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Oneida Nation
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Oneida Business Committee
Legislative Operating Committee
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PO Box 365 • Oneida, WI 54155‐0365
ONEIDA
Oneida‐nsn.gov
LEGISLATIVE OPERATING COMMITTEE MEETING AGENDA
Business Committee Conference Room-2nd Floor Norbert Hill Center
November 20, 2019
9:00 a.m.
I.
Call to Order and Approval of the Agenda
II.
Minutes to be Approved
November 6, 2019 LOC Meeting Minutes (pg. 2)
III.
Current Business
1. Child Support Amendments (pg. 4)
2. Indian Preference in Contracting Amendments (pg. 155)
IV.
New Submissions
V.
Additions
VI.
Administrative Updates
1. E-Poll Results: Sanctions and Penalties law (pg. 197)
VII.
Executive Session
VIII. Recess/Adjourn
A good mind. A good heart. A strong fire.
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Oneida Nation
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Oneida Business Committee
Legislative Operating Committee
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PO Box 365 • Oneida, WI 54155‐0365
ONEIDA
Oneida‐nsn.gov
LEGISLATIVE OPERATING COMMITTEE MEETING MINUTES
Oneida Business Committee Conference Room-2nd Floor Norbert Hill Center
November 06, 2019
9:00 a.m.
Present: David P. Jordan, Kirby Metoxen, Daniel Guzman King, Jennifer Webster, Ernest Stevens
III
Others Present: Brandon Wisneski, Clorissa Santiago, Ralinda Ninham-Lamberies, Michelle
Gordon, Trina Schuyler, Jameson Wilson, Leyne Orosco, Lee Cornelius.
I.
Call to Order and Approval of the Agenda
David P. Jordan called the November 06, 2019, Legislative Operating Committee meeting
to order at 9:00 a.m.
Motion by Jennifer Webster to adopt the agenda; seconded by Kirby Metoxen. Motion
carried unanimously.
II.
Minutes to be Approved
Motion by Jennifer Webster to approve the October 16, 2019, Legislative Operating
Committee meeting minutes and forward to the Business Committee for consideration;
seconded by Ernest Stevens III. Motion carried unanimously.
III.
Current Business
1. Child Support Amendments (1:04-6:11)
Motion by Jennifer Webster to accept the public comments and public comment review
memorandum and forward to a work meeting for further consideration; seconded by
Ernest Stevens III. Motion carried unanimously.
2. Indian Preference in Contracting Law Amendments (6:16-8:25)
Motion by Ernest Stevens III to approve the draft and the legislative analysis for the
Indian Preference in Contracting Law Amendments; seconded by Kirby Metoxen.
Motion carried unanimously.
IV.
New Submissions
V.
Additions
VI.
Administrative Items
1. FY19 LOC Fourth Quarter Report (8:29-12:47)
Motion by Jennifer Webster to accept the FY19 LOC Fourth Quarter Report and
forward to the Oneida Business Committee; seconded by Ernest Stevens III. Motion
carried unanimously.
A good mind. A good heart. A strong fire.
Legislative Operating Committee Meeting Minutes of November 06, 2019
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VII.
Executive Session
VIII. Adjourn
Motion by Ernest Stevens III to adjourn the November 06, 2019, Legislative Operating
Committee meeting at 9:15 a.m.; seconded by Daniel Guzman King. Motion carried
unanimously.
Legislative Operating Committee Meeting Minutes of November 06, 2019
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Oneida Nation
Oneida Business Committee
Legislative Operating Committee
PO Box 365 • Oneida, WI 54155‐0365
Oneida‐nsn.gov
Legislative Operating Committee
November 20, 2019
Child Support Law Amendments
Submission Date: 3/7/18
LOC Sponsor: David P. Jordan
Public Meeting: 10/17/19
Emergency Enacted: n/a
Summary: This item was submitted to the LOC by the Child Support Agency’s attorney. Currently
the Child Support Law is accompanied by two rules. The Child Support Agency want to create more rules
and proposed amending the law to include expanded rulemaking authority.
3/7/18LOC:
Motion by Kirby Metoxen to add the Child Support Amendments to the active files list as a
high priority and assign David P. Jordan as the sponsor; seconded by Daniel Guzman King.
Motion carried unanimously.
4/5/18:
Work Meeting. Present: Trina Schuyler, Lisa Peck, Clorissa Santiago, Brandon Wisneski,
Michelle Gordon. The purpose of this work meeting was to review potential amendments to
the Child Support law.
4/18/18:
Work Meeting. Present: David P. Jordan, Jennifer Webster, Kirby Metoxen, Daniel Guzman
King, Jennifer Falck, Clorissa Santiago, Brandon Wisneski, Laura Laitinen-Warren. The
purpose of this work meeting was to discuss the Child Support Department’s request for
amendments, and determine if administrative rulemaking should be utilized. The drafting
attorney will schedule a meeting with the LOC and the Child Support Department to begin
discussing policy.
5/17/18:
Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Lisa Peck,
Michelle Gordon. The purpose of this work meeting was to discuss and determine specific
policy amendments the Child Support Department is seeking, and to discuss and determine a
plan to move this legislative item forward.
6/8/18:
Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Lisa Peck,
Michelle Gordon, Hon. Marcus Zielinski. The purpose of this work meeting was to begin
discussing the reality of implementing bench warrants and other enforcement mechanisms.
Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Lisa Peck,
Michelle Gordon. The purpose of this work meeting is to begin discussing the potential
amendments the Child Support Department wants the LOC to consider.
6/22/18:
Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Lisa Peck. The
purpose of this work meeting was to continue discussing potential amendments to the Child
Support law.
7/13/18:
Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Lisa Peck,
Mike Hoeft. The purpose of this work meeting was to continue discussing potential
amendments to the Child Support law.
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8/9/18:
Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Lisa Peck,
Michelle Gordon, Hon. Marcus Zielinski, Hon. Robert Collins III, Rich Vanboxtel, Eric
Boulanger. The purpose of this work meeting was to discuss the potential of utilizing bench
warrants in regard to child support matters.
8/17/18:
Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Lisa Peck,
Michelle Gordon. The purpose of this work meeting was to continue discussing potential
amendments to the review, review requested data regarding enforcement of child support, and
determine next steps to moving this legislative item forward.
9/18/18:
Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Lisa Peck. The
purpose of this work meeting was to continue discussing potential amendments to the law.
10/12/18:
Work Meeting: Present: Brandon Wisneski, Trina Schuyler. The purpose of this work meeting
was to prepare for and discuss an upcoming work meeting with the LOC.
10/26/18:
Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Tami Busch.
The purpose of this work meeting was to review the power point and handouts for the
upcoming meeting with the LOC.
10/31/18:
Work Meeting. Present: David P. Jordan, Jennifer Webster, Kirby Metoxen, Daniel Guzman,
Jennifer Falck, Clorissa Santiago, Brandon Wisneski, Trina Schuyler. During this work
meeting Trina gave PowerPoint presentation on Oneida’s Child Support Department. The
LOC was then presented with policy considerations for proposed amendments regarding
enforcement tools and modification of a child support order for an incarcerated parent. The
LOC considered the proposed ideas, and directed the LRO to move forward pursuing research
and drafting.
11/9/18:
Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Tami Busch.
The purpose of this work meeting was to discuss the LOC’s decisions regarding potential
amendments, plan the next steps for moving forward, and plan an upcoming meeting with
OPD.
12/6/18:
Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Tami Busch,
Michelle Gordon. The purpose of this work meeting was to review drafted enforcement tools
language and determine what information needs to be discussed with OPD in an upcoming
work meeting scheduled for 12/10/18.
12/10/18:
Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Tami Busch,
Michelle Gordon, Eric Boulanger. The purpose of this work meeting was to review drafted
enforcement tools language and determine what information needs to be included in the Law.
The LRO staff will bring the information collected during this work meeting to the LOC for
their consideration.
12/19/18:
Work Meeting. Present: David P. Jordan, Jennifer Webster, Kirby Metoxen, Ernest Stevens
III, Jennifer Falck, Clorissa Santiago, Brandon Wisneski. The purpose of this work meeting
was to discuss the 12/10/18 work meeting with Child Support and OPD, and reconsider policy
considerations regarding enforcement tools.
1/4/19:
Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Tami Busch,
Michelle Gordon. The purpose of this work meeting was to discuss the LOC’s recent decision
to not pursue the addition of proposed enforcement tools, and to begin reviewing the draft
from the beginning to discuss other potential amendments.
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2/1/19:
Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Tami Busch,
Michelle Gordon. The purpose of this work meeting was to continue reviewing the law line
by line to discuss potential amendments.
3/1/19:
Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Tami Busch,
Michelle Gordon, Porsche Skenandore-Wheelock. The purpose of this work meeting was to
finish reviewing the law line by line to discuss potential amendments. LRO will update the
draft with all the proposed revisions.
4/5/19:
Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Tami Busch,
Porsche Skenandore-Wheelock. The purpose of this work meeting was to review the updated
draft to ensure it adequately reflects decisions that were made regarding proposed
amendments to the law.
4/30/19:
Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Tami Busch,
Porsche Skenandore-Wheelock. The purpose of this work meeting was to continue reviewing
the updated draft to ensure it adequately reflects the decisions and recommendations that were
made regarding the proposed amendments to the law. Department will continue to review the
proposed language for compliance, and we will finish the review of the last portion of the draft
during the next meeting.
5/16/19:
Work Meeting. Present: Jennifer Falck, Clorissa Santiago, Brandon Wisneski, Trina Schuyler,
Tami Busch, Michelle Gordon, JoAnne House, Tsyoshaaht Delgado. The purpose of this work
meeting was to complete the review of the updated draft to ensure it adequately reflects the
decisions and recommendations that were made regarding the proposed amendments to the
law. LRO will now update the draft and bring it to the LOC for review and consideration.
7/17/19:
Work Meeting. Present: David P. Jordan, Jennifer Webster, Kirby Metoxen, Daniel Guzman
King, Ernest Stevens III, Jennifer Falck, Clorissa N. Santiago, Brandon Wisneski. The
purpose of this work meeting was to begin reviewing and making decisions to the proposed
amendments to the Law.
7/18/19:
Work Meeting. Present: David P. Jordan, Jennifer Webster, Kirby Metoxen, Daniel Guzman
King, Ernest Stevens III, Jennifer Falck, Clorissa N. Santiago, Brandon Wisneski. The
purpose of this work meeting was to continue reviewing and making decisions as to the
proposed amendments to the Law.
7/25/19:
Work Meeting. Present: David P. Jordan, Jennifer Webster, Kirby Metoxen, Daniel Guzman
King, Ernest Stevens III, Jennifer Falck, Clorissa N. Santiago, Brandon Wisneski. The
purpose of this work meeting was to continue reviewing and making decisions as to the
proposed amendments to the Law.
8/7/19 LOC:
Motion by Ernest Stevens III to have one more work session between the Legislative
Operating Committee, Legislative Reference Office and the Child Support Agency; seconded
by Kirby Metoxen. Motion carried unanimously.
8/20/19:
OBC Work Session. Present: Tehassi Hill, Patricia King, David P. Jordan, Kirby Metoxen,
Ernest Stevens III, Jo Anne House, Jennifer Falck, Clorissa N. Santiago, Brandon Wisneski,
Melinda Danforth, Candice Skenandore, Lisa Liggins, Brian Doxtator. The purpose of this
meeting was to discuss potential use of incarceration for child support. OBC designated a team
to include representatives from Self Governance, Intergovernmental Affairs, Oneida Police
Department, Oneida Law Office, and the Judiciary to work on this issue and report to the OBC
during OBC work sessions every three months.
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8/21/19:
Work Meeting. Present: David P. Jordan, Kirby Metoxen, Ernest Stevens III, Jennifer Webster,
Jennifer Falck, Clorissa N. Santiago, Brandon Wisneski, Trina Schuyler, Tami Busch,
Michelle Gordon. The purpose of this work meeting was to fulfill the August 7, 2019 directive
and allow the Agency one final work meeting to discuss potential amendments.
9/18/19 LOC: Motion by Jennifer Webster to approve the updated draft and legislative analysis; seconded
by Ernest Stevens III. Motion carried unanimously.
Motion by Ernest Stevens III to approve public meeting and forward to the Child Support law
to a public meeting to be held on October 17, 2019; seconded by Jennifer Webster. Motion
carried unanimously.
10/17/19:
Public Meeting Held. Present: Jennifer Webster, Daniel Guzman King, Clorissa N. Santiago,
Brandon Wisneski, Lee Cornelius, Rae Skenandore, Michelle Gordon, Trina Schuyler, Tami
Bush, Bonnie Pigman. Two (2) individuals gave public comment during this public meeting.
10/24/19:
Public Comment Period Closed. One (1) person submitted written comments during this
public comment period.
11/6/19 LOC: Motion by Jennifer Webster to accept the public comments and public comment review
memorandum and forward to a work meeting for further consideration; seconded by Ernest
Stevens III. Motion carried unanimously.
11/6/19:
Work Meeting. Present: David P. Jordan, Kirby Metoxen, Jennifer Webster, Daniel Guzman
King, Ernest Stevens III, Clorissa N. Santiago, Brandon Wisneski, Jameson Wilson. The
purpose of this work meeting was to review and consider the public comments that were
received for the proposed amendments to the Child Support law.
Next Steps:
Accept the updated public comment review memorandum, draft, and legislative analysis.
Approve the Child Support law amendments fiscal impact statement request memorandum and
forward to the Finance Department requesting that a fiscal impact statement be prepared and submitted
to the Legislative Operating Committee by December 6, 2019.
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Oneida Nation
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PO Box 365 • Oneida, WI 54115-0365
ONEIDA
Oneida- nsn.gov
TO:
FROM:
DATE:
RE:
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Oneida Business Committee
Legislative Operating Committee
Legislative Operating Committee (LOC)
Clarissa N. Santiago, Legislative Reference Office, Staff Attorney( )J
November 20, 2019
Child Supp01t Law Amendments: Public Meeting Comment Review
5
On October 17, 2019, a public meeting was held regarding the proposed amendments to the Child
Suppo1t law ("the Law"). The public comment period was then held open until October 24, 2019.
On November 6, 2019, the Legislative Operating Committee reviewed and considered all public
comments that were received.
This memorandum is submitted as the Legislative Operating Committee's review and
consideration of the oral and written comments received within the public meeting and public
comment period.
Comment 1 - Definition for Contem t:
Michelle Gordon (oral): Attorney Michelle Gordon with the Law Office. I am the attorney that
is assigned to the Child Supp01t Department. As you know we held a work meeting with the
depaitment and the LRO and the LOC and when reviewing the draft we caught just a couple of
things that we thought we agreed upon but weren't changing the law, so we just wanted to go
through those to maybe go back and look at those.
So, the first thing in the definitions we thought we had agreed upon adding a definition of contempt
and that is not in there, so if the LOC reviews that and decides to put in a definition, we think that
would be helpful.
Response
The commenter requests the Legislative Operating Committee consider including a definition for
the term "contempt."
Typically, words that are used within their ordinary and everyday sense are not provided a
definition in a law. What te1ms to include definitions for within a law is a policy consideration for
the Legislative Operating Committee. The Legislative Operating Committee may dete1mine:
1. The Law should remain as currently drafted, a definition for the te1m "contempt" is not
necessary to be added.
2. The Law should be amended to include a definition for the term "contempt." If the
Legislative Operating Committee makes this decision, then the following revision should
be made to the Law:
704.3-1. This section shall govern the definitions of words and phrases used within this
law. All words not defined herein shall be used in their ordinary and everyday sense.
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G) " Contempt" means a willful disregard of the authority of a court or disobedience
to its lawful orders.
LOC Consideration
The Legislative Operating Committee determined that the Law should be revised to include a
definition for the term "contempt." The Legislative Operating Committee discussed whether the
Law needed a definition for the term "contempt" and the fact that there are other laws of the Nation
that allow for contempt that do not necessarily define it. Although the Legislative Operating
Committee felt many people would understand the use of the te1m "contempt" without being
provided a definition, the Legislative Operating Committee decided to include a definition based
on the fact that there might still be people who use this Law, such as young parents, that may not
be aware of what the term means so it is beneficial to provide that explanation through a definition.
Based on their decision to include a definition for the te1m "contempt," the Legislative Operating
Committee directed that the following revision should be made to the Law:
704.3-1. This section shall govern the definitions of words and phrases used within this
law. All words not defined herein shall be used in their ordinary and everyday sense.
G) "Contempt" means a willful disregard of the authority of a court or disobedience
to its lawful orders.
Comment 2 - Clarif ing Initiation of Action b the Agency:
704.5-2. Initiation ofAction by tlte Agency. For assistance in initiating a child support order
a party may request the services of the Agency or may be referred to the Agency from an
entitlement program.
(a) Within thirty (30) days of receiving a completed application for services or a
referral, the Agency shall meet with the custodial parent.
(b) Within seven (7) business days of the meeting with the custodial parent, the
Agency shall send a Letter of Request for Support and Financial Disclosure form to
the non-custodial parent.
(b) If the non-custodial parent fails to respond to or take action on the Letter of
Request for Support and Financial Disclosure form within ten (10) business days the
Agency may initiate a hearing in accordance with this law.
(c) If the non-custodial parent responds within the required time period after
receiving a Letter of Request for Support and Financial Disclosure form, the parties
shall attempt to enter into a stipulation.
Michelle Gordon (oral): And I am going through the redline that is, so when I call out line
numbers it is going to be through the redline that was in the packet. So, the first one is line 258 on
page 6 of the redline. We had, so it says within ten (10) business days, the custodial parent, or the
Agency when required by federal law, may initiate a hearing, but this section is initiation of action
by the Agency, so the reference to the custodial parent should be removed, because their section
comes later and then we also agreed that when required by federal law would be removed. So, the
wording the "custodial parent" should be struck and the wording "when required by federal law"
should be struck.
A good mind. A good heart. A strong fire.
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Response
The commenter is requesting an amendment based on the redline draft of the Law that was included
in the public meeting packet. The redline draft contained an error and did not demonstrate the
revision that was made to section 704.5-2 of the Law. This revision was included in the clean draft
of the proposed amendments included in the public meeting packet.
The Law provides that "If the non-custodial parent fails to respond to or take action on the Letter
of Request for Support and Financial Disclosure fo1m within ten (10) business days the Agency
may initiate a hearing in accordance with this law." [7 O.C. 704.5-2(b)]. Therefore, no revision to
the Law is needed based on this comment.
LOC Consideration
The Legislative Operating Committee determined no revision to the Law is needed based on this
comment due to the fact that this change has already been addressed in the Law.
Comment 3 - Re uirement to Include an Address on the Petition:
704.5-5. Petition to Establish Child Support. If the parties do not enter into . a stipulation,
then a petition to establish child support may be filed with the Family Court. The petition to
establish child support may be filed as a separate proceeding or in connection with a petition
for child custody.
(a) Requirements of the Petition. The petition to establish child support shall include
the following:
(1) The name, date of birth, address, and tribal affiliation of the petitioner,
respondent, and child for whom support is requested;
(b) Nondisclosure of Information in Protected Cases. Upon a finding, which may be
made ex parte, that the health, safety or welfare of a party or child would be
unreasonably put at risk by the disclosure of identifying information, or if an existing
order so provides, the Family Court shall order that the address of the child or party,
or other identifying information, not be disclosed in a pleading or other document
filed in a proceeding under this law.
Michelle Gordon (oral): Then page 7, Line 309 of the redline, and this is actually something that
I am not sure we did bring up, we can't remember. It might have been something we forgot, but
the requirement of the petition does require the address and we are asking that the requirement for
the address be removed and that is for the safety of the parties. We do have a lot of cases where
there is domestic violence. There is on the next page a section that was added for nondisclosure
of information in protected cases. It says upon a finding which may be made ex parte if the court
found it would be unreasonable to include, the comi could order, but that just adds an additional
step for the depaiiment and so that means every time we have a case where we find out that the
paiiies are a protected person, if the address is required to be included in the petition, that means
every time before we could file we would have to send something to the court to get that ex paiie
order, asking for pe1mission not to include the address in the petition. There is a requirement for a
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A good mind. A good heart. A strong fire.
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confidential petition addendum, which is again on the next page. That is required to be included
in all cases. We would like to add that the address be included in the confidential petition
addendum instead of the petition.
Response
The commenter is requesting that the requirement that the address of the petitioner, respondent,
and child be removed from the petition. The Agency handles cases involving domestic violence
and the requirement to request a nondisclosure of information from the Family Court would require
the Agency to take additional action to protect the address of the patty in those cases.
The Legislative Operating Committee discussed this matter at length during the development of
amendments to the Law. The Legislative Operating Committee was tasked with finding a
. balancing point between ensuring that protections exist for those cases involving domestic
violence, but also ensuring that the due process rights of all parties are not infringed upon.
Although the Legislative Operating Committee understands that in most cases the Agency is
involved in the initiation of an action, a patty not the Agency may initiate an action for the
establishment of child support at any time by filing a petition with the Family Court. [7 0. C. 704.53]. The Legislative Operating Committee was concerned that if a petition did not include an
address for the petitioner, then a respondent may have difficulties serving an answer on the
petitioner within twenty (20) calendar days of the date of service of the petition as required by the
Law. [7 O.C. 704.5-5(e)].
In an effort to address those cases involving domestic violence, the Legislative Operating
Committee did include section 704.5-S(b) which addresses the nondisclosure of infmmation in
protected cases .. This allows the Family Court to find that the health, safety, or welfare of a patty
or child would be umeasonably put at risk by the disclosure of identifying information, or if an
existing order so provides, the Family Comt shall order that the address of the child or party, or
other identifying information, not be disclosed in a pleading or other document filed in a
proceeding under this law. [7 O.C. 704.5-5(b)J. This allows the Family Court to protect
info1mation from being disclosed in those cases that may involve domestic violence.
The Legislative Operating Committee determined that allowing a patty to request that a case be
protected ensures that a party's information can be protected in situations involving domestic
violence, without unduly infringing on the due process rights of a respondent in cases where
domestic violence does not exist.
Due to the fact that section 704.5-S(b) allows for the nondisclosure of information in protected
cases there is no recommended revision based on this comment.
LOC Consideration
The Legislative Operating Committee determined there is no revision to the Law needed based on
this comment due to the inclusion of section 704.5-S(b) which allows for the nondisclosure of
information in protected cases.
r'\.
A good mind. A good heart. A strong fire.
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This has been an issue that the Legislative Operating Committee has reviewed and discussed at
length. The Legislative Operating Committee determined that the inclusion of section 704.5-S(b)
in the Law allows for Family Court to find that the health, safety, or welfare of a party or child
would be unreasonably put at risk by the disclosure of identifying information, and then order that
the address of the child or party, or other identifying info1mation, not be disclosed in a pleading or
other document filed in a proceeding under this law. [7 O.C. 704.5-5(b)J.
The Legislative Operating Committee understands that this would involve an additional step for
the Agency to take when seeking protection for those cases that may involve domestic violence,
but feels that this is an impo11ant step for the Agency to take in those cases. This will still ensure
that we are not unnecessarily limiting information during the com1 process and infringing on the
due process rights of a respondent in cases where domestic violence does not exist.
The Legislative Operating Committee discussed the fact that they would like to communicate with
the Family Com1 to discuss the potential for the Family Com1 to develop a form for requesting the
non-disclosure of information that could be made readily available with instructions on how to use
and file the form to make it simpler for those individuals who may seek the nondisclosure of
information.
Comment 4 - Access to the Confidential Petition Addendum
704.5-5. Petition to Establish Child Support. If the parties do not enter into a stipulation,
then a petition to establish child support may be filed with the Family Court. The petition to
establish child support may be filed as a separate proceeding or in connection with a petition
for child custody.
(a) Requirements of the Petition. The petition to establish child support shall include
the following:
(9) Confidential Petition Addendum. The confidential petition addendum is a
separate form which has the parties and the child's name, date of birth and
social security number. This form shall be kept separate from the petition and
shall be maintained in a confidential file. The form shall be available only to
the parties, the parties' attorneys or advocates, the Agency, or any person
authorized by the Family Court to have access to the form.
(b) Nondisclosure of Information in Protected Cases. Upon a finding, which may be
made ex parte, that the health, safety or welfare of a party or child would be
unreasonably put at risk by the disclosure of identifying information, or if an existing
order so provides, the Family Court shall order that the address of the child or party,
or other identifying information, not be disclosed in a pleading or other document
filed in a proceeding under this law.
Michelle Gordon (oral): We would also like to add at the end of the confidential petition
addendum that the court could refuse access to that confidential petition addendum in these types
of protected cases, because right now it is available to all paities to the action and we think the
com1 should have the right to refuse access in case it is a protected case. When we send these
documents over to the com1, we do specify when the cases are protected, so the com1 would know
A good mind. A good heart. A strong fire.
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when we file the confidential petition addendum that it is a protected case, so they would know if
someone made a request that they could deny that if the court allows them to deny access to that
confidential petition addendum.
Response
The commenter is requesting that the Family Court be allowed to refuse access to the confidential
petition addendum in protected cases.
A petition to establish child support is required to contain a confidential petition addendum which
is a separate form from the petition, that is maintained in a confidential file, that contains the paiiies
and the child's name, date of bilih, and social security number. [7 O.C. 704.5-5(a)(9)]. The form
is only available to the parties, the parties' attorneys or advocates, the Agency, or any person
authorized by the Family Comito have access to the form. [7 0. C. 704.5-5(a)(9)].
The Law currently does allow for the non-disclosure of information in protected cases. The Family
Comi can order that the address of the child or paiiy, or other identifying information such as what
is contained in the confidential petition addendum, not be disclosed in a pleading or other
document filed in a proceeding under this Law. [7 O.C. 704.5-5(b)J. This means that in those
protected cases the Family Comi would be able to protect the information contained in the
confidential petition addendum and ensure it is not disclosed in any pleadings or documents.
Due to the fact that section 704.5-5(b) allows for the nondisclosure of information in protected
cases there is no recommended revision based on this comment.
LOC Consideration
The Legislative Operating Committee determined that there is no revision to the Law needed based
on this comment because section 704.5-5(b) of the Law already allows for the nondisclosure of
information in protected cases, which would provide the Family Comi the ability to protect the
information that is contained in the confidential petition addendum.
Comment 5 - Notice by Publication:
704.5-S(d)(l)(B) Publication. When a responding party cannot be found for personal service
after diligent attempts and attempts to serve the responding party by certified mail have
failed, the petitioner may use service by publication. The publication shall be in the Nation's
newspaper or a newspaper of general circulation in the county of residence of the respondent,
if known. The publication shall be designated as a Legal Notice and any confidential
information shall be redacted.
Michelle Gordon (oral): Then also on page 8, line 360, this talks about notice, it deals with the
summons. Up above it talks about serving the summons by Ce1iified Mail. This section is about
publication and it says, "When a responding party cannot be found for personal service after
diligent attempts and attempts to serve the responding paiiy by ce1iified mail have failed, the
petitioner may use service by publication." "May" needs to be changed to "shall" because they
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have to be served in some form and so how it's done is if you can't serve by mail, you have to
serve by publication and that's a requirement that the comi makes, so the word "may" we're asking
to be changed to "shall".
Response
The commenter is requesting that the term "may" in section 704.5-5(d)(l)(B) be changed to shall.
The following revision is recommended based on this comment:
704.5-5(d)(l)(B) Publication. When a responding paiiy cannot be found for personal
service after diligent attempts and attempts to serve the responding paiiy by ce1iified mail
have failed, the petitioner may-shall use service by publication. The publication shall be
in the Nation's newspaper or a newspaper of general circulation in the county of residence
of the respondent, if known. The publication shall be designated as a Legal Notice and any
confidential info1mation shall be redacted.
LOC Consideration
The Legislative Operating Committee determined the term "may" in section 704.5-5(d)(l)(B) be
changed to shall. The Legislative Operating Committee directed the following revision be made
to the Law:
704.5-5(d)(l)(B) Publication. When a responding paiiy cannot be found for personal
service after diligent attempts and attempts to serve the responding paiiy by ce1iified mail
have failed, the petitioner may-shall use service by publication. The publication shall be
in the Nation's newspaper or a newspaper of general circulation in the county of residence
of the respondent, if known. The publication shall be designated as a Legal Notice and any
confidential inf01mation shall be redacted.
Comment 6 - Monthly Income:
704.3. Definitions
704.3-1. This section shall govern the definitions of words and phrases used within this law.
All
words not defined herein shall be used in their ordinary and everyday sense.
(z) "Monthly income" means the obligor's annual gross income or, if applicable, the
obligor's annual income modified for business expenses; plus the obligor's annual
income imputed based on earning capacity; plus the obligor's annual income imputed
from assets; divided by twelve (12).
704.7. Determining the Child Support Obligation
704.7-1. The Family Court shall determine child support payments by using the percentage
standards established in section 704.7-2 of this law, except as provided elsewhere in this law.
The obligor's monthly income shall be considered in determining his or her child support
obligation.
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Michelle Gordon (oral): Page 10 of the redline, at lines 449, it's determining child support
obligation. It simply says right now that the obligor's monthly income shall be considered and
then when the next section percentage standards, it just talks about the portion of the obligor's
monthly income, it needs to say, "gross monthly income". That helps to explain to parties when
they come in we can point to the law that it says, because a lot of times we get the argument why
are you going off my gross, not my net, I don't make that much, but the law in staying consistent
and how we've been doing it, it is based on gross monthly income and so we are asking for that
clarification in that section that it say gross monthly income. Sony I'm trying to go through my
pages here.
Response
The commenter requests that references to the obligor's "monthly income" in section 704.7-1 be
changed to "gross monthly income."
There is no revision recommended based on this comment, as it would be unnecessary to revise
references to "monthly income" to "gross monthly income" as the definition for "monthly income"
already qualifies that it is the gross income that is used. The definition for "monthly income" is
the obligor's annual gross income divided by twelve (12).
LOC Consideration
The Legislative Operating Committee determined it would be unnecessary to revise references of
"monthly income" in this Law to "gross monthly income" since the definition for "monthly
income" already states that it is the gross income that is used.
Comment 7 - Modification of Order by the Agency:
704.11-5. Modification of Order by the Agency. If the Agency determines the obligor's income
is two hundred dollars ($200) per month or more while incarcerated, the Agency shall file
with the Family Court a Motion to Modify.
(a) The Family Court shall schedule a hearing on the motion with the Agency
providing notice to all parties with the proposed modification to the child support
order by first class mail at least ten (10) business days prior to the hearing.
(b) If no objection to the modification is received at the hearing, the Family Court
shall enter the order as proposed.
Michelle Gordon (oral): Page 21 of the redline, line 975. So, this is for modification of order by
the agency. This is going to require a hearing and the way it's worded right now it says, "shall file
with the Family Court a Motion and Order to Modify." It needs to say just a "Motion to Modify",
because a motion and order to modify means we don't have to have a hearing. We send over the
motion with an order and if there is no objection to the order then the court just signs the order.
So, this needs to have "an Order to Modify" removed and I believe that was in the discussion we
had in the work meeting.
Response
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The commenter is requesting a change based on the redline draft of the Law that was included in
the public meeting packet. The redline draft contained an enor and did not demonstrate the revision
that was made to section 704.11-5 of the Law. This revision was included in the clean draft of the
proposed amendments that was included in the public meeting packet.
The Law provides that if the Agency dete1mines the obligor' s income is two hundred dollars
($200) per month or more while incarcerated, the Agency shall file with the Family Comt a Motion
to Modify. [7 O.C. 704.11-5}.
LOC Consideration
The Legislative Operating Committee determined no revision to the Law is needed based on this
comment due to the fact that this change has already been addressed in the Law.
Comment 8 - Entering an Order Based on a Request for Modification of Order by the
Agency:
704.11-5. Modification of Order by the Agency. If the Agency determines the obligor's income
is two hundred dollars ($200) per month or more while incarcerated, the Agency shall file
with the Family Court a Motion to Modify.
(a) The Family Court shall schedule a hearing on the motion with the Agency
providing notice to all parties with the proposed modification to the child support
order by first class mail at least ten (10) business days prior to the hearing.
(b) If no objection to the modification is received at the hearing, the Family Court
shall enter the order as proposed.
Michelle Gordon (oral): And then also lines 979 on the next page again this is requiring a hearing
but line 979 which is "b." needs to be removed because it says, "If no objection to the modification
is received at the hearing, the Family Comt shall enter the order as proposed." , but that's tying
the comt, I mean the comt should have discretion to make an order that they see as appropriate so
they may not agree with the agency and so they should have that discretion and I think that's just
confusion about the motion and order we had talked about with the objection, so we would like
that section be removed.
Response
The commenter requests that section 704. l 1-5(b) be removed, so that the Family Court is not
required to enter an order as proposed by the Agency, and instead can have the discretion to enter
an order the Family Comt finds appropriate.
In an effo1t to ensure the Family Court has the proper discretion when entering orders, the
following revision is recommended based on this comment:
704.11-5 . Modifi.cation of Order by the Agency. If the Agency determines the obligor's
income is two hundred dollars ($200) per month or more while incarcerated, the Agency
shall file with the Family Comi a Motion to Modify.
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(a) The Family Court shall schedule a hearing on the motion with the Agency
providing notice to all patties with the proposed modification to the child support
order by first class mail at least ten (10) business days prior to the hearing.
(b) If no objection to the modification is received at the hearing, the Family Court
shall enter the order as proposed.
LOC Consideration
The Legislative Operating Committee determined that the Family Court should be allowed
discretion when entering orders, and therefore directed that the following revision be made to the
Law:
704.11-5. Modification of Order by the Agency. If the Agency dete1mines the obligor's
income is two hundred dollars ($200) per month or more while incarcerated, the Agency
shall file with the Family Comi a Motion to Modify.
(a) The Family Comi shall schedule a hearing on the motion with the Agency
providing notice to all parties with the proposed modification to the child suppmi
order by first class mail at least ten (10) business days prior to the hearing.
(b) If no objection to the modification is received at the hearing, the Family Court
shall enter the order as proposed.
Comment 9 - Res onses to a Com Hance Plan A
ointment Letter:
704.12. Compliance Plan
704.12-2. An Appointment Letter may be sent by the Agency at any time deemed
appropriate, but the Agency shall send out the Appointment Letter at least thirty (30) days
prior to the initiation of any enforcement action.
(a) The Letter shall request the party meet with the Agency to discuss barriers to
payment and how to avoid future enforcement action.
(b) If the party does not respond to the Letter within five (5) business days after
receipt of the letter, the Agency may proceed with appropriate enforcement action.
(c) If the obligor responds to the Letter, the Agency shall interview the party to
determine the reasons and barriers for the non-compliance and create a compliance
plan. The compliance plan may include an increase in payment and/or any activity
that is necessary to assist in payment, including programs that focus on:
(1) Employment and training;
(2) Social service and mental health;
(3) Physical and learning disabilities;
(4) Tribal traditions and customs;
(5) Family counseling and parenting; and
(6) Any other program deemed necessary.
(d) If the party successfully completes the compliance plan, no further enforcement
action is necessary. However, if the party fails to complete the compliance plan, the
Agency shall proceed with appropriate enforcement action.
Michelle Gordon (oral): The next one is page 23 , line 1033 of the redline. This is 704.12-2,
subsection c. , it says "If the obligor responds to the Letter", but we had thought, our notes say that,
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we had specifically said that it would be when the obligor actually meets with the agency, not just
responds in writing to the agency, then the agency shall interview the party.
Response
The commenter is requesting that the language of "If the obligor responds to the Letter, the Agency
shall interview the party" found in section 704.12-2(c) be revised to read "If the obligor meets with
the Agency, the Agency shall interview the pmty."
This section of the Law details the use of a compliance plan by the Agency. If at any time the
obligor is, or may become, non-compliant with his or her child supp01t order by failing to pay
supp01t as ordered or meeting a required obligation or action, the Agency is required to meet with
the obligor to develop a compliance plan. [7 O.C. 704.12-1}. The Agency can send out an
Appointment Letter to request the party meet with the Agency to discuss barriers to payment and
how to avoid future enforcement action, at any time deemed appropriate but at least thirty (30)
days prior to the initiation of any enforcement action. [7 0. C. 704.12-2J. Once a party receives an
Appointment Letter the pmty has five (5) business days to respond, and if no response is made by
the pmty then the Agency can proceed with the appropriate enforcement action. [7 O.C. 704.122(b)}. If the party does respond to the Letter, then the Agency can proceed with interviewing the
pmty to determine the reasons and barriers for the non-compliance and create a compliance plan.
[7 O.C. 704.12-2(c)J.
The Law references a "response to the Letter" instead of"meeting with the Agency" because there
is a five (5) business day period of time in which the pmty has the opp01tunity to decide they wish
to seek a compliance plan with the Agency before the Agency moves forward with seeking
enforcement action. This response to the letter allows the Agency more flexibility in scheduling a
meeting with the pmty to have the interview with the party to dete1mine the reasons and bmTiers
for the non-compliance and create a compliance plan, since the actual meeting does not have to
occur within the five (5) business day period, just a response by the party to the Agency has to be
made.
In an eff01t to provide the most flexibility in scheduling compliance plan meetings, there is no
recommended revision based on this comment.
LOC Consideration
The Legislative Operating Committee decided not to revise the Law based on this comment. The
Legislative Operating Committee determined that the way section 704.12-2(c) is written provides
more flexibility to the Agency to schedule a compliance plan meeting.
Comment 10 - Com letion of the Com liance Plan:
704.12. Compliance Plan
704.12-2. An Appointment Letter may be sent by the Agency at any time deemed
appropriate, but the Agency shall send out the Appointment Letter at least thirty (30) days
prior to the initiation of any enforcement action.
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(a) The Letter shall request the party meet with the Agency to discuss barriers to
payment and how to avoid future enforcement action.
(b) If the party does not respond to the Letter within five (5) business days after
receipt of the letter, the Agency may proceed with appropriate enforcement action.
(c) If the obligor responds to the Letter, the Agency shall interview the party to
determine the reasons and barriers for the non-compliance and create a compliance
plan. The compliance plan may include an increase in payment and/or any activity
that is necessary to assist in payment, including programs that focus on:
(1) Employment and training;
(2) Social service and mental health;
(3) Physical and learning disabilities;
(4) Tribal traditions and customs;
(5) Family counseling and parenting; and
(6) Any other program deemed necessary.
(d) If the party successfully completes the compliance plan, no further enforcement
action is necessary. However, if the party fails to complete the compliance plan, the
Agency shall proceed with appropriate enforcement action.
Michelle Gordon (oral): Line 1043, it says "If the party successfully completes the compliance
plan," we believe it should say "completes the terms of the compliance plan" because there is a
list of te1ms that are included.
Response
The commenter requests that the phrase "if the party successfully completes the compliance plan"
be revised to state "if the paiiy successfully completes the te1ms of the compliance plan."
The requested revision does not affect the content or meaning ofthis provision. Therefore, whether
to make this requested revision is a policy determination for the Legislative Operating Committee
to make. The Legislative Operating Committee may determine:
1. The Law should remain as currently drafted and state, "if the paiiy successfully completes
the compliance plan."
2. The Law should be amended to state, "if the paiiy successfully completes the terms of the
compliance plan." If the Legislative Operating Committee makes this determination the
following revision is recommended.
(d) If the paiiy successfully completes the terms of the compliance plan, no further
enforcement action is necessary. However, if the paiiy fails to complete the compliance
plan, the Agency shall proceed with appropriate enforcement action.
LOC Consideration
The Legislative Operating Committee determine the Law should be revised in accordance with
this comment. The Legislative Operating Committee directed the following revision be made to
the Law:
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704.12-2(d) If the party successfully completes the terms of the compliance plan, no
fu1iher enforcement action is necessary. However, if the paiiy fails to complete the
compliance plan, the Agency shall proceed with appropriate enforcement action.
Comment 11 - Negotiations of an Alternative Payment Plan:
704.14. Alternative Payment Plans
704.14-2. Negotiation of an Alternative Payment Plan After Receiving Notice of an
Enforcement Action.
(a) In order to negotiate an alternative payment plan, an obligor shall submit a
written request to the Agency.
(1) A written request to negotiate an alternative payment plan received by the
Agency within ten (10) business days after the date of notice shall stay any
administrative enforcement action.
(2) If a written request to negotiate an alternative payment plan is received by
the Agency more than ten (10) business days after the date of notice,
administrative enforcement action may be taken, as long as the requirements
for staying or suspension of administrative enforcement actions are met.
Michelle Gordon (oral): The next is at page 25 under the "Alternative Payment Plans" section,
line 1150. Our notes say that this sentence should end at enforcement action may be taken period
and the remainder of that sentence should be removed. There also should be a paragraph 3. I do
note that in my discussions with Clerissa from the Legislative Reference Office, she had stated
that that additional sentence, I didn't get to her, she must have not caught it at the meeting and
then I didn't get it to her in time to be included in the packet, but she does intend to bring it to the
Committee, but I thought for safety purposes I would just put it on the record today.
So, subsection 3 would be "If the Agency agrees to negotiate an alternative payment plan after the
ten (10) business days after the date of notice, the Agency and obligor may agree to stay or suspend
the administrative enforcement action." So that would be an additional subsection 3.
Response
The commenter requests that section 704.14-2(a)(2) be amended to address what would happen if
the Agency receives a request to negotiate an alternative payment plan more than ten ( 10) business
days after the date of notice.
In an effo1i to provide the Agency the most flexibility with the decision to enter into a negotiation
plan with a party, the following revision is recommended:
704.14. Alternative Payment Plans
704.14-2. Negotiation of an Alternative Payment Plan After Receiving Notice of an Enforcement
Action.
(a) In order to negotiate an alternative payment plan, an obligor shall submit a written
request to the Agency.
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(1) A written request to negotiate an alternative payment plan received by the
Agency within ten (10) business days after the date of notice shall stay any
administrative enforcement action.
(2) If a written request to negotiate an alternative payment plan is received by the
Agency more than ten ( 10) business days after the date of notice, administrative
enforcement action may be taken.,_ , as long as the requirements for staying or
suspension of administrative enforcement actions are met.
(3) If the Agency agrees to negotiate an alternative payment plan after the ten (10)
business days after the date of notice. the Agency and obligor may agree to stay or
suspend the administrative enforcement action.
LOC Consideration
The Legislative Operating Committee determine the Law should be revised to provide the Agency
the most flexibility with the decision to enter into a negotiation plan with a party. The Legislative
Operating Committee directed the following revision be made to the Law:
704.14-2. Negotiation of an Alternative Payment Plan After Receiving Notice of an Enforcement
Action.
(a) In order to negotiate an alternative payment plan, an obligor shall submit a written
request to the Agency.
(1) A written request to negotiate an alternative payment plan received by the
Agency within ten (10) business days after the date of notice shall stay any
administrative enforcement action.
(2) If a written request to negotiate an alternative payment plan is received by the
Agency more than ten (10) business days after the date of notice, administrative
enforcement action may be taken.,_ , as long as the requirements for staying or
suspension of administrative enforcement actions are met.
(3) If the Agency agrees to negotiate an alternative payment plan after the ten (10)
business days after the date of notice, the Agency and obligor may agree to stay or
suspend the administrative enforcement action.
Comment 12 - Hearin on the Reasonableness of an Alternative Payment Plan:
704.14. Alternative Payment Plans
704.14-2. Negotiation of an Alternative Payment Plan After Receiving Notice of an
Enforcement Action.
(c) Hearings for Negotiations of an Alternative Payment Plan. The obligor may submit
a written request for a hearing with the Family Court regarding negotiations of an
alternative payment plan in the following circumstances:
(1) The obligor and the Agency have agreed to terms of a plan, but the obligor
wants the Family Court to consider the reasonableness of the plan.
(A) The obligor may submit this written request for a hearing on the
reasonableness of the plan within ten (10) business days after the terms
of the plan are agreed upon.
(2) The obligor and the Agency are unable to reach agreement on the terms
of a plan.
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(A) The Family Court may order a plan by setting conditions and/or
payments in the amounts and at the times it considers reasonable.
Michelle Gordon (oral): Then line 1158, we also thought that we had agreed to add this additional
language after the end of that sentence, so it would end with "reasonableness of the plan due to a
change of circumstances since the plan was agreed to by the Agency and the obligor. Because
right now it allows the obligor to challenge the reasonableness of the plan, but they entered into
the plan, so for us wouldn't it make sense that they entered into the plan because the plan was
reasonable. They wouldn't have entered into the plan if they didn't feel it was reasonable and so
they've entered into the plan and now they are objecting to it later, so we're just requesting that
this change of circumstances is now making it unreasonable.
Response
The commenter is requesting that section 704.14-2 be amended to provide that the obligor can
request a hearing with the Family Court only if the obligor wants the Family Comito consider the
reasonableness of the plan due to a change of circumstances since the plan was agreed to by the
Agency and the obligor.
The Law cunently provides that the obligor may submit a written request for a hearing with the
Family Comi regarding negotiations of an alternative payment plan when the obligor and the
Agency have agreed to terms of a plan, but the obligor wants the Family Comito consider the
reasonableness of the plan. [7 0. C. 704.14-2(c)(I)}. The Law does not qualify why the obligor
may want the Family Comito consider the reasonableness of the plan.
Whether or not to limit when an obligor can request the Family Cowi to consider the
reasonableness of the plan is a policy consideration for the Legislative Operating Committee. The
Legislative Operating Committee may detennine:
1. The Law should remain as cmTently drafted, and not limit the circumstances for when an
obligor can request the Family Comi to consider the reasonableness of the plan that was
negotiated with the Agency.
2. The Law should be amended to clarify that the obligor can only request the Family Comi
to consider the reasonableness of a plan that has been negotiated with the Agency when
there has been a change in circumstances since when the plan was agreed to. If the
Legislative Operating Committee makes this decision then the following revision is
recommended:
704.14-2. Negotiation of an Alternative Payment Plan After Receiving Notice of an
Enforcement Action.
(c) Hearings for Negotiations of an Alternative Payment Plan. The obligor may
submit a written request for a hearing with the Family Comi regarding negotiations
of an alternative payment plan in the following circumstances:
(1) The obligor and the Agency have agreed to terms of a plan, but the
obligor wants the Family Comi to consider the reasonableness of the plan
due to a substantial change of circumstances since the plan was agreed to
by the Agency and the obligor.
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(A) The obligor may submit this written request for a hearing on
the reasonableness of the plan within ten (10) business days after the
te1ms of the plan are agreed upon.
LOC Consideration
The Legislative Operating Committee determine the Law should be revised in accordance with
this comment. The Legislative Operating Committee directed the following revision be made to
the Law:
704.14-2. Negotiation of an Alternative Payment Plan After Receiving Notice of an Enforcement
Action.
(c) Hearings for Negotiations of an Alternative Payment Plan. The obligor may submit a
written request for a hearing with the Family Comt regarding negotiations of an alternative
payment plan in the following circumstances:
(1) The obligor and the Agency have agreed to te1ms of a plan, but the obligor
wants the Family Comt to consider the reasonableness of the plan due to a
substantial change of circumstances since the plan was agreed to by the Agency
and the obligor.
(A) The obligor may submit this written request for a hearing on the
reasonableness of the plan within ten (10) business days after the te1ms of
the plan are agreed upon.
Comment 13 - Suspending Administrative Enforcement Actions Due to a Substantial
Change in Circumstances:
704.14. Alternative Payment Plans
704.14-6. Suspension ofAdministrative Enforcement Actions.
(a) When a plan has been negotiated between the obligor and the Agency, or the
Family Court has determined that a plan is reasonable or has ordered a plan, the
Agency shall suspend administrative enforcement actions as long as the obligor
complies with the plan or requests a hearing because of a substantial change in
circumstances.
(b) If an obligor makes an arrears payment agreeable to the Agency, the
administrative enforcement action shall be suspended.
Michelle Gordon (oral): Page 26, line 1202. This kind of goes to the same issue. It ends with
"or requests a hearing because of a substantial change in circumstances.", we would like the
wording "which makes the plan unreasonable" added to that to clarify.
Response
The commenter is requesting that section 704.14-6(a) be amended to provide that the Agency shall
suspend administrative enforcement actions as long as the obligor complies with the plan or
requests a hearing because of a substantial change in circumstances which makes the plan
unreasonable.
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The Law cmTently provides that the Agency shall suspend administrative enforcement actions as
long as the obligor complies with the plan or requests a hearing because of a substantial change in
circumstances. [7 O.C. 704.14-6(a)J. The Law does not qualify what the substantial change in
circumstances has to be based on, or if it has to affect the reasonableness of the alternative payment
plan.
Whether or not to limit when an obligor can request a hearing because of a substantial change in
circumstances is a policy consideration for the Legislative Operating Committee. The Legislative
Operating Committee may determine:
1. The Law should remain as cmTently drafted, and not limit when an obligor can request a
hearing because of a substantial change in circumstances in order to suspend administrative
enforcement action.
2. The Law should be amended to clarify that an obligor can only request a hearing because
of a substantial change in circumstances when the substantial change of circumstances
makes the plan unreasonable. If the Legislative Operating Committee makes this decision
the following revision is recommended:
704.14-6. Suspension ofAdministrative Enforcement Actions.
(a) When a plan has been negotiated between the obligor and the Agency, or the Family
Comi has determined that a plan is reasonable or has ordered a plan, the Agency shall
suspend administrative enforcement actions as long as the obligor complies with the plan
or requests a hearing because of a substantial change in circumstances which makes the
plan unreasonable.
LOC Consideration
The Legislative Operating Committee determine the Law should be revised in accordance with
this comment. The Legislative Operating Committee directed the following revision be made to
the Law:
704.14-6. Suspension ofAdministrative Enforcement Actions.
(a) When a plan has been negotiated between the obligor and the Agency, or the Family
Court has determined that a plan is reasonable or has ordered a plan, the Agency shall
suspend administrative enforcement actions as long as the obligor complies with the plan
or requests a hearing because of a substantial change in circumstances which makes the
plan unreasonable .
Comment 14- Famil Court Enforcement Action:
704.16. Family Court Enforcement Action
704.16-1. If the Agency does not have the authority to conduct the appropriate enforcement
action, or the obligor is unresponsive to the enforcement actions being imposed by the
Agency, the case shall be referred to the Family Court for enforcement. The Family Court
may order any of the enforcement actions the Agency is authorized to implement, in addition
to the enforcement actions described in this section.
704.16-2. Bonds and Other Guarantees. The Family Court may require an obligor to provide
a surety, bond or guarantee to secure the payment of arrears, if income withholding is not
applicable, practical, or feasible to secure payment of arrears.
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704.16-3. Claims Against Estates. The Family Court may approve a claim for past and future
support against an obligor's estate. The Family Court may issue a restraining order against
an estate from which an obligor will inherit.
704.16-4. Contempt. The Family Court may hold an obligor who fails to comply with a lawful
child support order in contempt. An obligor found to be in contempt shall be subject to the
following punishments:
(a) Community Service. The Family Court may order an obligor to perform
community service. The number of hours of work required may not exceed what
would be reasonable considering the amount of arrears the obligor owes. The obligor
shall be provided a written statement of the terms of the community service order
and that the community service order is monitored. The order shall specify:
(1) how many hours of community service the obligor is required to complete;
(2) the time frame in which the hours must be completed;
(3) how the obligor will report his or her hours; and
(4) any other information the Family Court determines is relevant.
(b) Fines. An obligor found in contempt of court may be fined in an amount not to
exceed one thousand dollars ($1,000.00) per act of contempt and may not exceed five
thousand dollars ($5,000.00) in total. In instances of continuing contempt, each day
shall constitute a separate act of contempt.
(c) Incarceration. The Family Court may order an obligor be incarcerated. Before
a jail sentence is imposed, the Family Court shall provide other conditions that
require a certain amount of money be paid or action be taken for an obligor to avoid
incarceration.
(d) Criminal Non-Support. A criminal non-support action may be initiated, in the
appropriate county, against an obligor who has the ability to pay child support and
willfully or intentionally failed to pay and the obligor knew or reasonably should have
known he or she was legally obligated to provide.
Michelle Gordon (oral): And then lastly, it is the end which deals with Family Enforcement
Action, page 30, line 1379, and when we had our meeting, we thought that we had agreed that we
would create a contempt section and that this section would be retitled "Contempt", because we
needed to be stronger on our contempt issues. So, this is a lot, so 704.16-1, that whole section
would be struck except for, it would read "The Family Cami may order the following as a paii of
a contempt order." Then prior to that at line 1418 is a section on contempt that says "The Family
Cami may hold an obligor who fails to comply with a lawful child suppo1i order in contempt. An
obligor found to be in contempt shall be subject to following punishments.", or we feel that that
should be moved to the top. So that should be your staii of this section entitled "Contempt". And
then everything underneath, the bonds and other guarantees, the claims against estates, all of that
would then be paii of the Contempt, so you would just name those a., b., so Bonds and Other
Guarantees would be subsection a. , Claims Against Estates would be subsection b., Community
Service would be subsection c., Fines would be subsection d., Incarceration would be subsection
e., and Criminal Non-supp01i would be subsection f.
So that is all of my comments in regards to the law that we thought we had in regards to our work
meeting. Thank you.
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Response
The commenter requests reorganization of section 704.16 so that all the Family Court's
enforcement action is listed as actions that can be issued as part of a contempt order. The
commenter makes this request in an effort to strengthen contempt issues.
All of the current types of enforcement actions contained in the Law are available to be used by
the Family Comt during contempt proceedings. Revising this section of the Law will clarify that
the Family Comt utilizes its enforcement actions through contempt proceedings.
Therefore, in an effmt to clarify that the Family Comt uses its enforcement actions through
contempt proceedings the following revisions are recommended based on this comment:
704.16. Family Court Enforeement Contempt Action
704.16-1. If the Agency does not have the authority to conduct the appropriate enforcement action,
or the obligor is umesponsive to the enforcement actions being imposed by the Agency, the
Agency shall file a motion for contempt with the ease shall be refen-ed to the Family Comt-fer
enforcement. During a contempt proceeding tThe Family Comt may order any of the enforcement
actions the Agency is authorized to implement, in addition to the enforcement contempt actions
described in this section.
704.16-2. Bonds and Other Guarantees. The Family Court may require an obliger to provide a
surety, bond or guarantee to secure the payment of arrears, if income withholding is not applicable,
practical, or feasible to secure payment of a1Tears.
704 .16 3. Claims Against Estates. The Family Cm.1rt may approve a claim for past and future
support against an obliger's estate. The Family Court may issue a restraining order against an
estate from 1vvhich an obliger will inherit.
704.16 4. Contempt. The Family Comt may hold an obligor who fails to comply with a lawful
child suppmt order in contempt. An obligor found to be in contempt shall be subject to the any of
the following punishments:
(a) Community Service . The Family Comt may order an obligor to perform community
service. The number of hours of work required may not exceed what would be reasonable
considering the amount of arrears the obligor owes. The obligor shall be provided a written
statement of the terms of the community service order and that the community service order
is monitored. The order shall specify:
(1) how many hours of community service the obligor is required to complete;
(2) the time frame in which the hours must be completed;
(3) how the obligor will repo1t his or her hours; and
(4) any other information the Family Court determines is relevant.
(b) Fines. An obligor found in contempt of comt may be fined in an amount not to exceed
one thousand dollars ($1,000.00) per act of contempt and may not exceed five thousand
dollars ($5,000.00) in total. In instances of continuing contempt, each day shall constitute
a separate act of contempt.
(c) Incarceration. The Family Court may order an obligor be incarcerated. Before a jail
sentence is imposed, the Family Court shall provide other conditions that require a ce1tain
amount of money be paid or action be taken for an obligor to avoid incarceration.
( d) Criminal Non-Support. A criminal non-suppo1t action may be initiated, in the
appropriate county, against an obligor who has the ability to pay child suppmt and willfully
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or intentionally failed to pay and the obligor knew or reasonably should have known he or
she was legally obligated to provide.
(e) Bonds and Other Guarantees. The Family Court may require an obligor to provide a
surety, bond or guarantee to secure the payment of arrears, if income withholding is not
applicable, practical, or feasible to secure payment of arrears.
(f) Claims Against Estates. The Family Court may approve a claim for past and future
support against an obligor's estate. The Family Comt may issue a restraining order against
an estate from which an obligor will inherit.
LOC Consideration
The Legislative Operating Committee dete1mined that section 704.16 be reorganized in an eff01t
to clarify that the Family Court uses its enforcement actions through contempt proceedings. The
Legislative Operating Committee directed the following revision be made to the Law:
704.16. Family Court Eefereemeet Contempt Action
704.16-1. If the Agency does not have the authority to conduct the appropriate enforcement action,
or the obligor is umesponsive to the enforcement actions being imposed by the Agency, the
Agency shall file a motion for contempt with the ease shall be refe1nd to the Family Comt....fef
enforcement. During a contempt proceeding tThe Family Comt may order any of the enforcement
actions the Agency is authorized to implement, in addition to the enforcement contempt actions
described in this section.
704.16-2. Bonds and Other Guarantees. The Family Court may require an obliger to provide a
surety, bond or guarantee to secure the payment of arrears, if income 1.vithholding is not applicable,
practical, or feasible to secure payment of arrears.
704 .16 3. Claims Agt.'insf Estates. The Family Court may approve a claim for past and future
support against an obliger's estate. The Family Comi may issue a restraining order against an
estate from which an obliger 1.vill inherit.
704.16 4. Contempt. The Family Court may hold an obligor who fails to comply with a lawful
child support order in contempt. An obligor found to be in contempt shall be subject to the any of
the following punishments:
(a) Community Service. The Family Court may order an obligor to perform community
service. The number of hours of work required may not exceed what would be reasonable
considering the amount of arrears the obligor owes. The obligor shall be provided a written
statement of the te1ms of the community service order and that the community service order
is monitored. The order shall specify:
(1) how many hours of community service the obligor is required to complete;
(2) the time frame in which the hours must be completed;
(3) how the obligor will rep01t his or her hours; and
(4) any other information the Family Court determines is relevant.
(b) Fines. An obligor found in contempt of comt may be fined in an amount not to exceed
one thousand dollars ($1,000.00) per act of contempt and may not exceed five thousand
dollars ($5,000 .00) in total. In instances of continuing contempt, each day shall constitute
a separate act of contempt.
(c) Incarceration. The Family Comt may order an obligor be incarcerated. Before a jail
sentence is imposed, the Family Comt shall provide other conditions that require a ce1tain
amount of money be paid or action be taken for an obligor to avoid incarceration.
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(d) Criminal Non-Support. A criminal non-suppmi action may be initiated, in the
appropriate county, against an obligor who has the ability to pay child suppo1i and willfully
or intentionally failed to pay and the obligor knew or reasonably should have known he or
she was legally obligated to provide.
(e) Bonds and Other Guarantees. The Family Comi may require an obligor to provide a
surety, bond or guarantee to secure the payment of arrears, if income withholding is not
applicable, practical, or feasi ble to secure payment of arrears.
(f) Cfa;ms Agah1st Estates. The Famil y Court may approve a claim for past and future
support against an obligor's estate. The Family Comi may issue a restraining order against
an estate from which an obli gor will inherit.
Comment 15 - Attachment of Per Ca ita Pa 'ments of a Deceased Member:
704.15. Administrative Enforcement Action
704.15-4. Attachment of Per Capita Payments. The Agency may initiate the attachment
and/or seizure of per capita payments of members of the Nation in accordance with
applicable laws of the Nation.
Bonnie Pigman (oral): So, I'm curious in regards to Per Capita Law in regards to when a person
becomes deceased and child suppmi can or cannot be taken, it's not clear in that law written in
regards to whether or not by vi1iue of the attachment process that an attachment can or cannot be
applied. The department, Trust and Emollment Department has taken, has gotten legal reviews,
however, in my opinion it's still not clear because the law is not clearly written to truly define
about a deceased person's per capita being allowed to be taken as an attachment and so like I said
it's just not clear in that law. So if it' s not clear in that law I don't know what the child support
process in this law how that's coming together, how those two documents are going to meld
together, because in one hand the attachment section of the Per Capita law says that they don't
even have to submit anything, but yet you have a deceased person and we're now paying deceased
people, there seems to be a conflict on how we should be handling those individuals because on
one hand they become deceased and yes they can be attached or two that they did claim the form
before they passed, but then they died before the distribution occun-ed and yet we're still taking
the distribution on that deceased person. So, I think that that law, those two laws, that Per Capita
law needs to be, I think it needs to be, something needs to happen between these two laws that
make that clearly definable regarding those, that paiiicular situation. Thank you.
Response
The commenter questions the application of attaching a deceased person' s per capita for child
support arrears.
The Law simply provides that the Agency may initiate the attachment and/or seizure of per capita
payments of members of the Nation in accordance with the Nation's Per Capita law. [7 O.C.
704.15-4}.
For more information on how a per capita payment is attached for child suppmi a1Tears one must
review the Nation' s Per Capita law. The Per Capita law provides that a per capita payment may be
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attached for child support aiTears ordered by a court of competent jurisdiction. [I 0. C. 123. 49(a)(l)J. The Per Capita law then provides the specific process for how requests for attachments
for child support aITears is handled by the Nation's Child Support Agency. [1 0. C. l 23.4-9(c)(l)(4)}.
The Per Capita law also provides that members of the Nation are eligible to receive a per capita
payment so long as the member has complied with the distribution document and/or distribution
rule(s) requirements. [I O.C. l 23.5-3(a)}. This means that even if a member becomes deceased
after submitting the required distribution fo1m, but before the distribution date, the Trust
Enrollment Department shall continue to issue the distribution in the name of the deceased
member. [l O.C. 123.5-3(a)}.
Therefore, if a per capita payment will be distributed for a member, it can be presumed that the
per capita payment is still eligible to be attached for child support a1Tears as long as the
requirements of section 123 .4-9(c)(1 )-(4) are met.
There is no revision to this law recommended based on this comment, as this comment refers to
provisions found in the Per Capita law and not the Child Support law.
LOC Consideration
The Legislative Operating Committee dete1mined there is no revision to the Law needed based on
this comment as this comment refers to provisions found in the Per Capita law and not the Child
Suppo1t law.
Comment 16 - Sub oenas Re uiring Production of Evidence:
704.6. Child Support Hearing Procedures
704.6-2. The Family Court may utilize discovery procedures and contempt powers, as
authorized by any law, policy, or rule of the Nation to obtain information relevant to the
establishment or enforcement of child support. These procedures may include the following:
(a) Issue subpoenas requiring necessary and relevant parties to appear in person and
provide testimony;
(b) Issue subpoenas requiring the production of evidence;
(c) Obtain information about property or assets to assess its value or funding source
for lien or seizure actions;
(d) Obtain information about the income of any party to the action; and/or
(e) Issue contempt findings for failure to comply with the lawful order of the Family
Court.
Jennifer J. Jordan (written): Lines 366 thru 368 regarding the obligor's employer. What will
happen if the obligor's employer is subpoenaed to provide the family comt with a record of the
obligor's earning and cannot produce that information as the obligor is paid in cash and does not
pay taxes?
Response
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The commenter questions what happens if the Family Comi issues a subpoena to an obligor's
employer to provide a record of the obligor's earnings, but the employer cannot produce that
information as the obligor is paid in cash and does not pay taxes.
If the obligor cannot produce info1mation on his or her income, or the obligor's income is less than
his or her earning capacity, the Family Court may impute income to the obligor at an amount that
represents the parent's ability to earn. [7 O.C. 704. 7-4]. The obligor's ability to earn may be based
on his or hers:
• education, training, and recent work experience;
• earnings during previous periods;
• cmTent physical and mental health;
• history of child care responsibilities as the parent with primary physical placement; and
• the availability of work in or near the obligor's community. [7 O.C. 704. 7-4(a)].
The Law also provides that if evidence is presented that due diligence has been exercised to
ascertain information on the obligor' s actual income or ability to earn and that infmmation is
unavailable, the Family Court may impute to the obligor the income that a person would earn by
working thi1iy-five (35) hours per week for the federal minimum hourly wage. [7 O.C. 704.74(b)J. In addition to imputed income, the Family Comi may order the parent to search for a job or
participate in a work experience and job training program. [7 O.C. 704. 7-4(b)].
An employer of an obligor should be able to produce infmmation on the obligor's earning as the
Law provides that when a child suppmi order is issued by the Family Court the order shall provide
for immediate income withholding. [7 O.C. 704.9-3]. A copy of the Family Comi's income
withholding order is then sent by the Agency to the obligor's employer within three (3) business
days of the entry of the order by the Family Comi. [7 O.C. 704.9-3(a)]. No employer of an obligor
shall refuse to honor an income withholding order executed pursuant to this law. [7 O.C. 704.93(d)]. The employer has (5) business days after paying the obligor to send the amount withheld to
the Wisconsin Suppmi Collections Trust Fund. [7 O.C. 704.9-3(d)].
Any employer who fails or refuses to deduct or promptly remit the amounts of money required in
the order or otherwise is unwilling to comply with the requirements of this law shall be liable for
one hundred percent (100%) of the child suppmi order, or the amount of money that should have
been withheld from the obligor's earnings, whichever is the lesser amount. [7 O.C. 704.9-3(e)].
Additionally, an employer who repeatedly fails to comply with an income withholding order as
required by this law may be subject to a fine, not to exceed five hundred dollars ($500), or have
its Oneida vendor license revoked or suspended, if applicable, until compliance with this law is
assured. [7 O.C. 704.9-3(g)J. If the employer is a non-Indian off-reservation employer then the
employer is still subject to income withholding, just under requirements of federal law. [7 0. C.
704.9-30)}.
The provisions of the Law that address a situation where the obligor's income is less than his or
her earning capacity or unknown, as well as a situation where an employer refuses to comply with
an income withholding order address the commenter's question. There is no revision to the Law
recommended based on this comment.
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LOC Consideration
The Legislative Operating Committee dete1mined that there is no revision to the Law needed based
on this comment. The commenter's question may be answered by the provisions of the Law that
addresses a situation where the obligor's income is less than his or her earning capacity or
unknown, as well as a situation where an employer refuses to comply with an income withholding
order. Additionally, the Legislative Operating Committee would like to highlight that section
704.15 of the Law provides an entire section on administrative enforcement action where the
Agency can take action to enforce a child suppmi order without obtaining an order from the Family
Comi in the event that an obligor is at least one (1) month delinquent in paying his or her child
support obligation.
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Title 7. Children, Elders and Family - Chapter 704
shakoti>nuk&=lale> latiksash&ha>
They watch over the children
CHILD SUPPORT
704.1. Purpose and Policy
704.2. Adoption, Amendment, Repeal
704.3. Definitions
704.4. Jurisdiction
704.5. Initiating an Action for Child Support
704.6. Child Support Hearing Procedures
704.7. Determining the Child Support Obligation
704.8. Determining the Child Support Obligation in Special
Circumstances
704.9. Child Support Order
704.10. Modification of a Child Support Order
704.11. Modification of a Child Support Order for an Incarcerated
Parent
704.12. Compliance Plan
704.13. Enforcement of an Order
704.14. Alternative Payment Plans
704.15. Administrative Enforcement Action
704.16. Family Court Enforcement Action
704.17. Full Faith and Credit for Foreign Child Support Orders
704.18. Right of Appeal
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704.1. Purpose and Policy
704.2. Adoption, Amendment, Repeal
704.3. Definitions
704.4. Jurisdiction
704.5. Initiating an Action for Child Support
704.6. Child Support Hearing Procedures
704.7. Determining the Child Support Obligation
704.8. Determining the Child Support Obligation in Special
Circumstances
704.9. Child Support Order
704.10. Modification of a Child Support Order
704.11. Modification of a Child Support Order for an Incarcerated
Parent
704.12. Compliance Plan
704.13. Enforcement of an Order
704.14. Alternative Payment Plans
704.15. Administrative Enforcement Action
704.16. Family Court Contempt Action
704.17. Full Faith and Credit for Foreign Child Support Orders
704.18. Right of Appeal
704.1. Purpose and Policy
704.1-1. Purpose. The purpose of this law is to:
(a) Establish the legal responsibility of parents to provide financially for their children’s
general well-being;
(b) Make support payments more equitable by ensuring consistent treatment of persons in
similar circumstances;
(c) Make support payments based on the real earning capability of parents; and
(d) Improve the efficiency of child support establishment and enforcement.
704.1-2. Policy. It is the policy of this law to:
(a) establish an adequate standard of support for children whose paternity has been
established or acknowledged;
(b) encourage the use of stipulations to resolve disputes over child support obligations;
and
(c) limit the use and disclosure of personal information received or maintained by the
Nation’s Family Court and/or the Oneida Nation Child Support Agency in order to protect
the privacy rights of all parties and children who are involved in proceedings or actions
under this law.
704.2. Adoption, Amendment, Repeal
704.2-1. This law was adopted by the Oneida Business Committee by resolution BC-06-24-09-B
and amended by resolutions BC-02-24-10-G, BC-02-23-11-E, BC-06-22-11-K, BC-10-10-12-C,
BC-08-13-14-E, and BC-__-__-__-__.
704.2-2. This law may be amended or repealed by the Oneida Business Committee or the Oneida
General Tribal Council pursuant to the procedures set out in the Legislative Procedures Act.
7 O.C. 704 – Page 1
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704.2-3. Should a provision of this law or the application thereof to any person or circumstances
be held as invalid, such invalidity shall not affect other provisions of this law which are considered
to have legal force without the invalid portions.
704.2-4. In the event of a conflict between a provision of this law and a provision of another law,
the provisions of this law shall control.
704.2-5. This law is adopted under authority of the Constitution of the Oneida Nation.
704.3. Definitions
704.3-1. This section shall govern the definitions of words and phrases used within this law. All
words not defined herein shall be used in their ordinary and everyday sense.
(a) “Administrative enforcement action” means enforcement action taken by the Oneida
Nation Child Support Agency to enforce a child support order without obtaining an order
from the Family Court.
(b) “Agency” means the Oneida Nation Child Support Agency established to administer
and supervise the Nation’s child support enforcement program.
(c) “Alternative payment plan” means a negotiated agreement between the Agency and an
obligor, or an order set by the Family Court, to establish terms and conditions for the
payment of arrears.
(d) “Basic support costs” means food, shelter, clothing, transportation, personal care, and
incidental recreational costs.
(e) “Business day” means Monday through Friday from 8:00 a.m. to 4:30 p.m., excluding
holidays recognized by the Nation.
(f) “Child” means a biological or adopted child of the obligor under the age of eighteen
(18), or any person who is less than nineteen (19) years old if he or she is pursuing a high
school diploma or its equivalent from an accredited course of instruction.
(g) “Child support” means the total financial obligation a parent has towards his or her
child as established through judicial and/or administrative processes.
(h) “Child Support Obligation of Low-Income Payers Schedule” means the Wisconsin
Department of Children and Families Child Support Obligation of Low-Income Payers at
the Federal Poverty Guidelines, found in DCF 150 Appendix C.
(i) “Child support order” means a judgment of the Family Court or a court of competent
jurisdiction ordering payment of child support which provides 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.
(j(j) “Contempt” means a willful disregard of the authority of a court or disobedience to
its lawful orders.
(k) “Current six (6) month treasury bill rate” means the yield of a U.S. government security
with a term of six (6) months.
(kl) “Custodial parent” means the parent who exercises physical custody of the child
pursuant to a custody order, on the basis of agreement between the parents or in the absence
of one parent. A legal guardian with primary physical custody of the child or children and
standing in the position of the parent shall have the same rights to child support as a
custodial parent.
(lm) “Employer” means any individual, business, government, institution, or other entity
paying wages to one or more employees.
(mn) “Equity” means the fair market value of property minus the liens on that property
with priority over the child support lien.
7 O.C. 704 – Page 2
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(no) “Equivalent care” means a period of time during which the parent cares for the child
that is not overnight, but is determined by the court to require the parent to assume the
basic support costs that are substantially equivalent to what the parent would spend to care
for the child overnight. Blocks of time with the child of at least six (6) hours may be
considered the equivalent of a half-day if a meal is provided during that time period. Two
(2) half-day blocks may be considered the equivalent of an overnight.
(op) “Family Court” means the branch of the Nation’s Judiciary that is designated to
handle all matters related to the family and/or children.
(pq) “Gross income” means any form of payment due to an individual regardless of source,
including, but not limited to:
(1) Salary and wages, including overtime pay;
(2) Interest and investment income;
(3) Social Security disability and old age insurance benefits under 42 U.S.C. §401
to 433;
(4) Net proceeds resulting from worker’s compensation or other personal injury
awards intended to replace income;
(5) Unemployment insurance;
(6) Income continuation benefits;
(7) Voluntary deferred compensation and employee contributions to the following:
employee benefit plan, profit-sharing, pension or retirement account;
(8) Military allowances and veterans disability compensation benefits;
(9) Undistributed income of a corporation or any partnership in which the parent
has an ownership interest sufficient to individually exercise control or to access the
earnings of the business, unless the income included is an asset;
(10) Per capita distribution payments;
(11) Lease or rental income;
(12) Prizes over one thousand dollars ($1,000); and
(13) All other income, whether taxable or not, except that gross income does not
include any of the following:
(A) Child support;
(B) Foster care payments;
(C) Kinship care payments;
(D) Public assistance benefits, except that child care subsidy payments shall
be considered income to a child care provider;
(E) Food stamps;
(F) Public assistance or financial hardship payments paid by a county or a
Nation;
(G) Supplemental Security Income under 42 U.S.C. §1381 to 1383(f) and
state supplemental payments; or
(H) Payments made for social services.
(qr) “Guardian ad litem” means a person appointed by the Family Court to appear at any
peacemaking, mediation, or hearing and tasked with representing the best interest of the
person appointed for.
(rs) “Immediate family member” means an individual’s husband, wife, mother, father,
step-mother, step-father, son, daughter, step-son, step-daughter, brother, sister, stepbrother, step-sister, grandparent, grandchild, mother-in-law, father-in-law, daughter-inlaw, son-in-law, brother-in-law or sister-in-law and any of the these relations attained
through legal adoption.
7 O.C. 704 – Page 3
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(st) “Income withholding” means the process whereby a court order, Family Court order,
or voluntary wage assignment directs an employer, bank, or agent holding monies or
property of an obligor, to make payments or deliver property to satisfy a child support
obligation.
(tu) “Intact family” means a family in which the child or children and the obligor reside in
the same household and the obligor shares his or her income directly with the child or
children and has a legal obligation to support the child or children.
(uv) “Legally incompetent adult” means a person at least eighteen (18) years old who has
been declared incompetent by a court of competent jurisdiction because he or she is
temporarily or permanently impaired to the extent that the person lacks sufficient
understanding to make or communicate responsible personal decisions.
(vw) “Lien amount” means the difference between the monthly amount of support due and
the arrears in a case.
(wx) “Lien docket” means the registry kept by the State of Wisconsin containing the names
of people who owe past-due child support.
(xy) “Low-income obligor” means an obligor for whom the Family Court uses the monthly
support amount provided in the schedule in the Child Support Obligation of Low-Income
Payers Schedule based on the Family Court’s determination that the obligor’s total
economic circumstances limit his or her ability to pay support at standard percentages and
the obligor’s income is at a level set forth in the schedule in the Child Support Obligation
of Low-Income Payers Schedule.
(yz) “Marital child” means a child born during the marriage of his or her parents. In
addition, if the father and mother of a non-marital child enter into a lawful marriage or a
marriage which appears and they believe is lawful, except where the parental rights of the
mother were terminated before either of these circumstances, the child becomes a marital
child and shall enjoy all of the rights and privileges of a marital child as if he or she had
been born during the marriage of the parents. The children of all marriages declared void
under the law are nevertheless marital children.
(zaa) “Monthly income” means the obligor’s annual gross income or, if applicable, the
obligor’s annual income modified for business expenses; plus the obligor’s annual income
imputed based on earning capacity; plus the obligor’s annual income imputed from assets;
divided by twelve (12).
(aabb) “Nation” means the Oneida Nation.
(bbcc) “Non-custodial parent” means the parent of a child who does not hold primary care,
custody and/or control of a child.
(ccdd) “Non-legally responsible relative” means a person connected with a child by blood,
marriage, or adoption who assumes responsibility for the care of a child without legal
custody, but is not in violation of a court order. A non-legally responsible relative does
not include a relative who has physical custody of a child during a court-ordered visitation
period.
(ddee) “Obligee” means the person or entity to whom child support is owed.
(eeff) “Obligor” means the person who is obliged to pay child support to the obligee.
(ffgg) “Ownership interest” means any personal financial interest.
(gghh) “Parent” means the biological or adoptive parent of the child.
(hhii) “Payor” means a person or entity with a legal obligation, as an employer, buyer of
goods, debtor, or otherwise, to pay an obligor.
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(iijj) “Reservation” means all lands within the exterior boundaries of the Reservation of
the Oneida Nation, as created pursuant to the 1838 Treaty with the Oneida, 7 Stat. 566, and
any lands added thereto pursuant to federal law.
(jjkk) “Serial family obligor” means an obligor with an existing legal obligation for child
support who incurs an additional legal obligation for child support in a subsequent family
as a result of a child support order.
(kkll) “Shared-placement obligor” means a parent who has an ordered period of placement
of at least twenty-five percent (25%), is ordered by the Family Court to assume the child’s
basic support costs in proportion to the time that the parent has placement of the child and
is determined to owe a greater support amount than the other parent.
(llmm) “Split-placement obligor” means an obligor who has two (2) or more children and
who has physical placement of one (1) or more children but not all of the children.
(mmnn) “Stipulation” means a voluntary agreement between parties concerning some
relevant point.
(nnoo) “Substantial change of income” means the obligor has a significant change in his
or her finances that would lead to a change in child support of more than fifteen percent
(15%) and fifty dollars ($50.00) per month.
(oopp) “Variable costs” means the reasonable costs above basic support costs incurred by
or on behalf of a child, including but not limited to, the cost of child care, tuition, a child’s
special needs, and other activities that involve substantial cost.
(ppqq) “Threshold” means an amount, expressed as either a percentage of the monthly
amount due, a fixed dollar amount, or both, that the lien amount must equal or exceed
before an administrative enforcement action may be used to enforce a child support order.
704.4. Jurisdiction
704.4-1. The Family Court has jurisdiction over any action brought under this law.
704.4-2. Personal Jurisdiction. Personal jurisdiction over an individual under this law may be
established where one party or a child of the parties is any of the following:
(a) a member of the Nation;
(b) a resident of the Reservation who is also a member of an Indian tribe, band or
community which is recognized by a State or the federal government;
(c) a resident of the Reservation who is also the biological parent of the child that is
enrolled or is eligible for enrollment with the Nation; or
(d) an individual who consents to the jurisdiction of the Family Court by one (1) of the
following means:
(1) Filing an action with the Family Court;
(2) Knowingly and voluntarily giving written consent to the jurisdiction of the
Family Court;
(3) Entering a notice of appearance before the Family Court in an action without
concurrently preserving the defense of lack of personal jurisdiction or filing a
motion to dismiss for lack of personal jurisdiction within thirty (30) days of entering
the notice of appearance; or
(4) Appearing in an action before the Family Court without asserting the defense
of lack of personal jurisdiction.
704.4-3. Personal jurisdiction over the other party may be established using any method provided
by law, including long-arm jurisdiction procedures as provided for in Section 201 of the Uniform
Interstate Family Support Act as referred to in 42 U.S.C. §666.
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704.4-4. Transfer of Cases from Other Courts. If personal jurisdiction over the parties has been
established under this law, the Family Court has jurisdiction over any action transferred to the
Family Court from any court of competent jurisdiction.
704.5. Initiating an Action for Child Support
704.5-1. Every parent has a duty to support each and every child of that parent. A child support
order may be obtained from the Family Court by either submitting a stipulation to the Family Court
for approval or by filing a petition for child support with the Family Court.
(a) If a party to the action is a minor or is a legally incompetent adult, the Family Court
may appoint a guardian ad litem to represent such party in the action.
704.5-2. Initiation of Action by the Agency. For assistance in initiating a child support order a
party may request the services of the Agency or may be referred to the Agency from an entitlement
program.
(a) Within thirty (30) days of receiving a completed application for services or a referral,
the Agency shall meet with the custodial parent.
(b) Within seven (7) business days of the meeting with the custodial parent, the Agency
shall send a Letter of Request for Support and Financial Disclosure form to the noncustodial parent.
(bc) If the non-custodial parent fails to respond to or take action on the Letter of Request
for Support and Financial Disclosure form within ten (10) business days the Agency may
initiate a hearing in accordance with this law.
(cd) If the non-custodial parent responds within the required time period after receiving a
Letter of Request for Support and Financial Disclosure form, the parties shall attempt to
enter into a stipulation.
704.5-3. Initiation of Action by a Party Not the Agency. Any of the following individuals may
initiate an action for the establishment of child support at any time by filing a petition with the
Family Court:
(a) a custodial parent;
(b) a child’s mother;
(c) a child’s father;
(d) a child’s guardian ad litem;
(e) a child’s non-legally responsible relative; or
(f) a legally incompetent adult’s guardian ad litem.
704.5-4. Stipulation. The parties may enter into a stipulation at any time as to the level of the
child support obligation.
(a) The Agency shall assist parties in reaching a stipulation upon request or when the
parties are referred to the Agency by an entitlement program. Parties may also submit a
stipulation to the Family Court for approval without the Agency’s assistance.
(b) In order for a stipulation to be valid the following conditions shall be met:
(1) The stipulation shall be in writing, signed, and notarized;
(2) If the parties deviate from the percentage standards, the stipulation shall state
the amount of support that would have been ordered by the percentage standards
and the reasons for deviating from the percentage standards;
(3) All parties shall sign the stipulation free of duress and coercion; and
(4) The Family Court shall make written findings that the stipulation is appropriate,
using the criteria for deviating from standard percentages as a guideline, if
applicable.
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(c) After the stipulation is approved and filed by the Family Court, it shall have the same
force and effect as an order issued by the Family Court. The obligation of the obligor to
pay child support shall commence on the date specified in the agreement, but no later than
the date the stipulation is approved and filed by the Family Court.
704.5-5. Petition to Establish Child Support. If the parties do not enter into a stipulation, then a
petition to establish child support may be filed with the Family Court. The petition to establish
child support may be filed as a separate proceeding or in connection with a petition for child
custody.
(a) Requirements of the Petition. The petition to establish child support shall include the
following:
(1) The name, date of birth, address, and tribal affiliation of the petitioner,
respondent, and child for whom support is requested;
(A) If the address of the respondent is unknown, other departments of the
Nation shall cooperate with the Family Court, at the Family Court’s request,
to provide the Family Court with the respondent’s address. Any such Family
Court requests shall be made in such a way which protects the privacy rights
of all parties and children who are involved in proceedings or actions under
this law.
(2) With whom the child currently resides;
(3) When and how paternity was established;
(4) Name and date of birth of other children of the parties, and the child support
obligation for those children, if applicable;
(5) Whether either party is receiving state or tribal benefits, and if so, what benefits;
(6) Whether any other action to determine child support has been commenced or
is pending in a court of another jurisdiction and whether a child support order has
been entered by another court;
(7) Financial information such as the parties’ income;
(8) The relief the petitioner is requesting, which shall include, but is not limited to,
establishment of support, request for support back to date of filing, and/or any other
relief the court may deem just and equitable;
(9) Confidential Petition Addendum. The confidential petition addendum is a
separate form which has the parties and the child’s name, date of birth and social
security number. This form shall be kept separate from the petition and shall be
maintained in a confidential file. The form shall be available only to the parties, the
parties’ attorneys or advocates, the Agency, or any person authorized by the Family
Court to have access to the form.
(b) Nondisclosure of Information in Protected Cases. Upon a finding, which may be made
ex parte, that the health, safety or welfare of a party or child would be unreasonably put at
risk by the disclosure of identifying information, or if an existing order so provides, the
Family Court shall order that the address of the child or party, or other identifying
information, not be disclosed in a pleading or other document filed in a proceeding under
this law.
(c) Hearing Date. Upon receipt of a petition, the Family Court shall schedule a hearing to
determine child support to be held at a time after the filing of the petition and consistent
with the manner of service.
(d) Summons. All parties shall be notified of the petition and of all hearings, and shall be
given an opportunity to be heard.
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(1) Service of the Summons. The summons, which notices the initiation of an
action, shall be served by certified mail (return receipt requested) or in person
within fifteen (15) calendar days after the petition is filed with the Family Court.
The summons shall include the Family Court clerk’s return address, with a notice
to file an answer to that address. Any notice after the summons shall be served by
first-class mail to the recently verified last-known address of the party.
(A) Certified mail. Certified mail sent to a party’s most recently verified
last-known address but returned because it was unclaimed or refused shall
constitute constructive service. Certified mail returned for other reasons
shall require service by other methods pursuant to the Oneida Judiciary
Rules of Civil Procedure.
(B) Publication. When a responding party cannot be found for personal
service after diligent attempts and attempts to serve the responding party by
certified mail have failed, the petitioner mayshall use service by publication.
The publication shall be in the Nation’s newspaper or a newspaper of
general circulation in the county of residence of the respondent, if known.
The publication shall be designated as a Legal Notice and any confidential
information shall be redacted.
(i) If service by publication is used and there is insufficient time for
notice and answer pursuant to this law, the Family Court shall reschedule the hearing appropriately and may permit extended time
deadlines for default orders and for hearings in order to provide for
fair notice and opportunity for the party to respond.
(2) Requirements of the Summons. The summons to be served on the
respondent(s), along with the petition, shall include the following notice, in addition
to providing a time, place, and date for appearance:
(A) That if he or she chooses not to appear at the hearing or enter a defense
to the petition challenging the authority of the Family Court to hear the
matter by the date of the hearing, the hearing shall proceed on the basis of
the petitioner’s evidence;
(B) That a child support order may require the person found to be the
obligor to pay child support until the child reaches eighteen (18) years of
age or until the child graduates from high school, or its equivalent, up to age
nineteen (19);
(C) That the person found to be the obligor may have his or her license(s)
suspended or denied for failure to pay child support, in addition to other
enforcement actions;
(D) That the person found to be the obligor’s employer or others with
evidence of the his or her income may be subpoenaed to provide the Family
Court with records of his or her earnings;
(E) That if the person found to be the obligor is unemployed, it shall still
be determined that he or she is able to provide some degree of child support
and an order of support shall be calculated according to this law unless the
Family Court makes written findings ordering otherwise; and
(F) That any answer to the petition shall be filed with the Family Court
within twenty (20) calendar days of the date of service of the petition, and
a copy served on the other party.
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(e) Answers. Answers shall be filed with the Family Court and served on the petitioner
within twenty (20) calendar days of the date of service of the petition in accordance with
the Nation’s laws and policies governing civil procedure.
(f) Subpoenas. Upon request of either party, the Family Court shall issue subpoenas to
any person in possession of relevant information to appear or produce documents to the
Family Court. Failure to comply with such a subpoena may be punishable as contempt.
704.6. Child Support Hearing Procedures
704.6-1. The factual determinations made at a hearing shall include, but is not limited to, the
income and expense information necessary to determine the appropriate level of support according
to this law.
704.6-2. The Family Court may utilize discovery procedures and contempt powers, as authorized
by any law, policy, or rule of the Nation to obtain information relevant to the establishment or
enforcement of child support. These procedures may include the following:
(a) Issue subpoenas requiring necessary and relevant parties to appear in person and
provide testimony;
(b) Issue subpoenas requiring the production of evidence;
(c) Obtain information about property or assets to assess its value or funding source for
lien or seizure actions;
(d) Obtain information about the income of any party to the action; and/or
(e) Issue contempt findings for failure to comply with the lawful order of the Family Court.
704.6-3. Both parties have the right to representation by an attorney and/or advocate at his or her
own expense. The Nation shall not be required to pay for any fees and/or expenses incurred by any
party in connection with proceedings under this law.
704.6-4. Temporary Orders. At any time after a child’s parentage has been established, the Family
Court may make a temporary order for the payment of child support and the child’s health care
expenses. Before making a temporary order, the Family Court shall consider all factors that the
Family Court is required to consider when granting a final child support order. If the Family Court
makes a temporary child support order that deviates from the amount of support that would be
required by using the percentage standard, the requirements of section 704.7-8 shall be complied
with.
704.6-5. Default. If the respondent fails to appear at the hearing upon a showing of valid service
and the petitioner presents evidence of the obligation by the absent party, a child support order
shall be entered pursuant to the evidence.
704.6-6. Hearings and Records Closed. Child support proceedings shall be closed to any person
other than those necessary to the action or proceeding. Records of child support cases shall remain
confidential and shall only be viewed by the parties, the legal guardian of a party who is a minor,
the parties’ attorney or advocate, guardian ad litem, Judges and staff assigned to the case, and those
other persons who first obtain a written release from a party to view material contained in the
record.
704.7. Determining the Child Support Obligation
704.7-1. The Family Court shall determine child support payments by using the percentage
standards established in section 704.7-2 of this law, except as provided elsewhere in this law. The
obligor’s monthly income shall be considered in determining his or her child support obligation.
704.7-2. Percentage Standards to Determine the Amount of Child Support.
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(a) The following percentages shall be applied to the portion of an obligor’s monthly
income available for child support that is less than seven thousand dollars ($7,000):
(1) seventeen percent (17%) for one (1) child;
(2) twenty-five percent (25%) for two (2) children;
(3) twenty-nine percent (29%) for three (3) children;
(4) thirty-one percent (31%) for four (4) children; and
(5) thirty-four percent (34%) for five (5) or more children.
(b) The following percentages shall be applied to the portion of an obligor’s monthly
income available for child support that is greater than or equal to seven thousand dollars
($7,000) and less than or equal to twelve thousand five hundred dollars ($12,500):
(1) fourteen percent (14%) for one (1) child;
(2) twenty percent (20%) for two (2) children;
(3) twenty-three percent (23%) for three (3) children;
(4) twenty-five percent (25%) for four (4) children; and
(5) twenty-seven percent (27%) for five (5) or more children.
(c) The following percentages shall be applied to the portion of an obligor’s monthly
income available for child support that is greater than twelve thousand five hundred dollars
($12,500):
(1) ten percent (10%) for one (1) child;
(2) fifteen percent (15%) for two (2) children;
(3) seventeen percent (17%) for three (3) children;
(4) nineteen percent (19%) for four (4) children; and
(5) twenty percent (20%) for five (5) or more children.
704.7-3. Determining Income Modified for Business Expenses. In determining an parent’s
monthly income, the Family Court may adjust an parent’s gross income as follows:
(a) Adding wages paid to dependent household members.
(b) Adding undistributed income that the Family Court determines is not reasonably
necessary for the growth of the business. The parent shall have the burden of proof to show
that any undistributed income is reasonably necessary for the growth of the business.
(c) Reducing gross income by the business expenses that the Family Court determines are
reasonably necessary for the production of that income or operation of the business and
that may differ from the determination of allowable business expenses for tax purposes.
704.7-4. Determining Income Imputed Based on Earning Capacity. When a parent’s income is
less than the parent’s earning capacity or is unknown, the Family Court may impute income to the
parent at an amount that represents the parent’s ability to earn.
(a) The parent’s ability to earn may be based on the parent’s:
(1) education, training, and recent work experience;
(2) earnings during previous periods;
(3) current physical and mental health;
(4) history of child care responsibilities as the parent with primary physical
placement; and
(5) the availability of work in or near the obligor’s community.
(b) If evidence is presented that due diligence has been exercised to ascertain information
on the parent’s actual income or ability to earn and that information is unavailable, the
Family Court may impute to the parent the income that a person would earn by working
thirty-five (35) hours per week for the federal minimum hourly wage. In addition to
imputed income, the Family Court may order the parent to search for a job or participate
in a work experience and job training program.
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(c) If a parent has gross income or income modified for business expenses below his or
her earning capacity, the income imputed based on earning capacity shall be the difference
between the parent’s earning capacity and the parent’s gross income or income modified
for business expenses.
704.7-5. Determining Income Imputed from Assets.
(a) The Family Court may impute a reasonable earning potential to a parent’s assets if the
Family Court finds both of the following:
(1) The parent has ownership and control over any real or personal property,
including but not limited to, life insurance, cash and deposit accounts, stocks and
bonds, business interests, net proceeds resulting from worker’s compensation or
other personal injury awards not intended to replace income, and cash and corporate
income in a corporation in which the obligor has an ownership interest sufficient to
individually exercise control and the cash or corporate income is not included as
gross income.
(2) The parent’s assets are underproductive and at least one (1) of the following
applies:
(A) The parent has diverted income into assets to avoid paying child
support.
(B) Income from the parent’s assets is necessary to maintain the child or
children at the standard of living they would have had if they were living
with both parents.
(b) The Family Court shall impute income to assets by multiplying the total net value of
the assets by the current six (6) month treasury bill rate or any other rate that the Family
Court determines is reasonable and subtracting the actual income from the assets that were
included as gross income.
704.7-6. Adjustment for Child’s Social Security Benefits. The Family Court may consider benefits
received by a child under 42 U.S.C. §402(d) based on a parent’s entitlement to federal disability
or old-age insurance benefits under 42 U.S.C. §401 to 433 and adjust an obligor’s child support
obligation by subtracting the amount of the child’s benefit. In no case may this adjustment require
the obligee to reimburse the obligor for any portion of the child’s benefit. If the obligor is receiving
the child’s benefit, the support amount is either the percentage standard applied to the obligor’s
income or the amount of the child’s benefit, whichever is greater.
(a) Determining the Child Support Obligations of Shared-Placement Parent when the
Child Receives Social Security Benefits. If the shared-placement guidelines under section
704.8-2 apply, the child’s benefit is split between the parents in proportion to the amount
of time the child spends with each parent. Add the proportion of the child’s benefit that
represents the proportion of time the child spends with the parent not receiving the benefit
to the support obligation of the parent who is receiving the child’s benefit. Child support
shall be determined as follows:
(1) Determine each parent’s monthly income available for child support under
section 704.7-2. If a parent has one (1) or more previous child support obligations,
determine the parent’s monthly income available for child support adjusted for the
previous obligations as provided in section 704.8-1. Include the parent’s federal
disability or old age insurance benefits under 42 U.S.C. §401 to 433 in that parent’s
income, but do not include the child’s benefit under 42 U.S.C. §402 (d) in either
parent’s income.
(2) Multiply each parent’s monthly income available for child support by the
appropriate percentage standard under section 704.7-2.
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(3) Multiply each amount determined under section 704.7-6(a)(2) by one hundred
and fifty percent (150%).
(4) Multiply the amount determined for each parent in section 704.7-6(a)(3) by the
proportion of time that the child spends with the other parent.
(5) Multiply the amount of the child’s benefit by the proportion of the time the
child spends with the parent who is not receiving the child’s benefit.
(6) Add the amount in section 704.7-6(a)(5) to the child support obligation
calculated in section 704.7-6(a)(4) for the parent who is receiving the child’s
benefit.
(7) Offset the resulting amounts against each other. The parent with the greater
child support obligation is the shared-placement obligor. The shared-placement
obligor shall pay either the greater of the amount determined in this subsection or
the amount determined using the appropriate percentage standard under section
704.7-2.
704.7-7. Claiming Children for Tax Purposes. The Family Court may address who may claim
the child for tax purposes or accept a stipulation entered into by the parties regarding children and
taxes.
704.7-8. Deviation from the Percentage Standards. Upon request by a party, the Family Court
may modify the amount of child support payments determined by the percentage standards if, after
considering the following factors, the Family Court finds by the greater weight of the credible
evidence that use of the percentage standards is unfair to the child or to any of the parties:
(a) The financial resources of the child;
(b) The financial resources of both parents;
(c) Maintenance received by either party;
(d) The needs of each party in order to support himself or herself at a level equal to or
greater than the federal poverty line as established under 42 U.S.C. §9902(2);
(e) The needs of any person, other than the child, whom either party is legally obligated to
support;
(f) The standard of living the child would have enjoyed if his or her parents were living
together;
(g) The desirability that the custodial parent remain in the home as a full-time parent;
(h) The cost of day care if the custodial parent works outside the home, or the value of
custodial services performed by the custodial parent if the custodial parent remains in the
home;
(i) The award of substantial periods of physical placement to both parents;
(j) Extraordinary travel expenses incurred in exercising the right to periods of physical
placement;
(k) The physical, mental, and emotional health needs of the child, including any costs for
health insurance;
(l) The child’s educational needs;
(m) The tax consequences to each party;
(n) The best interests of the child;
(o) The earning capacity of each parent, based on each parent’s education, training and
work experience and the availability of work in or near the parent’s community; and
(p) Any other factors which the Family Court in each case determines are relevant.
704.7-9. Past-due and Arrears obligations.
(a) A party may request payment of arrears or past-due child support as follows:
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(1) In an action regarding paternity, back to the date of birth of the child or date of
application, whichever is later;
(2) In a child support establishment or modification pursuant to this law, back to
the date of application, review, or referral; or
(3) In an establishment or modification of placement pursuant to an action
regarding divorce, annulment and legal separation or child custody, placement, and
visitation, back to the date of filing, or as otherwise ordered by the Family Court.
(b) A payment for arrears or a past-due payment shall be set based on the amount due and
the income available to pay current support.
(c) Once current child support is ended in any manner prescribed by law, child support
shall continue to be paid at the same rate, until all arrears or past due child support is paid
in full.
704.8. Determining the Child Support Obligation in Special Circumstances
704.8-1. Determining the Child Support Obligation of a Serial-Family Obligor.
(a) Applicability. This applies only if the support obligation being calculated is for children
from a subsequent family or subsequent paternity judgment or acknowledgment. An
obligor may not use the provisions of this section as a basis for seeking modification of an
existing order based on a subsequently incurred legal obligation for child support.
(b) Determination. For a serial-family obligor, the child support obligation incurred for a
marital or non-marital child in a subsequent family as a result of a child support order may
be determined as follows:
(1) Determine the obligor’s monthly income.
(2) Determine the order of the obligor’s legal obligations for child support by
listing them according to the date each obligation is incurred.
(A) For a marital child, the legal obligation for child support is incurred on
the child’s date of birth.
(B) For a non-marital child, the legal obligation for child support is incurred
on the date that paternity is legally established.
(C) For a non-marital paternal child in an intact family, it is incurred on the
date of adoption or the date that paternity is legally established.
(D) For a non-marital maternal child in an intact family, it is incurred on
the child’s date of birth.
(3) Determine the first child support obligation as follows:
(A) If the obligor is subject to an existing support order for that legal
obligation, except a shared-placement order, the support for that obligation
is the monthly amount of that order; or
(B) If the obligor is in an intact family, has primary placement of another
child, or is subject to a shared-placement order, the support is determined
by multiplying the appropriate percentage for that number of children by
the obligor’s monthly income.
(4) Adjust the monthly income by subtracting the support for the first legal
obligation from the obligor’s monthly income.
(5) Determine the second child support obligation as follows:
(A) If the obligor is subject to an existing support order for that legal
obligation, except a shared-placement order, the support for that obligation
is the monthly amount of that order; or
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(B) If the obligor is in an intact family or is subject to a shared-placement
order, the support is determined by multiplying the appropriate percentage
for that number of children by the obligor’s monthly income.
(6) Adjust the monthly income a second time by subtracting the support for the
second legal obligation from the first adjusted monthly income.
(7) Repeat the procedure for determining the child support obligation and adjusting
the monthly income for each additional legal obligation for child support the serial
family obligor has incurred.
(8) Multiply the appropriate percentage for the number of children subject to the
new order by the final adjusted monthly income to determine the new child support
obligation.
704.8-2. Determining the Child Support Obligations of Shared-Placement Parents.
(a) Applicability. The shared-placement formula may be applied when both of the
following conditions are met:
(1) Both parents have periods of placement of at least twenty-five percent (25%)
or ninety-two (92) days a year. When calculating periods of placement based on
equivalent care, the total number of overnights may exceed three hundred and sixtyfive (365). The period of placement for each parent shall be determined by
calculating the number of overnights or equivalent care ordered to be provided by
the parent and dividing that number by the total number of overnights in a year.
The combined periods of placement for both parents shall equal one hundred
percent (100%).
(2) Each parent is ordered by the Family Court to assume the child’s basic support
costs in proportion to the time that the parent has placement of the child.
(b) Determination. The child support obligations for parents who meet the requirements
for the shared-placement formula may be determined as follows:
(1) Determine each parent’s monthly income.
(A) In determining whether to impute income based on earning capacity
for an unemployed parent or a parent employed less than full time, the
Family Court shall consider benefits to the child of having a parent remain
in the home during periods of placement and the additional variable day
care costs that would be incurred if the parent worked more.
(2) Multiply each parent’s monthly income by the appropriate percentage standard.
(3) Multiply each amount determined under section 704.8-2(b)(2) by one hundred
and fifty percent (150%).
(4) Multiply the amount determined for each parent under section 704.8-2(b)(3) by
the proportion of the time that the child spends with the other parent to determine
each parent’s child support obligation.
(5) Offset resulting amounts under section 704.8-2(b)(4) against each other. The
parent with a greater child support obligation is the shared-placement obligor. The
shared-placement obligor shall pay the lesser of the amount determined under this
section or the amount determined using the appropriate percentage standard. If the
shared-placement obligor is also a low-income obligor, the child support obligation
may be the lesser of the amount determined under the shared placement
determination or the low-income determination.
(6) In addition to the child support obligation determined under section 704.82(b)(5), the Family Court shall assign responsibility for payment of the child’s
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variable costs in proportion to each parent’s share of physical placement, with due
consideration to a disparity in the parents’ incomes.
(A) The Family Court shall direct the manner of payment of a variable cost
order to be either between the parents or from a parent to a third-party
service provider.
(B) The Family Court shall not direct payment of variable costs to be made
to the Agency or the Agency’s designee, except as incorporated in the child
support order.
(7) A change in the child’s variable costs shall not in and of itself be considered a
substantial change in circumstances sufficient to justify a modification of a
judgment or order under section 704.10.
704.8-3. Determining the Child Support Obligations of Split-Placement Parents.
(a) Applicability. The split-placement formula may be applied when parents have two (2)
or more children and each parent has placement of one (1) or more but not all of the
children.
(b) Determination. The child support obligation for a split-placement parent may be
determined as follows:
(1) Determine each parent’s monthly income.
(2) Determine the appropriate percentage standard for the number of total children.
(3) Divide the appropriate percentage standard for the number of total children by
the total number of children.
(4) Multiply the number calculated in section 704.8-3(b)(3) by the number of
children placed with each parent.
(5) Multiply each parent’s monthly income by the number calculated in 704.83(b)(4) based on the number of children placed with the other parent to determine
each parent’s child support obligation; and
(6) Offset resulting amounts under section 704.8-3(b)(5) against each other. The
parent with a greater child support obligation is the split-placement obligor.
704.8-4. Determining the Child Support Obligation of a Low-Income Obligor.
(a) Applicability. If an obligor’s total economic circumstances limit his or her ability to
pay support at the level determined by the standard percentage standards, then the lowincome obligor standards found in the Child Support Obligation of Low-Income Payers
Schedule may be used.
(b) Determination. The Family Court may use the monthly support amount provided in
the Child Support Obligation of Low-Income Payers Schedule as the support amount for
an obligor with a monthly income at a level set forth in the schedule.
(1) If an obligor’s monthly income is below the lowest income level in the Child
Support Obligation of Low-Income Payers Schedule, the Family Court may set an
order at an amount appropriate for the obligor’s total economic circumstances. This
amount may be lower than the lowest support amount in the Child Support
Obligation of Low-Income Payers Schedule
704.9. Child Support Order
704.9-1. Expression of Ordered Support. The child support amount shall be expressed as a fixed
sum.
704.9-2. Interest on Arrears. The Nation shall not charge an obligor ordered to pay child support
interest on any arrears.
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704.9-3. Income Withholding. The child support order shall provide for immediate income
withholding.
(a) A copy of the Family Court’s income withholding order shall be sent by the Agency to
a payor within three (3) business days of the entry of the order of the Family Court by mail,
fax, or electronic means.
(b) An order to withhold income shall be binding against future payors upon actual notice
of the income withholding order through notice by mail, fax, or electronic means.
(c) Income shall not be subject to withholding only where:
(1) One of the parties demonstrates, and the Family Court finds, that there is good
cause not to require income withholding due to one of the following:
(A) There is an error in the amount of current or overdue support; or
(B) The identity of the obligor is mistaken.
(2) The parties reach a written agreement which provides for an alternative
arrangement that is approved by the Family Court.
(d) No payor shall refuse to honor an income withholding order executed pursuant to this
law. A payor shall begin withholding income immediately after notice of an income
withholding order made pursuant to this law. Within five (5) business days after the payor
pays the obligor, the payor shall send the amount withheld to the Wisconsin Support
Collections Trust Fund.
(e) A payor shall be liable for one hundred percent (100%) of the child support order, or
the amount of money that should have been withheld from the obligor’s earnings,
whichever is the lesser amount, if the payor:
(1) Fails or refuses, after being noticed of an income withholding order, to deduct
or promptly remit the amounts of money required in the order;
(2) Fails or refuses to submit an answer to the notice of income withholding after
being noticed; or
(3) Is unwilling to comply with the other requirements of this law.
(f) A payor shall not discharge from employment, refuse to employ, or otherwise take
disciplinary action against any obligor solely because he or she is subject to income
withholding.
(1) When the Family Court finds that a payor has taken any of these actions, the
payor shall be liable for a civil penalty. Any payor who violates any provision of
this paragraph shall be liable in a civil action for reasonable damages suffered by
an obligor as a result of the violation, and an obligor discharged or demoted in
violation of this paragraph shall be entitled to be reinstated to his or her former
position.
(2) The statute of limitations for actions under this section shall be one (1) year.
(g) A payor who repeatedly fails to comply with an income withholding order as required
by this law may be subject to a fine, not to exceed five hundred dollars ($500), or have its
Oneida vendor license revoked or suspended, if applicable, until compliance with this law
is assured.
(1) The vendor license issuing agency shall comply with the Family Court order to
revoke or suspend a vendor license.
(h) If income withholding is inapplicable, ineffective or insufficient to ensure payment of
child support, the Family Court may require the obligor to establish an account for the
purpose of transferring child support payments.
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(i) The total amount withheld under an income withholding order shall not exceed the
maximum amount permitted under section 303(b) of the Consumer Credit Protection Act
(15 U.S.C. §1673(b)).
(j) Non-Indian off-reservation payors shall be subject to income withholding under 28
U.S.C. §1738B.
704.9-4. Conditions of the Order. The Family Court may require a party, or both parties, to use
the services available to him or her to obtain and maintain regular employment and/or job training.
704.9-5. Support Order Notice Requirements. Each order for child support shall include:
(a) An order that the obligor and obligee notify the Agency of any change of address or
name change within ten (10) business days of such change; and
(b) An order that the obligor notify the Agency and the obligee of any change of employer
or substantial change of income within ten (10) business days of the change.
704.9-6. Enforcement of Order. A child support order under this section is enforceable as
contempt.
704.9-7. Collection and Distribution of Child Support. The Agency shall collect and distribute
child support monies pursuant to regulations set forth in the Social Security Act 45 CFR 309.115.
704.9-8. Trust. The Family Court may protect and promote the best interests of the minor children
by setting aside a portion of the child support that either party is ordered to pay in a separate fund
or trust for the support, education, and welfare of such children.
704.9-9. Non-Cash Payments.
(a) Non-cash payments may be used to satisfy part or all of a child support order if the
parties and the Family Court agree to allow non-cash payments. Non-cash payments shall
not be used to fulfill arrears. If non-cash payments are allowed, the order shall:
(1) state the specific dollar amount of the support obligation;
(2) state the maximum amount (in dollars) of non-cash payment that the obligee
will accept;
(3) describe the type of non-cash payment that is permitted;
(4) provide that non-cash payment cannot be used to satisfy assigned child support
obligations.
(b) When both parents are in agreement that non-cash payments may be used to satisfy a
child support obligation, the non-cash payment may include, but is not limited, to the
following:
(1) Clothing;
(2) Groceries;
(3) Child Care;
(4) Deer/Venison;
(5) Wood;
(6) Transportation;
(7) Skilled trades or services, such as car repairs, lawn care and snow removal;
and/or
(8) Gift cards.
(c) When a non-cash payment is used to satisfy part or all of a child support order, the
obligor and obligee shall submit any forms required by the Agency within the month that
the non-cash payment is made. If there are less than five (5) business days left in the month
when a non-cash payment is made, the obligor and obligee have five (5) business days to
submit any required forms to the Agency. The Agency shall be responsible for applying
the non-cash payment towards the child support order during the appropriate month.
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704.10. Modification of a Child Support Order
704.10-1. Review of the Child Support Order. Every two (2) years, the Agency shall conduct a
review of the child support order. The Agency shall notify the non-custodial parent, custodial
parent, and any interested party that a review of their child support order shall be conducted.
704.10-2. Modification of Child Support Sought by the Agency. After the two (2) year review is
conducted by the Agency, the Agency shall seek an order to modify the child support obligation if
there is a substantial change in circumstances, unless otherwise stipulated by the parties. A
substantial change in circumstances includes, but is not limited to:
(a) the child’s placement is changed;
(b) either parent or the child has a significant change in his or her finances that would lead
to a change in child support of more than fifteen percent (15%) and fifty dollars ($50.00)
per month;
(c) the obligee is receiving public assistance benefits and is required to have a current
support order in place;
(d) it has been twenty-four (24) months since the date of the last child support order or
revision to the child support order, unless the child support amount is expressed as a
percentage; or
(e) a change has occurred and if the current circumstances had been in place at the time
the order was issued, a significantly different order would have been issued.
704.10-3. Modification of Child Support Sought by the Parties. Either party, not including the
Agency, may file a motion for a modification of a child support order at any time based upon a
substantial change of circumstances supported by affidavit.
(a) Such motion shall state why the previous decision should be prospectively modified.
(b) The motion and affidavit shall be served by the moving party on the responding party
by first-class mail to the recently verified last-known address, or by any method provided
by law.
(c) A hearing date shall be scheduled no sooner than ten (10) calendar days after the date
of service.
704.10-4. An obligor shall not raise a substantial change in circumstances as a reason not to pay
a current child support order or arrears. If a child support order becomes unjust due to a substantial
change in circumstances of the obligor, the obligor has the duty to file a petition or motion with
the Family Court for a modification to the child support order at that time.
704.11. Modification of a Child Support Order for an Incarcerated Parent
704.11-1. In the event an obligor is incarcerated for one hundred and eighty (180) days or more,
the obligor shall have the right to have the Agency review his or her child support order to
determine if modification or suspension of the child support order is appropriate. The obligor shall
notice the Agency of his or her incarceration.
(a) An ordered child support obligation shall be suspended for an incarcerated obligor who
has been sentenced to one hundred and eighty (180) days or more and has an income of
less than two hundred dollars ($200) per month.
(b) If while incarcerated the obligor’s income is two hundred dollars ($200) or more per
month the Agency shall review the order and seek temporary modification of the child
support order based on the incarcerated obligor’s income, if necessary.
(c) Child support obligations shall not be suspended or modified for an obligor who is
incarcerated for a criminal offense which includes:
(1) felony failure to pay support;
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(2) a crime against a child; and/or
(3) a crime against the obligee.
(d) Past due child support related debt and/or arrears shall not be suspended or reduced as
a result of the obligor’s incarceration without stipulation by the parties.
704.11-2. Notification of Review. Within fifteen (15) business days of the receipt by the Agency
of verification of the obligor’s incarceration, the Agency shall send out a letter to the parties of the
case informing them of the obligor’s right to have his or her child support obligation reviewed,
and of the Agency’s intent to review the current child support order.
704.11-3. Agency Review of Order. The Agency shall review the obligor’s child support order
and make one of the following determinations:
(a) that the obligor’s income while incarcerated is two hundred dollars ($200) or more per
month, and the Agency shall seek temporary modification of the obligor’s child support
order based on the incarcerated obligor’s income, if necessary; or
(b) that the obligor’s income while incarcerated is less than two hundred dollars ($200)
per month, and the Agency shall seek temporary suspension of the obligor’s child support
order while incarcerated.
704.11-4. Suspension of Order by the Agency. If the Agency determines the obligor’s income is
less than two hundred dollars ($200) per month while incarcerated, the Agency shall file with the
Family Court a Motion and Order to Suspend without a request for a hearing with notice to all
parties that the child support order shall be suspended.
(a) Either party shall have the right to object to the suspension of the order within ten (10)
business days of the date of the notice by filing such objection with the Family Court and
providing a copy of the objection to the Agency.
(b) If no objection to the suspension is received, the Family Court shall enter the order as
proposed.
(c) Upon receipt of an objection from either party, the Family Court shall schedule a
hearing on the issue.
704.11-5. Modification of Order by the Agency. If the Agency determines the obligor’s income
is two hundred dollars ($200) per month or more while incarcerated, the Agency shall file with the
Family Court a Motion to Modify.
(a) The Family Court shall schedule a hearing on the motion with the Agency providing
notice to all parties with the proposed modification to the child support order by first class
mail at least ten (10) business days prior to the hearing.
(b) If no objection to the modification is received at the hearing, the Family Court shall
enter the order as proposed.
704.11-6. Modification of the Order by the Incarcerated Parent. The incarcerated parent may
seek modification of his or her own child support order by filing a motion to modify with the
Family Court in accordance with section 704.10-3.
704.11-7. If during the term of incarceration, the Agency receives notification of a change in the
obligor’s employment and/or income, the Agency shall review the obligor’s order and determine
if the obligor’s income is two hundred dollars ($200) or more per month, and whether it is
necessary to temporarily modify or suspend the obligor’s child support order.
(a) If the Agency determines that suspension of the obligor’s order is necessary, then the
procedure for filing a Motion and Order to Suspend without a request for a hearing
described in section 704.11-4 shall be followed.
(b) If the Agency determines that modification of the obligor’s order is necessary, then the
procedure for filing a Motion to Modify described in section 704.11-5 shall be followed.
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704.11-8. Reinstatement of Prior Order. Sixty (60) days after the obligor’s release from
incarceration, the child support order shall be administratively reinstated by the Agency to the
previous child support order in effect before the suspension or modification of the order based on
the obligor’s incarceration.
(a) The Agency shall send notice to both parties of the obligor’s release from incarceration
and the intent of the Agency to reinstate the original order.
704.12. Compliance Plan
704.12-1. If at any time the obligor is, or may become, non-compliant with his or her child support
order by failing to pay support as ordered or meeting a required obligation or action, the Agency
shall meet with the obligor to develop a compliance plan.
704.12-2. An Appointment Letter may be sent by the Agency at any time deemed appropriate, but
the Agency shall send out the Appointment Letter at least thirty (30) days prior to the initiation of
any enforcement action.
(a) The Letter shall request the party meet with the Agency to discuss barriers to payment
and how to avoid future enforcement action.
(b) If the party does not respond to the Letter within five (5) business days after receipt of
the letter, the Agency may proceed with appropriate enforcement action.
(c) If the obligor responds to the Letter, the Agency shall interview the party to determine
the reasons and barriers for the non-compliance and create a compliance plan. The
compliance plan may include an increase in payment and/or any activity that is necessary
to assist in payment, including programs that focus on:
(1) Employment and training;
(2) Social service and mental health;
(3) Physical and learning disabilities;
(4) Tribal traditions and customs;
(5) Family counseling and parenting; and
(6) Any other program deemed necessary.
(d) If the party successfully completes the terms of the compliance plan, no further
enforcement action is necessary. However, if the party fails to complete the compliance
plan, the Agency shall proceed with appropriate enforcement action.
704.13. Enforcement of an Order
704.13-1. An obligor may be subject to enforcement actions when the obligor is at least one (1)
month delinquent in paying his or her child support obligation. Enforcement actions may include
administrative enforcement action by the Agency and enforcement action by the Family Court.
(a) An obligor shall be provided with notice of an enforcement action of at least thirty (30)
days before an enforcement action is used, unless another timeline is specified.
(b) An enforcement action shall be stayed and/or suspended after notice is given to the
obligor if the obligor pays the debt in full or enters into, and maintains, an alternative
payment plan and/or a compliance plan with the Agency.
704.13-2. Agency Responsibilities in the Enforcement of an Order. The Agency shall have the
following responsibilities in the enforcement of an order:
(a) Track and document the progress of an obligor who is under an enforcement action;
(b) Take additional enforcement action when an obligor fails to comply with a previous
enforcement action;
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(c) Document the reasons why an enforcement action is not taken, when such action would
have been appropriate under the circumstances; and
(d) Assist in refunding amounts that were improperly withheld, terminate income
withholding when appropriate, and allocate amounts across multiple cases.
704.13-3. Notice to the Obligor of Delinquency. In the event that an obligor owes a debt equal to
or exceeding the monthly amount due, the Agency shall send a notice of delinquency to the obligor.
The notice of delinquency shall inform the obligor of the following:
(a) The total amount of the delinquency; and
(b) The enforcement action that may be taken as a result of the delinquency.
704.13-4. Notice to the Obligor of Enforcement Action. After the obligor has been noticed of his
or her delinquency, and at least twenty (20) days prior to an enforcement being used against an
obligor, the Agency shall send a notice of enforcement action to the obligor.
(a) The notice of enforcement action shall inform the obligor of the following:
(1) The total amount of the delinquency;
(2) The enforcement action that may be taken as a result of the delinquency;
(3) The obligor may request, in writing to the Agency, to negotiate an alternative
payment plan with the Agency within ten (10) business days after the notice in order
to stay any enforcement action;
(4) The obligor has ten (10) business days after the notice of enforcement action to
file an objection with the Agency presenting good cause why an arrears payment
or other enforcement action should not be implemented. The only allowable
objections are:
(A) There is an error in the amount of current or overdue support; or
(B) The identity of the obligor is mistaken.
(b) If the obligor does not file an objection or request to negotiate an alternative payment
plan:
(1) the enforcement action shall be taken; and/or
(2) an income withholding order, or revised order if one is already in place, shall
be imposed on the payor. No more than an additional twenty percent (20%) of the
current support payment order can be withheld to satisfy the delinquency provided
that the total amount withheld does not exceed forty percent (40%) of the obligor’s
monthly income.
(c) If a permissible objection is filed, the obligor shall be entitled to a hearing before any
enforcement action is taken.
704.13-5. Use of Mail for Notices. The Agency shall send notices related to the delinquency of
an obligor and enforcement of a child support order by mail to the last-known mailing address
provided by the obligor.
(a) If the notice is returned, the Agency shall send notice to the obligor using the current
employer mailing address provided by the obligor.
(b) If the notice to the obligor mailed to the obligor’s employer is returned, the Agency
shall use all appropriate tribal, federal, state and local resources to ascertain an obligor’s
current mailing address.
(c) If those resources are used for a period of thirty (30) days and a verified mailing address
has not been identified, the Agency may proceed with the administrative enforcement
action.
704.13-6. Notice to the Obligee of Enforcement Proceedings. The Agency shall provide written
notice to the obligee when an enforcement action has been initiated against the obligor or when
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the obligor requests a hearing and the hearing has been scheduled. The notice to the obligee shall
be sent at the same time notice is sent to the obligor.
704.13-7. Notice to Individuals Other Than the Obligor with a Recorded Ownership Interest in
Property. The Agency shall provide notice related to the seizure of property to any individual,
other than the obligor, with a recorded ownership interest in property subject to seizure. The
individual may request a hearing for a determination of the proportion of the value of the property
that is attributable to his or her net contribution to the property. The hearing shall be requested
within thirty (30) days after the notice was received by the individual.
704.14. Alternative Payment Plans
704.14-1. Applicability of Alternative Payment Plans. When an obligor is subject to
administrative enforcement action, he or she may negotiate an alternative payment plan with the
Agency.
704.14-2. Negotiation of an Alternative Payment Plan After Receiving Notice of an Enforcement
Action.
(a) In order to negotiate an alternative payment plan, an obligor shall submit a written
request to the Agency.
(1) A written request to negotiate an alternative payment plan received by the
Agency within ten (10) business days after the date of notice shall stay any
administrative enforcement action.
(2) If a written request to negotiate an alternative payment plan is received by the
Agency more than ten (10) business days after the date of notice, administrative
enforcement action may be taken, as long as the requirements for staying or
suspension of administrative enforcement actions are met.
(3) If the Agency agrees to negotiate an alternative payment plan after the ten (10)
business days after the date of notice, the Agency and obligor may agree to stay or
suspend the administrative enforcement action.
(b) An obligor may negotiate a plan with the Agency to have a license suspension lifted.
(c) Hearings for Negotiations of an Alternative Payment Plan. The obligor may submit a
written request for a hearing with the Family Court regarding negotiations of an alternative
payment plan in the following circumstances:
(1) The obligor and the Agency have agreed to terms of a plan, but the obligor
wants the Family Court to consider the reasonableness of the plan. due to a
substantial change of circumstances since the plan was agreed to by the Agency
and the obligor.
(A) The obligor may submit this written request for a hearing on the
reasonableness of the plan within ten (10) business days after the terms of
the plan
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