Oneida Business Committee (2019)

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

PO Box 365 • Oneida, WI 54155-0365

Oneida-nsn.gov

ONEIDA

LEGISLATIVE OPERATING COMMITTEE MEETING AGENDA

Business Committee Executive Conference Room-2nd Floor Norbert Hill Center

August 7, 2019

9:00 a.m.

Call to Order and Approval of the Agenda

II.

Minutes to be Approved

July 17, 2019 LOC Meeting Minutes (pg. 2)

III.

Current Business

1. Curfew Law (pg. 4)

2. Child Support Amendments (pg. 32)

IV.

New Submissions

1. Children’s Burial Fund Policy Amendments (pg. 128)

Additions

VI.

Administrative Updates

3. FY 19 Third Quarterly LOC Report (pg. 136)

VII.

Executive Session

VIII. Recess/Adjourn

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

GDDDOO

PO Box 365 • Oneida, WI 54155-0365

ONEIDA

Oneida-nsn.gov

LEGISLATIVE OPERATING COMMITTEE MEETING MINUTES

Oneida Business Committee Conference Room-2nd Floor Norbert Hill Center

July 17, 2019

9:00 a.m.

Present: David P. Jordan, Kirby Metoxen, Daniel Guzman King

Excused: Jennifer Webster, Ernest Stevens III

Others Present: Maureen Perkins, Brandon Wisneski, Clorissa Santiago, Jennifer Falck, Kristen

Hooker, Leyne Orosco, Rae Skenandore, Lee Cornelius, Michelle Gordon

Call to Order and Approval of the Agenda

David P. Jordan called the July 17, 2019 Legislative Operating Committee meeting to order

at 9:00 a.m.

Motion by Kirby Metoxen to adopt the agenda; seconded by Daniel Guzman King. Motion

carried unanimously.

II.

Minutes to be Approved

Motion by Daniel Guzman King to approve the June 19, 2019 Legislative Operating

Committee meeting minutes and forward to the Oneida Business Committee for

consideration; seconded by Kirby Metoxen. Motion carried unanimously.

III.

Current Business

1. Curfew Law (1:15-4:06)

Motion by Kirby Metoxen to approve the memorandum regarding the Curfew Law

financial impact statement dated July 17, 2019; seconded by Daniel Guzman King.

Motion carried unanimously.

Motion by Kirby Metoxen to amend the June 13, 2019, directive to the Finance

Department to direct the Finance Department to complete a fiscal impact statement

within ten (10) business days after the LOC approves a final proposed draft of the

Curfew law; seconded by Daniel Guzman King. Motion carried unanimously.

IV.

New Submissions

Additions

VI.

Administrative Items

1. Children’s Code Quarterly Update (4:10-10:04)

Motion by Kirby Metoxen to accept the seventh Children’s Code Quarterly Update;

seconded by Daniel Guzman King. Motion carried unanimously.

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Legislative Operating Committee Meeting Minutes of July 17, 2019

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2. Oneida Personnel Commission Bi-Monthly Update Memo (10:05-15:20)

Motion by Kirby Metoxen to accept the memorandum as an update on the progress of

the Oneida Personnel Commission; seconded by Daniel Guzman King. Motion carried

unanimously.

Motion by Kirby Metoxen to move the responsibility of these reports to the Business

Committee Support Office; seconded by Daniel Guzman King. Motion carried

unanimously.

**Note – David P. Jordan recommends redrafting the memorandum to reflect the

subsequent motion.

VII.

Executive Session

VIII. Adjourn

Motion by Daniel Guzman King to adjourn the July 17, 2019 Legislative Operating

Committee meeting at 9:15 a.m.; seconded by Kirby Metoxen. Motion carried

unanimously.

Legislative Operating Committee Meeting Minutes of July 17, 2019

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

PO Box 365 • Oneida, WI 54155-0365

Oneida-nsn.gov

Legislative Operating Committee

August 7, 2019

Curfew Law

Submission Date: 12/19/18

LOC Sponsor: Ernest Stevens III

Public Meeting: 7/18/19

Emergency Enacted: n/a

Summary: This was a recommendation from the TAP Law and Policy Subcommittee, to develop a

curfew law for the Oneida Nation.

12/19/18 LOC: Motion by Jennifer Webster add the Curfew Law to the active files list and assign Ernest

Stevens III as the sponsor; seconded Ernest Stevens III. Motion carried unanimously.

2/13/19:

Work Meeting. Present: Clorissa N. Santiago, Eric Boulanger, Joel Maxam, Maureen Perkins.

The purpose of this work meeting was to obtain information from the Oneida Police

Department regarding any issues that may currently be occurring on the Reservation related to

a lack of curfew, as well as discuss OPD’s role in potentially enforcing a Curfew law.

2/14/19:

Work Meeting. Present: David P. Jordan, Jennifer Webster, Jennifer Falck, Clorissa N.

Santiago, Brandon Wisneski. The purpose of this work meeting was to provide the LOC an

update on communications with the Oneida High School’s Clan Council, and recent work

meeting with OPD. The LOC also discussed potential dates for holding a community meeting

potluck on the curfew law.

2/20/19 LOC: Motion by Daniel Guzman King to approve the community meeting notice and direct that a

community meeting for the proposed Curfew Law be held on Thursday, March 21, 2019;

seconded by Ernest Stevens III. Motion carried unanimously.

3/13/19:

Work Meeting. Present: Clorissa N. Santiago, Maureen Perkins, student representatives from

the Oneida Nation Clan Council. The purpose of this work meeting was to obtain information

from the Oneida High School Clan Council regarding their thoughts and opinions on a

potential curfew law.

3/21/19:

Work Meeting. Present: David P. Jordan, Ernest Stevens III, Daniel Guzman King, Jennifer

Falck, Clorissa N. Santiago, Maureen Perkins. The purpose of this work meeting was to

prepare for tonight’s community meeting on the curfew law. The LOC discussed the format

for the community meeting, potential discussion points, and questions the LOC members

currently have themselves regarding this topic.

3/21/19:

Community Meeting. Present: David P. Jordan, Lisa Summers, Ernest Stevens III, Daniel

Guzman King, Jennifer Falck, Clorissa N. Santiago, Brandon Wisneski, Maureen Perkins. No

community members attended the community meeting.

5/1/19:

Work Meeting. Present: David P. Jordan, Kirby Metoxen, Jennifer Webster, Ernest Stevens

III, Jennifer Falck, Clorissa N. Santiago, Maureen Perkins. The purpose of this work meeting

was for the LOC to review the draft of the Curfew law. The LOC made policy decisions for

curfew, and directed minor changes be made to the draft. The LRO will update the draft and

complete a legislative analysis to be brought back in the near future.

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5/15/19:

Work Meeting. Present: David P. Jordan, Kirby Metoxen, Jennifer Webster, Daniel Guzman

King, Jennifer Falck, Clorissa N. Santiago, Maureen Perkins. The purpose of this work

meeting was to review and discuss a couple remaining questions that need to be determined

before a draft is finalized. LOC provided direction, and a draft will be finalized and moved

forward. On track to bring draft and analysis to June 5, 2019 LOC meeting.

6/5/19 LOC:

Motion by Jennifer Webster to accept the draft and legislative analysis of the Curfew law and

defer these items to a work meeting for further consideration, replacing page four (4) of the

packet with the handout; seconded by Ernie Stevens III. Motion carried unanimously.

6/5/19:

Work Meeting. Present: David P. Jordan, Kirby Metoxen, Jennifer Webster, Daniel Guzman

King, Ernest Stevens III, Jennifer Falck, Clorissa N. Santiago, Brandon Wisneski, Maureen

Perkins. The purpose of this work meeting was for the LOC to review the two (2) policy

considerations contained in the legislative analysis. LOC discussed other potential

amendments and directed that minor revisions be made to the law. Additionally, LOC made a

decision as to who will be directed to complete the financial analysis – the Finance

Department. A memo regarding the fiscal impact statement to Finance and the public meeting

packet will be prepared for the next LOC meeting.

6/13/19:

E-Poll Conducted. E-Poll was titled “Approval of the Curfew Law Fiscal Impact Statement

Request Memorandum to the Finance Department. The requested action of this e-poll was to

approve the Curfew law fiscal impact statement request memorandum, with accompanying

updated draft and legislative analysis, and forward to the Finance Department directing that a

fiscal impact statement of the proposed Curfew law be prepared and submitted to the LOC by

July 18, 2019. The e-poll was approved by David P. Jordan, Kirby Metoxen, Jennifer Webster,

and Ernest Stevens III. Daniel Guzman King did not provide a response to the e-poll.

6/19/19 LOC: Motion by Jennifer Webster to approve the public meeting packet and forward the Curfew

law to a public meeting to be held on July 18, 2019; seconded by Ernest Stevens III. Motion

carried unanimously.

Motion by Jennifer Webster to enter the June 13, 2019 LOC E-poll titled “Approval of the

Curfew Law Fiscal Impact Statement Request Memorandum” results into the record;

seconded by Ernest Stevens III. Motion carried unanimously.

6/19/19:

Work Meeting. Present: David P. Jordan, Jennifer Webster, Ernest Stevens III, Jennifer Falck,

Clorissa N. Santiago, Brandon Wisneski, Destiny Prendiville. The discussion during this work

meeting centered around the LOC’s recent request for a fiscal impact statement to be

completed by July 18, 2019 and a strategy for moving forward.

6/27/19:

Work Meeting. Present: Jennifer Webster, Daniel Guzman King, Jennifer Falck, Clorissa N.

Santiago, Brandon Wisneski, Destiny Prendiville, Kristen Hooker, Maureen Perkins. The

discussion during this work meeting centered around the update on the LOC’s communication

with the Finance Department.

7/17/19 LOC: Motion by Kirby Metoxen to approve the memorandum regarding the Curfew Law financial

impact statement dated July 17, 2019; seconded by Daniel Guzman King. Motion carried

unanimously.

Motion by Kirby Metoxen to amend the June 13, 2019, directive to the Finance Department

to direct the Finance Department to complete a fiscal impact statement within ten (10) business

days after the LOC approves a final proposed draft of the Curfew law; seconded by Daniel

Guzman King. Motion carried unanimously.

7/18/19:

Public Meeting Held. Present: Ernest Stevens III, Brooke Doxtator, Jennifer Falck, Clorissa

N. Santiago, Rae Skenandore, Carol Silva, Amy Williams, Bella Mae Williams, Maureen

Perkins. One (1) person gave public comment during this public meeting.

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Next Steps:

 Accept the public comments and public comment review memorandum and defer to a work meeting

or further consideration.

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

000000

PO Box 365 • Oneida, WI 54115-0365

ONEIDA

Oneida -nsn.gov

TO:

FROM:

DATE:

RE:

/J/k.;fr

Legislative Operating Committee (LOC)

Clarissa N . Santiago, Legislative Reference Office, Staff Attorney ~

August 7, 2019

Curfew Law: Public Meeting Comment Review

On July 18, 2019, a public meeting was held regarding the proposed Curfew law ("the Law"). The

public comment period was then held open until July 25, 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 - Curfew Hours:

308.5-1. Curfew Established. No minor shall be on any public space either on foot or in any

vehicle driven or parked, between the hours of 10:00 p.m. and 6:00 a.m. within the

boundaries of the Reservation, unless the minor is accompanied by a parent, guardian, or

legal custodian.

308.5-3. Exemptions to Curfew. A minor shall not be in violation of the curfew, if at the time

of the alleged violation the minor was:

. (a) in the performance of a duty directed by such parent, guardian, or legal

custodian;

(b) engaged in employment or an employment related activity, or traveling to or

returning home from employment;

(d) attending an educational, cultural, religious, or recreational activity that was

supervised by adults, or traveling to or returning home from such activity;

(e) on the sidewalk in front of his or her home or an adjacent home;

(f) going to, attending, or returning home from a movie theatre;

(g) engaged in hunting, fishing, or trapping in accordance with the laws, policies, and

rules of the Nation;

(h) exercising rights protected by the Nation's Constitution and the United States

Constitution, such as free exercise of religion, freedom of speech, and the right of

assembly;

(i) involved in an emergency situation; and/or

(j) engaged in any other activity as deemed appropriate by the Oneida Police

Department officer.

Amy Williams (oral): Hi, my name is Amy Williams. Um, so thanks for the oppmiunity to allow

me to comment. Um, so I did have a chance to review the provisions of the proposal and um my

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comment is that I would be in favor of first an earlier time, perhaps four or five o'clock instead of

six o'clock. And um, I think the reason is because we have three kids, all of them have had

primarily athletic, but as well as academic, responsibilities that are before six o'clock. So, for

example, our son has hockey practice at, sometimes practice staiis at four or 4:30 a.m. which

means leaving the house at four o'clock, so he's out, he's driving around. He's a responsible, you

know they are responsible kids doing what they ai·e supposed to be doing.

Response

The commenter requests the Legislative Operating Committee to consider revising the curfew

hours to end before 6:00 a.m. to accommodate those minors who may be engaged in athletic or

academic extracunicular activities that ai·e held in the early morning hours.

The Legislative Operating Committee dete1mined that the Nation's curfew should be imposed

between the hours of 10:00 p.m. and 6:00 a.m. in an effmi to be consistent with curfew hours

imposed in the sunounding municipalities. A review oflocal laws demonstrated that the following

municipalities impose a curfew during the hours of 10:00 p.m. and 6:00 a.m.:

• Brown County;

• Village of Hobart;

• City of Green Bay;

• City of De Pere;

• Village of Ashwaubenon; and

• Village of Howard.

Consistency in the hours of curfew that are imposed on minors across neighboring municipalities

will make it easier for families to ensure they are complying with all laws that may govern across

overlapping jurisdictions.

Additionally, the Law accommodates · minors who may engage in athletic or academic

extracmTicular activities that are held during curfew hours through the various exemptions that are

provided. The Law provides that a minor shall not be in violation of the curfew, if at the time of

the alleged violation the minor was attending an educational, cultural, religious, or recreational

activity that was supervised by adults, or traveling to or returning home from such activity. [3 0. C.

308.5-](d)].

Based on the various exemptions to the curfew hours provided by the Law, there is no

recommended revision to the draft, but the Legislative Operating Committee may consider revising

the curfew hours if desired.

LOC Consideration

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Comment 2 - Police Discretion:

308.5-3. Exemptions to Curfew. A minor shall not be in violation of the curfew, if at the time

of the alleged violation the minor was:

(a) in the performance of a duty directed by such parent, guardian, or legal

custodian;

(b) engaged in employment or an employment related activity, or traveling to or

returning home from employment;

( c) engaged in interstate travel;

(d) attending an educational, cultural, religious, or recreational activity that was

supervised by adults, or traveling to or returning home from such activity;

(e) on the sidewalk in front of his or her home or an adjacent home;

(f) going to, attending, or returning home from a movie theatre;

(g) engaged in hunting, fishing, or trapping in accordance with the laws, policies, and

rules of the Nation;

(h) exercising rights protected by the Nation's Constitution and the United States

Constitution, such as free exercise of religion, freedom of speech, and the right of

assembly;

(i) involved in an emergency situation; and/or

(j) engaged in any other activity as deemed appropriate by the Oneida Police

Department officer.

308.6-2. Warning. The first time a minor is held in custody by an Oneida Police Officer for

a curfew violation the Oneida Police Officer shall provide the minor and the minor's parent,

guardian, or legal custodian a warning and advise the minor and parent, guardian, or legal

custodian of the provisions of this law and that any subsequent curfew violations may result

in the issuance of a citation and the imposition of a penalty.

Amy Williams (oral): Um, so, I understand the spirit of what's proposed in terms of, in terms of

safety. I guess I would, I'm an advocate for also assuring in some ways that the proposed law isn't

too punitive and that there is some smi of discernment in te1ms of oh my gosh these kids are out

here doing what they need to be doing and not be afraid that somehow they are going to get in

trouble because they're out there by themselves, especially the ones that can drive. So, our kids

are out running, sometimes they have study groups in the morning, so um perhaps an earlier time,

and that would be the first thing. And then as well as to assure that there are provisions or enough

movement in the law where um you know whoever, police or whoever is enforcing, aren't too

punitive with kids who are going what they are supposed to be doing.

Response

The commenter encourages the Legislative Operating Committee to ensure that the Law allows

the Oneida Police Depaiiment enough discretion in the enforcement to ensure that it is not punitive

to those minors who are engaging in lawful actions.

The Law was drafted to provide the Oneida Police Department discretion in handling curfew

violations. The Law provides various exemptions, or circumstances in which a minor will not

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violating curfew if at the time of the alleged violation the minor was engaged in those certain

circumstances. [3 O.C. 308.5-3]. One (1) of the many exemptions included in the Law provides

that a minor shall not be in violation of the curfew, if at the time of the alleged violation the minor

was engaged in any activity as deemed appropriate by the Oneida Police Department officer. [3

O.C. 308.5-30)]. This broad exemption provides the Oneida Police Depaitment officer discretion

in enforcing the curfew.

The Law further requires that the first time a minor is held in custody by an Oneida Police

Department officer for violating curfew, the officer shall issue the minor and the minor's parent,

guardian, or legal custodian a warning. [3 O.C. 308.6-2]. The purpose of this warning is to advise

the minor and parent, gumdian, or legal custodian of the provisions of this law and that any

subsequent curfew violation may result in the issuance of a citation and the imposition of a penalty.

[3 o.c. 308.6-2].

In addition to the specific provisions of the Law stated above which allow for discretion by the

Oneida Police Depaitment, the pmpose of this Law is not to simply punish those minors who

violate curfew, but to suppo1t all drng use prevention initiatives of the Nation by protecting the

health, safety, and welfare of persons through the establishment of a curfew for minors in public

spaces within the Reservation during ce1tain hours in an effmt to minimize the opportunity for

hmm to come to minors during those hours. [3 O.C. 308.1-2].

The recommendation for a Curfew law was brought to the Legislative Operating Committee by

the Nation's Tribal Action Plan - Laws and Policy Subcommittee. The pmpose of the Tribal Action

Plan is to coordinate a comprehensive prevention and treatment program for alcoholism and other

substance abuse that includes not only existing resources, but identifies the additional resources

necessary to combat these problems. The Laws and Policy Subcommittee was then assigned the

specific responsibility to look at what laws of the Nation should be amended, or created, to better

suppo1t the Tribal Action Plan. The recommendation to develop a Curfew law came to the

Legislative Operating Committee as a result of the discussions from the Laws and Policy

Subcommittee which consisted of a cross functional core team that included representatives from

the Oneida Business Committee, Oneida Police Depaitment, Governmental Services Division,

Oneida Gaming Commission, Family Services, Legislative Reference Office, Human Resources

Department, and Retail.

Based on the cmTent provisions of the Law that allow the Oneida Police Depaitment discretion in

the enforcement of curfew, there is no recommended revision based on this comment.

LOC Consideration

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Comment 3 - Res onsibility of Parents, Guardians, and Le al Custodians:

308.5-2. Parental Responsibility. No parent, guardian, or legal custodian shall knowingly

permit or fail to take action to prevent the minor from being on any public space either on

foot or in any vehicle driven or parked, between the hours of 10:00 p.m. and 6:00 a.m. within

the boundaries of the Reservation.

Amy Williams (oral): So, our kids are usually under the purview of coaches who are telling them

where to be and what time, or uh teachers or other study groups. So just that that would be added

in addition to parents, guardians, and whatever language is. And that' s all.

Response

The Law provides that no minor shall be on any public space either on foot or in any vehicle driven

or parked, between the hours of 10:00 p.m. and 6:00 a.m. within the boundaries of the Reservation,

unless the minor is accompanied by a parent, guardian, or legal custodian. [3 O.C. 308.5-1}. The

commenter requests that coaches and teaches be added to the designation of "parent, guardian, or

legal custodian."

A parent, guardian, or legal custodian of a minor all have a legal responsibility as to the care and

custody of a minor. In addition to the general responsibilities of a parent, guardian, or legal

custodian, this Law provides that no parent, guardian, or legal custodian shall knowingly permit

or fail to take action to prevent the minor from being on any public space either on foot or in any

vehicle driven or parked, between the hours of 10:00 p.m. and 6:00 a.m. within the boundaries of

the Reservation. [3 0. C. 308.5-2]. A teacher or coach does not have the same legal responsibilities

for the minor, and therefore including them in this provision would be inappropriate.

The Law does provide various exemptions as to the curfew though, that would allow the minor to

participate in an academic or athletic function during curfew hours without violating the law. The

Law provides that a minor shall not be in violation of the curfew, if at the time of the alleged

violation the minor was attending an educational, cultural, religious, or recreational activity that

was supervised by adults, or traveling to or returning home from such activity. {3 0. C. 308. 53(d)}.

Based on section 308 .5-3(d) of the Law which allows a minor to be exempted from the curfew if

attending an educational, cultural, religious, or recreational activity that was supervised by adults,

such as a teacher or a coach, or traveling to or returning home from such activity, there is no

recommended revision based on this comment.

LOC Consideration

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Comment 4 - Communi

Service:

308. 7. Penalties of Curfew Violations

308.7-1. Upon a finding by the Family Court that a violation of this law has occurred, the

minor and/or the minor's parent, guardian, or legal custodian may be subject to the

following penalties:

(b) Community service. An individual may be ordered to perform community service.

Community service can be used in lieu of, or in addition to, a fine.

(1) All community service assignments shall be approved by the Family Court.

The Family Court shall give preference to culturally relevant community

service assignments and/or community service assignments that focus on the

betterment of the individual's community.

(2) The Family Court shall provide the individual a written statement of the

terms of the community service order, and a statement that the community

service order is monitored.

(3) The Family Court's community service order shall specify:

(A) how many hours of community service the individual is required

to complete;

(B) the time frame in which the hours shall be completed;

service assignment;

(D) how the individual shall report his or her hours; and

(E) any other information the Family Court determines is relevant.

Patricia Degrand (written): Community Service: Community service has been ordered in the

past and it was problematic. In child support contempt cases, parties were ordered to complete a

set number of community service hours [Rule CS 2.8-2(c)]. The comi order indicated that the

community service would be monitored by the Oneida Nation Child Support Agency and

completed through the Social Services Depaiiment. The comi later discovered that there were no

community service options being offered through the Social Services Depaiiment. Prior to ending

the community service orders (community service is not being ordered at the present time), the

comi attempted to locate other community service options through the Nation but nobody

expressed any interest in taking people on. I know liability and background check concerns were

raised. While I know the judges would participate in discussions regarding community service, I

am unsure as to whether they are going to be able to locate a list of options for people to use to

complete community service requirements. I know Judge Collins has reached out to some of the

other tribal courts and local municipal comis to find out if they are ordering community service

and what community service options they utilize, although these options may not be culturally

relevant or tied to the Oneida community. It would be useful if one of the Social Services

Depaiiment employees, such as the Indigenous Cultural Wellness Practitioner, could serve as the

intake for the minors ordered to do community service and monitor compliance to avoid a review

hearing on every citation.

Response

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The commenter expresses concerns that the Family Comi Oneida Nation Child Suppmi Agency

were unsuccessful with the utilization of community service in the past, and instead suggests that

a Social Services Depaiiment such as the Indigenous Cultural Wellness Practitioner serve as the

intake for the minors ordered to do community service as a result of curfew violations.

The Law provides that the Family Comi may order an individual to perfo1m community service

as a penalty for curfew violations. [3 0. C. 308. 7-1 (b)]. When the Family Comi orders community

service as a penalty the Family Comi is responsible for:

• Approving community service assignments and giving preference to culturally relevant

community service assignments and/or community service assignments that focus on the

betterment of the individual's community; and

• Providing an individual with a written statement of the terms of the community service

which includes the following information:

• Statement that the community service order is monitored;

• How many hours of community service the individual is required to complete;

• The time frame in which the hours shall be completed;

• How the individual shall obtain approval for his or her community service

assignment;

• How the individual shall report his or her hours; and

• Any other information the Family Court dete1mines is relevant.

[3 0. C. 308. 7-1 (b)(1)-(3)].

Although the Family Comi is required to approve community service, the Law does not require

the Family Comito find potential community service assignments for individuals. Ultimately, it

is up to the individual to secure a community service assignment - whether that community service

assignment is within a depaiiment of the Nation or held outside of the Nation. The Legislative

Operating Committee has previously discussed sending communication to various depaiiments of

the Nation encouraging the development of community service opportunities for those individuals

who violate curfew, paiiicularly culturally relevant oppo1iunities for those minors who violate

curfew. The Legislative Operating Committee also discussed encouraging that any community

service opportunity be communicated to the Family Comiso that the Family Comi can share all

available information with those individuals when community service is imposed as a penalty.

In regard to who is monitoring compliance with the community service orders, there is nothing in

the Law that would prohibit the Family Comi from collaborating with another depaiiment such as

Social Services and stating in the community service order that someone such as the Indigenous

Cultural Wellness Practitioner would be responsible for monitoring the community service. How

community service is handled should be addressed through internal processes and procedures and

not included in the Law so that there is flexibility in handling community service in the future.

There is no revision to the Law recommended based on this comment. However, it is recommended

that the Legislative Operating Committee work on sending communication to various depaiiments

regarding the development of community service opportunities.

LOC Consideration

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Comment 5 - Alternative to Fines or Communi , Service:

Patricia Degrand (written): Alternative to Fines or Community Service: It would be nice ifthere

was an alternative to the penalties section that is similar to what the court has done with contempt

findings. With the contempt findings, the court is able to allow a person one opp01tunity to comply

or be held in contempt [803.26-3(b)(l)]. Typically the comi will find the paiiy in contempt, fine

them, and then give them a purge condition such as no more findings of contempt within a period

of X months. If the purge condition is satisfied, there is then no contempt finding or fine. Having

an option similar to this to use with parents and minors could be useful as the citation could be

dismissed ifthere are no further curfew citations issued within a set period of time.

Response

The commenter requests that the Family Comi be allowed to stay the enforcement of a penalty

against an individual found to have violated the Curfew law, and then dismiss the curfew citation

if the individual can refrain from violating this Law for a period of time as determined by the

Family Comi.

Whether to allow the Family Comito stay the enforcement of a penalty against an individual found

to have violated the Curfew law, and then dismiss the curfew citation if the individual can refrain

from violating this Law for a period of time is a policy consideration for the Legislative Operating

Committee to make. The Legislative Operating Committee may determine:

1. The Law should remain as currently drafted and not address the Family Comi' s authority

to stay the enforcement of a penalty for a curfew violation.

2. The Law should be amended to allow the Family Comito stay the enforcement of a penalty

for a curfew violation. If the Legislative Operating Committee makes this decision, then

the following revision should be made to the Law:

308 .7-2. Staying a Curfew Penalty. The Family Comi may stay the enforcement of a

penalty issued as a result of a curfew violation for a period of time to be detennined by the

Family Court. If the individual maintains compliance with the law during the time period

in which the penalty is stayed. then the Family Court may dismiss the citation. If the

individual commits another violation of the law during the time period in which the penalty

is stayed. then the penalty shall go into effect.

LOC Consideration

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Comment 6 - Jurisdiction of the Famil Court:

308.6-3. Issuance of a Citation. Any subsequent time a minor is held in custody by an Oneida

Police Officer for a curfew violation the Oneida Police Officer may issue a citation to the

minor and the minor's parent, guardian, or legal custodian.

(a) A citation for a violation of this law and/or any orders issued pursuant to this law

may include fines and other penalties, as well as conditional orders made by the

Family Court.

308. 7. Penalties of Curfew Violations

308.7-1. Upon a finding by the Family Court that a violation of this law has occurred, the

minor and/or the minor's parent, guardian, or legal custodian may be subject to the

following penalties:

Patricia Degrand (written): Judicial Branch: We had an internal discussion and the Family Court

judges recognize that this law could be assigned to the Family Comt. I ask that the LRO/LOC

reconsider doing so. With the Children's Code going into effect in October, there are a lot of

unknowns with the Family Court's caseload. One concern I have is with the permanency plan

hearings and the effect those will have on our calendar. We have an initial plan for the scheduling

of the 6 and 12 month permanency plan review hearings, but realize that we might have to make

adjustments depending on the number of cases that are filed/transfened. As curfew violations are

typically general civil cases and the Trial Comt can hear those matters [801.5-2(a)], please consider

assigning this law to the Trial Comt. The Trial Comt is already hearing all other citations, some

of which could involve minors, and adding the Curfew law to the Trial Court's docket would help

with the caseload distribution. Looking back at May- June 2019, the Family Comt held court 20

of 22 days with a total of 68 hearings. The Trial Comt held comt 6 of 22 days with a total of 15

hearings (plus the peacemaking sessions that Judges Hill and Powless have done). If the Curfew

Law is left in the Family Comt, please don't add any requirements to any upcoming citations law

(ifthere will be one) that would mandate how quickly the Family Comt needs to hold a curfew

citation hearing so we can hold these on a bimonthly or trimonthly basis.

Response

The commenter asks the Legislative Operating Committee to reconsider the decision to assign

jurisdiction of curfew matters to the Family Court, and to instead assign jurisdiction over these

matters to the Trial Comt.

The Law assigns jurisdiction over curfew matters to the Family Court based on the fact that the

Family Court law provides that the Family Comt shall administer the judicial authorities and

responsibilities of the Nation over all matters pe1taining to the family, children and elders, except

for probate matters. [8 O.C. 806.4-1] . Since curfew governs the actions of minors and the minors'

parents, guardians, or legal custodians, the Legislative Operating Committee determined it was

appropriate to assign jurisdiction to the Family Comt in order to avoid any conflicts with the

Family Court law.

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Based on the fact that the Family Comi was established for the purpose of administering the

judicial authorities and responsibilities of the Nation over all matters pe1iaining to the family,

children and elders, there is no recommended revision based on this comment.

Additionally, the commenter requests that if the Family Comi maintains jurisdiction over cmfew

matters that no timeframes which would mandate when the Family Comi is required to hold curfew

citation hearings be included in the proposed Citations law the Legislative Operating Committee

is cmTently developing.

The Legislative Operating Committee is cmTently developing a Citations law which will provide

a consistent process for handling citations of the Nation in order to ensure equal and fair treatment

to all persons who come before the Judiciary to have their citations resolved. The Legislative

Operating Committee does intend to include general timeframes for the citation process in the

proposed law so that all citations are handled in a consistent manner. The Legislative Operating

Committee is still in the drafting stages for the Citations law, but a public meeting will be held in

the future to provide the opportunity to provide input on this subject.

LOC Consideration

Comment 7 - Famil ' Counselin :

308.7. Penalties of Curfew Violations

308.7-1. Upon a finding by the Family Court that a violation of this law has occurred, the

minor and/or the minor's parent, guardian, or legal custodian may be subject to the

following penalties:

participate in a family counseling and/or a parenting program.

Patricia Degrand (written): Family Counseling: We should make Oneida Behavioral Health

aware that orders for family counseling could be included in a curfew citation order.

Response

The commenter requests that Oneida Behavioral Health be made aware that orders for family

counseling could be included in a curfew citation order.

Orders to participate in family counseling may not be exclusive to family counseling by the Oneida

Behavioral Health depmiment. Individuals may use family counseling services from other entities

if available.

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Although there is no recommended revision to the Law based on this comment, it is recommended

that the Legislative Operating Committee communicate with Oneida Behavioral Health and any

other relevant department of the Nation so that it is known that curfew citation orders may include

refenals for services such as family counseling or parenting programs.

LOC Consideration

Comment 8 - Per Ca ita Attachment:

308.7. Penalties of Curfew Violations

308.7-1. Upon a finding by the Family Court that a violation of this law has occurred, the

minor and/or the minor's parent, guardian, or legal custodian may be subject to the

following penalties:

(a) Fines. An individual may be ordered to pay a fine as a result of a violation of this

law. The Oneida Business Committee shall hereby be delegated the authority to adopt

through resolution a fine schedule which sets forth specific fine amounts for violations

of this law.

(1) All fines shall be paid to the Judiciary.

(2) Fines shall be paid within ninety (90) days after the order is issued or

upheld on final appeal, whichever is later.

(A) The ninety (90) day deadline for payment of fines may be extended

if an alternative payment plan is approved by the Family Court.

(3) If an individual does not pay his or her fine the Family Court may seek to

collect the money owed through the Nation's garnishment and/or per capita

attachment process.

(5) Community service may be substituted for part or all of any fine at the

minimum wage rate of the Nation for each hour of community service.

Patricia Degrand (written): Per Capita Attachment: With minors being involved, we may end up

with attachment orders that will not be enforceable for several years. For instance, if a minor is

fined $150 and does not pay it, the comi could pursue a per capita attachment. If the child is 14 at

the time of the curfew violation order and does not pay, the final accounting may be received by

the Trust Enrollment Depmiment several years before the attachment will even be possible. The

Trust Emollment Depmiment will need to be made aware of this. If the child involved is not

eligible for a per capita payment, collection in some cases may be difficult. Pursuing a garnishment

several years later when the child is of working age may not be feasible. The comi, several years

later, will not know where the 14-year-old who received a curfew violation is working at age 18.

Response

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The commenter expresses concerns about the delay in attaching the per capita of a minor or

pursuing a garnishment of a minor once that minor reaches the age of eighteen (18) and is working.

The Law provides that if an individual does not pay his or her fine, the Family Comt may seek to

collect the money owed through the Nation's garnishment and/or per capita attachment process.

[3 O.C. 308. 7-1 (a)(3)}. The purpose of this provision is to allow the Family Comt the option to

pursue garnishment or per capita attachment for unpaid fines when appropriate. Garnishment and

per capita attachment may not be appropriate as a means to address fines owed by a minor child,

but may be an appropriate measure to seek unpaid fines from a minor's parent, guardian, or legal

custodian. The Family Comt is not required to use the Nation' s garnishment and/or per capita

attachment process, just as the Family Comt is not required to impose fines as a penalty for curfew

violations. The discretion lies with the Family Comt.

Any attempt by the Family Comt to attach the per capita of an individual must comply with the

provisions found in the Nation's Per Capita law. [I O.C. 123.4-9(d)]. Any attempt by the Family

Court to garnish the wages of an individual must comply with the provisions found in the Nation's

Garnishment law. [2 0. C. 204. 6].

There is no recommended revision to the Law based on this comment.

LOC Consideration

Comment 9 - Exem tions to Curfew:

308.5-3. Exemptions to Curfew. A minor shall not be in violation of the curfew, if at the time

of the alleged violation the minor was:

(a) in the performance of a duty directed by such parent, guardian, or legal

custodian;

Patricia Degrand (written): Exemptions to Curfew: 308.5-3(a) could give minors an unintended

out if their parent or guardian tells them to get out of the house after the curfew goes into effect.

Although, in this situation, OPD may only want to cite the parent.

Response

The commenter expresses concern that the exemption to the curfew for a minor in the performance

of a duty directed by such parent, guardian, or legal custodian could provide an unintended excuse

to those minors violating curfew.

Although the Law provides that it is the responsibility of the parent, guardian, or legal custodian

to ensure that the minor is not violating the Nation's curfew [3 O.C. 308.5-2], the Law recognizes

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that circumstances may arise in which a parent, guardian, or legal custodian may need the minor

to be out during curfew hours and provides the flexibility to do so with the exemption provided

for in section 308.5-3(a) of the Law. Ultimately, it is up to the discretion of the Oneida Police

Department officer to look at the totality of the circumstances and determine ifthere is a reasonable

belief that a violation of curfew has occurred or if an exemption descried in section 308.5-3 applies.

[3 o.c. 308.6-3}.

Additionally, the commenter states that in the circumstance where an unintended exemption is

provided by the parent, the Oneida Police Depaitment Officer may want to only cite the parent.

The Law provides that an Oneida Police Officer may issue a citation to the minor and the minor's

parent, guardian, or legal custodian for a curfew violation. [3 0. C. 308. 6-1 (c)j. Although the Law

requires that the citation be issued to both the minor and the minor's parent, guardian, or legal

custodian, the Law provides discretion to the Family Comt to determine what penalty should be

imposed against the minor and/or the minor's parent, guardian, or legal custodian. [3 0. C. 308. 71]. The Family Court may make the dete1mination that in ce1tain situations penalties should be

imposed against the parent, guardian, or legal custodian and not the minor, or vice versa. The

Family Court may also make the dete1mination that penalties should be imposed against both the

minor and the minor's parent, guardian, or legal custodian. The Family Comt is given discretion

in the imposition of penalties so that the Family Comt can address the specific circumstances of

each situation and determine which penalty is most appropriate.

LOC Consideration

Comment 10 - Collection of Fines:

308.7. Penalties of Curfew Violations

308.7-1. Upon a finding by the Family Court that a violation of this law has occurred, the

minor and/or the minor's parent, guardian, or legal custodian may be subject to the

following penalties:

(a) Fines. An individual may be ordered to pay a fine as a result of a violation of this

law. The Oneida Business Committee shall hereby be delegated the authority to adopt

through resolution a fine schedule which sets forth specific fine amounts for violations

of this law.

(1) All fines shall be paid to the Judiciary.

(2) Fines shall be paid within ninety (90) days after the order is issued or

upheld on final appeal, whichever is later.

(A) The ninety (90) day deadline for payment of fines may be extended

if an alternative payment plan is approved by the Family Court.

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(3) If an individual does not pay his or her fine the Family Court may seek to

collect the money owed through the Nation's garnishment and/or per capita

attachment process.

(5) Community service may be substituted for part or all of any fine at the

minimum wage rate of the Nation for each hour of community service.

Patricia Degrand (written): Fines : 308.7-l(a)(3) allows the Court to collect money owed

through the Nation' s garnishment and/or per capita attachment process. The Family Court is in the

process of developing a process for collecting guardian ad litem fees and may utilize the State

Debt Collection program and the Wisconsin Tax Refund Interception Program (TRIP) as they are

both available to tribal comis. Can this section be amended to add "or another collection process

available to the Court"?

Response

The commenter asks the Legislative Operating Committee to revise the language in section 308.7l(a)(3) to allow for the Family Cowi to utilize another collection process since the Family Court

is cunently developing a process for collecting fees that may utilize the State Debt Collection

program and the Wisconsin Tax Refund Interception Program.

It is recommended that the Legislative Operating Committee make the following revision to

section 308.7-l(a)(3) to allow more flexibility to the Family Comi to use any debt collection

process that may be available:

(3) If an individual does not pay his or her fine the Family Court may seek to collect the

money owed through the Nation' s garnishment and/or per capita attachment process or any

other collection process available to the Family Court.

LOC Consideration

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Title 3. Health and Public Safety - Chapter 308

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CURFEW

308.1. Purpose and Policy

308.2. Adoption, Amendment, Repeal

308.3. Definitions

308.4. Jurisdiction

308.5. Curfew

308.6. Enforcement of Curfew Violations

308.7. Penalties of Curfew Violations

308.1. Purpose and Policy

308.1-1. Purpose. The purpose of this law is to protect the health, safety, and welfare of persons

and property within the Reservation by regulating the activities of minors on the Reservation

during certain hours, while imposing certain obligations and responsibilities upon the parents,

guardians, and/or legal custodians of a minor for the control and supervision of that minor.

308.1-2. Policy. It is the policy of the Nation to support all drug use prevention initiatives of the

Nation by protecting the health, safety, and welfare of persons through the establishment of a

curfew for minors in public spaces within the Reservation during certain hours in an effort to

minimize the opportunity for harm to come to minors during those hours.

308.2. Adoption, Amendment, Repeal

308.2-1. This law was adopted by the Oneida Business Committee by resolution BC-__-__-__-__.

308.2-2. This law may be amended or repealed by the Oneida Business Committee and/or General

Tribal Council pursuant to the procedures set out in the Legislative Procedures Act.

308.2-3. 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.

308.2-4. In the event of a conflict between a provision of this law and a provision of another law,

the provisions of this law shall control.

308.2-5. This law is adopted under authority of the Constitution of the Oneida Nation.

308.3. Definitions

308.3-1. 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) “Court of Appeals” means the branch of the Nation's Judiciary delegated the authority

of final appeal within the Nation’s Judiciary, as authorized by Oneida General Tribal

Council resolution GTC-03-19-17-A .

(b) “Family Court” means the branch of the Nation’s Judiciary delegated the authority to

administer the judicial authorities and responsibilities of the Nation related to the family

and/or children, as authorized by Oneida General Tribal Council resolution GTC-03-1917-A.

authority of guardianship of a child by a Court for the purpose of managing and caring for

the child. A guardian has the right to make major decisions affecting a child including

education, religious and cultural upbringing, the right to consent to marriage, to enlistment

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in the armed forces, to major surgery and medical treatment and to adoption, or make

recommendations as to adoption.

(d) “Legal custodian” means any person, department, and/or agency, other than a parent

or guardian, to whom legal custody of a child has been granted by Court order and has the

rights and responsibilities for the following:

(1) To have physical custody of the child as determined by the Court, if physical

custody is not with the person having legal custody;

(2) To protect, educate and discipline the child so long as it is in the child’s best

interest; and

(3) To provide the child with adequate food, shelter, education, ordinary medical

care and other basic needs, according to court order. In an emergency situation, a

custodian shall have the authority to consent to surgery as well as any other

emergency medical care needs.

(e) “Member of the Nation” means an individual enrolled in the Oneida Nation.

(f) “Minor” means a person age seventeen (17) years old or younger.

(g) “Nation” means the Oneida Nation.

(h) “Parent” means the biological or adoptive parent of a child.

(j) “Public space” means any public streets, highways, roads, alleys, parks, vacant lots, or

any public lands.

(j) “Relative” means any person connected with a child by blood, marriage or adoption.

(k) “Reservation” means all the property within the exterior boundaries of the Reservation

of the Oneida Nation, as created pursuant to the 1838 Treaty with the Oneida 7 Stat. 566,

and any lands added thereto pursuant to federal law.

308.4. Jurisdiction

308.4-1. Personal Jurisdiction. This law applies to:

(a) All members of the Nation, individuals eligible for enrollment in the Nation, and

members of other federally-recognized tribes.

(b) Individuals leasing, occupying or otherwise using fee land owned by the Nation or by

individual members of the Nation; and/or lands held in trust on behalf of the Nation or

individual members of the Nation.

consistent with federal law. An individual shall be considered to have consented to the

jurisdiction of the Nation:

(1) By entering into a consensual relationship with the Nation, or with the Nation’s

entities, corporations, or members of the Nation, including but not limited to

contracts or other agreements; or

(2) By other facts which manifest an intent to consent to the authority of the Nation,

including failure to raise an objection to the exercise of personal jurisdiction in a

timely manner.

308.4-2. Territorial Jurisdiction. This law extends within the Reservation to all land owned by

the Nation and individual trust and/or fee land of a member of the Nation.

308.5. Curfew

308.5-1. Curfew Established. No minor shall be on any public space either on foot or in any

vehicle driven or parked, between the hours of 10:00 p.m. and 6:00 a.m. within the boundaries of

the Reservation, unless the minor is accompanied by a parent, guardian, or legal custodian.

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308.5-2. Parental Responsibility. No parent, guardian, or legal custodian shall knowingly permit

or fail to take action to prevent the minor from being on any public space either on foot or in any

vehicle driven or parked, between the hours of 10:00 p.m. and 6:00 a.m. within the boundaries of

the Reservation.

308.5-3. Exemptions to Curfew. A minor shall not be in violation of the curfew, if at the time of

the alleged violation the minor was:

(a) in the performance of a duty directed by such parent, guardian, or legal custodian;

(b) engaged in employment or an employment related activity, or traveling to or returning

home from employment;

(d) attending an educational, cultural, religious, or recreational activity that was supervised

by adults, or traveling to or returning home from such activity;

(e) on the sidewalk in front of his or her home or an adjacent home;

(f) going to, attending, or returning home from a movie theatre;

(g) engaged in hunting, fishing, or trapping in accordance with the laws, policies, and rules

of the Nation;

(h) exercising rights protected by the Nation’s Constitution and the United States

Constitution, such as free exercise of religion, freedom of speech, and the right of

assembly;

(i) involved in an emergency situation; and/or

(j) engaged in any other activity as deemed appropriate by the Oneida Police Department

officer.

308.6. Enforcement of Curfew Violations

308.6-1. Enforcement Procedure. A suspected violation of curfew shall be enforced by the Oneida

Police Department in the following ways:

(a) A minor who is suspected of violating curfew may be stopped by an Oneida Police

Officer. No person shall assault, obstruct or flee from any Oneida Police Officer enforcing

or attempting to enforce the provisions of this law.

(b) The Oneida Police Officer shall ask the minor’s name, age, and reason for violating

curfew. The minor shall provide the Oneida Police Officer identification if available. No

person shall falsely represent his or her name or age to an Oneida Police Officer.

circumstances that a violation of curfew has occurred and not one of the exemptions in

section 308.5-3 apply, the Oneida Police Officer may take custody of the minor for the

purpose of returning such minor to the care and custody of a parent, guardian, or legal

custodian.

(d) Once the Oneida Police Officer has taken the minor into his or her custody, the minor

shall provide the Oneida Police Officer with contact information for his or her parent,

guardian, or legal custodian. The Oneida Police Officer shall contact the minor’s parent,

guardian, or legal custodian to come and pick up the minor and take the minor into his or

her care and custody. If the minor’s parent, guardian, or legal custodian is unable to pick

the minor up, then the Oneida Police Officer may bring the minor home to release the minor

to the custody and care of the minor’s parent, guardian, or legal custodian.

(e) If the Oneida Police Officer is unable to contact the minor’s parent, guardian, or legal

custodian after reasonable efforts are made, the Oneida Police Officer shall attempt to

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locate an adult relative or other responsible adult willing and able to accept the care and

custody of the minor, and may release the minor into the care and custody of such person.

308.6-2. Warning. The first time a minor is held in custody by an Oneida Police Officer for a

curfew violation the Oneida Police Officer shall provide the minor and the minor’s parent,

guardian, or legal custodian a warning and advise the minor and parent, guardian, or legal

custodian of the provisions of this law and that any subsequent curfew violations may result in the

issuance of a citation and the imposition of a penalty.

308.6-3. Issuance of a Citation. Any subsequent time a minor is held in custody by an Oneida

Police Officer for a curfew violation the Oneida Police Officer may issue a citation to the minor

and the minor’s parent, guardian, or legal custodian.

(a) A citation for a violation of this law and/or any orders issued pursuant to this law may

include fines and other penalties, as well as conditional orders made by the Family Court.

(b) A citation for a violation of this law shall be processed in accordance with the

procedure contained in the Nation’s laws and policies governing citations.

pre-hearing by the minor and his or her parent, guardian, or legal custodian.

308.7. Penalties of Curfew Violations

308.7-1. Upon a finding by the Family Court that a violation of this law has occurred, the minor

and/or the minor’s parent, guardian, or legal custodian may be subject to the following penalties:

(a) Fines. An individual may be ordered to pay a fine as a result of a violation of this law.

The Oneida Business Committee shall hereby be delegated the authority to adopt through

resolution a fine schedule which sets forth specific fine amounts for violations of this law.

(1) All fines shall be paid to the Judiciary.

(2) Fines shall be paid within ninety (90) days after the order is issued or upheld

on final appeal, whichever is later.

(A) The ninety (90) day deadline for payment of fines may be extended if

an alternative payment plan is approved by the Family Court.

(3) If an individual does not pay his or her fine the Family Court may seek to collect

the money owed through the Nation’s garnishment and/or per capita attachment

process.

(5) Community service may be substituted for part or all of any fine at the minimum

wage rate of the Nation for each hour of community service.

(b) Community service. An individual may be ordered to perform community service.

Community service can be used in lieu of, or in addition to, a fine.

(1) All community service assignments shall be approved by the Family Court.

The Family Court shall give preference to culturally relevant community service

assignments and/or community service assignments that focus on the betterment of

the individual’s community.

(2) The Family Court shall provide the individual a written statement of the terms

of the community service order, and a statement that the community service order

is monitored.

(3) The Family Court’s community service order shall specify:

(A) how many hours of community service the individual is required to

complete;

(B) the time frame in which the hours shall be completed;

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service assignment;

(D) how the individual shall report his or her hours; and

(E) any other information the Family Court determines is relevant.

participate in a family counseling and/or a parenting program.

(d) Any other penalty as deemed appropriate by the Family Court.

End.

Adopted – BC-__-__-__-__

3. O.C. 308 – Page 5

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

PO Box 365 • Oneida, WI 54155-0365

Oneida-nsn.gov

LEGISLATIVE OPERATING COMMITTEE

PUBLIC MEETING

Curfew Law

Business Committee Conference Room-2nd Floor Norbert Hill Center

July 18, 2019 5:00 p.m.

Present: Ernest Stevens III, Jennifer Falck, Clorissa N. Santiago, Brooke Doxtator, Rae

Skenandore, Carol Silva, Amy Williams, Belle Mae Williams, Maureen Perkins.

Ernest Stevens III: Good Evening. The time is 5:00 p.m. and today’s date is Thursday, July 18,

2019. I will now call this meeting to order, this public meeting for the proposed Curfew law.

The Legislative Operating Committee is hosting this public meeting to gather feedback from the

community. The public meeting is not a question and answer period. The LOC will review and

consider all comments received during the public comment period. The LOC will respond to all

comments received in a memorandum, which will be submitted in the meeting materials of a future

LOC meeting.

All persons who wish to present oral testimony need to register on the sign in sheet at the back of

the room. If you leave an email address on the sign in sheet, we can ensure you receive a copy of

the memorandum.

Additionally, written comments may be submitted to the Nation’s Secretary’s Office or to the

Legislative Reference Office in person, by U.S. mail, interoffice mail, e-mail or fax as provided

on the public meeting notice. These comments must be received by close of business on Thursday,

July 25, 2019.

In attendance with the LOC is myself, Ernie Stevens III.

The LOC may impose a time limit for all speakers pursuant to section 109.8-3(c) of the Legislative

Procedures Act. As the presiding LOC member, I am imposing a time limit of five (5) minutes.

This time limit shall be applied equally to all persons.

We will now begin today’s public meeting for the proposed Curfew law. The purpose of this law

is to protect the health, safety, and welfare of persons and property within the Reservation by

regulating the activities of minors on the Reservation during certain hours, while imposing certain

obligations and responsibilities upon the parents, guardians, and/or legal custodians of a minor for

the control and supervision of that minor.

Those who wish to speak please come to the microphone. So, if you have any comments at this

point, um we don’t have any signed up, we don’t have any information as far as anyone signing

up before the meeting but um this would be the time to do that if you wish to come up and speak.

That will be audio recorded for the record and then utilized in our discussions as the LOC.

LOC Public Meeting Transcript of July 18, 2019

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YesAmy Williams: (inaudible)

Ernest Stevens III: Hold on one second, sorry, wait. Sorry, I can hear you I just want to make sure its

recording too. So, you just have to press that little button.

[Speaker moves to table mic after standing mic not working.]

Amy Williams: Is this better?

Ernest Stevens III: Ope, yeah.

Amy Williams: Hi, my name is Amy Williams. Um, so thanks for the opportunity to allow me to

comment. Um, so I did have a chance to review the provisions of the proposal and um my comment

is that I would be in favor of first an earlier time, perhaps four or five o’clock instead of six o’clock.

And um, I think the reason is because we have three kids, all of them have had primarily athletic,

but as well as academic, responsibilities that are before six o’clock. So, for example, our son has

hockey practice at, sometimes practice starts at four or 4:30 a.m. which means leaving the house

at four o’clock, so he’s out, he’s driving around. He’s a responsible, you know they are responsible

kids doing what they are supposed to be doing. Um, so, I understand the spirit of what’s proposed

in terms of, in terms of safety.

I guess I would, I’m an advocate for also assuring in some ways that the proposed law isn’t too

punitive and that there is some sort of discernment in terms of oh my gosh these kids are out here

doing what they need to be doing and not be afraid that somehow they are going to get in trouble

because they’re out there by themselves, especially the ones that can drive. So, our kids are out

running, sometimes they have study groups in the morning, so um perhaps an earlier time, and that

would be the first thing. And then as well as to assure that there are provisions or enough movement

in the law where um you know whoever, police or whoever is enforcing, aren’t too punitive with

kids who are going what they are supposed to be doing.

So, our kids are usually under the purview of coaches who are telling them where to be and what

time, or uh teachers or other study groups. So just that that would be added in addition to parents,

guardians, and whatever language is. And that’s all.

Ernest Stevens III: Thank you. Just a quick note, if we do not receive any more speakers I’m

probably going to close this out at 5:10 p.m. So, we have about four minutes, so if more people

show up we will give them more time to consider comments. So, for those who are here, you have

that amount of time if you wish to provide testimony at the mic, thank you.

Okay, it is 5:10 p.m. and seeing that there are no more speakers registered, I just want to take a

quick moment just to give everyone in the room one last chance, if you wish to come provide

testimony.

""'

000000

A good mind. A good heart. A strong fire.

LOC Public Meeting Transcript of July 18, 2019

Page 2 of 3

ONEIDA

28 of 148

Seeing none approaching the mic, I’m gonna go ahead and close out this public meeting for the

proposed Curfew law. It is now being closed at 5:10 p.m.

So, uh, written comments may be submitted until close of business day, once again Thursday, July

25, 2019. Thank you for coming.

-End of Meeting-

""'

000000

A good mind. A good heart. A strong fire.

LOC Public Meeting Transcript of July 18, 2019

Page 3 of 3

ONEIDA

29 of 148

From:

To:

Subject:

Date:

Attachments:

Patricia K. Degrand

Clorissa N. Santiago

RE: Curfew Law

Friday, July 26, 2019 7:17:14 AM

image003.png

image005.png

Yes, I would like to have the comments considered by the Legislative Operating Committee. You

may treat them as official public meeting comments unless there is another way to meet with the

Legislative Operating Committee to discuss them.

I have an additional comment since my last email and updated some of the language, so here are my

updated comments:

Community Service: Community service has been ordered in the past and it was problematic.

In child support contempt cases, parties were ordered to complete a set number of

community service hours [Rule CS 2.8-2(c)]. The court order indicated that the community

service would be monitored by the Oneida Nation Child Support Agency and completed

through the Social Services Department. The court later discovered that there were no

community service options being offered through the Social Services Department. Prior to

ending the community service orders (community service is not being ordered at the present

time), the court attempted to locate other community service options through the Nation but

nobody expressed any interest in taking people on. I know liability and background check

concerns were raised. While I know the judges would participate in discussions regarding

community service, I am unsure as to whether they are going to be able to locate a list of

options for people to use to complete community service requirements. I know Judge Collins

has reached out to some of the other tribal courts and local municipal courts to find out if

they are ordering community service and what community service options they utilize,

although these options may not be culturally relevant or tied to the Oneida community.

It would be useful if one of the Social Services Department employees, such as the

Indigenous Cultural Wellness Practitioner, could serve as the intake for the minors ordered

to do community service and monitor compliance to avoid a review hearing on every

citation.

Alternative to Fines or Community Service: It would be nice if there was an alternative to the

penalties section that is similar to what the court has done with contempt findings. With the

contempt findings, the court is able to allow a person one opportunity to comply or be held in

contempt [803.26-3(b)(1)]. Typically the court will find the party in contempt, fine them, and

then give them a purge condition such as no more findings of contempt within a period of X

months. If the purge condition is satisfied, there is then no contempt finding or fine. Having

an option similar to this to use with parents and minors could be useful as the citation could

be dismissed if there are no further curfew citations issued within a set period of time.

Judicial Branch: We had an internal discussion and the Family Court judges recognize that this

law could be assigned to the Family Court. I ask that the LRO/LOC reconsider doing so. With

the Children’s Code going into effect in October, there are a lot of unknowns with the Family

Court’s caseload. One concern I have is with the permanency plan hearings and the effect

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those will have on our calendar. We have an initial plan for the scheduling of the 6 and 12

month permanency plan review hearings, but realize that we might have to make adjustments

depending on the number of cases that are filed/transferred. As curfew violations are

typically general civil cases and the Trial Court can hear those matters [801.5-2(a)], please

consider assigning this law to the Trial Court. The Trial Court is already hearing all other

citations, some of which could involve minors, and adding the Curfew law to the Trial Court’s

docket would help with the caseload distribution. Looking back at May – June 2019, the

Family Court held court 20 of 22 days with a total of 68 hearings. The Trial Court held court 6

of 22 days with a total of 15 hearings (plus the peacemaking sessions that Judges Hill and

Powless have done).

If the Curfew Law is left in the Family Court, please don’t add any requirements to any

upcoming citations law (if there will be one) that would mandate how quickly the Family

Court needs to hold a curfew citation hearing so we can hold these on a bimonthly or

trimonthly basis.

Family Counseling: We should make Oneida Behavioral Health aware that orders for family

counseling could be included in a curfew citation order.

Per Capita Attachment: With minors being involved, we may end up with attachment orders

that will not be enforceable for several years. For instance, if a minor is fined $150 and does

not pay it, the court could pursue a per capita attachment. If the child is 14 at the time of the

curfew violation order and does not pay, the final accounting may be received by the Trust

Enrollment Department several years before the attachment will even be possible. The Trust

Enrollment Department will need to be made aware of this. If the child involved is not eligible

for a per capita payment, collection in some cases may be difficult. Pursuing a garnishment

several years later when the child is of working age may not be feasible. The court, several

years later, will not know where the 14-year-old who received a curfew violation is working at

age 18.

Exemptions to Curfew: 308.5-3(a) could give minors an unintended out if their parent or

guardian tells them to get out of the house after the curfew goes into effect. Although, in this

situation, OPD may only want to cite the parent.

Fines: 308.7-1(a)(3) allows the Court to collect money owed through the Nation’s garnishment

and/or per capita attachment process. The Family Court is in the process of developing a

process for collecting guardian ad litem fees and may utilize the State Debt Collection

program and the Wisconsin Tax Refund Interception Program (TRIP) as they are both available

to tribal courts. Can this section be amended to add “or another collection process available

to the Court”?

Thank you.

Pixie DeGrand

Clerk of Family Court

Oneida Judiciary

(920) 496-7219

31 of 148

From: Clorissa N. Santiago <csantia1@oneidanation.org>

Sent: Thursday, July 25, 2019 1:14 PM

To: Patricia K. Degrand <PDEGRAND@oneidanation.org>

Subject: RE: Curfew Law

Good Afternoon Pixie,

I hope this email finds you well, and you are enjoying your Thursday afternoon. I just wanted to

confirm whether or not you wanted the comments you submitted to me on June 18, 2019, regarding

the proposed Curfew law to be considered as official public meeting comments and responded to by

the Legislative Operating Committee formally through their public comment review memorandum?

Sincerely,

Clorissa N. Santiago

Legislative Staff Attorney

Legislative Reference Office

Oneida Nation

Office: (920) 869-4417

Cell: (920) 606-2884

https://oneida-nsn.gov/register/

From: Patricia K. Degrand

Sent: Tuesday, June 18, 2019 8:27 AM

To: Clorissa N. Santiago <csantia1@oneidanation.org>

Subject: Curfew Law

32 of 148

Oneida Nation

Oneida Business Committee

Legislative Operating Committee

PO Box 365 • Oneida, WI 54155-0365

Oneida-nsn.gov

Legislative Operating Committee

August 7, 2019

Child Support Law Amendments

Submission Date: 3/7/18

LOC Sponsor: David P. Jordan

Public Meeting: n/a

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 3

33 of 148

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.

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.

Page 2 of 3

34 of 148

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.

Next Steps:

 Accept the draft of the proposed amendments to the Child Support law and the legislative analysis and

defer to a work meeting for further consideration.

Page 3 of 3

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Draft 1

2019 08 07

Title 7. Children, Elders and Family - Chapter 704

shakoti>nuk&=lale> latiksash&ha>

They watch over the children

CHILD SUPPORT

704.1. Purpose and Policy

704.2. Adoption, Amendment, Repeal

704.3. Definitions

704.4. Jurisdiction

704.5. Initiating an Action for Child Support

704.6. Child Support Hearing Procedures

704.7. Determining the Child Support Obligation

704.8. Determining the Child Support Obligation in Special

Circumstances

704.9. Child Support Order

704.10. Modification of a Child Support Order

704.11. Modification of a Child Support Order for an Incarcerated

Parent

704.12. Compliance Plan

704.13. Enforcement of an Order

704.14. Alternative Payment Plans

704.15. Administrative Enforcement Action

704.16. Family Court Enforcement Action

704.17. Full Faith and Credit for Foreign Child Support Orders

704.18. Right of Appeal

704.1. Purpose and Policy

704.1-1. Purpose. The purpose of this law is to:

(a) Establish the legal responsibility of parents to provide financially for their children’s

general well-being;

(b) Make support payments more equitable by ensuring consistent treatment of persons

in similar circumstances;

(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 to resolve disputes over child support

obligations; and

Nation’s Family Court and/or the Oneida Nation Child Support Agency in order to

protect the privacy rights of all parties and children who are involved in proceedings or

actions under this law.

704.2. Adoption, Amendment, Repeal

704.2-1. This law was adopted by the Oneida Business Committee by resolution BC-06-24-09-B

and amended by resolutions BC-02-24-10-G, BC-02-23-11-E, BC-06-22-11-K, BC-10-10-12-C,

BC-08-13-14-E, and BC-__-__-__-__.

704.2-2. This law may be amended or repealed by the Oneida Business Committee or the

Oneida General Tribal Council pursuant to the procedures set out in the Legislative Procedures

Act.

704.2-3. Should a provision of this law or the application thereof to any person or circumstances

be held as invalid, such invalidity shall not affect other provisions of this law which are

considered to have legal force without the invalid portions.

704.2-4. In the event of a conflict between a provision of this law and a provision of another

law, the provisions of this law shall control.

704.2-5. This law is adopted under authority of the Constitution of the Oneida Nation.

7 O.C. 704 – Page 1

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Draft 1

2019 08 07

704.3. Definitions

704.3-1. This section shall govern the definitions of words and phrases used within this law. All

words not defined herein shall be used in their ordinary and everyday sense.

(a) “Administrative enforcement action” means enforcement action taken by the Oneida

Nation Child Support Agency.

(b) “Agency” means the Oneida Nation Child Support Agency established to administer

and supervise the Nation’s child support enforcement program.

an obligor, or an order set by the Family Court, to establish terms and conditions for the

payment of arrears.

(d) “Basic support costs” means food, shelter, clothing, transportation, personal care, and

incidental recreational costs.

(e) “Business day” means Monday through Friday from 8:00 a.m. to 4:30 p.m.,

excluding holidays recognized by the Nation.

(f) “Child” means a 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 105 Appendix C.

(i) “Child support order” means a judgment of the Family Court or a court of competent

jurisdiction ordering payment of child support which provides monetary support, health

care, arrearages, or reimbursement, and which may include related costs and fees, interest

and penalties, income withholding, attorney’s’ fees and other relief.

(j) “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” 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” means any individual, business, government, institution, or other entity

paying wages to one or more employees.

(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” means the branch of the Nation’s Judiciary that is designated to

handle all matters related to the family and/or children.

(p) “Gross income” means any form of payment due to an individual regardless of

source, including, but not limited to:

7 O.C. 704 – Page 2

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2019 08 07

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(1) Salary and wages, including overtime pay;

(2) Interest and investment income;

(3) Social Security disability and old age insurance benefits under 42 U.S.C.

§401 to 433;

(4) Net proceeds resulting from worker’s compensation or other personal injury

awards intended to replace income;

(5) Unemployment insurance;

(6) Income continuation benefits;

(7) Voluntary deferred compensation and employee contributions to the

following: employee benefit plan, profit-sharing, pension or retirement account;

(8) Military allowances and veterans disability compensation benefits;

(9) Undistributed income of a corporation or any partnership in which the parent

has an ownership interest sufficient to individually exercise control or to access

the earnings of the business, unless the income included is an asset;

(10) Per capita distribution payments;

(11) Lease or rental income;

(12) Prizes over one thousand dollars ($1,000); and

(13) All other income, whether taxable or not, except that gross income does not

include any of the following:

(A) Child support;

(B) Foster care payments;

(D) Public assistance benefits, except that child care subsidy payments

shall be considered income to a child care provider;

(E) Food stamps;

(F) Public assistance or financial hardship payments paid by a county or a

Nation;

(G) Supplemental Security Income under 42 U.S.C. §1381 to 1383(f) and

state supplemental payments; or

(H) Payments made for social services.

(q) “Immediate family member” means an individual’s husband, wife, mother, father,

step-mother, step-father, son, daughter, step-son, step-daughter, brother, sister, stepbrother, step-sister, grandparent, grandchild, mother-in-law, father-in-law, daughter-inlaw, son-in-law, brother-in-law or sister-in-law and any of the these relations attained

through legal adoption.

(r) “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.

(s) “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.

(t) “Legally incompetent adult” means a person at least eighteen (18) years old who has

been declared incompetent by a court of competent jurisdiction because he or she is

temporarily or permanently impaired to the extent that the person lacks sufficient

understanding to make or communicate responsible personal decisions.

(u) “Lien amount” means the difference between the monthly amount of support due and

the arrears in a case.

7 O.C. 704 – Page 3

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(v) “Lien docket” means the registry kept by the State of Wisconsin containing the

names of people who owe past-due child support.

(w) “Low-income obligor” means an obligor for whom the Family Court uses the

monthly support amount provided in the schedule in the Child Support Obligation of

Low-Income Payers Schedule based on the Family Court’s determination that the

obligor’s total economic circumstances limit his or her ability to pay support at standard

percentages and the obligor’s income is at a level set forth in the schedule in the Child

Support Obligation of Low-Income Payers Schedule.

(x) “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.

(y) “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).

(z) “Nation” means the Oneida Nation.

(aa) “Non-custodial parent” means the parent of a child who does not hold primary care,

custody and/or control of a child.

(bb) “Non-legally responsible relative” means a relative who assumes responsibility for

the care of a child without legal custody, but is not in violation of a court order. A nonlegally responsible relative does not include a relative who has physical custody of a

child during a court-ordered visitation period.

(cc) “Obligee” means the person or entity to whom child support is owed.

(dd) “Obligor” means the person who is obliged to pay child support to the obligee.

(ee) “Ownership interest” means any personal financial interest.

(ff) “Parent” means the natural or adoptive parent of the child.

(gg) “Payor” means a person or entity with a legal obligation, as an employer, buyer of

goods, debtor, or otherwise, to pay an obligor.

(hh) “Reservation” means all lands within the exterior boundaries of the Reservation of

the Oneida Nation, as created pursuant to the 1838 Treaty with the Oneida, 7 Stat. 566,

and any lands added thereto pursuant to federal law.

(ii) “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.

(jj) “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.

(kk) “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.

(ll) “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.

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(mm) “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.

(nn) “Threshold” means an amount, expressed as either a percentage of the monthly

amount due, a fixed dollar amount, or both, that the lien amount must equal or exceed

before an administrative enforcement action may be used to enforce a child support order.

704.4. Jurisdiction

704.4-1. The Family Court has jurisdiction over any action brought under this law.

704.4-2. Personal Jurisdiction. Personal jurisdiction over an individual under this law may be

established where one party or a child of the parties is any of the following:

(a) a member of the Nation;

(b) a resident of the Reservation who is also a member of an Indian tribe, band or

community which is recognized by a State or the federal government;

enrolled or is eligible for enrollment with the Nation; or

(d) an individual who consents to the jurisdiction of the Family Court by one (1) of the

following means:

(1) Filing an action with the Family Court;

(2) Knowingly and voluntarily giving written consent to the jurisdiction of the

Family Court;

(3) Entering a notice of appearance before the Family Court in an action without

concurrently preserving the defense of lack of personal jurisdiction or filing a

motion to dismiss for lack of personal jurisdiction within thirty (30) days of

entering the notice of appearance; or

(4) Appearing in an action before the Family Court without asserting the defense

of lack of personal jurisdiction.

704.4-3. Personal jurisdiction over the other party may be established using any method

provided by law, including long-arm jurisdiction procedures as provided for in Section 201 of

the Uniform Interstate Family Support Act as referred to in 42 U.S.C. §666.

704.4-4. Transfer of Cases from Other Courts. If personal jurisdiction over the parties has been

established under this law, the Family Court has jurisdiction over any action transferred to the

Family Court from any court of competent jurisdiction.

704.5. Initiating an Action for Child Support

704.5-1. Every parent has a duty to support each and every child of that parent. A child support

order may be obtained from the Family Court by either submitting a 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.

704.5-2. For assistance in seeking a child support order a party may request the services of the

Agency or may be referred to the Agency from an entitlement program.

704.5-3. Initiation of Action by the Agency.

(a) Within seven (7) business days of receiving a completed application for services or a

referral, the Agency shall send the non-custodial parent a Letter of Request for Support

and Financial Disclosure form.

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(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 custodial

parent, or the Agency when required by federal law, may initiate a hearing in accordance

with this law.

Letter of Request for Support and Financial Disclosure form, the parties shall attempt to

enter into a voluntary agreement.

704.5-4. Voluntary Agreement. The parties may enter into a voluntary agreement at any time as

to the level of the child support obligation.

(a) The Agency shall assist parties in reaching a voluntary agreement upon request or

when the parties are referred to the Agency by an entitlement program. Parties may also

submit a voluntary agreement to the Family Court for approval without the Agency’s

assistance.

(b) In order for a voluntary agreement to be valid the following conditions shall be met:

(1) The agreement shall be in writing, signed, and notarized;

(2) If the parties deviate from the percentage standards, the 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 agreement free of duress and coercion; and

(4) The Family Court shall make written findings that the agreement is

appropriate, using the criteria for deviating from standard percentages as a

guideline, if applicable.

force and effect as an order issued by the Family Court. The obligation of the obligor to

pay child support shall commence on the date specified in the agreement, but no later

than the date the agreement is approved and filed by the Family Court.

704.5-5. Petition to Establish Child Support. If the parties do not enter into a voluntary

agreement, 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) Initiating an Action with the Family Court. Any of the following individuals may

initiate an action for the establishment of child support by filing a petition with the

Family Court:

(1) a custodial parent;

(2) a child’s mother;

(3) a child’s father;

(4) a child’s guardian ad litem;

(5) a child’s non-legally responsible relative;

(6) a legally incompetent adult’s guardian ad litem; or

(7) the Agency.

(b) Requirements of the Petition. The petition to establish child support shall include the

following:

(1) The name, date of birth and address of the petitioner and respondent;

(A) If the address of the respondent is unknown, other departments of the

Nation shall cooperate with the Family Court, at the Family Court’s

request, to provide the Family Court with the respondent’s address. Any

such Family Court requests shall be made in such a way which protects

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the privacy rights of all parties and children who are involved in

proceedings or actions under this law.

(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.

(2) 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.

to determine child support to be held at a time after the filing of the petition and

consistent with the manner of service.

(d) Notice. All parties shall be notified of the petition and of all hearings, and shall be

given an opportunity to be heard. Notice initiating 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 shall include the Family

Court clerk’s return address, with a request to file answer to that address. Subsequent

notice shall be served by first-class mail to the recently verified last-known address of the

party.

(1) Certified mail. Certified mail sent to a party’s most recently verified lastknown 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.

(2) Publication. When a responding party cannot be found 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 service by

publication. If the request is granted, the Agency shall publish the petition in the

Nation’s newspaper or a newspaper of general circulation in the county of

residence of the respondent, if known. Publication shall be designated as a Legal

Notice and confidential information shall be redacted.

(A) If service by publication is permitted and there is insufficient time for

notice and answer pursuant to this law, 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.

(e) Summons and 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 and date

for appearance:

(1) 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;

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(2) That a child support order may require the respondent 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);

(3) That the respondent’s license(s) may be suspended or denied for failure to pay

child support, in addition to other enforcement actions;

(4) That the respondent’s employer or others with evidence of the respondent’s

income may be subpoenaed to provide the Family Court with records of his or her

earnings;

(5) That if the respondent is unemployed, it shall still be determined that he or

she is able to provide some degree of child support and an order of support shall

be calculated according to this law unless the Family Court makes written

findings ordering otherwise; and

(6) 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.

(f) 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.

(g) Subpoenas. Upon request of either party, the Family Court shall issue subpoenas to

any person in possession of relevant information to appear or produce documents to the

Family Court. Failure to comply with such a subpoena may be punishable as contempt.

704.6. Child Support Hearing Procedures

704.6-1. The factual determinations made at a hearing shall 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 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;

lien or seizure actions;

(d) Obtain information about the income of any party to the action; and/or

(e) Issue contempt findings for failure to comply with the lawful order of the Family

Court.

704.6-3. Both parties have the right to representation by an attorney and/or advocate at his or her

own expense. The Nation shall not be required to pay for any fees and/or expenses incurred by

any party in connection with proceedings under this law.

704.6-4. Temporary Orders. At any time after a child’s parentage has been established, the

Family Court may make a temporary order for the payment of child support and the child’s

health care expenses. Before making a temporary order, the Family Court shall consider 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

704.7-8 shall be complied with.

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704.6-5. Default. If the respondent fails to appear at the hearing upon a showing of valid service

and the petitioner presents evidence of the obligation by the absent party, a child support order

shall be entered pursuant to the evidence.

704.6-6. Hearings and Records Closed. Child support proceedings shall be closed to any person

other than those necessary to the action or proceeding. Records of child support cases shall

remain confidential and shall only be viewed by the parties, the legal guardian of a party who is a

minor, the parties’ attorney or advocate, Judges and staff assigned to the case, and those other

persons who first obtain a written release from a party to view material contained in the record.

704.7. Determining the Child Support Obligation

704.7-1. The Family Court shall determine child support payments by using the percentage

standards established in section 704.7-2 of this law, except as provided elsewhere in this law.

The obligor’s monthly income shall be considered in determining his or her child support

obligation.

704.7-2. Percentage Standards to Determine the Amount of Child Support.

(a) The following percentages shall be applied to the portion of an obligor’s monthly

income available for child support that is less than seven thousand dollars ($7,000):

(1) seventeen percent (17%) for one (1) child;

(2) twenty-five percent (25%) for two (2) children;

(3) twenty-nine percent (29%) for three (3) children;

(4) thirty-one percent (31%) for four (4) children; and

(5) thirty-four percent (34%) for five (5) or more children.

(b) The following percentages shall be applied to the portion of an obligor’s monthly

income available for child support that is greater than or equal to seven thousand dollars

($7,000) and less than or equal to twelve thousand five hundred dollars ($12,500):

(1) fourteen percent (14%) for one (1) child;

(2) twenty percent (20%) for two (2) children;

(3) twenty-three percent (23%) for three (3) children;

(4) twenty-five percent (25%) for four (4) children; and

(5) twenty-seven percent (27%) for five (5) or more children.

income available for child support that is greater than twelve thousand five hundred

dollars ($12,500):

(1) ten percent (10%) for one (1) child;

(2) fifteen percent (15%) for two (2) children;

(3) seventeen percent (17%) for three (3) children;

(4) nineteen percent (19%) for four (4) children; and

(5) twenty percent (20%) for five (5) or more children.

704.7-3. Determining Income Modified for Business Expenses. In determining an obligor’s

monthly income, the Family Court may adjust an obligor’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 obligor shall have the burden of proof to

show that any undistributed income is reasonably necessary for the growth of the

business.

are reasonably necessary for the production of that income or operation of the business

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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 an obligor’s income

is less than the obligor’s earning capacity or is unknown, the Family Court may impute income

to the obligor at an amount that represents the obligor’s ability to earn.

(a) The obligor’s ability to earn may be based on the obligor’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 obligor’s actual income or ability to earn and that information is

unavailable, the Family Court may impute to the obligor the income that a person would

earn by working thirty-five (35) hours per week for the federal minimum hourly wage. In

addition to imputed income, the Family Court may order the non- custodial parent to

search for a job or participate in a work experience and job training program.

her earning capacity, the income imputed based on earning capacity shall be the

difference between the obligor’s earning capacity and the obligor’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 an obligor’s assets if

the Family Court finds both of the following:

(1) The obligor 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 obligor’s assets are underproductive and at least one (1) of the following

applies:

(A) The obligor has diverted income into assets to avoid paying child

support.

(B) Income from the obligor’s assets is necessary to maintain the child or

children at the standard of living they would have had if they were living

with both parents.

(b) The Family Court shall impute income to assets by multiplying the total net value of

the assets by the current six (6) month treasury bill rate or any other rate that the Family

Court determines is reasonable and subtracting the actual income from the assets that

were included as gross income.

704.7-6. Adjustment for Child’s Social Security Benefits. The Family Court may consider

benefits received by a child under 42 U.S.C. §402(d) based on a parent’s entitlement to federal

disability or old-age insurance benefits under 42 U.S.C. §401 to 433 and adjust an obligor’s child

support obligation by subtracting the amount of the child’s benefit. In no case may this

adjustment require the obligee to reimburse the obligor for any portion of the child’s benefit. If

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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.

(6) Add the amount in section 704.7-6(a)(5) to the child support obligation

calculated in section 704.7-6(a)(4) for the parent who is receiving the child’s

benefit.

(7) Offset the resulting amounts against each other. The parent with the greater

child support obligation is the shared-placement obligor. The shared-placement

obligor shall pay either the greater of the amount determined in this subsection or

the amount determined using the appropriate percentage standard under section

704.7-2.

704.7-7. Claiming Children for Tax Purposes. The Family Court may address who may claim

the child for tax purposes or accept a stipulation entered into by the parties regarding children

and taxes.

704.7-8. Deviation from the Percentage Standards. Upon request by a party, the Family Court

may modify the amount of child support payments determined by the percentage standards if,

after considering the following factors, the Family Court finds by the greater weight of the

credible evidence that use of the percentage standards is unfair to the child or to any of the

parties:

(a) The financial resources of the child;

(b) The financial resources of both parents;

(d) The needs of each party in order to support himself or herself at a level equal to or

greater than the federal poverty line as established under 42 U.S.C. §9902(2);

(e) The needs of any person, other than the child, whom either party is legally obligated

to support;

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(f) The standard of living the child would have enjoyed if his or her parents were living

together;

(g) The desirability that the custodial parent remain in the home as a full-time parent;

(h) The cost of day care if the custodial parent works outside the home, or the value of

custodial services performed by the custodial parent if the custodial parent remains in the

home;

(i) The award of substantial periods of physical placement to both parents;

(j) Extraordinary travel expenses incurred in exercising the right to periods of physical

placement;

(k) The physical, mental, and emotional health needs of the child, including any costs for

health insurance;

(l) The child’s educational needs;

(m) The tax consequences to each party;

(n) The best interests of the child;

(o) The earning capacity of each parent, based on each parent’s education, training and

work experience and the availability of work in or near the parent’s community; and

(p) Any other factors which the Family Court in each case determines are relevant.

704.7-9. Past-due and Arrears obligations.

(a) A party may request payment of arrears or past-due child support as follows:

(1) In an action regarding paternity, back to the date of birth of the child or date

of application, whichever is later;

(2) In a child support establishment or modification pursuant to this law, back to

the date of application, review, or referral; or

(3) In an establishment or modification of placement pursuant to an action

regarding divorce, annulment and legal separation or child custody, placement,

and visitation, back to the date of filing, or as otherwise ordered by the Family

Court.

(b) A payment for arrears or a past-due payment shall be set based on the amount due

and the income available to pay current support.

shall continue to be paid at the same rate, until all arrears or past due child support is paid

in full.

704.8. Determining the Child Support Obligation in Special Circumstances

704.8-1. Determining the Child Support Obligation of a Serial-Family Obligor.

(a) Applicability. This applies only if the support obligation being calculated is for

children from a subsequent family or subsequent paternity judgment or acknowledgment.

An obligor may not use the provisions of this section as a basis for seeking modification

of an existing order based on a subsequently incurred legal obligation for child support.

(b) Determination. For a serial-family obligor, the child support obligation incurred for

a marital or non-marital child in a subsequent family as a result of a child support order

may be determined as follows:

(1) Determine the obligor’s monthly income.

(2) Determine the order of the obligor’s legal obligations for child support by

listing them according to the date each obligation is incurred.

(A) For a marital child, the legal obligation for child support is incurred

on the child’s date of birth.

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(B) For a non-marital child, the legal obligation for child support is

incurred on the date that paternity is legally established.

adoption or the date that paternity is legally established.

(D) For a non-marital maternal child in an intact family, it is incurred on

the child’s date of birth.

(3) Determine the first child support obligation as follows:

(A) If the obligor is subject to an existing support order for that legal

obligation, except a shared-placement order, the support for that obligation

is the monthly amount of that order; or

(B) If the obligor is in an intact family or is subject to a shared-placement

order, the support is determined by multiplying the appropriate percentage

for that number of children by the obligor’s monthly income.

(4) Adjust the monthly income by subtracting the support for the first legal

obligation from the obligor’s monthly income.

(5) Determine the second child support obligation as follows:

(A) If the obligor is subject to an existing support order for that legal

obligation, except a shared-placement order, the support for that obligation

is the monthly amount of that order; or

(B) If the obligor is in an intact family or is subject to a shared-placement

order, the support is determined by multiplying the appropriate percentage

for that number of children by the obligor’s monthly income.

(6) Adjust the monthly income a second time by subtracting the support for the

second legal obligation from the first adjusted monthly income.

(7) Repeat the procedure for determining the child support obligation and

adjusting the monthly income for each additional legal obligation for child

support the serial family obligor has incurred.

(8) Multiply the appropriate percentage for the number of children subject to the

new order by the final adjusted monthly income to determine the new child

support obligation.

704.8-2. Determining the Child Support Obligations of Shared-Placement Parents.

(a) Applicability. The shared-placement formula may be applied when both of the

following conditions are met:

(1) Both parents have periods of placement of at least twenty-five percent (25%)

or ninety-two (92) days a year. When calculating periods of placement based on

equivalent care, the total number of overnights may exceed three hundred and

sixty-five (365). The period of placement for each parent shall be determined by

calculating the number of overnights or equivalent care ordered to be provided by

the parent and dividing that number by the total number of overnights in a year.

The combined periods of placement for both parents shall equal the total number

of overnights.

(2) Each parent is ordered by the Family Court to assume the child’s basic

support costs in proportion to the time that the parent has placement of the child.

(b) Determination. The child support obligations for parents who meet the requirements

for the shared-placement formula may be determined as follows:

(1) Determine each parent’s monthly income.

(A) In determining whether to impute income based on earning capacity

for an unemployed parent or a parent employed less than full time, the

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Family Court shall consider benefits to the child of having a parent remain

in the home during periods of placement and the additional variable day

care costs that would be incurred if the parent worked more.

(2) Multiply each parent’s monthly income by the appropriate percentage

standard.

(3) Multiply each amount determined under section 704.8-2(b)(2) by one hundred

and fifty percent (150%).

(4) Multiply the amount determined for each parent under section 704.8-2(b)(3)

by the proportion of the time that the child spends with the other parent to

determine each parent’s child support obligation.

(5) Offset resulting amounts under section 704.8-2(b)(4) against each other. The

parent with a greater child support obligation is the shared-placement obligor.

The shared-placement obligor shall pay the lesser of the amount determined under

this section or the amount determined using the appropriate percentage standard.

If the shared-placement obligor is also a low-income obligor, the child support

obligation may be the lesser of the amount determined under the shared placement

determination or the low-income determination.

(6) In addition to the child support obligation determined under section 704.82(b)(5), the Family Court shall assign responsibility for payment of the child’s

variable costs in proportion to each parent’s share of physical placement, with due

consideration to a disparity in the parents’ incomes.

(A) The Family Court shall direct the manner of payment of a variable

cost order to be either between the parents or from a parent to a third-party

service provider.

(B) The Family Court shall not direct payment of variable costs to be

made to the Agency or the Agency’s designee, except as incorporated in

the child support order.

(7) A change in the child’s variable costs shall not in and of itself be considered a

substantial change in circumstances sufficient to justify a modification of a

judgment or order under section 704.10.

704.8-3. Determining the Child Support Obligations of Split-Placement Parents.

(a) Applicability. The split-placement formula may be applied when parents have two

(2) or more children and each parent has placement of one (1) or more but not all of the

children.

(b) Determination. The child support obligation for a split-placement parent may be

determined as follows:

(1) Determine each parent’s monthly income.

(2) Determine the appropriate percentage standard for the number of total

children.

(3) Divide the appropriate percentage standard for the number of total children by

the total number of children.

(4) Multiply the number calculated in section 704.8-3(b)(3) by the number of

children placed with each parent.

(5) Multiply each parent’s monthly income by the number calculated in 704.83(b)(4) based on the number of children placed with the other parent to determine

each parent’s child support obligation; and

(6) Offset resulting amounts under section 704.8-3(b)(5) against each other. The

parent with a greater child support obligation is the split-placement obligor.

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704.8-4. Determining the Child Support Obligation of a Low-Income Obligor.

(a) Applicability. If an obligor’s total economic circumstances limit his or her ability to

pay support at the level determined by the standard percentage standards, then the lowincome obligor standards found in the Child Support Obligation of Low-Income Payers

Schedule may be used.

(b) Determination. The Family Court may use the monthly support amount provided in

the Child Support Obligation of Low-Income Payers Schedule as the support amount for

an obligor with per monthly income at a level set forth in the schedule.

(1) If an obligor’s monthly income is below the lowest income level in the Child

Support Obligation of Low-Income Payers Schedule, the Family Court may set an

order at an amount appropriate for the obligor’s total economic circumstances.

This amount may be lower than the lowest support amount in the Child Support

Obligation of Low-Income Payers Schedule

704.9. Child Support Order

704.9-1. Expression of Ordered Support. The child support amount shall be expressed as a

fixed sum.

704.9-2. Interest on Arrears. The Nation shall not charge an obligor ordered to pay child

support interest on any arrears.

704.9-3. Income Withholding. The child support order shall provide for immediate income

withholding.

(a) A copy of the Family Court’s income withholding order shall be sent by the Agency

to a payor within three (3) business days of the entry of the order of the Family Court by

mail, fax, or electronic means.

(b) An order to withhold income shall be binding against future payors upon actual

notice of the income withholding order through notice by mail, fax, or electronic means.

(1) One of the parties demonstrates, and the Family Court finds, that there is

good cause not to require income withholding due to one of the following:

(A) There is an error in the amount of current or overdue support; or

(B) The identity of the obligor is mistaken.

(2) The parties reach a written agreement which provides for an alternative

arrangement that is approved by the Family Court.

(d) No payor shall refuse to honor an income withholding order executed pursuant to this

law. A payor shall begin withholding income immediately after notice of an income

withholding order made pursuant to this law. Within five (5) business days after the

payor pays the obligor, the payor shall send the amount withheld to the Wisconsin

Support Collections Trust Fund.

(e) A payor shall be liable for one hundred percent (100%) of the child support order, or

the amount of money that should have been withheld from the obligor’s earnings,

whichever is the lesser amount, if the payor:

(1) Fails or refuses, after being noticed of an income withholding order, to deduct

or promptly remit the amounts of money required in the order;

(2) Fails or refuses to submit an answer to the notice of income withholding after

being noticed; or

(3) Is unwilling to comply with the other requirements of this law.

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(f) A payor shall not discharge from employment, refuse to employ, or otherwise take

disciplinary action against any obligor solely because he or she is subject to income

withholding.

(1) When the Family Court finds that a payor has taken any of these actions, the

payor shall be liable for a civil penalty. Any payor who violates any provision of

this paragraph shall be liable in a civil action for reasonable damages suffered by

an obligor as a result of the violation, and an obligor discharged or demoted in

violation of this paragraph shall be entitled to be reinstated to his or her former

position.

(2) The statute of limitations for actions under this section shall be one (1) year.

(g) A payor who repeatedly fails to comply with an income withholding order as

required by this law may be subject to a fine, not to exceed five hundred dollars ($500),

or have its Oneida vendor license revoked or suspended, if applicable, until compliance

with this law is assured.

(1) The vendor license issuing agency shall comply with the Family Court order

to revoke or suspend a vendor license.

(h) If income withholding is inapplicable, ineffective or insufficient to ensure payment of

child support, the Family Court may require the obligor to establish an account for the

purpose of transferring child support payments.

(i) The total amount withheld under an income withholding order shall not exceed the

maximum amount permitted under section 303(b) of the Consumer Credit Protection Act

(15 U.S.C. §1673(b)).

(j) Non-Indian off-reservation payors shall be subject to income withholding under 28

U.S.C. §1738B.

704.9-4. Conditions of the Order. The Family Court may require a party, or both parties, to use

the services available to him or her to obtain and maintain regular employment and/or job

training.

704.9-5. Support Order Notice Requirements. Each order for child support shall include:

(a) An order that the obligor and obligee notify the Agency of any change of address or

name change within ten (10) business days of such change; and

(b) An order that the obligor notify the Agency and the obligee of any change of

employer or substantial change of income within ten (10) business days of the change.

704.9-6. Enforcement of Order. A child support order under this section is enforceable as

contempt.

704.9-7. Collection and Distribution of Child Support. The Agency shall collect and distribute

child support monies pursuant to regulations set forth in the Social Security Act 45 CFR

309.115.

704.9-8. Trust. The Family Court may protect and promote the best interests of the minor

children by setting aside a portion of the child support that either party is ordered to pay in a

separate fund or trust for the support, education, and welfare of such children.

704.9-9. Non-Cash Payments.

(a) Non-cash payments may be used to satisfy part or all of a child support order if the

parties and the Family Court agree to allow non-cash payments. Non-cash payments

shall not be used to fulfill arrears. If non-cash payments are allowed, the order shall:

(1) state the specific dollar amount of the support obligation;

(2) state the maximum amount (in dollars) of non-cash payment that the obligee

will accept;

(3) describe the type of non-cash payment that is permitted;

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(4) provide that non-cash payment cannot be used to satisfy assigned child

support obligations.

(b) When both parents are in agreement that non-cash payments may be used to satisfy a

child support obligation, the non-cash payment may include, but is not limited, to the

following:

(1) Clothing;

(2) Groceries;

(3) Child Care;

(4) Deer/Venison;

(5) Wood;

(6) Transportation;

(7) Skilled trades or services, such as car repairs, lawn care and snow removal;

and/or

(8) Gift cards.

obligor and obligee shall submit any forms required by the Agency within the month that

the non-cash payment is made. If there are less than five (5) business days left in the

month when a non-cash payment is made, the obligor and obligee have five (5) business

days to submit any required forms to the Agency. The Agency shall be responsible for

applying the non-cash payment towards the child support order during the appropriate

month.

704.10. Modification of a Child Support Order

704.10-1. Review of the Child Support Order. Every two (2) years, the Agency shall conduct a

review of the child support order. The Agency shall notify the non-custodial parent, custodial

parent, and any interested party that a review of their child support order shall be conducted.

704.10-2. Modification of Child Support Sought by the Agency. After the two (2) year review is

conducted by the Agency, the Agency shall seek an order to modify the child support obligation

if there is a substantial change in circumstances, unless otherwise stipulated by the parties. A

substantial change in circumstances includes, but is not limited to:

(a) the child’s placement is changed;

(b) either parent or the child has a significant change in his or her finances that would

lead to a change in child support of more than fifteen percent (15%) and fifty dollars

($50.00) per month;

support order in place;

(d) it has been twenty-four (24) months since the date of the last child support order or

revision to the child support order, unless the child support amount is expressed as a

percentage; or

(e) a change has occurred and if the current circumstances had been in place at the time

the order was issued, a significantly different order would have been issued.

704.10-3. Modification of Child Support Sought by the Parties. Either party may file a motion

for a modification of a child support order at any time based upon a substantial change of

circumstances supported by affidavit.

(a) Such motion shall state why the previous decision should be prospectively modified.

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(b) The motion and affidavit shall be served by the moving party on the responding party

by first-class mail to the recently verified last-known address, or by any method provided

by law.

of service.

704.10-4. An obligor shall not raise a change in circumstances as a reason not to pay a past due

reward. If a child support award becomes unjust due to a substantial change in circumstances of

the obligor, the obligor has the duty to file a petition or motion with the Family Court for a

changed award at that time.

704.11. Modification of a Child Support Order for an Incarcerated Parent

704.11-1. In the event an obligor is incarcerated for one hundred and eighty (180) days or more,

the obligor shall have the right to have the Agency review his or her child support order to

determine if modification or suspension of the child support order is appropriate.

(a) An ordered child support obligation shall be suspended for an incarcerated obligor

who has been sentenced to one hundred and eighty (180) days or more and has an income

of less than two hundred dollars ($200) per month.

(b) If while incarcerated the obligor’s income is two hundred dollars ($200) or more per

month the Agency shall review the order and seek temporary modification of the child

support order based on the incarcerated obligor’s income, if necessary.

incarcerated for a criminal offense which includes:

(1) felony failure to pay support;

(2) a crime against a child; and/or

(3) a crime against the obligee.

(d) Past due child support related debt and/or arrears shall not be suspended or reduced

as a result of the obligor’s incarceration without stipulation by the parties.

704.11-2. Notification of Review. Within fifteen (15) business days of the receipt by the Agency

of verification of the obligor’s incarceration, the Agency shall send out a letter to the parties of

the case informing them of the obligor’s right to have his or her child support obligation

reviewed, and of the Agency’s intent to review the current child support order.

704.11-3. Agency Review of Order. The Agency shall review the obligor’s child support order

and make one of the following determinations:

(a) that the obligor’s income while incarcerated is two hundred dollars ($200) or more

per month, and the Agency shall seek temporary modification of the obligor’s child

support order based on the incarcerated obligor’s income, if necessary; or

(b) that the obligor’s income while incarcerated is less than two hundred dollars ($200)

per month, and the Agency shall seek temporary suspension of the obligor’s child support

order while incarcerated.

704.11-4. Suspension of Order by the Agency. If the Agency determines the obligor’s income is

less than two hundred dollars ($200) per month while incarcerated, the Agency shall file with the

Family Court a Motion and Order to Suspend without a request for a hearing with notice to all

parties that the child support order shall be suspended.

(a) Either party shall have the right to object to the suspension of the order within ten

(10) business days of the date of the notice by filing such objection with the Family Court

and providing a copy of the objection to the Agency.

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(b) If no objection to the suspension is received, the Family Court shall enter the order as

proposed.

hearing on the issue.

704.11-5. Modification of Order by the Agency. If the Agency determines the obligor’s income

is two hundred dollars ($200) per month or more while incarcerated, the Agency shall file with

the Family Court a Motion and Order to Modify without a request for a hearing with notice to all

parties with the proposed modification to the child support order.

(a) Either party shall have the right to object to the modification of the order within ten

(10) business days of the date of the notice by filing such objection with the Family Court

and providing a copy of the objection to the Agency.

(b) If no objection to the modification is received, the Family Court shall enter the order

as proposed.

hearing on the issue.

704.11-6. Modification of the Order by the Incarcerated Parent. In addition to the

responsibility of the Agency to review and take action on this matter, the incarcerated parent may

seek modification of his or her own child support order by filing a motion to modify with the

Family Court in accordance with section 704.10-3.

704.11-7. If during the term of incarceration, the Agency receives notification of a change in the

obligor’s employment and/or income, the Agency shall review the obligor’s order and determine

if the obligor’s income is two hundred dollars ($200) or more per month, and whether it is

necessary to temporarily modify or suspend the obligor’s child support order.

(a) If the Agency determines that suspension of the obligor’s order is necessary, then the

procedure for filing a Motion and Order to Suspend without a request for a hearing

described in section 704.11-4 shall be followed.

(b) If the Agency determines that modification of the obligor’s order is necessary, then

the procedure for filing a Motion and Order to Modify without a request for a hearing

described in section 704.11-5 shall be followed.

704.11-8. Reinstatement of Prior Order. Sixty (60) days after the obligor’s release from

incarceration, the child support order shall be reinstated to the previous child support order in

effect before the suspension or modification of the order based on the obligor’s incarceration.

(a) The Agency shall send notice to both parties of the obligor’s release from

incarceration and the intent of the Agency to reinstate the original order.

(b) The parties shall have ten (10) business days from the date of the notice from the

Agency to file an objection to the reinstatement of the child support order with the

Family Court, and to provide a copy of the objection to the reinstatement to the Agency.

(d) Upon receipt of an objection from either party, the Family Court shall schedule a

hearing on the issue.

704.11-9. If after release from incarceration the obligor’s probation or extended supervision is

revoked, and he or she is sentenced for a subsequent one hundred and eighty (180) days or more

the Agency shall use the provisions of this section to determine if the suspension or modification

of the obligor’s child support order based on the incarceration of the obligor is appropriate.

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704.12. Compliance Plan

704.12-1. If at any time the Agency believes an obligor is, or may become, non-compliant with

his or her child support order by failing to pay support as ordered or meeting a required

obligation or action, the Agency shall attempt to engage with the obligor through the

development of a compliance plan.

704.12-2. A Letter of Non-Compliance may be sent by the Agency at any time deemed

appropriate, but the Agency shall send out the Letter of Non-Compliance at least thirty (30) days

prior to the initiation of any enforcement action.

(a) The Letter of Non-Compliance shall set out the conditions the party has failed to

comply with, outline the enforcement actions that may be taken, and request the party

meet with the Agency.

(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.

the reasons and barriers for the non-compliance and create a compliance plan. The

compliance plan may include an increase in payment and/or any activity that is necessary

to ensure payment, including programs that focus on:

(1) Employment and training;

(2) Social service and mental health;

(3) Physical and learning disabilities;

(4) Tribal traditions and customs;

(5) Family counseling and parenting; and

(6) Any other program deemed necessary.

(d) If the party successfully completes the compliance plan, no further enforcement

action is necessary. However, if the party fails to complete the compliance plan, the

Agency shall proceed with appropriate enforcement action.

704.13. Enforcement of an Order

704.13-1. An obligor may be subject to enforcement actions when the obligor is at least one (1)

month delinquent in paying his or her child support obligation. Enforcement actions may include

administrative enforcement action by the Agency and enforcement action by the Family Court.

(a) An obligor shall be provided with notice of an enforcement action of at least thirty

(30) days before an enforcement action is used, unless another timeline is specified.

(b) An enforcement action shall be stayed and/or suspended after notice is given to the

obligor if the obligor pays the debt in full or enters into, and maintains, an alternative

payment plan and/or a compliance plan with the Agency.

704.13-2. Agency Responsibilities in the Enforcement of an Order. The Agency shall have the

following responsibilities in the enforcement of an order:

(a) Track and document the progress of an obligor who is under an enforcement action;

(b) Take additional enforcement action when an obligor fails to comply with a previous

enforcement action;

would have been appropriate under the circumstances; and

(d) Refund amounts that were improperly withheld, terminate income withholding when

appropriate, and allocate amounts across multiple cases.

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704.13-3. Notice to the Obligor of Delinquency. In the event that an obligor owes a debt equal

to or exceeding the monthly amount due, the Agency shall send a notice of delinquency to the

obligor. The notice of delinquency shall inform the obligor of the following:

(a) The total amount of the delinquency; and

(b) The enforcement action that may be taken as a result of the delinquency.

704.13-4. Notice to the Obligor of Enforcement Action. After the obligor has been noticed of his

or her delinquency, and at least thirty (30) days prior to an enforcement being used against an

obligor, the Agency shall send a notice of enforcement action to the obligor.

(a) The notice of enforcement action shall inform the obligor of the following:

(1) The total amount of the delinquency;

(2) The enforcement action that may be taken as a result of the delinquency;

(3) The obligor may request, in writing to the Agency, to negotiate an alternative

payment plan with the Agency within ten (10) business days after the notice in

order to stay any enforcement action;

(4) The obligor has ten (10) business days after the notice of enforcement action

to file an objection with the Agency presenting good cause why an arrears

payment or other enforcement action should not be implemented. The only

allowable objections are:

(A) There is an error in the amount of current or overdue support; or

(B) The identity of the obligor is mistaken.

(b) If the obligor does not file an objection or request to negotiate an alternative payment

plan:

(1) the enforcement action shall be taken; and/or

(2) an income withholding order, or revised order if one is already in place, shall

be imposed on the payor. No more than an additional twenty percent (20%) of the

current support payment order can be withheld to satisfy the delinquency

provided that the total amount withheld does not exceed forty percent (40%) of

the obligor’s monthly income.

enforcement action is taken.

704.13-5. Use of Mail for Notices. The Agency shall send notices related to the delinquency of

an obligor and enforcement of a child support order by mail to the last-known mailing address

provided by the obligor.

(a) If the notice is returned, the Agency shall send notice to the obligor using the current

employer mailing address provided by the obligor.

(b) If the notice to the obligor mailed to the obligor’s employer is returned, the Agency

shall use all appropriate tribal, federal, state and local resources to ascertain an obligor’s

current mailing address.

address has not been identified, the Agency may proceed with the administrative

enforcement action.

704.13-6. Notice to the Obligee of Enforcement Proceedings. The Agency shall provide written

notice to the obligee when an enforcement action has been initiated against the obligor or when

the obligor requests a hearing and the hearing has been scheduled. The notice to the obligee

shall be sent at the same time notice is sent to the obligor.

704.13-7. Notice to Individuals Other Than the Obligor with a Recorded Ownership Interest in

Property. The Agency shall provide notice related to the seizure of property to any individual,

other than the obligor, with a recorded ownership interest in property subject to seizure. The

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individual may request a hearing for a determination of the proportion of the value of the

property that is attributable to his or her net contribution to the property. The hearing shall be

requested within thirty (30) days after the notice was received by the individual.

704.14. Alternative Payment Plans

704.14-1. Applicability of Alternative Payment Plans. When an obligor is subject to

administrative enforcement action, he or she may negotiate an alternative payment plan with the

Agency.

704.14-2. Negotiation of an Alternative Payment Plan After Receiving Notice of an Enforcement

Action.

(a) In order to negotiate an alternative payment plan, an obligor shall submit a written

request to the Agency.

(1) A written request to negotiate an alternative payment plan received by the

Agency within ten (10) business days after the date of notice shall stay any

administrative enforcement action.

(2) If a written request to negotiate an alternative payment plan is received by the

Agency more than ten (10) business days after the date of notice, administrative

enforcement action may be taken, as long as the requirements for staying or

suspension of administrative enforcement actions are met.

(b) An obligor may negotiate a plan with the Agency to have a license issued or renewed

after it has been restricted, limited, suspended or refused.

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.

(d) Proceeding with Administrative Enforcement Actions. The Agency may continue

with the administrative enforcement action if:

(1) the obligor and the Agency are unable to negotiate a plan;

(2) the Family Court determines that the plan is not reasonable; and/or

(3) the Family Court does not order a plan.

704.14-3. Disclosure of Income and Assets. The request to negotiate a plan shall include an

agreement by the obligor to provide the Agency with a full disclosure of income and assets

available. The obligor shall provide complete income and assets information to the Agency

within five (5) business days of the request to negotiate a plan.

704.14-4. Terms of an Alternative Payment Plan.

(a) An alternative payment plan may include a lump-sum payment, or periodic payments

on the arrears, or both, subject to the following standards:

(1) The sum of any periodic payment established under the plan and any other

payment of support ordered by the Family Court, when subtracted from the

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obligor’s gross income, may not leave the obligor below one hundred percent

(100%) of the poverty line established under 42 U.S.C. §9902 (2) unless the

obligor agrees otherwise.

(2) When establishing an alternative payment plan, the Agency shall consider the

factors used by the Family Court in determining whether the use of the percentage

standard is unfair to the child or any of the parties.

(b) Periodic payments under the plan may be made through income withholding in

amounts in addition to the amount ordered in the child support order that is in effect.

704.14-5. Staying Administrative Enforcement Actions. Administrative enforcement actions

shall be stayed by the Agency while the obligor and the Agency are negotiating a plan, or, if a

hearing is requested, until the Family Court determination has been made. To stay an

administrative enforcement action means the following:

(a) The obligor shall not be certified for denial, nonrenewal, restriction, or suspension of

any State or Oneida-issued licenses;

(b) Any frozen financial accounts shall remain frozen and shall not be seized; and

704.14-6. Suspension of Administrative 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.

(b) If an obligor makes a full arre

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.