4-138. Ratification Barred.
A court or administrative agency conducting a judicial or administrative proceeding is
not required or permitted to ratify an unchallenged acknowledgment of paternity.
4-139. Full Faith and Credit.
Full faith and credit shall be given to an acknowledgment of paternity or denial of paternity
effective in another tribe or state if the acknowledgment or denial has been signed and is otherwise
in compliance with the law of the other tribe or state.
4-140. Exceptions to the Establishment of Paternity.
The DCSS is not required to establish paternity in any case involving incest or forcible
rape, or in any case in which legal proceedings for adoption are pending, if it would not be in the
best interest of the child to establish paternity.
CHAPTER 3A
GENETIC TESTING
4-141. General.
(A)
This subchapter governs genetic testing of an individual to determine parentage,
whether the individual is:
(1)
(2)
voluntarily submitting to testing, or
is tested pursuant to an order of the court.
(B)
Traditional and customary objections to blood testing and/or DNA testing shall not be
a basis for refusal to undergo such testing.
4-142. Order for Testing.
(A)
Except as otherwise provided, the court shall order the child and other designated
individuals to submit to genetic testing if the request for testing is supported by a sworn
statement by the party to the proceeding:
(1)
Alleging paternity, and stating facts establishing a reasonable possibility of
the requisite sexual contact between the parties; or
(2)
Denying paternity and stating facts establishing a possibility that sexual
contact between the individuals, if any, did not result in the conception of the child.
(B)
The DCSS may require genetic testing only if there is no presumed, acknowledged,
or adjudicated father, unless for good cause shown, the DCSS believes genetic testing is in
the best interests of any child up to and including at least 18 years of age.
(C)
If two or more men are subject to court-ordered genetic testing, the testing may be
ordered concurrently or sequentially.
(D)
If a request for genetic testing of a child is made before the birth of the child, the
court shall not order in-utero testing, nor shall DCSS require in utero testing.
4-143. Requirements for Genetic Testing.
(A)
Genetic testing shall be of a type relied upon by experts in the field of genetic testing
and performed in a testing laboratory accredited by:
(1)
The American Association of Blood Banks, or a successor to its functions.
(2)
The American Society for Histocompatibility and Immunogenetics, or a
successor to its functions; or
(3)
An accrediting body designated by the federal Secretary of Health and
Human Services.
28
(B)
A specimen used in genetic testing may consist of one or more samples, or a
combination of samples of blood, buccal cells, bone, hair, or other body tissue or fluid. The
specimen used in the testing need not be of the same kind for everyone undergoing genetic
testing.
(C)
Based on the ethnic or racial group of an individual, the testing laboratory shall
determine the databases from which to select frequencies for use in calculation of the
probability of paternity. If there is disagreement as to the testing laboratory’s choice, the
following rules apply:
(1)
The individual objecting may require the testing laboratory, within thirty
(30) days after receipt of the report of the test, to recalculate the probability of
paternity using an ethnic or racial group different from that used by the laboratory.
(2)
The individual objecting to the testing laboratory’s initial choice shall:
(a)
if the frequencies are not available to the testing laboratory for the
ethnic or racial group requested, provide the requested frequencies compiled
in a manner recognized by accrediting bodies; or
(b)
engage another testing laboratory to perform the calculations.
(3)
The testing laboratory may use its own statistical estimate if there is a
question regarding which ethnic or racial group is appropriate. If available, the
testing laboratory shall calculate the frequencies using statistics for any other ethnic
or racial group requested.
(D)
If, after recalculation using a different ethnic or racial group, genetic testing does
not conclusively identify a man as the father of a child, an individual who has been tested
may be required to submit to additional genetic testing.
4-144. Report of Genetic Testing, Chain of Custody.
(A)
A report of genetic testing shall be in a record and signed under penalty of perjury
by a designee of the testing laboratory. A report made under the requirements of this section
is self-authenticating.
(B)
Documentation from the testing laboratory of the following information is
sufficient to establish a reliable chain of custody that allows the results of genetic testing
to be admissible without testimony:
(1)
The names and photographs of the individuals whose specimens have been
taken.
(2)
The names of the individuals who collected the specimen.
(3)
The places and dates the specimens were collected.
(4)
The names of the individuals who received the specimens in the testing
laboratory, and
(5)
The dates the specimens were received.
4-145. Genetic Testing Results, Rebuttal.
(A)
A man is rebuttably identified as the father of a child if the genetic testing complies
with this chapter and the results disclose that the man has:
(1)
At least a ninety-nine (99%) percent probability of paternity, using a prior
probability of 0.50, as calculated by using the combined paternity index obtained
in the testing; and
(2)
A combined paternity index of at least 100 to 1.
(B)
A man identified under subsection A of this section as the father of the child may
rebut the genetic testing results only by other genetic testing satisfying the requirements of
this chapter which:
(1)
(2)
Excludes the man as a genetic father of the child; or
Identifies another man as the possible father of the child.
(C)
Except as otherwise provided herein, if more than one man is identified by genetic
testing as the possible father of the child, the court shall order them to submit to further
genetic testing to identify the genetic father.
4-146. Costs of Genetic Testing.
(A)
The costs of the initial genetic testing must be advanced:
(1)
(2)
(3)
(4)
By DCSS when DCSS is providing services.
By the individual who made the request.
As agreed by the parties, or
As ordered by the court.
(B)
When the cost is advanced by DCSS, DCSS may seek reimbursement from the man
who is rebuttably identified as the father.
4-147. Additional Genetic Testing.
(A)
The court may order, or DCSS may request additional genetic testing upon the
request of the party who contests the result of the original testing. If the previous genetic
testing identified a man as the father of the child, the court may not order additional testing
unless the party challenging the test provides advance payment for the testing.
4-148. Genetic Testing When Specimen Is Not Available.
(A)
Subject to subsection B of this section, if a genetic-testing specimen is not available
from a man who may be the father of a child, for good cause and under circumstances the
30
court considers to be just, the court may order the following individuals to submit
specimens for genetic testing:
(1)
(2)
(3)
(4)
(5)
The parents of the man.
Brothers and sisters of the man.
Other children of the man and their mothers.
Other relatives of the man necessary to complete genetic testing; and
Any other custodians of genetic material.
(B)
Issuance of a court order under this section requires a finding that the need for
genetic testing outweighs the legitimate interests of the individual sought to be tested.
4-149. Identical Brothers, Non-genetic Evidence to Determine Father.
(A)
The court may order genetic testing of a brother of a man identified as the father of
a child if the man is commonly believed to have an identical brother and evidence suggests
that the brother may be the genetic father of the child.
(B)
If each brother satisfies the requirements as the identified father of the child under
§324, without consideration of another identical brother being identified as the father of
the child, the court may rely on non-genetic evidence to adjudicate which brother is the
father of the child.
4-150. Release of Report of Genetic Testing.
Release of a genetic testing report for parentage is pursuant to policy and procedure
promulgated by the DCSS.
CHAPTER 3B
PROCEEDINGS TO ADJUDICATE PARENTAGE
4-151. Civil Proceeding to Adjudicate Parentage.
A civil procedure may be maintained to adjudicate parentage of a child. The
proceeding is governed by the Civil Procedure Code of the Delaware Tribe, unless otherwise
specified herein.
4-152. Standing to Maintain Proceeding.
Except as otherwise stated a proceeding to adjudicate parentage may be maintained by:
(1)
(2)
(3)
(4)
The child.
The mother of the child.
A man whose paternity of the child is to be adjudicated.
The DCSS; or
(5)
A representative authorized by law to act for an individual who would
otherwise be entitled to maintain a proceeding but who is deceased, incapacitated,
or a minor.
4-153. Parties to Proceeding.
The following individuals must be joined as parties in a proceeding to adjudicate parentage:
(1)
(2)
The mother of the child; and
A man whose paternity of the child is to be adjudicated.
4-154. No Limitation: Child Having No Presumed, Acknowledged or Adjudicated
Father.
An adjudication proceeding to determine the parentage of a child having no presumed,
acknowledged, or adjudicated father may be commenced at any time, even after:
(1)
The child becomes an adult, but only if the child initiates the proceeding; or
(2)
An earlier proceeding to adjudicate paternity has been dismissed based upon
the application of a statute of limitation then in effect
4-155. Limitation: Child Having Presumed Father.
(A)
Except as otherwise provided in subsection B of this section, a proceeding
brought by a presumed father, the mother or another individual to adjudicate the
parentage of a child having a presumed father must be commenced not later than two
(2) years after the birth of the child.
(B)
A proceeding seeking to disprove the father-child relationship between a child and
the child's presumed father may be maintained at any time if the court determines that:
(1)
The presumed father and the mother of the child neither cohabited nor
engaged in sexual intercourse with each other during the probable time of
conception; and
(2)
The presumed father never openly held out the child as his own.
(C)
A proceeding seeking to disprove the father-child relationship between a child and
the child's presumed or acknowledged father may be maintained at any time if the court
determines the biological father, or the presumed or acknowledged father, and the mother
agree to adjudicate the biological father's parentage.
(1)
If the presumed or acknowledged father or mother is unavailable, the court
may proceed if it is determined that diligent efforts have been made to locate the
unavailable party and it would not be prejudicial to the best interest of the child to
proceed without that party.
32
(2)
In a proceeding under this section, the court shall enter an order either
confirming the existing father-child relationship or adjudicating the biological
father as the parent of the child. A final order under this section shall not leave the
child without an acknowledged or adjudicated father.
4-156. Authority to Deny Motion for Genetic Testing, Factors to Consider.
(A)
In a proceeding to adjudicate the parentage of a child having a presumed father or
to challenge the paternity of a child having an acknowledged father, the court may deny a
motion seeking an order for genetic testing of the mother, the child and the presumed or
acknowledged father if the court determines that:
(1)
The conduct of the mother or the presumed or acknowledged father estops
that party from denying parentage; and
(2)
It would be inequitable to disprove the father-child relationship between the
child and the presumed or acknowledged father or otherwise against the best
interests of any child up to and including at least 18 years of age.
(B)
In determining whether to deny a motion seeking an order for genetic testing under
this section, the court shall consider the best interest of the child, including the following
factors:
(1)
The length of time between the date of the parentage adjudication
proceeding and the date of notification to the presumed or acknowledged father that
he may not be the genetic father.
(2)
The length of time the presumed or acknowledged father assumed the role
of father of the child.
(3)
The facts surrounding the presumed or acknowledged father's discovery of
his possible non-paternity.
(4)
The nature of the relationship between the child and the presumed or
acknowledged father.
(5)
The age of the child.
(6)
The harm that may result to the child if presumed or acknowledged paternity
is successfully disproved.
(7)
The nature of the relationship between the child and any alleged father.
(8)
The extent to which the passage of time reduces the chances of establishing
the paternity of another man and a child-support obligation in favor of the child;
and
(9)
Other factors that may result from a disruption of the father-child
relationship or the chance of harm to the child.
(C)
In a proceeding involving the application of this section, a minor or incapacitated
child shall be represented by a guardian ad-litem.
(D)
If the court denies a motion seeking an order for genetic testing, it shall issue an
order adjudicating the presumed or acknowledged father to be the father of the child.
4-157. Limitation: Child Having Acknowledged or Adjudicated Father.
(A)
When a child has an acknowledged father, a signatory to the acknowledgment of
paternity or denial of paternity may commence a proceeding to rescind the
acknowledgment or denial or to challenge the paternity of the child but only within the
time allowed under §310 or §311 of this act.
(B)
When a child has an acknowledged or adjudicated father and an individual, other
than the child seeks an adjudication of paternity of the child and who is neither a signatory
to the acknowledgment of paternity nor a party to the adjudication the individual shall
commence proceedings not later than two (2) years after the date of acknowledgment or
adjudication.
4-158. Joinder of Proceedings.
Except as otherwise provided, a proceeding to adjudicate parentage may be joined with a
proceeding for adoption, termination of parental rights, child custody or visitation, child support,
divorce, annulment, legal separation or separate maintenance, probate or administration of an
estate or other appropriate proceedings.
4-159. Commencement of Proceeding.
A proceeding to determine parentage may be commenced after the birth of the child.
4-160. Child as Party: Representation.
(A)
A minor child is a permissible party but is not a necessary party to a proceeding
under this chapter.
(B)
The court shall appoint a guardian ad-litem to represent a child if the child is a party
or if the court determines that the interests of the child are not adequately represented.
4-161. Admissibility of Results of Genetic Testing.
(A)
Except as otherwise provided in subsection C of this section, a record of a genetic
testing expert is admissible as evidence of the truth of the facts asserted in the report unless
a party objects to its admission within fourteen (14) days after its receipt by the objecting
party and cites specific grounds for exclusion. The admissibility of the report is not affected
by whether the testing was performed:
(1)
Voluntarily or pursuant to an order of the court or as requested by the child
support enforcement agency; or
(2)
Before or after the commencement of the proceeding.
34
(B)
A party objecting to the results of genetic testing may call one or more genetictesting experts to testify in person or by telephone, videoconference, deposition, or another
method approved by the court. Unless otherwise ordered by the court, the party offering
the testimony bears the expense for the expert testifying.
(C)
If a child has a presumed, acknowledged, or adjudicated father, the results of
genetic testing are inadmissible to adjudicate parentage unless performed pursuant to an
order of a Court of competent jurisdiction.
4-162. Consequences of Declining Genetic Testing.
(A)
An order for genetic testing is enforceable by contempt.
(B)
If an individual whose paternity is being determined declines to submit to a court
order for genetic testing, the court may adjudicate parentage contrary to the position of that
individual, pursuant to the following conditions are met:
(1)
The court finds, by clear and convincing evidence, the individual is more
likely than not to be the parent of the child; and
(2)
The adjudication is not contrary to the best interests of the child.
(C)
Genetic testing of the mother of a child is not a condition precedent to testing the
child and a man whose paternity is being determined. If the mother is unavailable or
declines to submit to genetic testing, the court may order the testing of the child and every
man whose paternity is being adjudicated.
4-163. Admission of Paternity Authorized.
(A)
A respondent in a proceeding to adjudicate parentage may admit to the paternity of
a child by filing a pleading to that effect or by admitting paternity under penalty of perjury
in an affidavit filed in the case, or by sworn testimony before the presiding court.
(B)
If the court finds that the admission of paternity satisfies the requirements of this
section and finds that there is no reason to question the admission, the court shall issue an
order adjudicating the child to be the child of the man admitting paternity.
CHAPTER 3C
SPECIAL RULES FOR PROCEEDING TO ADJUDICATE PARENTAGE
4-164. Rules for Adjudication of Paternity.
(A)
The court shall apply the following rules to adjudicate the paternity of a child:
(1)
The paternity of a child having a presumed, acknowledged, or adjudicated
father may be disproved only by admissible results of genetic testing excluding that
man as the father of the child or identifying another man as the father of the child.
(2)
Unless the results of genetic testing are admitted to rebutting other results
of genetic testing, a man identified as the father of a child under Section 321 of this
Act must be adjudicated the father of the child.
(3)
If the court finds that genetic testing under Section 321 neither identifies
nor excludes a man as the father of a child, the court may not dismiss the
proceeding. In that event, the results of genetic testing, and other evidence, are
admissible to adjudicate the issue of paternity.
(4)
Unless the results of genetic testing are admitted to rebutting other results
of genetic testing, a man excluded as the father of a child by genetic testing shall
not be adjudicated to be the father of the child.
4-165. Court Shall Adjudicate.
The court, without a jury, shall adjudicate paternity of a child.
4-166. Hearings, Records, Reports, Public Record.
(A)
Upon the request of a party and for good cause shown, the court may close a
proceeding under this chapter.
(B)
A final order in a proceeding under this chapter is available for public
inspection. Other records, reports and papers are available only with the consent of
the parties or an order of the court for good cause.
4-167. Default Order.
(A)
The court may issue an order adjudicating the paternity of a man who:
(1)
After service of process, is in default; and
(2)
Is found by the court to be the father of a child by clear and convincing
evidence.
(B)
All orders issued under this section shall be in writing and shall include the
following provision: "Paternity in this matter was adjudicated by default. This order shall
not be used when determining eligibility for tribal membership."
4-168. Dismissal Only Without Prejudice.
The court may dismiss a proceeding under this chapter for want of prosecution only without
prejudice. An order of dismissal for want of prosecution purportedly with prejudice is void and
has only the effect of a dismissal without prejudice.
36
4-169. Order Adjudicating Parentage.
(A)
The court shall issue an order adjudicating whether a man alleged or claiming to be
the father is the parent of the child.
(B)
An order adjudicating parentage must identify the child by name and date of birth.
(C)
Except as otherwise provided in subsection D of this section, the court may assess
filing fees, reasonable attorney's fees, fees for genetic testing, other costs, including
necessary travel and other reasonable expenses incurred in a proceeding under this
subchapter.
(D)
The court may not assess fees, costs, or expenses against any Title IV-D supportenforcement agency of this tribe or another tribe or state, except as provided by other law.
(E)
On request of a party and for good cause shown, the court may order that the name
of the child be changed.
(F)
If the order of the court is at variance with the child's birth certificate, the court
shall order the state agency maintaining birth records to issue an amended birth registration.
CHAPTER 4
CHILD SUPPORT ESTABLISHMENT
4-170. General.
This article governs the establishment of child support for a minor child as defined herein.
(A)
Applicability. The Delaware Tribe of Indians’ jurisdiction lies within the states of
Kansas and Oklahoma and calculation of child support guidelines shall be consistent with
the attached schedule regardless of the state of residency.
(B)
Orders. In all child support cases, the Delaware Tribe of Indians Court shall order
the payment of child support pursuant to the child support guidelines established in this
Title and the child support schedule attached as Addendum I to this Code.
(C)
Initiation of Action. The Tribe, mother, father, guardian, custodian, child, or other
agency responsible for the support of the child may initiate an action for child support.
(D)
Age Requirement. An action to establish child support shall be initiated before
any child reaches the age of eighteen (18) years of age. Although, paternity can be
established for any child up to and including at least 18 years of age.
(E)
Parent Requirement. Child support shall only be established for a biological or
legally adopted child of the parents.
(F)
No Support for Stepchildren Required. A parent shall not be responsible or
liable for the support of a stepchild(ren).
(G)
Adopted Children. Parents have the same legal duty of support for an adopted
child as for a biological child.
(H)
Obligors and Obligees. In the payment and receipt of child support, the
noncustodial parent, or the person responsible for the payment of child support shall be
designated the “obligor” and the custodial parent or the person who receives the child
support shall be designated the “obligee.”
4-171. Child Support, Age of Majority, Minor Parents, Emancipation.
(A)
Age Limitation. A child shall be entitled to support by his/her parents until the
child is up to 18 years of age or is emancipated. If a child is regularly enrolled and attending
high school or an alternative high school education program as a full-time student, the child
shall be entitled to support by the parents until the child graduates from high school, is
emancipated, or reaches the age of twenty (20) years, whichever occurs first. Full-time
attendance shall include regularly scheduled breaks from the school year. No hearing or
further order shall be required to extend support pursuant to this subsection after the child
reaches the age of eighteen (18).
(B)
Minor Parents. Minor parents are responsible for the financial support of their
child. The Court may deviate from the child support guidelines if the minor parents are
attending high school. When the minor parent is emancipated, the Court may modify the
order in accordance with the child support guidelines.
(C)
Emancipation. A child shall be considered emancipated when said child either
reaches the age of eighteen (18) or is regularly enrolled and attending high school until the
age of nineteen (19) whichever occurs first pursuant to subsection (A) of this section; or
when the child enlists in the military, or marries, or is emancipated by an order from the
Court.
4-172. Child Support Obligations and Guidelines.
(A)
Purpose. The purposes of the child support guidelines are to:
(1)
Establish as policy an adequate standard of support for minor children,
subject to the ability of parents to pay.
(2)
Make support payments equitable by ensuring consistent treatment of
persons in similar circumstances; and
(3)
Improve the efficiency of the court process by promoting settlements and
giving guidance in establishing levels of child support to the Court, DCSS and the
parties.
(B)
Child Support Worksheet. The worksheet should contain the actual calculation
of the child support based on Child Support Income, Work-Related Childcare Costs,
38
Health, Dental, Orthodontic, and Optometric Insurance Premiums, and any Child Support
Adjustments. (See Addendum I).
(C)
Use of Child Support Schedule. In any action to establish or modify child support,
the child support instructions as set forth in Addendum I shall be applied to determine the
child support due and shall be a rebuttable presumption for the amount of such child
support. The child support schedule shall be used for temporary and permanent orders,
separations, dissolutions, and support decrees arising despite non-marriage of the parties.
The child support schedule shall be used as the basis for reviewing the adequacy of child
support levels in non-contested cases as well as contested hearings. A specific amount of
child support should always be ordered, no matter how minimal, to establish the principle
of that parent’s obligation to provide monetary support to the child.
(D)
Base Monthly Child Support Amount. A child support obligation shall provide
for a base monthly child support amount, which shall be calculated using the child support
computation schedule, the computation formula, and income guidelines for employed and
self-employed parents. The computation formula computes the base monthly child support
amount based on the domestic gross income of both parents, which shall be calculated in
accordance with this section.
(E)
Sources for Determination of Gross Income Amounts. Gross income shall be
derived, but shall not be limited, to the following sources: salaries, wages, tips,
commissions, bonuses, severance pay, dividends, pensions, interest income, trust income,
annuities, capital gains, alimony or maintenance received, social security benefits,
workers’ compensation benefits, unemployment insurance benefits, disability insurance
benefits, gifts, prizes, Individual Indian Money accounts, and per capita payments. For
income from self-employment, rent, royalties, proprietorship of a business or joint
ownership of a partnership or closely held corporation, “gross income” means gross
receipts minus ordinary and necessary expenses required to produce such income; provided
that ordinary and necessary expenses do not include expenses determined by the Court to
be inappropriate for purposes of calculating child support. If the parent is unemployed, the
minimum wage rate shall be used to compute the income of that parent, if the parent is
physically capable of working, unless otherwise provided under these guidelines.
(F)
Excluded Sources for Determination of Gross Income Amounts. Gross income
shall not be derived from the following sources: actual child support received for children
not before the Court; Temporary Assistance for Needy Families (TANF); Supplemental
Security Income (SSI); food stamps; general assistance, and state supplemental payments
for the aged, blind and disabled.
(G)
Computation of Domestic Gross Income. The domestic gross income to be used
for the purpose of determining the base monthly child support amount described in
subsection (B) of this section shall be calculated as follows:
(1)
In computing gross income for a child support obligation from sources such
as those described in subsection (E) of this section, the one of the following types
of income may be used, whichever is most equitable: (i) all earned and passive
income; (ii) all passive and earned income equivalent to a forty-hour week plus
such overtime and supplemental income as the Court deems equitable; (iii) the
average of the gross monthly income for the time actually employed during the
previous three years; or (iv) the minimum wage paid for a forty-hour work week.
If a party is unemployed, the Court may impute a minimum wage for income. If a
parent is permanently, physically, or mentally incapacitated, the child support
obligation shall be computed on the basis of actual monthly gross income.
(2)
The amount of any preexisting court order for current child support for
children, not before the Court, shall be deducted from gross income, if actually
paid. The amount of reasonable expenses of debt service for preexisting, jointly
acquired debt of the parents may be deducted from gross income, if actually paid.
(H)
Basic Childcare Obligations. A child support order shall provide for childcare
expenses reasonably necessary to enable both parents to be employed, seek employment,
or attend school or training to enhance employment income. The actual childcare costs
incurred shall be allocated and paid monthly in the same proportionate share as the child
support. Upon reasonable request by the obligor, the obligee shall provide the obligor with
timely documentation of any change in the amount of the childcare costs. If the Court finds
that it will not cause detriment to the child or will not cause undue hardship to either parent,
in lieu of payment of childcare expenses incurred during employment, employment search,
or while the obligee is attending school or training, the obligor may provide for the child
care during that time.
(I)
Basic Medical Support Obligation. A child support obligation shall provide for
medical and dental insurance and unreimbursed medical and dental expenses. Medical
support may be provided through employer insurance or group insurance or through an
alternative private source or through the Indian Health Service. The actual medical and
dental premiums are to be allocated between the parents in the same proportion as their
adjusted gross income and added to the base child support obligation. An Indian Health
Service facility, including such facility operated by an Indian tribe, and/or services may be
used for both medical and/or dental service, if agreed by both the obligor and obligee.
(J)
Other Expenses Not Covered by Basic Child Support Obligations.
(1)
Medical Expenses Not Covered by Insurance. Reasonable and necessary
medical, dental, orthodontic, optometric, psychological, or any other physical or
mental health expenses of the child incurred by either parent and not reimbursed by
insurance shall be allocated in the same proportion as the parents’ adjusted gross
income as separate items that are not added to the base child support obligation.
The parent who incurs the expense shall be reimbursed by the other parent within
thirty (30) days of receipt of documentation of the expense. If a clinic, hospital, or
program provides health services as described in this subsection utilizing direct or
contract health care funding provided through the Indian Health Service, both
parties shall be liable for any medical and dental expenses resulting from, but not
covered by, such services, or otherwise unreimbursed with funding through the
Indian Health Service, in the same proportionate share as the child support.
40
(2) Travel Expense. A child support obligation may provide for transportation and
communication expenses necessary for long distance visitation or time divided in
proportion to each parent’s adjusted gross income.
(3) Extraordinary Educational Expenses. A child support order may provide for
any extraordinary educational expenses for children of the parties.
(K)
Deviations. The Court may order child support in an amount different from that
which is provided in these guidelines, if:
(1)
(i) There is a presumption of hardship because application of the child
support guidelines would require the non-custodial parent to pay the custodial
parent more than forty percent (40%) of his gross income for a single child support
obligation for current support; (ii) a minor custodial and noncustodial parent are
regularly attending high school; (iii) the court makes a finding that the parents of
the minor parents are responsible for the financial support of the child; or (iv)
application of the guidelines would be inappropriate or unjust in the particular case
due to other circumstances; and
(2)
Deviation is in the best interest of the children for whom the child support
obligation is being established; and
(3)
The award order states the amount the award would be if it were calculated
by application of the guidelines; and
(4)
The award order states the amount of child support which is awarded after
the deviation; and
(5)
The award order contains written findings regarding items (1) through (4)
above.
4-173. Address Requirement for Service.
(A)
Address Information. All child support orders shall require the parties to keep the
DCSS informed of their current addresses and an address of record for service. An address
of record for service may be different from a party’s physical address.
(B)
Change of Address. Any change of address shall be provided to the DCSS program
within thirty (30) days of the change. The address of a party shall be protected from
disclosure if evidence of domestic violence or child abuse is found, or it is determined that
disclosure could be harmful to a party or child.
(C)
Service. The address of record may be used for the service of notices and orders in
accordance with these Codes.
4-174. Child Support Order.
(A)
Contents of Child Support Order. A child support order shall provide the
following:
(1)
the names of the obligor and obligee;
(2)
(3)
(4)
the name or names of the child(ren) before the court.
a provision for the monthly child support amount.
a provision for the amount of any past due support and a payment plan for
the past due support, if applicable.
(5)
a provision for a judgment for past due support and a payment plan for the
past due support, if applicable.
(6)
a provision for medical and dental insurance.
(7)
a provision for unreimbursed medical expenses.
(8)
a provision for immediate income withholding.
(9)
a provision for childcare costs, if applicable.
(10) a provision for a current address and an address for service; and
(11) such other information or requirements as determined appropriate and
reasonable by the Court or the DCSS.
(B)
Commencement of Obligation. The obligations shall commence, unless otherwise
ordered on the first day of the month immediately following the month in which the child
support order was issued.
(C)
Statement of Amount. The amount of a child support order shall not be construed
to be an amount per child unless specified by the Court. If there is more than one child in
the child support order and one of the children has attained the age of majority or is no
longer entitled to support, the child support order may be modified.
(D)
Support for the Child. The child support order may include a provision, if the
Court deems it appropriate, to assure that the child support payment shall be used for the
support of the child.
4-175. Arrearage.
A judgment for arrearage may be included in each child support order if there is past due
child support owed as well as a payment schedule for the judgment. Failure to state a past due
amount in the order does not bar collection of the amount.
4-176. Non-cash Support.
(A)
Non-cash Support. The Court may allow part of the child support obligation to be
paid with non-cash support, if the obligee agrees to the use of a non-cash payment being
used, and the child support order states:
(1)
the specific dollar amount of the support obligation; and
(2)
the type and amount of non-cash support that will be permitted to satisfy
the child support obligation.
(B)
Satisfaction of Public Assistance Monies. Non-cash payments shall not be
permitted to satisfy any tribal, state, or federal public assistance monies.
42
(C)
Types of Non-Cash Support Permitted. Non-cash support may be considered in
the following circumstances: repairs to home or vehicle; resources for heating or utility
reduction assistance; cultural or regalia contributions; and fish, wildlife, or vegetation as
food sources; provided however, that all non-cash support is credited consistent with subsection (A) herein.
4-177. Payments.
Child support payments shall be made to the Delaware Tribe of Indians CSS. When
payments are made to the Delaware Tribe of Indians CSS, DCSS shall distribute the payment to
the appropriate agency or individual.
4-178. Judge’s Signature.
The judge shall sign the child support order and the child support computation form which
establishes or modifies child support.
4-179. Voluntary Agreement.
Parents may establish child support through a voluntary agreement in accordance with the
child support guidelines. In the event of such an agreement, the parties shall sign and date the child
support order, the child support computation form, and a waiver of right to service of process
before submission to the Court. Once signed, the agreed order, computation form, and waiver shall
be submitted to the Court for approval and signature, including any evidence for approval without
the parties being present at a court hearing.
4-180. Rebuttable Presumption.
There shall be a rebuttable presumption in any proceeding for child support that the amount
of the award is the correct amount of child support to be awarded.
4-181. Liability for Past Support.
In an establishment case for child support, the court may award an additional judgment to
reimburse the expenses of support and education of the child from the date of birth to the date the
order is entered. If the determination of paternity is based upon a presumption arising under
Chapter 330 of this code, the court shall award an additional judgment to reimburse all or part of
the expenses of support and education of the child from at least the date the presumption first arose
to the date the child support order is entered, except that no additional judgment need be awarded
for amounts accrued under a previous order for the child's support.
4-182. Termination of Parental Rights, Adoption.
(A)
Termination of Parental Rights. When a parent terminates his or her parental
rights, the termination does not end the duty of either parent to support his or her child.
The duty ends when a court terminates the parent’s duty to support his or her child, or if
there is a signed written agreement between the parties to terminate the duty to support and
approved by a court. If there is a child support arrearage, the arrearage shall be due until
paid in full unless waived by the court or by a signed written agreement between the parties
that waives the past arrearage and that is approved by a court.
(B)
Adoption. If an adoption of a child is pending, a child support order shall remain
in effect until notice is received that the final decree of adoption has been entered by the
applicable court. If there is a child support arrearage, the arrearage shall be due until paid
in full, unless waived by the court or by a signed written agreement between the parties
that waives the arrearage and approved by the court.
4-183. Modification.
(A)
Petition to Modify. A child support order may be modified upon petition of an
obligor, obligee or DCSS.
(B)
Modification Upon Material Change in Circumstances. Child support orders
may be modified upon a material change in circumstances that includes, but is not limited
to:
(1)
An increase or decrease in income; or
(2)
When a child reaches the age of majority; or
(3)
When a child ceases to be entitled to support pursuant to the support order,
or
(4)
A change in childcare costs or medical support.
(C)
Effective Date of Modification. An order of modification shall be effective upon
the date the motion to modify was filed, unless the parties agree to another, or the Court
finds that the material change of circumstances did not occur until a later date.
(D)
Voluntary Modification. If the parties agree to a modification, the court shall
review the modification to ensure that it complies with the child support guidelines.
4-184. No Retroactive Modification. A child support order shall not be modified retroactively.
4-185. Temporary Orders.
(A)
The court may upon proper application establish a temporary order for child support
in accordance with the child support guidelines.
(B)
A temporary order may be vacated or modified prior to or in conjunction with a
final order or decree.
(C)
A temporary order terminates when the final judgment on all issues, except attorney
fees and costs, is rendered or when the action is dismissed.
44
4-186. Prior Born Children.
If an obligor has a child support order and later has additional children born or adopted,
the obligor may not be permitted to modify the order for the prior born child to support a child
born or adopted later.
4-187. Past Due Support.
A final order for modification shall state whether past due support is owed and set a
payment schedule. The failure to state a past due amount does not bar an action to collect the past
due amount.
4-188. Review of Child Support Orders, Review of Guidelines.
(A)
The DCSS shall conduct a review of a child support order at least once every four
(4) years to ensure that the child support order is in accordance with the child support
guidelines and Title IV-D rules and regulations.
(B)
If the DCSS determines that the child support order is not in accordance with the
child support guidelines, DCSS shall initiate action to modify the child support order.
(C)
An order of modification shall be effective upon the date the motion to modify the
child support order was filed.
(D)
Either a noncustodial or custodial party may request a review of the child support
order.
(E)
DCSS shall conduct a review at least once every four years to insure the child
support guidelines are appropriate child support award amounts and in accordance with
Title IV-D rules and regulations.
4-189. Redirection of Child Support Upon Change in Physical Custody.
Whenever physical custody of the child is changed, the child support payments shall be
redirected to the new custodian, except for the amount of unpaid support still owed to the previous
custodian or to the tribal or state child support agency.
4-190. No Statute of Limitations.
Court ordered child support shall be owed until paid in full and it shall not be subject to a statute
of limitation.
4-191. TANF Money Owed to a State or Tribe.
When a state or tribe expends TANF money for the benefit of a dependent child, the
payment of the TANF money creates a support debt owed to a state or tribe by the person(s)
responsible for the support of the dependent child. The amount of the amount of support debt shall
be equal to the amount of TANF money expended for the benefit of the dependent child, unless
otherwise provided through a court or administrative order.
4-192. Income Assignment.
(A)
Every child support order or a modification of such order shall provide for an
immediate income assignment provision, regardless of whether support payments are in
arrears.
(B)
The income assignment shall withhold the necessary amount to comply with the
child support order for the monthly obligation. If there is overdue child support, the income
assignment must withhold an amount to be applied toward satisfaction of the arrears.
(C)
The total amount to be withheld from an individual’s income for current and past
due support shall not exceed the maximum amount permitted under §303(b) of the
Consumer Credit Protection Act, 15 USC §1673(b).
(D)
Income shall not be subject to withholding in any case where:
(1)
Either the custodial or noncustodial parent demonstrates, and the court finds
there is good cause not to require immediate income withholding; or
(2)
A signed written agreement is reached between the custodial and
noncustodial parent, which provides for an alternative arrangement, and is
approved by the court.
(E)
If the obligor has multiple withholding orders, the DCSS shall allocate amounts to
be withheld from each order to ensure that all orders are implemented. In no case shall an
allocation result in a support obligation not being implemented.
(F)
Where immediate income withholding is not in place, the income of the obligor
shall become subject to withholding on the date on which the payments the obligor has
failed to make are at least equal to the support payable for one month.
(G)
The only basis for contesting a withholding order is a mistake of fact, which means:
(1)
(2)
An error in the amount of current or overdue support, or
In the identity of the alleged obligor.
(H)
DCSS shall terminate income withholding in cases where there is no longer a
current order for support and all arrearages have been satisfied.
(I)
DCSS shall seek a refund from the obligee for amounts which have been improperly
withheld.
46
(J)
DCSS shall be responsible to receive and process income withholding orders from
any state, tribe, or other entity; and to ensure such orders are properly and promptly
registered in the Delaware Tribe of Indians Court and served on employers located within
the Tribe’s jurisdiction.
(K)
The income assignment issued pursuant to this section shall remain in effect as long
as any support monies are owed. Payment of any support monies shall not prevent the
income assignment from taking effect.
(L)
Nothing in this section shall limit the authority of DCSS to use its administrative
powers conferred by law to collect delinquent support without the necessity of a court
order.
4-193. Voluntary Income Assignment.
An obligor may execute a voluntary income assignment at any time. The voluntary
assignment shall be filed with the court and take effect after service on the employer.
4-194. Employer, Notice of Income Assignment, Requirements.
(A)
DCSS shall send the employer notice of the income assignment using the standard
federal form prescribed by United States Secretary of Department of Health and Human
Services.
(B)
The income withholding shall take effect on the next pay period of the obligor after
the employer receives notice. The employer shall withhold the amounts specified in the
notice during each pay period. The amounts withheld shall be sent to DCSS within seven
(7) business days after the date upon which the obligor is paid. The employer shall include
with each payment a report that states the date the amount was withheld from the obligor’s
income.
(C)
The amount withheld, including any fee under this section, by the employer shall
not exceed the limits permitted under §303(b) of the Consumer Credit Protection Act, 15
U.S.C. 1673 (b).
(D)
If the amount of support due in the notice exceeds the maximum authorized under
subsection C of this section, the employer shall pay the amount due up to the statutory limit
and send written notice to DCSS or person designated to receive payments that the amount
due exceeds the amount subject to withholding.
(E)
The employer shall notify DCSS within ten (10) days of the date when the obligor
terminates employment and provide the obligor’s last known address and the name and
address of the obligor’s new employer, if known.
(F)
If the employer fails to withhold in accordance with the provisions of the income
assignment order, the employer will be liable for the accumulated amount the employer
should have withheld and paid from the obligor’s income.
(G)
The employer may not discipline, suspend, discharge, or refuse to employ an
obligor because of an income assignment. Any employer who violates this section shall
be subject to a civil fine of $500 for unlawful discipline, suspension, discharge, or refusal
to employ.
(H)
The employer may combine withheld amounts from two or more obligors’ income
in a single payment to each appropriate agency requesting withholding and separately
identify the portion of the single payment which is attributable to each individual obligor.
(I)
The income assignment is binding on the employer until further notice by DCSS.
(J)
Any payment made pursuant to the provisions of this section by the employer shall
be made payable to DCSS.
(K)
An income assignment issued pursuant to this section shall have priority over any
other subsequent garnishments against the same income.
(L)
The employer may deduct from the income of the obligor a sum not exceeding Five
Dollars ($5.00) per pay period but not to exceed Ten Dollars ($10.00) per month as
reimbursements for costs incurred by the employer in complying with the income
assignment.
(M) The income assignment applies to any current or subsequent employer. If the
obligor changes employment where an income assignment is in place, DCSS shall notify
the new employer pursuant to this section that the income assignment is binding on the
new employer.
(N)
Two or more income assignments may be levied concurrently. Any current support
due shall be paid before the payment of any arrearages or support debt payment.
(O)
The employer shall verify the obligor’s address, employment, earnings, income,
benefits, and dependent health insurance information upon request of DCSS.
4-195. Registration of Foreign Child Support Oder.
(A)
Any other state or tribal child support order shall be registered with the court for
the purpose of obtaining jurisdiction for enforcement of the withholding.
(B)
After registration of a foreign child support order, the DCSS shall notify the obligor
that the child support order has been registered with the Tribe and is a valid order and
enforceable as if originally issued in the Tribe’s court.
48
CHAPTER 5
CHILD SUPPORT ENFORCEMENT
4-196. General.
(A)
DCSS may initiate an enforcement proceeding that includes, but is not limited to:
(1)
(2)
(3)
enforcement of current child support payments.
establishment and enforcement of a child support judgment, and
review and modification of child support orders.
(B)
DCSS may use applicable child support enforcement remedies in accordance with
Title IV-D rules and regulations that include, but are not limited to: income withholding;
requesting revocation of a state hunting and fishing licenses, and professional licenses;
consumer credit reporting; request passport denial; use of cooperative state and federal
income tax refund intercept programs; use of lien and levy; contempt proceedings; and,
any other civil remedy available for the enforcement of a child support order or judgment.
(C)
An action to enforce child support may be brought by the DCSS, parent, guardian,
child, or other public agency responsible for the support of the child.
(D)
The DCSS is authorized to initiate legal action and appeal orders as necessary to
implement the provisions of this section.
4-197. Judgment For Arrearage.
(A)
When an obligor fails to pay current child support and an arrearage accumulates,
said arrearage becomes a judgment by operation of law, and becomes effective on and after
the scheduled payment date in the child support order.
(B)
A party or the DCSS may initiate an action to obtain a formal order of judgment
from the Court; however, a judgment by operation of law shall have the full force and effect
of a judgment of the court and shall be enforced under the laws of the Tribe and/or in
accordance to the laws of the adjudicating court.
(C)
A judgment shall be accorded full faith and credit with other tribes and states.
(D)
A child support judgment is not subject to retroactive modification by the tribe or
by any other tribe or state except that the court may permit a modification with respect to
any period during which there is pending a petition for modification, but only from the date
that notice of such petition has been given to the obligee or (where the obligee is the
petitioner) to the obligor.
(E)
A child support judgment shall not become dormant for any purpose. DCSS shall
follow applicable laws regarding judgments and liens.
(F)
Except as otherwise provided, a judgment for past due child support shall be
enforceable until paid in full.
4-198. Arrearage.
(A)
The court shall determine the amount of arrearage of any child support obligation
and set a payment schedule.
(B)
The parties may voluntarily agree on an arrearage payment schedule, subject to
approval by the court.
(C)
Any amounts determined to be past due by the court may be subsequently enforced
by indirect civil contempt proceedings.
4-199. Liens, Workers Compensation, Release.
(A)
Liens arise by operation of law against real and personal property for amounts of
overdue support owed by an obligor who resides or owns property within a state.
(B)
Past due child support shall become a lien by operation of law upon the real and
personal property of the obligor at the time they become past due.
(C)
A judgment or order for current support or an arrearage of child support shall be a
lien upon real property owned by the obligor or upon any real property which may be
acquired by the obligor prior to the release of the lien.
(D)
The DCSS shall comply with the rules and procedures regarding the recording and
service of a lien or extension of a lien on personal and real property within a state or tribe
in accordance with the applicable law.
(E)
The judgment or order shall not become a lien for any sums prior to the date they
severally become due and payable.
(F)
A judgment for an arrearage of child support shall become a lien upon benefits
payable as a lump sum received from a worker’s compensation claim of the obligor. The
filing and service for a workers compensation claim for child support shall follow
applicable state workers compensation statutes.
(G)
The provisions of this section shall not authorize the sale of any property to enforce
a lien which is otherwise exempted by tribal, state or federal law.
(H)
A lien shall be released upon the full payment of the amount of the arrearage.
(I)
All liens shall be given full faith and credit.
4-200. Tribal and Individual Exempted Property.
50
Tribal religious and/or ceremonial property, individual tribal trust property, individual
religious and/or ceremonial property, and Individual Indian Money (IIM) accounts are exempt
from liens.
4-201. Initiated Income Assignment, Notice, Hearing.
(A)
If an income assignment has not been ordered for the collection of child support,
DCSS shall initiate an income assignment when the obligor has failed to make a child
support payment at least equal to the support payable for one month, regardless of whether
support payments are in arrears.
(B)
The only basis for contesting a withholding order under this section is a mistake of
fact which means an error in the amount of current or overdue support or in the identity of
the alleged obligor.
(C)
In cases where the DCSS initiates an income assignment, notice to obligor shall be
given and served according to law. The notice shall inform the obligor at a minimum that:
(1)
The withholding has commenced.
(2)
The amount of overdue support that is owed, if any, and the amount of
wages that will be withheld.
(3)
The provision for withholding applies to any current or subsequent
employer or period of employment.
(4)
The procedures available for contesting the withholding, and the only basis
for contest of such withholding is a mistake of fact.
(5)
The assignment shall remain if the support order is in effect.
(6)
The payment of any support monies will not prevent an income
assignment from taking effect; and
(7)
The obligor shall be required to keep the DCSS informed of the name and
address of the current employer and health information.
(D)
If the obligor challenges the income assignment, the obligor may request a hearing
by giving written notice to the DCSS. The obligor has fifteen (15) days from the date of
service of the notice to request a hearing. On receipt of the request for a hearing, the DCSS
shall schedule the request on the next available court date.
(E)
The court shall hear the matter and unless the obligor successfully shows there is a
mistake of fact, the court shall enter an order that grants an income assignment and a
judgment for arrearage, if any, and a payment schedule for the arrearage.
(F)
The order shall be a final judgment for purposes of appeal.
(G)
If within fifteen (15) days of date of service of the notice, the obligor fails to request
a hearing, pursuant to this section, or after having requested a hearing fails to appear at the
hearing, the court shall enter an order that grants an income assignment and a judgment for
arrearage, if any, and a payment schedule for the arrearage.
(H)
A copy of the order shall be served upon the obligor certified mail return receipt
restricted delivery or if the DCSS has an address of record, through regular mail.
(I)
The obligor may voluntarily request an income assignment be initiated for the next
due date, or earlier if so requested.
4-202. Spousal Support.
The DCSS is authorized to enforce an established spousal support obligation as long as a
child support obligation is being enforced by DCSS and the minor child lives with the spouse or
former spouse.
4-203. Revocation or Suspension of Licenses.
(A)
The DCSS may initiate enforcement proceedings for the suspension or revocation
of a professional license or hunting and fishing license of an obligor who is in
noncompliance of a child support order.
(B)
Before DCSS initiates proceedings for the suspension or revocation of a license(s),
DCSS shall issue a notice to the obligor that states suspension of his/her license(s) will be
sought within twenty (20) days after service, unless the obligor notifies DCSS within those
twenty (20) days and:
(1)
Pays the entire past-due support or enters a payment plan approved by
DCSS; and/or
(2)
Complies with all orders and subpoenas regarding paternity or child
support.
(C)
The notice to the obligor shall be served according to law.
(D)
The obligor may submit a written request for a hearing to DCSS within twenty (20)
days after the date of service of the notice. Upon receipt of the request for hearing, DCSS
shall schedule a hearing on the next available court date.
(E)
The court shall determine whether the obligor is in noncompliance with an order
for support and whether an action seeking suspension or revocation of a license is
appropriate or whether probation is appropriate.
(F)
If an obligor fails to respond to the notice issued under this section, fails to request
a timely hearing, or fails to appear at a scheduled hearing, the court shall enter an order of
suspension, revocation, non-issuance, or non-renewal of a license to the licensing board
and to the obligor.
(G)
The order for suspension or termination of a license for noncompliance of a child
52
support order shall be sent to the appropriate state or tribal licensing board.
(H)
For licenses issued by the state, DCSS shall follow applicable state statutes.
4-204. Probation.
The Court may grant probation if the obligor enters a court ordered payment plan to repay
past due support and provides proof that the obligor is complying with all other orders for support.
Probation shall be conditioned upon full compliance with the order(s). If the court grants
probation, the probationary period shall not exceed three years and the terms of the probation shall
provide for alternative sentencing, revocation of licenses or any other enforcement provision if the
obligor does not fully comply with the order.
4-205. Reinstatement, Termination of Orders.
(A)
An obligor whose license(s) have been revoked or suspended may request in
writing to DCSS that the license(s) be reinstated.
(B)
The court may order reinstatement of the obligor’s license if the obligor has paid
either:
(1)
The current child support and monthly arrearage payments for the current
month and two months immediately preceding, or
(2)
Paid an amount equivalent to three months of child support and arrearage
payments, and
(3)
Is in full compliance with other provisions of the support order.
(C)
If DCSS proceeds to terminate an order for revocation or suspension of a license,
DCSS shall serve on the obligee a copy of the motion for reinstatement of the obligor’s
licenses and notice of hearing. The motion and notice may be sent by regular mail if there
is an address of record on file with DCSS or served according to law.
(D)
If the license is reinstated, a copy of the order reinstating a license shall be sent to
the obligee and obligor and appropriate state or tribal licensing board.
(E)
If the obligor’s license is reinstated and he/she fails to make child support
payments, the obligor’s license(s) may again be suspended or revoked.
(F)
DCSS shall proceed to terminate an order for suspension or revocation when the
obligor has paid his child support debt in full, without the necessity of a hearing. The order
to reinstate a license shall be sent to the obligor and obligee and appropriate state or tribal
licensing board.
(G)
For licenses issued by the state or another tribe, DCSS shall follow applicable state
or tribal statutes.
4-206. Employment, Find-job Order.
(A)
Employment Requirement. A person who is ordered to pay child support through
either court or administrative action shall be required to maintain employment to meet his
or her child support obligation.
(B)
Action for Order for Employment. If an obligor is in arrears for child support in an
amount greater than three (3) times the obligor’s total monthly support payments and is not
in compliance with a written payment plan, and the obligor claims inability to pay courtordered child support because of unemployment or underemployment, DCSS may initiate
an action to obtain an order to require an unemployed or underemployed obligor to find
employment through job search programs or job-training programs. To initiate such action,
the DCSS must schedule an administrative conference with the obligor or a court hearing
to determine if he or she is noncompliance because of unemployment or underemployment.
(C)
Notice to Obligor. Notice of the administrative conference or court hearing shall be
sent to the obligor in noncompliance with a child support order because of unemployment
or underemployment through one of the following methods: (i) first-class mail to the
obligor’s last known address with a certificate of mailing; (ii) certified mail, return receipt
restricted delivery; or (iii) personal service with proof of service certificate. The notice
shall include the following information:
(1)
The name of the obligor.
(2)
The name of the obligee and the child or children for whom support is owed.
(3)
The telephone number and contact number for DCSS; and
(4)
Statements that the obligor is in noncompliance with a court or
administrative support order and the amount of the past due support; the time, date
and place of a court hearing set in said matter, the consequences of the obligor’s
failure to appear at the said hearing or conference, the obligor’s burden of proof at
the hearing or conference, and a description of the order that may be issued
following the hearing or conference, all as set forth in sub-sections (D) and (E) of
this section;
(D)
Hearing; Order. The obligor shall be responsible for providing documentation for
good cause not to participate in an employment search or job training program. If the
obligor fails to appear at the hearing or appears and is determined to be unemployed or
underemployed, the Court shall enter a find-job order setting forth such findings and
directing the obligor to participate in job-finding or job-training programs and accept
available employment. Such order may require the obligor to register with a state and/or
tribal employment agency for employment or job training. The order shall require the
obligor to file a weekly report with DCSS showing at least five (5) attempts to find
employment, including the name, address and phone number of a contact person with
whom the obligor sought employment. A copy of the order will be mailed to the obligor
by first-class mail with a certificate of mailing.
(E)
Failure to Comply. If an obligor fails to report or otherwise comply with a find-
54
job order without good cause, enforcement proceedings may be initiated against the
obligor. The obligor shall be responsible for the verification of any reason for
noncompliance with a find-job order.
(F)
Order Duration. The duration of the order shall not exceed three (3) months.
4-207. Passport Denial.
DCSS may refer a judgment for child support to the Secretary of Health and Human
Services for passport denial, revocation, or restriction pursuant to Title IV-D rules and regulations.
4-208. Reporting to Consumer Reporting Agency.
(A)
DCSS may report to a consumer reporting agency the name of an obligor who is
delinquent in the payment of support and the amount of overdue support owed by the
obligor.
(B)
The obligor shall be notified before the release of the information to the consumer
reporting agency and given a reasonable opportunity to contest the accuracy of such
information.
(C)
Information shall be given only to an entity that has furnished evidence satisfactory
to the DCSS that it is a consumer reporting agency as so defined in 15 USC §1681a(f).
4-209. State and Federal Tax Offset Programs, Administrative Offset.
(A)
DCSS may use a state tax intercept program by agreement of the state to collect
child support debts.
(B)
DCSS may use the federal tax intercept program through a cooperative agreement
with the state, or other means, to collect child support debts.
(C)
DCSS may use administrative offsets to collect child support debts.
4-210. Indirect Civil Contempt.
(A)
DCSS may initiate indirect civil contempt proceedings or any other pleading to
secure compliance with a child support order.
(B)
In a proceeding for indirect contempt, the pleading must be verified through
affidavit of the party initiating the proceeding. The obligor shall be served by personal
service or certified mail, return receipt.
(C)
In a proceeding for contempt, prima facie evidence of an indirect civil contempt of
court shall be held when:
(1)
Proof that:
(a)
The child support order was made, filed, and served on the obligor;
or
(b)
The obligor had actual knowledge of the existence of the order; or
(c)
The order was granted by default after prior due process notice to
the parent; or
(d)
The parent was present in court at the time the order was
announced, and
(2)
The obligor is in noncompliance with the order.
(D)
Unless otherwise provided by law, punishment for direct or indirect contempt shall
be the imposition of a fine in a sum not exceeding Five Hundred Dollars ($500.00) or by
imprisonment in jail not exceeding six (6) months, or by both, at the discretion of the court.
(E)
If a contemner is committed to the custody of the sheriff to serve the sentence
imposed by the court, the contemner may thereafter only be discharged from the custody
of the sheriff:
(1)
Upon payment in full of the adjudicated arrearage.
(2)
Upon serving the full sentence; or
(3)
Upon an agreement by the parties as to payment of the arrearages, subject
to any conditions and approval by the court.
(4)
Upon payment of a lump sum amount to be determined by the Court. The
Court shall determine the amount by:
(a)
the circumstances giving rise to the contempt.
(b)
the total amount of the adjudicated arrearage; and
(c)
evidence of the obligor's attempts to reduce the arrearage prior to
the contempt proceeding.
(F)
Contemners incarcerated pursuant to this section shall not be given credit for good
time, trustee time, or any other credit for time served. Contemners incarcerated pursuant
to the provisions of this section shall serve flat time; and
(G)
Contemners shall be required to reimburse the Delaware Tribe for any and all
incarceration fees.
4-211. Purge Fee, Referral.
(A)
When an obligor is found guilty of indirect contempt of court for failure to pay
child support or other court ordered provisions for child support, the obligor may purge the
contempt through a payment plan that requires:
56
(1)
The obligor to make current support payments as well as paying the
arrearage or some portion thereof by either paying the full amount of the arrearage
or if the full amount of the arrearage is not paid in a lump sum, then by making
additional monthly payments, exclusive of day care expenses.
(2)
The arrearage payments made under this section shall be applied to reduce
the amount of child support arrearage.
(B)
The arrearage payments made under this section shall continue until the child
support arrearage has been paid in full, at which time the contempt shall be deemed purged.
(C)
If an obligor is found guilty of indirect contempt, the court may refer the contemner
to a state or tribal employment program, in accordance with Section 511 for employment
services or training as a condition of probation. If the obligor fails to comply with the state
or tribal employment program requirements, the obligor shall be sentenced accordingly.
4-212. Waivers or Credits, Payments to Children.
(A)
The obligee may waive or give credit for past due child support.
(B)
No waiver or credit is allowed for tribal, federal, or state owed money, unless
waived by the tribal, state or federal agency that issued the money.
(C)
Payments made directly to child(ren) are considered gifts to the child(ren).
(D)
Payments made directly to the Obligee shall be considered a gift unless the Obligee
executes the appropriate documentation of direct pay.
4-213. Exceptions to Enforcement Proceedings.
(A)
An obligor who currently receives TANF payments or any other state or tribal
public assistance benefits, shall not be subject to contempt proceedings.
(B)
An obligor who claims unemployment because of a physical and/or mental health
problem shall provide documentation of such claim by a licensed physician or licensed
mental health professional. The obligor shall be responsible for providing documentation
of the physical or mental health treatment plan with the time it may take to complete the
plan. Upon completion of the treatment plan, the terms regarding unemployment in
subsection D of this section shall be in force.
(C)
An obligor who claims unemployment because of a physical or mental disability
shall provide documentation that he or she has applied for disability determination with the
Social Security Administration. The obligor shall provide to the court documentation that
he or she has applied to an agency offering rehabilitation services for assistance in
becoming employable. If the obligor is determined to be employable by the rehabilitation
services program, the obligor shall provide documentation that such parent has made every
effort to cooperate in obtaining employment pursuant to subsection D of this section.
(D)
An obligor who claims unemployment in subsection B and C shall be required to
register with the state employment security commission or a state and/or tribal employment
agency for employment. The obligor is responsible for making a good faith effort to obtain
employment either through the employment services and personal initiative, providing
documentation of employment registration to the court, and providing documentation of
an employment application. The obligor must demonstrate he or she is actively seeking
employment and/or training as provided by the employment agency and is willing to work.
(E)
These provisions shall not apply to an only parent caring for the child or children
in the home when daycare services are not available or when it is unreasonable to place the
child or children in day care services.
(F)
Child Support obligations shall continue to accrue at the amount of the most recent
order until such time as the case is modified or meets the requirements for case closure
subject to the federal requirements. Enforcement actions, except for contempt, shall
continue until and such time as the Court orders otherwise.
4-214. Interest.
DCSS shall not charge interest on past due support obligations stemming from tribal court
orders; however, DCSS shall charge the statutory rate of interest on state-owed, or other tribalowed judgments as required by full faith and credit.
4-215. Expedited Procedures.
(A)
DCSS has the authority to enter orders in the following actions without the
necessity of obtaining an order from any other judicial or administrative court:
(1)
To require both parents to appear for genetic testing in cases where
paternity has not been established or admitted.
(2)
To subpoena any financial or other information needed to establish, modify,
or enforce a support order, provided that the subpoena complies with
applicable tribal, federal or state statutes.
(3)
In cases where there is support arrearages, to secure assets by:
(a)
(b)
(c)
(d)
intercepting or seizing periodic or lump-sum payments from:
(i)
a state or local agency, including unemployment
compensation, workers’ compensation, and other benefits; and
(ii)
judgments, settlements, and lotteries.
attaching and seizing assets of the obligor held in financial
institutions.
attaching public and private retirement funds; and
imposing liens in accordance with this Code.
58
(4)
To increase the amount of monthly support payments to include amounts
for the purpose of securing overdue support.
(5)
If an income assignment is not ordered or in place by operation of law,
DCSS is authorized to implement income withholding.
(6)
To obtain access, subject to safeguards on privacy and information
security, and subject to the non-liability of entities that afford such access
under this subparagraph, to information contained in the following records.
(a)
Records of other state and local government agencies, including i.)
vital statistics; ii.) state and local tax and revenue records; iii.) records
concerning real and titled personal property; iv.) records of occupational
and professional licenses, and records concerning the ownership and control
of corporations, partnership, and other business entities; v.) employment
security records; vi.) records of agencies administering public assistance
programs; vii.) records of the motor vehicle department; and viii.)
corrections records.
(b)
Certain records held by private entities with respect to individuals
who owe or are owed support, consisting of: i.) the names of addresses of
such individuals and the names and addresses of the employers of such
individuals, as appearing in customer records of public utilities and cable
television companies, pursuant to an administrative subpoena; and ii.)
information on such individuals held by financial institutions.
(B)
Such procedures listed in subsection A of this section shall follow due process
safeguards, including (as appropriate) notice to the obligor, opportunity for obligor to
contest the action and opportunity for appeal.
4-216. Reimbursement of Costs.
DCSS shall seek reasonable costs against the obligor in the enforcement of child support
cases. These costs include, but are not limited to: court filing fees, process server fees, mailing
fees, genetic testing fees and incarceration fees.
4-217. Bankruptcy.
Current and past due child support owed on behalf of a child is not dischargeable by
bankruptcy.
ADDENDUM I
GENERAL INSTRUCTIONS FOR USE OF CHILD SUPPORT
COMPUTATION
The Delaware Tribe of Indians Child Support Guidelines are the basis for establishing and
reviewing child support orders, including cases settled by agreement of the parties. Judges and/or
hearing officers must follow the guidelines and the court shall consider all relevant evidence
presented in setting an amount of child support.
The Net Parental Child Support Obligation is calculated by completing a Child Support Worksheet
(Addendum I).
The calculation of the respective parental child support obligations on Line D.9 of the worksheet
is a rebuttable presumption of a reasonable child support order. If a party alleges that the Line D.9
support amount is unjust or inappropriate in a particular case, the party seeking the adjustment has
the burden of proof to show that an adjustment should apply. If the court finds from relevant
evidence that it is in the best interest of the child to make an adjustment, the court shall complete
Section E of the Child Support Worksheet. The completion of Section E of the worksheet shall
constitute the written findings for deviating from the rebuttable presumption.
DEFINITIONS AND EXPLANATION
A.
Child Support
The purpose of child support is to provide for the needs of the child. The needs of the child are
not limited to direct expenses for food, clothing, school, and entertainment. Child support is also
to be used to provide for housing, utilities, transportation, and other indirect expenses related to
the day-to-day care and well-being of the child.
B.
Child Support Worksheet
The worksheet should contain the actual calculation of the child support based on Child Support
Income, Work-Related Childcare Costs, Health, Dental, Orthodontic, and Optometric Insurance
Premiums, and any Child Support Adjustments.
C.
Child Support Schedules
The Child Support Schedule is adopted by the Delaware Tribe of Indians. The schedule is based
upon national data regarding average family expenditures for children, which vary depending upon
three major factors: the parents' combined income, the number of children in the family, and the
ages of the children. The schedules take into consideration that income deductions for social
security, federal retirement, and federal and state income taxes, as well as property taxes on owneroccupied housing, are not available to the family for spending. Thus, although the schedules use
combined gross monthly income as an index that identifies values in the child support schedules,
the entries in the schedules used to calculate the actual child support obligation are based upon
either consumption spending or after-tax income, whichever is lower. The schedules also include
a built-in reduction from average expenditures per child (the dissolution burden), because of the
financial impact on the family of maintaining two households instead of one.
60
D.
Domestic Gross Income--Wage Earner
The Domestic Gross Income for the wage earner is income from all sources, including that which
is regularly or periodically received, excluding public assistance and child support received for
other children in the residency of either parent. For purposes of these guidelines, the term “public
assistance” means all income, whether in cash or in-kind, which is received from public sources
and for which the recipient is eligible based on financial need. It includes, but is not limited to,
Supplemental Security Income (SSI), Earned Income Credit (EIC), food stamps, Temporary
Assistance for Needy Families (TANF), General Assistance (GA), Medicaid, Low Income Energy
Assistance Program (LIEAP), Section 8, and other forms of public housing assistance.
It may be necessary for the court to consider historical information and the seasonal nature of
employment. For example, if overtime is regularly earned by one of the parties, then a historical
average of one year should be considered.
In instances where one or both of the parties is employed by a branch of the armed forces or is
called to active duty by a branch of the armed forces, then the court shall include the basic pay of
the party plus Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS).
The court may consider cost of living differences in determining the Domestic Gross Income.
Frequently, a wage earner's income is adjusted for a salary reduction arrangement for qualified
benefits offered under a cafeteria plan. In such cases, the use of gross wages (total income before
any salary reduction amounts) results in the simplest and fairest application of the guidelines.
Therefore, the gross income of the wage earner, regardless of whether it is taxable or nontaxable,
is to be used to compute child support payments.
E.
Income Computation - Self-Employed
(1)
Self-Employment Gross Income. Self-Employment Gross Income is income from
self-employment and all other income including that which is regularly and periodically
received from any source excluding public assistance and child support received for other
children in the residency of either parent.
(2)
Reasonable Business Expenses. In cases of self-employed persons, Reasonable
Business Expenses are those actual expenditures reasonably necessary for the production
of income. Depreciation shall be included only if it is shown that it is reasonably necessary
for production of income. Reasonable Business Expenses shall include the additional selfemployment tax paid over and above the FICA rate.
(3)
Domestic Gross Income - Self-Employed Domestic Gross Income for selfemployed persons is self-employment gross income less Reasonable Business Expenses.
F.
Imputed Income
(1)
Income may be imputed to the parent not having primary residency in appropriate
circumstances, including the following:
(a)
Absent substantial justification, it should be assumed that a parent is able to
earn at least the federal minimum wage and to work 40 hours per week.
(b)
When a parent is deliberately unemployed, although capable of working
full-time, employment potential and probable earnings may be based on the parent's
recent work history, occupational skills, and the prevailing job opportunities in the
community.
(c)
If a parent is terminated from employment for misconduct, rather than laid
off, their previous wage may be imputed, but shall not be less than federal
minimum wage.
(d) When a parent receives significant in-kind payments that reduce personal living
expenses because of employment, such as a company car, free housing, or
reimbursed meals, the value of such reimbursement should be added to gross
income.
(e)
When there is evidence that a parent is deliberately underemployed for the
purpose of avoiding child support, the court may evaluate the circumstances to
determine whether actual or potential earnings should be used.
(2)
Income may be imputed to the parent having primary residency in appropriate
circumstances but should not result in a higher support obligation for the other parent.
G.
Child Support Income
Child Support Income is the Domestic Gross Income after adjustments for child support paid in
other cases and for maintenance paid or received in the present case or other cases.
H.
Child Support Adjustments
Child Support Adjustments are considerations of additions or subtractions from the Net Parental
Child Support Obligation to be made if in the best interests of the child.
62
ADDENDUM I
DELAWARE TRIBE OF INDIANS
CHILD SUPPORT GUIDELINES
TABLE OF CONTENTS
I.
USE OF THE GUIDELINES
II.
DEFINITIONS AND EXPLANATION
2.A. Child Support
2.B. Child Support Worksheet
2.C. Child Support Schedules
2.D. Domestic Gross Income - Wage Earner
2.E. Income Computation - Self-Employed
2.E.1. Self-Employment Gross Income
2.E.2. Reasonable Business Expenses
2.E.3. Domestic Gross Income - Self-Employed
2.F. Imputed Income
2.G. Child Support Income
2.H. Child Support Adjustments
III.
GENERAL INSTRUCTIONS
3.A. Documentation
3.B. Applications
3.B.1. Rounding.
3.B.2. Age
3.B.3. Income Beyond the Child Support Schedule
3.B.4. More Than Six Children
3.B.5. Divided Residency Situations
3.B.6. Multiple-Family Application
3.B.7. Sharing Equal or Nearly Equal In Time and Expenses
3.B.8. Equal Parenting Time Formula
3.B.9. Residence with a Third Party.
3.B.10. Birth Expenses
IV.
SPECIFIC INSTRUCTIONS FOR THE WORKSHEET
4.A. Income Computation - Wage Earner (Section A)
4.B. Income Computation - Self-Employed (Section B)
4.C. Adjustments to Domestic Gross Income (Section C)
4.C.1. DomesticGrossIncome(LineC.1).
4.C.2. Court-Ordered Child Support Paid (Line C.2)
4.C.3. Court-Ordered Maintenance Paid (Line C.3)
4.C.4. Court-Ordered Maintenance Received (Line C.4)
4.C.5. Child Support Income (Line C.5)
4.D. Computation of Child Support (Section D)
4.D.1. Child Support Income (Line D.1)
64
4.D.2. Proportionate Shares of Combined Income (Line D.2)
4.D.3. Gross Child Support Obligation (Line D.3)
4.D.4. Health, Dental, Orthodontic, and Optometric Expenses (Line D.4)
4.D.5. Work-Related Childcare Costs (Line D.5)
4.D.6. Parents’ Total Child Support Obligation (Line D.6)
4.D.7. Parental Child Support Obligation (Line D.7)
4.D.8. Adjustment for Health, Dental, Orthodontic, and Optometric
Premiums and Work-Related Childcare Costs (Line D.8)
4.D.9. Basic Parental Child Support Obligation (Line D.9)
4.E. Child Support Adjustments (Section E)
4.E.1. Long-Distance Parenting Time Costs (Line E.1)
4.E.2. Parenting Time Adjustment (Line E.2)
4.E.3. Income Tax Considerations (Line E.3)
4.E.4. Special Needs (Line E.4)
4.E.5. Support of Children Beyond the Age of Majority (Line E.5)
4.E.6. Overall Financial Conditions of the Parties (Line E.6)
4.E.7. Total (LineE.7)
4.F. Deviation(s) From Rebuttable Presumption Amount (Section F)
4.F.1. Basic Parental Child Support Obligation (Line F.1)
4.F.2. Total Child Support Adjustments (Line F.2)
4.F.3. Adjusted Subtotal (Line F.3)
4.F.4. Equal Parenting Time Obligation
4.F.5 Net Parental Child Support Obligation (Line F.6)
4.F.6. Required Worksheet Signatures
4.G. Payment of Child Support
APPENDIX I
Child Support Worksheet
APPENDIX II
Child Support Schedules
I. USE OF THE GUIDELINES
The Delaware Tribe Child Support Guidelines are the basis for establishing and reviewing child
support orders within the Delaware Tribe of Indians’ jurisdiction. The Court shall consider all
evidence relative to the establishment of child support obligations. These guidelines must be
followed.
The Net Parental Child Support Guideline is calculated by completing a Child Support
Worksheet (Appendix I).
The calculation of the respective parental child support obligations on Line D.9 of the worksheet
is a rebuttable presumption of a reasonable child support obligation. If a party alleges that the
Line D.9 support amount is unjust or inappropriate in a particular case, the party seeking the
adjustment has the burden of proof to show that an adjustment should apply. An adjustment of
the support obligation requires a specific finding that the adjusted amount is in the best interest
of the child and Section E of the worksheet shall be completed.
II. DEFINITIONS AND EXPLANATION
2.A. Child Support
The Delaware Tribe of Indians places a high priority upon the welfare of children and the
responsibility of parents to support them financially and emotionally.
The purposes of the child support guidelines are to:
1) Establish as policy an adequate standard of support for minor children, subject
to the ability of parents to pay.
(2) Make support payments equitable by ensuring consistent treatment of persons
in similar circumstances; and
(3) Improve the efficiency of the court process by promoting settlements and giving
guidance in establishing levels of child support to the Court, DCSS and the parties.
2.B. Child Support Worksheet
The worksheet contains the actual calculation of the child support based upon child support
income, work-related childcare costs, health, dental, orthodontic, and optometric insurance
premiums, and any child support adjustments.
2.C. Child Support Schedules
The child support schedules (Appendix II) are adopted by the Delaware Tribal Council. The
schedules take into consideration that income deductions for social security, federal retirement,
and federal and state income taxes, as well as property taxes on owner-occupied housing, are not
available to the family for spending.
The schedules use combined gross monthly income as an index that identifies values in the child
support schedules. The entries in the schedules used to calculate the actual child support
obligation are based upon either consumption spending or after-tax income, whichever is lower.
2.D. Domestic Gross Income - Wage Earner
The domestic gross income for the wage earner is income from all sources, including that which
is regularly or periodically received, excluding public assistance and child support received for
other children.
66
2.E. Income Computation - Self Employed
2.E.1. Self-Employment Gross Income
Self-employment gross income is income from self-employment and all other income including
that which is regularly and periodically received from any source excluding public assistance and
child support received for other children.
2.E.2. Reasonable Business Expense
Self-employed income is subject to reasonable business expenses. Reasonable business expenses
are those actual expenses reasonably necessary to produce income. Depreciation shall be
included only if it is shown that it is reasonably necessary to produce income. Reasonable
business expenses shall include the additional self-employment tax paid over and above the
FICA rate.
2.E.3. Domestic Gross Income
Domestic gross income for self-employed individuals is self-employment gross income less
reasonable business expenses.
2.F. Imputed Income
2.F.1. Income may be imputed to either parent in appropriate circumstances or with a specific
finding of the Court that said the imputed amount is in the best interests of the minor child.
2.F.2. Absent substantial justification, it is assumed that a parent can earn at least the federal
minimum wage and to work 40 hours per week. Incarceration is not a substantial justification.
2.F.3. When a parent is deliberately unemployed, but capable of working, employment potential
and probable earnings may be based on the parent’s recent work history, occupational skills, and
the community’s employment opportunities.
2.F.4. If a parent is terminated from employment for misconduct, their previous wage may be
imputed, but shall not be less than minimum wage.
2.F.5. When a parent receives in-kind payment or reimbursement that reduces personal living
expenses because of employment, (e.g. company car, free housing, or reimbursed meals) the
value of such in-kind payment or reimbursement should be added to gross income.
2.F.6. When there is evidence that a parent is deliberately unemployed or underemployed for the
purpose of avoiding child support, the Court shall consider the relevant circumstances and
determine the appropriate amount of actual or potential earnings to be used in the computation.
2.F.7. Income may be imputed to the parent having primary residency in appropriate
circumstances but should not result in a higher support obligation for the other parent.
2. G. Child Support Income
Child support income is the domestic gross income after adjustments for child support paid in
other cases for maintenance paid or received in the present case or other cases.
2.H. Child Support Adjustments
Child support adjustments are those amounts added or subtracted from the net parental child
support obligation and which are made in the best interests of the child.
III. GENERAL INSTRUCTIONS
3.A. Documentation
A worksheet approved by the Court shall be filed in every case where an order of child support is
entered.
3.B. Applications
3.B.1. Rounding
(1) Calculations should be rounded to the nearest tenth for percentages.
(2) Calculations should be rounded to the nearest dollar in all instances
(3) Child support schedules for income amounts not shown, should be rounded to the
nearest basic child
support obligation amount.
3.B.2. Age
Determination of the age of the child shall be based upon the child’s nearest birthday.
3.B.3. Income Beyond the Child Support Schedule
If the combined child support income exceeds the highest amount shown on the schedules, the
Court shall exercise discretion by considering what amount of child support shall be set in
addition to the highest amount on the schedule.
3.B.4 More than Six Children
If the parties have more than six (6) children, support shall be based upon the established needs
of the children and be greater than the amount of support listed on the schedule for six children.
3.B.5. Divided Residency Situations
Divided residency is the circumstance when parents have two or more children, and each parent
has residency of one or more of the children. In these situations, a worksheet should be
68
completed for each parent using the child support schedule. Upon completion of the worksheets,
the lower net parental child support obligation is subtracted from the higher amount. The party
having the higher support obligations shall pay the difference.
3.B.6. Multiple Family Application
The multiple-family application may be used to adjust the child support obligation of the parent
not having primary residency when that parent has legal financial responsibility for the support
of other children who reside with that parent.
If the parent not having primary residency has children by another relationship who reside with
him/her, the child support schedule representing the total number of children the parent not
having primary legal residency has but is legally obligated to support, should be used to
determine the basic support obligation.
3.B.7. Sharing Equal or Nearly Equal Time and Expenses
This application of the guidelines is discretionary to the Court. To qualify for shared residency
custody treatment, the parties must share the children’s time on an equal or nearly equal basis,
excluding extended visitation times (i.e. summer visitation, holidays, etc.) In addition, the parties
must be sharing the direct expenses of the child.
The use of the shared expense formula shall be ordered only after the Court has approved the
following requirements:
(1) Equal parenting time is in the best interest of the child.
(2) A detailed written agreement to share expenses has been submitted to the Court.
(3) Unreimbursed health expenses are divided pursuant to the parties’ income.
(4) Direct expenses may be shared by dividing expenses or offsetting expenses.
(5) A worksheet representing the shared time and expense is submitted.
(6) The parties must address the means for how the expense plan will be modified or
terminated. No plan shall be unilaterally modified or terminated.
The Shared Expense Calculation using one worksheet. The amount of the lower adjusted subtotal
(Line F.3) is subtracted from the higher adjusted subtotal and the difference is multiplied by .50.
The resulting amount is the child support the party having the higher obligation will pay the
party having the lower obligation.
3.B.8 Equal Parenting Time Formula
Use of the Equal Parenting Time Formula is discretionary to the Court and may be used to set
child support when the court determines that:
(1) A shared residential custody arrangement is in the best interest of the minor child.
(2) The parents share the child’s time equally or nearly equally; and
(3) The shared expense formula is otherwise not agreeable or reasonable.
Calculating the Equal Parenting Time formula is set forth below:
(1) The amount of the lower adjusted subtotal on Line F.3 shall be subtracted from the
higher adjusted subtotal on Line F.3. The resulting figure shall be divided in two and
shall constitute the amount of support.
(2) Unless otherwise ordered by the Court, parents are presumed to provide the child’s
clothing in their own home. The formula shall include:
(a) For parents providing clothing for the child in their own home, the Line D.3
child support obligation figure will be multiplied as follows:
(i) 10% of total combined monthly child support income on Line D.1 is
equal to or less than $4,690;
(ii) 12% of total combined monthly support income on Line D.1. is more
than $4,690 and less than $8,125.
(iii) 15% of total combined monthly child support income on Line D.1. is
more than $8,125.
(b) For parents who do not provide the child’s clothing in their own home, Line
D.3. child support obligation amount will be multiplied as follows:
(i) 13% of total combined monthly child support income on Line D.1. is
equal to or less than $4,690.
(ii) 15% of total combined monthly child support income on Line D.1. is
more than $4,690 and less than $8,125.
(iii) 18% of total combined monthly child support income on Line D.1. is
equal to or greater than $8,125.
(3) Payment of all direct expenses shall require the following formula:
(a) If the parent with the lower adjusted subtotal from Line F.3 of the child
support worksheet (the parent receiving support) is responsible for paying all
direct expenses of the child, the resulting figure from Step 1 above shall be added
to the resulting figure from either Step 2.a or Step 2.b. The result shall be the
amount the parent with the higher support obligation on Line F.3 shall pay to the
other parent.
(b) If the parent with the higher adjusted subtotal from Line F.3 (the parent paying
support) is responsible for paying all direct expenses of the child, the resulting
figure from either Step 2.a or Step 2.b shall be subtracted from the resulting figure
from Step 1. The result shall be the amount the parent with the higher support
obligation on Line F.3 pays to the parent with the lower support obligation on
Line F.3
3.B.9 Residence with a Third Party
If the child is residing with a third party, the Court shall order each of the parties to pay to the
third party their respective amounts of child support as determined by the worksheet.
3.B.10 Birth Expenses
If a judgment for birth expenses is awarded, the presumed amount is the parent’s proportionate
share as reflected in Line D.2 of the worksheet. If a parent’s proportionate share of the birth
expenses is more than 5% of the parent’s current gross income projected over five (5) years, the
parent may request a deviation from the presumed amount.
70
IV. SPECIFIC INSTRUCTIONS FOR THE WORKSHEET
4.A Income Computation - Wage Earner (Section A)
Section A of the worksheet determines the domestic gross income for wage earners. The amount
of the domestic gross income is entered on Line A.1. and also on Line C.1.
4.B. Income Computation - Self Employed (Section B)
Section B of the worksheet determines the domestic gross income (Line B.3) for self-employed
persons. Reasonable business expenses (Line B.2) will be deducted from the self-employment
gross income (Line B.1). The resulting amount on Line B.3 is also entered on Line C.1.
4.C. Adjustments to Domestic Gross Income (Section C)
This section conta
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.