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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 6, 2019
9:00 a.m.
I.
Call to Order and Approval of the Agenda
II.
Minutes to be Approved
October 16, 2019 LOC Meeting Minutes (pg. 2)
III.
Current Business
1. Child Support Amendments (pg. 4)
2. Indian Preference in Contracting Amendments (pg. 111)
IV.
New Submissions
V.
Additions
VI.
Administrative Updates
1. FY 19 Fourth Quarterly LOC Report (pg. 152)
VII.
Executive Session
VIII. Recess/Adjourn
A good mind. A good heart. A strong fire.
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Oneida Nation
Oneida Business Committee
Legislative Operating Committee
GDDDOO
PO Box 365 • Oneida, WI 54155-0365
ONEIDA
Oneida-nsn.gov
LEGISLATIVE OPERATING COMMITTEE MEETING MINUTES
Oneida Business Committee Executive Conference Room-2nd Floor Norbert Hill Center
October 16, 2019
9:00 a.m.
Present: David P. Jordan, Kirby Metoxen, Daniel Guzman King, Jennifer Webster
Excused: Ernest Stevens III
Others Present: Maureen Perkins, Brandon Wisneski, Clorissa Santiago, Jennifer Falck, Kristen
Hooker, Rae Skenandore, JoAnne House, Lee Cornelius, Leyne Orosco
I.
Call to Order and Approval of the Agenda
David P. Jordan called the October 16, 2019, Legislative Operating Committee meeting to
order at 9:00 a.m.
Motion by Jennifer Webster to adopt the agenda; seconded by Daniel Guzman King.
Motion carried unanimously.
II.
Minutes to be Approved
Motion by Jennifer Webster to approve the October 02, 2019, Legislative Operating
Committee meeting minutes and forward to the Business Committee for consideration;
seconded by Kirby Metoxen. Motion carried unanimously.
III.
Current Business
1. Citations Law (1:05-3:17)
Motion by Jennifer Webster to approve the public meeting packet, with the updated
draft and analysis, and forward the Citation Law to a public meeting to be held on
November 22, 2019; seconded by Daniel Guzman King. Motion carried unanimously.
2. Oneida Environmental Resources Board Bylaws Amendments (3:19-6:33)
Motion by Kirby Metoxen to accept the Oneida Environmental Resources Board
Bylaws Amendments and forward to the Oneida Business Committee for
consideration; seconded by Jennifer Webster. Motion carried unanimously.
3. Oneida Personnel Commission Bylaws Amendments (6:34-8:08)
Motion by Jennifer Webster to accept the Oneida Personnel Commission Bylaws
Amendments and forward to the Business Committee for consideration; seconded by
Daniel Guzman King. Motion carried unanimously.
4. Oneida Land Claims Commission Bylaws Amendments (8:09-10:26)
Motion by Kirby Metoxen to accept the Oneida Land Claims Commission Bylaws
Amendments and forward to the Oneida Business Committee for consideration;
seconded by Daniel Guzman King. Motion carried unanimously.
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A good mind. A good heart. A strong fire.
Legislative Operating Committee Meeting Minutes of October 16, 2019
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IV.
New Submissions
V.
Additions
VI.
Administrative Items
1. Children’s Code Update (10:29-13:39)
Motion by Kirby Metoxen to accept the eighth and final Children’s Code
Implementation Plan Quarterly Update and forward to the Oneida Business Committee;
seconded by Jennifer Webster. Motion carried unanimously.
VII.
Executive Session
VIII. Adjourn
Motion by Jennifer Webster to adjourn the October 16, 2019, Legislative Operating
Committee meeting at 9:14 a.m.; seconded by Kirby Metoxen. Motion carried
unanimously.
Legislative Operating Committee Meeting Minutes of October 16, 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 6, 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.
Next Steps:
Accept the public comments and public comment review memorandum and forward to a work meeting
for further consideration.
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Oneida Nation
000000
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)
Clerissa N. Santiago, Legislative Reference Office, Staff AttomeyC}JS
November 6, 2019
Child Suppmt Law Amendments: Public Meeting Comment Review
On October 17, 2019, a public meeting was held regarding the proposed amendments to the Child
Suppmt law ("the Law"). The public comment period was then held open until October 24, 2019.
This memorandum is submitted as a review of the oral and written comments received within the
public meeting and public comment period.
The public meeting draft, public meeting transcript, and written comments received are attached
to this memorandum for review.
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 Suppmt Depaitment. As you know we held a work meeting with the
department 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 terms to include definitions for within a law is a policy consideration for
the Legislative Operating Committee. The Legislative Operating Committee may determine:
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.
(j) "Contempt" means a willful disregard of the authority of a comt or disobedience
to its lawful orders.
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LOC Consideration
Comment 2 - Clarifying Initiation of Action by the Agency:
704.5-2. Initiation ofAction 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 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.
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 form 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.
A good mind. A good heart. A strong fire.
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LOC Consideration
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 paiiies. 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 infmmation in protected cases. It says upon a finding which may be made ex parte if the court
found it would be umeasonable to include, the comi could order, but that just adds an additional
step for the department 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 permission not to include the address in the petition. There is a requirement for a
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 paiiy in those cases.
A good mind. A good heart. A strong fire.
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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 paiiy 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) calendai- days of the date of service of the petition as required by the
Law. [7 O.C. 704.5-S(e)J.
In an eff01i to address those cases involving domestic violence, the Legislative Operating
Committee did include section 704.5-S(b) which addresses the nondisclosure of information in
protected cases. This allows the Family Comito find that the health, safety, or welfare of a paiiy
or child would be umeasonably put at risk by the disclosure of identifying info1mation, or if an
existing order so provides, the Family Comi shall order that the address of the child or paiiy, or
other identifying information, not be disclosed in a pleading or other document filed in a
proceeding under this law. [7 0. C. 704.5-S(b)}. This allows the Family Comi to protect
information from being disclosed in those cases that may involve domestic violence.
The Legislative Operating Committee determined that allowing a party to request that a case be
protected ensures that a paiiy'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
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:
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(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 comt could refuse access to that confidential petition addendum in these types
of protected cases, because right now it is available to all patties to the action and we think the
comt should have the right to refuse access in case it is a protected case. When we send these
documents over to the court, we do specify when the cases are protected, so the court would know
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 comt 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 supp01t 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 patties
and the child' s name, date of bitth, and social security number. [7 O.C. 704.5-5(a)(9)}. The f01m
is only available to the patties, the parties' attorneys or advocates, the Agency, or any person
authorized by the Family Comt to have access to the form. [7 O.C. 704.5-5(a)(9)}.
The Law cmTently does allow for the non-disclosure of information in protected cases. The Family
Comt can order that the address of the child or patty, 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 Comt 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 Considemtion
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A good mind. A good heart. A strong fire.
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Comment 5 - Notice b Publication:
704.5-5(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 Certified Mail. This section is about
publication and it says, "When a responding paiiy cannot be found for personal service after
diligent attempts and attempts to serve the responding paiiy by certified mail have failed, the
petitioner may use service by publication." "May" needs to be changed to "shall" because they
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-S(d)(l)(B) be changed to shall.
The following revision is recommended based on this comment:
704.5-S(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 information shall be redacted.
LOC Consideration
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
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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.
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 p01iion of the obligor' s
monthly income, it needs to say, "gross monthly income". That helps to explain to paiiies 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
clai·ification in that section that it say gross monthly income. S01Ty 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
Comment 7 - Modification of Order b 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.
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(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 Comi 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 comi 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
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 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. [7 OC. 704.11-5].
LOC Consideration
Comment 8 - Entering an Order Based on a Request for Modification of Order by the
A enc :
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
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is received at the hearing, the Family Court 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 704.11-S(b) be removed, so that the Family Comt is not
required to enter an order as proposed by the Agency, and instead can have the discretion to enter
an order the Family Court finds appropriate.
In an effo1t to ensure the Family Comt has the proper discretion when entering orders, the
following revision is recommended based on this comment:
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 Comt a Motion to Modify.
(a) The Family Comt shall schedule a hearing on the motion with the Agency
providing notice to all paities with the proposed modification to the child suppo1t
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 Cami
shall enter the order as proposed.
LOC Consideration
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;
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(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,
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"Ifthe 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 party."
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 supp01i order by failing to pay
supp01i 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 baniers to payment and
how to avoid future enforcement action, at any time deemed appropriate but at least thitiy (30)
days prior to the initiation of any enforcement action. [7 0. C. 704.12-2}. Once a party receives an
Appointment Letter the party has five (5) business days to respond, and if no response is made by
the party then the Agency can proceed with the appropriate enforcement action. [7 0. C. 704.122(b)}. If the paiiy does respond to the Letter, then the Agency can proceed with interviewing the
party to determine the reasons and bmTiers for the non-compliance and create a compliance plan.
[7 0. C. 704.12-2(c)}.
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 pmiy has the opp01iunity 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 pmiy to have the interview with the party to determine the reasons and baniers
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 patiy to the Agency has to be
made.
In an effort to provide the most flexibility in scheduling compliance plan meetings, there is no
recommended revision based on this comment.
LOC Consideration
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Comment 10 - Com letion of the Compliance 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.
(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 party successfully completes the te1ms of the compliance plan."
The requested revision does not affect the content or meaning of this 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 party successfully completes
the compliance plan."
2. The Law should be amended to state, "if the paiiy successfully completes the te1ms of the
compliance plan." If the Legislative Operating Committee makes this determination the
following revision is recommended.
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(d) If the paity successfully completes the terms of the compliance plan, no fu1ther
enforcement action is necessary. However, if the paity fails to complete the compliance
plan, the Agency shall proceed with appropriate enforcement action.
LOC Consideration
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 Clarissa 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 effmt to provide the Agency the most flexibility with the decision to enter into a negotiation
plan with a paity, the following revision is recommended:
r'\
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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.
(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
Comment 12 - Hearing 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.
(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
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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 umeasonable.
Response
The commenter is requesting that section 704.14-2 be amended to provide that the obligor can
request a hearing with the Family Cami only if the obligor wants the Family Cami to 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 Cami 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 Court to consider the
reasonableness of the plan. [7 0. C. 704.14-2(c)(l)}. 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 Cami to consider the
reasonableness of the plan is a policy consideration for the Legislative Operating Committee. The
Legislative Operating Committee may dete1mine:
1. The Law should remain as cunently drafted, and not limit the circumstances for when an
obligor can request the Family Court 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 Court
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 Cami 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 Cami 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 are agreed upon.
LOC Consideration
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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.
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 0. C. 704.14-6(a)}. 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 currently 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 umeasonable. 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
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
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or requests a hearing because of a substantial change in circumstances which makes the
plan umeasonable.
LOC Consideration
Comment 14- Family 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.
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
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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 Comi may order the following as a pmi of
a contempt order." Then prior to that at line 1418 is a section on contempt that says "The Family
Court may hold an obligor who fails to comply with a lawful child supp01i 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 stmi of this section entitled "Contempt". And
then everything underneath, the bonds and other guarantees, the claims against estates, all of that
would then be pmi 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-support 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.
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 pmi of a contempt order. The
commenter makes this request in an effo1i to strengthen contempt issues.
All of the current types of enforcement actions contained in the Law are available to be used by
the Family Comi during contempt proceedings. Revising this section of the Law will clarify that
the Family Comi utilizes its enforcement actions through contempt proceedings.
Therefore, in an effo1i to clm·ify that the Family Comi uses its enforcement actions through
contempt proceedings the following revisions are recommended based on this comment:
704.16. Family Court Enfereement 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 refened to the Family Court....fe.r
enforcement. During a contempt proceeding t+ he Family Comi 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 G1,;arantees. The Family Court may require an obliger to provide a
surety, bond or guarantee to secare the payment of arrears, if income withholding is not applicable,
practical, or feasible to secure payment of arrears.
704 .16 3. Clahns Against Estates. The Family Court 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 •.vhich an obliger .vill inherit.
1
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704 .16 4. Contempt. The Family Court 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 perfmm 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 repmt his or her hours; and
(4) any other information the Family Comt 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.
(d) Criminal Non-Support. A criminal non-suppmt action may be initiated, in the
appropriate county, against an obligor who has the ability to pay child suppmt 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 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 feasib le to secure payment of arrears .
.(f) Claims Against Estates. The Family Comt may approve a claim for past and future
suppmt against an obligor's estate. The Family Court may issue a restraining order against
an estate from which an obligor will inherit.
LOC Consideration
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 support can or cannot be taken, it's not clear in that law written in
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regards to whether or not by vi1tue of the attachment process that an attachment can or cannot be
applied. The depaitment, Trust and Enrollment Depaitment 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 supp01t
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 occuned 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 particular situation. Thank you.
Response
The commenter questions the application of attaching a deceased person's per capita for child
supp01t anears.
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 info1mation on how a per capita payment is attached for child supp01t anears one must
review the Nation's Per Capita law. The Per Capita law provides that a per capita payment may be
attached for child support arrears ordered by a comt of competent jurisdiction. [1 0. C. 123. 49(a)(l)}. The Per Capita law then provides the specific process for how requests for attachments
for child suppo1t anears is handled by the Nation's Child Suppo1t Agency. [1 O.C. 123.4-9(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. [1 O.C. 123.5-3(a)}. This means that even if a member becomes deceased
after submitting the required distribution form, but before the distribution date, the Trust
Enrollment Depaitment shall continue to issue the distribution in the name of the deceased
member. [1 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 arrears 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 Supp01t law.
LOC Consideration
r'\.
(JOQOO()
A good mind. A good heart. A strong fire.
Page 19 of 21
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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 court 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
The commenter questions what happens if the Family Court 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 information on his or her income, or the obligor's income is less than
his or her earning capacity, the Family Comi may impute income to the obligor at an amount that
represents the parent' s ability to earn. [ 7 0. 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;
• current 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 Comi 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. 7-
r'\
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A good mind. A good heart. A strong fire.
Page 20 of 21
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4(b)J. In addition to imputed income, the Family Comi may order the parent to search for a job or
paiiicipate in a work experience and job training program. [7 0. C. 704. 7-4(b)J.
An employer of an obligor should be able to produce information on the obligor's earning as the
Law provides that when a child support order is issued by the Family Comi the order shall provide
for immediate income withholding. [7 O.C. 704.9-3}. A copy of the Family Court'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)J. 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 Support 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 supp01i 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 0. C. 704.9-3(g)}. 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. 9-3 (;)}.
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.
LOC Consideration
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OODODC)
A good mind. A good heart. A strong fire.
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Title 7. Children, Elders and Family - Chapter 704
CHILD SUPPORT
shakoti>nuk&=lale> latiksash&ha>
They watch over the children
CHILD SUPPORT
704.1. Purpose and Policy
704.2. Adoption, Amendment, Repeal, Other Laws and Agency
Rules
704.3. Definitions
704.4. Jurisdiction
704.5. Initiating an Action for Child Support Orders
704.6. Child Support Hearing Procedures
704.7. Determining the Child Support Obligation Determination
704.8. Determining the Child Support Obligation in Special
Circumstances Content and Effect of Order
704.9. Enforcement of Child Support Order
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704.10. Modification of a Child Support Order
704.11. Modification of a Child Support Order for an Incarcerated
Parent Full Faith and Credit for Foreign Child Support Orders
704.12. Compliance Plan Right of Appeal
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
704.1. Purpose and Policy
704.1-1. Purpose. The purposes of this law areis 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 voluntary agreements 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 Tribe 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, Other Laws and Agency Rules
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,
andBC-08-13-14-E, and BC-__-__-__-__.
704.2-2. This law may be amended pursuant to the procedures set out in the Oneida Administrative
Procedures Act or repealed by the Oneida Business Committee or the Oneida General Tribal
Council pursuant to the procedures set out in the Legislative Procedures Act.
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,
ordinance, policy, regulation, rule, resolution, or motion, the provisions of this law shall control.
7 O.C. 704 – Page 1
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Provided that, nothing in this law is intended to repeal or modify any existing law, ordinance,
policy, regulation, rule, resolution or motion.
704.2-5. This law is adopted under authority of the Constitution of the Oneida Nation Tribe of
Indians of Wisconsin.
704.2-6. Any Agency requirements which would affect individuals outside the Agency and do not
relate to the internal management of the Agency shall require Oneida Business Committee
approval in the form of a law or rule.
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 actions taken by the Oneida
Nation Child Support Agency authorized by federal regulations which are taken to enforce
a child support order without obtaining an order from the Family Court.
(b) “Agency” shall mean means the Oneida Nation Tribe Child Support Agency
established to administer and supervise the Nation’s Tribe’s child support enforcement
program.
(c) “Alternative payment plan” or “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” shall mean means a biological natural 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” shall mean 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.
(e) “Clerk” shall mean the designated clerk in the Family Court who is identified to carry
out certain provisions in this law.
(j) “Current six (6) month treasury bill rate” means the yield of a U.S. government security
with a term of six (6) months.
(k) “Custodial parent” shall mean 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.
(l) “Employer” shall mean means any individual, business, government, institution, or
other entity paying wages to one or more employees.
7 O.C. 704 – Page 2
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(m) “Equity” means the fair market value of property minus the liens on that property with
priority over the child support lien.
(n) “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.
(o) “Family Court” shall mean means the judicial arm branch of the Tribe Nation’s
Judiciary that is designated to handle all matters under this Law related to the family and/or
children.
(p) “Gross income” shall mean 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 voluntary 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
tribe 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.
(q) “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.
7 O.C. 704 – Page 3
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(r) “Immediate family member” means an individual’s husband, wife, mother, father, stepmother, step-father, son, daughter, step-son, step-daughter, brother, sister, step-brother,
step-sister, grandparent, grandchild, mother-in-law, father-in-law, daughter-in-law, son-inlaw, brother-in-law or sister-in-law and any of the these relations attained through legal
adoption.
(s) “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.
(t) “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.
(u) “Legally incompetent adult” shall mean 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.
(v) “Lien amount” means the difference between the monthly amount of support due and
the arrears in a case.
(w) “Lien docket” means the registry kept by the State of Wisconsin containing the names
of people who owe past-due child support.
(x) “Low-income obligor” means an obligor for whom the Family Court uses the monthly
support amount provided in the schedule in Appendix A 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 the level provided
under 704.7-2(a) standard percentages and the obligor’s income is at a level set forth in the
schedule in Appendix A the Child Support Obligation of Low-Income Payers Schedule.
(y) “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.
(z) “Monthly iIncome” shall mean 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).
(aa) “Nation” means the Oneida Nation.
(bb) “Non-cCustodial pParent” shall mean means the parent of a child who does not hold
primary care, custody and/or control of a child.
(cc) “Non-legally responsible relative” means a relative 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 “Nnon-legally responsible relative”
does not include a relative who has physical custody of a child during a court-ordered
visitation period.
(dd) “Obligee” shall mean means the person or entity to whom child support is owed.
(ee) “Obligor” shall mean means the person who is obliged to pay child support to the
obligee.
7 O.C. 704 – Page 4
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(ff) “Ownership interest” means any personal financial interest.
(gg) “Parent” means the biological natural or adoptive parent of the child.
(hh) “Payor” shall mean means a person or entity with a legal obligation, as an employer,
buyer of goods, debtor, or otherwise, to pay an obligor.
(r) “Relative” means any person connected with a child by blood, marriage or adoption.
(ii) “Reservation” shall mean means all lands within the exterior boundaries of the
Reservation of the Oneida Nation Tribe of Indians of Wisconsin, as created pursuant to the
1838 Treaty with the Oneida, 7 Stat. 566, and any lands added thereto pursuant to federal
law.
(jj) “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.
(kk) “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.
(ll) “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.
(mm) “Stipulation” means a voluntary agreement between parties concerning some
relebatn point.
(mmnn) “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.
(nnoo) “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.
(oopp) “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.
(t) “Tribe” or “Tribal” shall mean the Oneida Tribe of Indians of Wisconsin.
(u) “Wage Withholding” shall mean 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.
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 Tribe; or 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 a the child that is
enrolled or is eligible for enrollment with the Tribe 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.;
7 O.C. 704 – Page 5
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(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.
704.4-23. 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 USC Section U.S.C. §666.
704.4-34. Transfer of Cases from Other Courts. If personal jurisdiction over the parties has been
established under 704.4-1 or 704.4-2 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 Orders
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 voluntary agreement 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, in accordance with
section 705.8 of the Child Custody, Placement and Visitation law.
704.5-2. A party may request the services of the Agency or may be referred to the Agency from
an entitlement program.
704.5-2. Initiation of Action by the Agency. For assistance in initiating a child support order Aa
party may request the services of the Agency or may be referred to the Agency from an entitlement
program.
(a) Within thirty five (530) business days of receiving a completed application for services
or a referral, the Agency shall send the non- meet with the custodial parent a Letter of
Request for Support and Financial Disclosure form.
(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 within ten
(10) business days, a second Letter of Request for Support and Financial Disclosure form
shall be sent.
(c) If the non-custodial parent fails to respond to or take action on the second Letter within
five (5 within ten (10) business days, the custodial parent, or the Agency when required by
federal law, may initiate a hearing in accordance with this law.
(d) 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 stipulationvoluntary agreement.
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:
(1a) a custodial parent;
(2b) a child’s mother;
(3c) a child’s father;
7 O.C. 704 – Page 6
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(4d) a child’s guardian ad litem;
(5e) a child’s non-legally responsible relative; or
(6f) a legally incompetent adult’s guardian ad litem.; or
704.5-34. Voluntary AgreementStipulation. (a) The parties may enter into a stipulation voluntary
agreement at any time as to the level of the child support obligation.
(a) The Agency shall assist parties in reaching a stipulation voluntary agreement upon
request or when the parties are referred to the Agency by an entitlement program. Parties
may also submit a stipulation voluntary agreement to the Family Court for approval without
the Agency’s assistance.
(b) In order for a stipulation voluntary agreement to be valid the following conditions shall
be met:
(1) The stipulation agreement shall be in writing, signed, and notarized;
(2) If the parties deviate from the percentage standards, the stipulation agreement
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 agreement free of duress and coercion; and
(4) The Family Court shall make written findings that the stipulation agreement is
appropriate, using the criteria for deviating from standard percentages under 704.73 as a guideline, if applicable.
(c) After the stipulation agreement 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 stipulation
agreement, but no later than the date the agreement is approved and filed by the Family
Court.
704.5-45. Initiating a Hearing Petition to Establish Child Support. If the parties do not enter into
a stipulationvoluntary agreement, then any of the following may initiate an action for the
establishment of a petition to establish child support by filing a petition may be filed with the
Family Court.
(a) a custodial parent;
(b) a child’s natural mother;
(c) a child’s father;
(d) a child’s guardian ad litem;
(e) a child’s non-legally responsible relative;
(f) a legally incompetent adult’s guardian ad litem; or
(g) the Agency when required by federal law.
704.5-5. Petition. The petition to establish child support may be filed as a separate proceeding or
in connection with a petition for child custody. The petition to establish child support shall include
the following:
(a) Requirements of the Petition. The petition to establish child support shall include the
following:
(1) The name, date of birth, and address, and tribal affiliation of the petitioner, and
respondent, and child for whom support is requested;
(1A) If the address of the respondent is unknown, other Tribal 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.
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(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;
(b2) Confidential Petition Addendum. The confidential petition addemdum is a 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,
their 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.
704.5-6. (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.
704.5-7. (d) Notice Summons. All parties shall be notified of the petition and of all
hearings, and shall be given an opportunity to be heard.
(1) Service of the Summons. The summons, which N notices the initiationg 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. All
mailing of notice The summons shall include the Family Court clerk’s return
address, with a notice request to file an answer to that address. Subsequent Any
notice after the summons shall be served by first-class mail to the recently verified
last-known address of the party.
(aA) 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.
(bB) 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 ask the Family Court to direct
the Agency to provide use service by publication. If the request is granted,
the Agency The publication shall be publish the petition in the Kalihwisaks
Nation’s newspaper or a newspaper of general circulation in the county of
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residence of the respondent, if known. The Ppublication shall be designated
as a Legal Notice and any confidential information shall be redacted.
(1i) If service by publication is usedpermitted and there is
insufficient time for notice and answer pursuant to this lLaw, the
Family Court shall re-schedule 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.
704.5-8 (2) Requirements of the Summonsand Petition. 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:
(a1) 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;
(b2) That a child support order may require the respondentperson 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);
(c3) That the respondent’s person found to be the obligor may have his or
her license(s) may be suspended or denied for failure to pay child support,
in addition to other enforcement actions;
(d4) That the respondent’s person found to be the obligor’s employer or
others with evidence of the respondent’s his or her income may be
subpoenaed to provide the Family Court with records of his or her earnings;
(e5) That if the respondent person found to be the obligor is unemployed,
he or she will it shall still be imputed to be determind that he or she is able
to provide some degree of child support and an order of support will shall
be calculated according to this law unless the Family Court makes written
findings ordering otherwise; and
(f6) 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.
704.5-9 (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.
704.5-10 (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.
704.5-11. 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 those 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 704.7-38 shall be
complied with.
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704.6. Child Support Hearing Procedures
704.6-1. The factual determinations made at a hearing shall include, but is not be 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 Tribal 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
their own expense. The Tribe 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 those 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 704.7-38 shall be
complied with.
704.6-45. 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.
704.6-56. Hearings and Records Closed. Child Ssupport 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 Determination Obligation
704.7-1. Except as provided elsewhere in this law, Tthe 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.
(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.
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(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. 1.3-1. Determining Income Modified for Business Expenses. In determining a parent’s
monthly income, the Family Court may adjust a 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 under 29 USC 206
(a)(1). 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.
(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:
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(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 include 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 in the parent’s gross income
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.
(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.
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(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.
704.7-38. Deviation from Standard Factors 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 that 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 custodian custodial parent works outside the home, or the
value of custodial services performed by the custodian custodial parent if the custodian
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.
Cross-reference: See also Rule CS 1 CHILD SUPPORT PERCENTAGE OF INCOME STANDARD.
704.7-59. Past-due and Arrears obligations.
(a) A party may request payment of arrears or past-due child support as follows:
(1) In an action pursuant to Chapter 703, Paternity, 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
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(3) In an establishment or modification of placement pursuant to Chapter 702 or
Chapter 705, 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) An 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 Content and
Effect of Order
704.8-1.1.4-1. Determining the Child Support Obligation of a Serial-Family Obligor.
(a) Applicability. This subsection applies only if the additional support obligation incurred
by the obligor is the result of a child support order and 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 of the child support order 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 of the filing of an acknowledgement of paternity
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:
(aA) 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
(bB) 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 under (3) from the obligor’s monthly income under (1).;
(5) Determine the second child support obligation as follows:
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(aA) 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
(bB) 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 determined under (5) from the first adjusted monthly
income under (4).;
(7) Repeat the procedure under (5) and (6) 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 determined in either (6) or (7) to
determine the new child support obligation.
704.8-2. 1.4-2. 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 365. 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
of (a) 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 under
1.3-2, 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
under 704.7.
(3) Multiply each amount determined under (2) section 704.8-2(b)(2) by one
hundred and fifty percent (150%).
(4) Multiply the amount determined for each parent under (3) 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 (4) 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
under 704.7. If the shared-placement obligor is also a low-income obligor, the child
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support obligation may be the lesser of the amount determined under this section
or under 1.4-4 the shared placement determination or the low-income
determination.
(6) In addition to the child support obligation determined under (5) section 704.82(b)(5), the Family Court shall assign responsibility for payment of the child’s
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 fixed
sum or percentage expressed 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.
704.8-3.1.4-3. Determining the Child Support Obligations of Split-Placement Parents.
(a) Applicability. The split-placement formula may be applied when For parents who have
two (2) or more children and each parent has placement of one (1) or more but not all of
the children, the child support obligations may be determined as follows:.
(b) Determination. The child support obligation for a split-placement parent may be
determined as follows:
(a1) Determine each parent’s monthly income.
(b2) Multiply each parent’s monthly income by the appropriate percentage for the
number of children placed with the other parent to determine each parent’s child
support obligation. 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
(c6) Offset resulting amounts under (b) section 704.8-3(b)(5) against each other.
The parent with a greater child support obligation is the split-placement obligor.
704.8-4.1.4-4. Determining the Child Support Obligation of a Low-Income Obligor.
(a) Applicability. If an the obligor’s total economic circumstances limit his or her ability
to pay support at the level determined under 704.7 by the standard percentage standards,
then the low-income obligor standards found in the Child Support Obligation of LowIncome Payers Schedule may be used.
(b) Determination. The Family Court may use the monthly support amount provided in
the schedule in Appendix A 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
if the obligor’s total economic circumstances limit his or her ability to pay support at the
level determined under 704.7.
(1) If an obligor’s monthly income is below the lowest income level in Appendix
A the Child Support Obligation of Low-Income Payers Schedule, the Family Court
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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
Appendix A the Child Support Obligation of Low-Income Payers Schedule. (b) The
Agency shall revise the schedule in Appendix A at least once every four (4) years.
The revision shall be based on changes in the federal poverty guidelines since the
schedule was last revised.
704.8-1. The child support order shall provide for immediate wage withholding. An order to
withhold income shall be binding against future payors upon actual notice of the order through
service by personal delivery or certified mail upon the payor. Wages shall not be subject to
withholding only where:
(a) One of the parties demonstrates and the Family Court finds that there is good cause not
to require wage withholding due to one of the following:
(1) There is an error in the amount of current or overdue support; or
(2) The identity of the obligor is mistaken.
(b) The parties reach a written agreement which provides for an alternative arrangement
and is approved by the Family Court.
704.8-2. The Family Court may require a party, or both parties, to utilize the services available to
him or her to obtain and maintain regular employment and/or job training.
704.8-3. Support Order Notice Requirements. Each order for child support shall include 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. Each order for child support shall also include 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. A “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 either more than fifteen percent (15%) or fifty dollars ($50.00) per month. An order under this
section is enforceable as contempt.
704.8-4. 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. Child Support Order Enforcement of Order
704.9-1. 1.3-5. Expression of Ordered Support. The child support amount shall be expressed as
a fixed sum unless the parties have stipulated to expressing the amount as a percentage of the
obligor’s income and the stipulation requirements of Chapter 704 are satisfied.
704.9-42. Interest on Arrears. The Tribe Nation shall not charge a party an obligor ordered to
pay child support interest on any arrears.
704.9-23. Income WageWithholding. The child support order shall provide for immediate wage
income withholding.
(a) A copy of the Family Court’s wage 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 any business method acceptable to the payor 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 service notice by mail, fax, or electronic means.
personal delivery or certified mail upon the payor.
(c) Income wages shall not be subject to withholding only where:
(a1) One of the parties demonstrates, and the Family Court finds, that there is good
cause not to require income wage withholding due to one of the following:
(1A) There is an error in the amount of current or overdue support; or
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(2B) The identity of the obligor is mistaken.
(b2) The parties reach a written agreement which provides for an alternative
arrangement that is approved by the Family Court.
(bd) No payor shall refuse to honor a wage an income withholding order executed pursuant
to this law. A payor shall begin withholding income immediately after noticeservice of a
wage 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
Agency Wisconsin Support Collections Trust Fund.
(ce) 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 served with an income withholding order,
to deduct or promptly remit the amounts of money required in the order; or
(2) Fails or refuses to submit an answer to the notice of wage income withholding
after being noticed served; or
(3) Is unwilling to comply with the other requirements of this law.
(df) 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 wage 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.
(eg) A payor who repeatedly fails to comply with a wage 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.
(fh) If wage 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.
(gi) 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)).
(hj) Non-Indian off-reservation payors shall be subject to income withholding under 28
U.S.C. §1738B.
704.9-4.704.8-2. 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) aAn 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) Each order for child support shall also include a An order that the obligor notify the
Agency and the obligee of any change of employer or substantial change of income within
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ten (10) business days of the change. A “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 either more than fifteen percent (15%) or fifty dollars ($50.00) per month. An order
under this section is enforceable as contempt.
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. 1.3-6 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.
704.7-49-9. 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(s) 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.
704.9-3. In the event that an obligor is at least one (1) month delinquent in paying his or her child
support obligation, he or she may be subject to the following enforcement actions:
(a) increase in amount of wages withheld
(b) placement on lien docket;
(c) credit bureau reporting;
(d) intercept of income and/or other payments;
(e) seizure of personal property;
(f) suspension of licenses;
(g) denial of passport;
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(h) commitment to jail;
(i) charge of contempt;
(j) referral for criminal charges;
(k) any other enforcement action included in this law or in a rule that is established under
this law.
Cross-reference: See also Rule CS 2 ENFORCEMENT TOOLS.
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 will 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 an order
to update the child support obligation will be sought by the Agency if there is a substantial change
in circumstances. A substantial change in circumstance means 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 either more than fifteen percent (15%) or 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.
704.10-23. 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.
704.10-34. An obligor shall not raise a substantial change in circumstances as a reason not to pay
a past due reward current child support order or arrears. If a child support award 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 changed award modification to the child support
order at that time. He or she may not raise that change in circumstances as a reason not to pay a
past due award.
704.10-4. A change in the percentages shall constitute a substantial change in circumstances and
shall justify prospective modification of a child support order.
7 O.C. 704 – Page 20
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704.11. Modification of a Child Support Order for an Incarcerated Parent Full Faith and
Credit for Foreign Child Support Orders
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;
(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 and Order to Modify.
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(a) The Family Court shall schedule a hearing on the motion. The Agency shall provide
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.
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.
704.11-1. Properly issued child support orders, and judgments or decrees of other Indian tribes,
tribal organizations and states, that relate to child support shall be recognized and modified in
accordance with the requirements under the Full Faith and Credit for Child Support Orders Act,
28 U.S.C. 1738B.
704.11-2. A foreign order is authenticated by reasonable proof that the document tendered to the
Family Court is a true copy of the foreign order as it is recorded in the agency or court of the
issuing jurisdiction. An authentication stamp issued by a court clerk or custodian of records, or a
court seal, is sufficient evidence of authenticity.
704.11-3. Unless defects in jurisdiction are apparent on the face of the foreign order, the person
contesting enforcement of the order has the burden of showing the order is not valid. Upon a
failure to respond to notice of the order and to timely contest it, the Family Court shall enforce it
as a Family Court order.
704.11-4. If a foreign order is brought before the Family Court solely for an interpretation of the
terms of the order, and the order has been recognized and given full faith and credit by the
Family Court, the Family Court shall interpret the order by applying the law of the forum that
issued the foreign order.
704.12. Compliance Plan Right of Appeal
704.12-1. 2.3-1. The Agency shall attempt to meet with a party who is found to be subject to
enforcement action as soon as possible by sending a Letter of Non-Compliance within five (5)
business days of being informed of a party’s failure to either pay support as ordered or to meet a
required obligation or action. If at any time an 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.
7 O.C. 704 – Page 22
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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 of Non-Compliance shall set out the conditions the party has failed to
comply with, outline the enforcement actions that may be taken, and 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 shall send a second Letter.
(c) If the party fails to respond to the second Letter within five (5) business days after
receipt of the letter, the Agency may proceed with appropriate enforcement action.
(c) If the party 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 ensure 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.
704.12-1. Any enforcement action implemented by the Agency may, within thirty (30) calendar
days after the date that the action is enforced, be appealed to the Family Court. The decision of
the Family Court shall be final.
704.12-2. If the Family Court conducts a hearing under this law, a party may, within thirty (30)
calendar days after the date that the Family Court makes a decision, appeal that decision to the
Court of Appeals of the Judiciary. The appellate body review shall be based on the record and
the original decision of the Family Court.
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. 704.9-1. 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;
(c) Document the reasons why an enforcement action is not taken, when such action would
have been appropriate under the circumstances; and
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(d) Assist in Rrefunding amounts that were improperly withheld, terminate income
withholding when appropriate, and allocate amounts across multiple cases.
704.13-3. 2.4-2 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. (a) The notice of delinquency shall inform the obligor of the following:
(1) The dates that the delinquency accrued;
(2a) The total amount of the delinquency; and
(3) Any prior agreement or showing of good cause to not wage withhold may be
terminated and the obligor may be subject to wage withholding;
(4b) The enforcement action that may be taken as a result of the delinquency.
(5) 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 service of
notice in order to stay any enforcement action;
(6) The obligor has ten (10) business days after the service of the notice of
delinquency 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.
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 wage 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. 2.4-3 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.
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(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 sixty thirty (630) days and a verified mailing
address has not been identified, the Agency may proceed with the administrative
enforcement action.
704.13-6. 2.4-4. 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 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. 2.4-5. 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
704.14-1.2.9-1 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.
704.14-2.2.9-2 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 of 2.9-3 and 2.9-4
for staying or suspension of administrative enforcement actions are met.
(b) An obligor may negotiate a plan with the Agency to have a license suspension lifted
issued or renewed after it has been restricted, limited, suspended or refused.
(c) Hearings for Negotiations of an Alternative Payment Plan. The obligor may submit a
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 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 the obligor may submit this a 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) If the Agency and the obligor The obligor and the Agency are unable to reach
agreement on the terms of a plan a hearing may be conducted.
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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.
(d) 2.9-5. Proceeding with Administrative Enforcement Actions. The Agency may
continue with the administrative enforcement action if:
(1a) the obligor and the Agency are unable to negotiate a plan;
(2b) the Family Court determines that the plan is not reasonable; and/or
(3c) the Family Court does not order a plan.
704.14-3. 2.9-6 Disclosure of Income and Assets. The request to negotiate a plan shall include an
agreement by the obligor to provide the Agency with a full disclosure of income and assets
available. The obligor shall provide complete income and assets information to the Agency within
five (5) business days of the request to negotiate a plan.
704.14-4. 2.9-7 Terms of an Alternative Payment Plan.
(a) An alte
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