# Oneida Business Committee (2019) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/tribal%3Aoneida_nation%3A864b7ca7ba6ff290 ## Record - **Collection:** Tribal code - **Document type:** Tribal code ## Text 1 of 164 Oneida Nation " Oneida Business Committee Legislative Operating Committee 000000 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. 2 of 164 ~ 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. r'\. OOODDD= A good mind. A good heart. A strong fire. Legislative Operating Committee Meeting Minutes of October 16, 2019 Page 1 of 2 ONEIDA 3 of 164 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 Page 2 of 2 4 of 164 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. Page 1 of 4 5 of 164 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. Page 2 of 4 6 of 164 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. Page 3 of 4 7 of 164 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. Page 4 of 4 8 of 164 Oneida Nation 000000 PO Box 365 • Oneida, WI 54115-0365 ONEIDA Oneida- nsn.gov TO: FROM: DATE: RE: " 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. Page 1 of 21 A good mind. A good heart. A strong fi re. 9 of 164 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. Page 2 of 21 ~ ONEIDA 10 of 164 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. Page 3 of 21 ~ ONEIDA 11 of 164 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: A good mind. A good heart. A strong fire. Page 4 of 21 ~ ONEIDA 12 of 164 (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 "" (JQQOQ() A good mind. A good heart. A strong fire. Page 5 of 21 ONEIDA 13 of 164 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 " (XJQQQO A good mind. A good heart. A strong fire. Page 6 of 21 ONEIDA 14 of 164 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. "" fflJODOD= A good mind. A good heart. A strong fire. Page 7 of 21 ONEIDA 15 of 164 (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 "' fflXJDOO; A good mind. A good heart. A strong fire. Page 8 of 21 ONEIDA 16 of 164 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; " 000000= A good mind. A good heart. A strong fire. Page 9 of 21 ONEIDA 17 of 164 (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 A good mind. A good heart. A strong fire. Page 10 of 21 ~ ONEIDA 18 of 164 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. A good mind. A good heart. A strong fire. Page 11 of 21 ~ ONEIDA 19 of 164 (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'\ (JQCJQffl) A good mind. A good heart. A strong fire. Page 12 of 21 ONEIDA 20 of 164 704.14. 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 A good mind. A good heart. A strong fire. Page 13 of 21 ~ ONEIDA 21 of 164 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 A good mind. A good heart. A strong fire. Page 14 of 21 ~ ONEIDA 22 of 164 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 A good mind. A good heart. A strong fire. Page 15 of 21 ~ ONEIDA 23 of 164 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 A good mind. A good heart. A strong fire. Page 16 of 21 ~ ONEIDA 24 of 164 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 A good mind. A good heart. A strong fire. Page 17 of 21 ~ ONEIDA 25 of 164 704 .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 A good mind. A good heart. A strong fire. Page 18 of 21 ~ ONEIDA 26 of 164 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 ONEIDA 27 of 164 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'\ fflXJOOO= A good mind. A good heart. A strong fire. Page 20 of 21 ONEIDA 28 of 164 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 r'\ OODODC) A good mind. A good heart. A strong fire. Page 21 of 21 ONEIDA 29 of 164 Draft 2 (Redline to Current) 2019 09 18 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 704.10. 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 30 of 164 Draft 2 (Redline to Current) 2019 09 18 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 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 31 of 164 Draft 2 (Redline to Current) 2019 09 18 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 (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 32 of 164 Draft 2 (Redline to Current) 2019 09 18 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 (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 33 of 164 Draft 2 (Redline to Current) 2019 09 18 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 (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 34 of 164 Draft 2 (Redline to Current) 2019 09 18 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 (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 35 of 164 Draft 2 (Redline to Current) 2019 09 18 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 (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. 7 O.C. 704 – Page 7 36 of 164 Draft 2 (Redline to Current) 2019 09 18 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 (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 7 O.C. 704 – Page 8 37 of 164 Draft 2 (Redline to Current) 2019 09 18 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 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. 7 O.C. 704 – Page 9 38 of 164 Draft 2 (Redline to Current) 2019 09 18 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 704.6. 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. 7 O.C. 704 – Page 10 39 of 164 Draft 2 (Redline to Current) 2019 09 18 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 (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: 7 O.C. 704 – Page 11 40 of 164 Draft 2 (Redline to Current) 2019 09 18 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 554 (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. 7 O.C. 704 – Page 12 41 of 164 Draft 2 (Redline to Current) 2019 09 18 555 556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597 598 599 600 601 (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 7 O.C. 704 – Page 13 42 of 164 Draft 2 (Redline to Current) 2019 09 18 602 603 604 605 606 607 608 609 610 611 612 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 (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: 7 O.C. 704 – Page 14 43 of 164 Draft 2 (Redline to Current) 2019 09 18 647 648 649 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684 685 686 687 688 689 690 691 692 693 694 (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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Aoneida_nation%3A864b7ca7ba6ff290. Public record. Not legal advice.