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 Conference Room-2nd Floor Norbert Hill Center

September 18, 2019

9:00 a.m.

Call to Order and Approval of the Agenda

II.

Minutes to be Approved

September 4, 2019 LOC Meeting Minutes (pg. 2)

III.

Current Business

1. Child Support Amendments (pg. 4)

2. Oneida Police Commission Bylaws Amendments (pg. 132)

3. Anna John Resident Centered Care Community Board Bylaws Amendments (pg. 174)

4. Oneida Election Board Bylaws Amendments (pg. 213)

5. Oneida Community Library Board Bylaws Amendments (pg. 254)

6. Oneida Nation Veterans Affairs Committee Bylaws Amendments (pg. 289)

7. Oneida Pow-Wow Committee Bylaws Amendments (pg. 344)

IV.

New Submissions

Additions

VI.

Administrative Updates

1. Judiciary Law Rule No. 1 – Oneida Trial Court Rules (pg. 386)

VII.

Executive Session

VIII. Recess/Adjourn

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

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

GDDDOO

PO Box 365 • Oneida, WI 54155-0365

ONEIDA

Oneida-nsn.gov

LEGISLATIVE OPERATING COMMITTEE MEETING MINUTES

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

September 4, 2019

9:00 a.m.

Present: David P. Jordan, Kirby Metoxen, Ernest Stevens III, Jennifer Webster, Daniel Guzman

King

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

Hooker, Leyne Orosco, Lee Cornelius, Jameson Wilson

Call to Order and Approval of the Agenda

David P. Jordan called the September 04, 2019, Legislative Operating Committee meeting

to order at 9:00 a.m.

Motion by Jennifer Webster to adopt the agenda; seconded by Ernest Stevens III. Motion

carried unanimously.

II.

Minutes to be Approved

Motion by Kirby Metoxen to approve the August 7, 2019, Legislative Operating

Committee meeting minutes and forward to the Business Committee for consideration;

seconded by Ernest Stevens III. Motion carried unanimously.

III.

Current Business

1. Curfew Law (:41-4:45)

Motion by Jennifer Webster to accept the updated public comment review

memorandum, draft, and legislative analysis; seconded by Daniel Guzman King.

Motion carried unanimously.

Motion by Jennifer Webster to approve the Curfew Law fiscal impact statement request

memorandum and forward to the Finance Committee requesting that a fiscal impact

statement be prepared and submitted to the Legislative Operating Committee by

September 18, 2019, seconded by Ernest Stevens III. Motion carried unanimously.

2. Sanctions and Penalties Law (4:46-7:43)

Motion by Jennifer Webster to approve the community outreach notice and article for

the Sanctions and Penalties Law, and forward to the Kalihwisaks for publication in the

September 19, 2019, edition; seconded by Ernest Stevens III. Motion carried

unanimously.

IV.

New Submissions

Additions

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

Legislative Operating Committee Meeting Minutes of September 04, 2019

Page 1 of 2

ONEIDA

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VI.

Administrative Items

1. Family Court Law Rule No. 1 (7:46-10:49)

Motion by Kirby Metoxen to certify the Family Court Law Rule No. 1 – Family Court

Rule and forward to the Oneida Business Committee for consideration; seconded by

Ernest Stevens III. Motion carried unanimously.

VII.

Executive Session

VIII. Adjourn

Motion by Ernest Stevens III to adjourn the September 04, 2019, Legislative Operating

Committee meeting at 9:18 a.m.; seconded by Kirby Metoxen. Motion carried

unanimously.

Legislative Operating Committee Meeting Minutes of September 04, 2019

Page 2 of 2

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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

September 18, 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.

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8/9/18:

Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Lisa Peck,

Michelle Gordon, Hon. Marcus Zielinski, Hon. Robert Collins III, Rich Vanboxtel, Eric

Boulanger. The purpose of this work meeting was to discuss the potential of utilizing bench

warrants in regard to child support matters.

8/17/18:

Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Lisa Peck,

Michelle Gordon. The purpose of this work meeting was to continue discussing potential

amendments to the review, review requested data regarding enforcement of child support, and

determine next steps to moving this legislative item forward.

9/18/18:

Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Lisa Peck. The

purpose of this work meeting was to continue discussing potential amendments to the law.

10/12/18:

Work Meeting: Present: Brandon Wisneski, Trina Schuyler. The purpose of this work meeting

was to prepare for and discuss an upcoming work meeting with the LOC.

10/26/18:

Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Tami Busch.

The purpose of this work meeting was to review the power point and handouts for the

upcoming meeting with the LOC.

10/31/18:

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

Jennifer Falck, Clorissa Santiago, Brandon Wisneski, Trina Schuyler. During this work

meeting Trina gave PowerPoint presentation on Oneida’s Child Support Department. The

LOC was then presented with policy considerations for proposed amendments regarding

enforcement tools and modification of a child support order for an incarcerated parent. The

LOC considered the proposed ideas, and directed the LRO to move forward pursuing research

and drafting.

11/9/18:

Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Tami Busch.

The purpose of this work meeting was to discuss the LOC’s decisions regarding potential

amendments, plan the next steps for moving forward, and plan an upcoming meeting with

OPD.

12/6/18:

Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Tami Busch,

Michelle Gordon. The purpose of this work meeting was to review drafted enforcement tools

language and determine what information needs to be discussed with OPD in an upcoming

work meeting scheduled for 12/10/18.

12/10/18:

Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Tami Busch,

Michelle Gordon, Eric Boulanger. The purpose of this work meeting was to review drafted

enforcement tools language and determine what information needs to be included in the Law.

The LRO staff will bring the information collected during this work meeting to the LOC for

their consideration.

12/19/18:

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

III, Jennifer Falck, Clorissa Santiago, Brandon Wisneski. The purpose of this work meeting

was to discuss the 12/10/18 work meeting with Child Support and OPD, and reconsider policy

considerations regarding enforcement tools.

1/4/19:

Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Tami Busch,

Michelle Gordon. The purpose of this work meeting was to discuss the LOC’s recent decision

to not pursue the addition of proposed enforcement tools, and to begin reviewing the draft

from the beginning to discuss other potential amendments.

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2/1/19:

Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Tami Busch,

Michelle Gordon. The purpose of this work meeting was to continue reviewing the law line

by line to discuss potential amendments.

3/1/19:

Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Tami Busch,

Michelle Gordon, Porsche Skenandore-Wheelock. The purpose of this work meeting was to

finish reviewing the law line by line to discuss potential amendments. LRO will update the

draft with all the proposed revisions.

4/5/19:

Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Tami Busch,

Porsche Skenandore-Wheelock. The purpose of this work meeting was to review the updated

draft to ensure it adequately reflects decisions that were made regarding proposed

amendments to the law.

4/30/19:

Work Meeting. Present: Clorissa Santiago, Brandon Wisneski, Trina Schuyler, Tami Busch,

Porsche Skenandore-Wheelock. The purpose of this work meeting was to continue reviewing

the updated draft to ensure it adequately reflects the decisions and recommendations that were

made regarding the proposed amendments to the law. Department will continue to review the

proposed language for compliance, and we will finish the review of the last portion of the draft

during the next meeting.

5/16/19:

Work Meeting. Present: Jennifer Falck, Clorissa Santiago, Brandon Wisneski, Trina Schuyler,

Tami Busch, Michelle Gordon, JoAnne House, Tsyoshaaht Delgado. The purpose of this work

meeting was to complete the review of the updated draft to ensure it adequately reflects the

decisions and recommendations that were made regarding the proposed amendments to the

law. LRO will now update the draft and bring it to the LOC for review and consideration.

7/17/19:

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

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

purpose of this work meeting was to begin reviewing and making decisions to the proposed

amendments to the Law.

7/18/19:

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

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

purpose of this work meeting was to continue reviewing and making decisions as to the

proposed amendments to the Law.

7/25/19:

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

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

purpose of this work meeting was to continue reviewing and making decisions as to the

proposed amendments to the Law.

8/7/19 LOC:

Motion by Ernest Stevens III to have one more work session between the Legislative

Operating Committee, Legislative Reference Office and the Child Support Agency; seconded

by Kirby Metoxen. Motion carried unanimously.

8/20/19:

OBC Work Session. Present: Tehassi Hill, Patricia King, David P. Jordan, Kirby Metoxen,

Ernest Stevens III, Jo Anne House, Jennifer Falck, Clorissa N. Santiago, Brandon Wisneski,

Melinda Danforth, Candice Skenandore, Lisa Liggins, Brian Doxtator. The purpose of this

meeting was to discuss potential use of incarceration for child support. OBC designated a team

to include representatives from Self Governance, Intergovernmental Affairs, Oneida Police

Department, Oneida Law Office, and the Judiciary to work on this issue and report to the OBC

during OBC work sessions every three months.

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8/21/19:

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

Jennifer Falck, Clorissa N. Santiago, Brandon Wisneski, Trina Schuyler, Tami Busch,

Michelle Gordon. The purpose of this work meeting was to fulfill the August 7, 2019 directive

and allow the Agency one final work meeting to discuss potential amendments.

Next Steps:

▪ Approve the updated draft and legislative analysis.

▪ Approve the public meeting packet and forward the amendments to the Child Support law to a public

meeting to be held on October 17, 2019.

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2019 09 18

Title 7. Children, Elders and Family - Chapter 704

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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 agreementsstipulations 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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704.3. Definitions

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

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

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

Nation Child Support Agency to enforce a child support order without obtaining an order

from the Family Court.

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

and supervise the Nation’s child support enforcement program.

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 naturalbiological 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 105150 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.

7 O.C. 704 – Page 2

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

including, but not limited to:

(1) Salary and wages, including overtime pay;

(2) Interest and investment income;

(3) Social Security disability and old age insurance benefits under 42 U.S.C. §401

to 433;

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

awards intended to replace income;

(5) Unemployment insurance;

(6) Income continuation benefits;

(7) Voluntary deferred compensation and employee contributions to the following:

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

(8) Military allowances and veterans disability compensation benefits;

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

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

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

(10) Per capita distribution payments;

(11) Lease or rental income;

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

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

include any of the following:

(A) Child support;

(B) Foster care payments;

(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(q) “Guardian ad litem” means a person appointed by the Family Court to appear at any

peacemaking, mediation, or hearing and tasked with representing the best interest of the

person appointed for.

(r) “Immediate family member” means an individual’s husband, wife, mother, father, stepmother, step-father, son, daughter, step-son, step-daughter, brother, sister, step-brother,

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

adoption.

(rs) “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.

(st) “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.

7 O.C. 704 – Page 3

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(tu) “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.

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

the arrears in a case.

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

of people who owe past-due child support.

(wx) “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 LowIncome 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.

(xy) “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.

(yz) “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).

(zaa) “Nation” means the Oneida Nation.

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

custody and/or control of a child.

(bbcc) “Non-legally responsible relative” means a relativeperson connected with a child

by blood, marriage, or adoption who assumes responsibility for the care of a child without

legal custody, but is not in violation of a court order. A non-legally responsible relative

does not include a relative who has physical custody of a child during a court-ordered

visitation period.

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

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

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

(ffgg) “Parent” means the naturalbiological or adoptive parent of the child.

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

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

(hhii) “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.

(iijj) “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.

(jjkk) “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

7 O.C. 704 – Page 4

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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.

(kkll) “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(mm) “Stipulation” means a voluntary agreement between parties concerning some

relevant point.

(nn) “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.

(mmoo) “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.

(nnpp) “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

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agreementstipulation to the Family Court for approval or by filing a petition for child support with

the Family Court.

(a) If a party to the action is a minor or is a legally incompetent adult, the Family Court

may appoint a guardian ad litem to represent such party in the action.

704.5-2. Initiation of Action by the Agency. For assistance in seekinginitiating 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) businessthirty (30) days of receiving a completed application for

services or a referral, the Agency shall meet with the custodial parent.

(b) Within seven (7) business days of the meeting with the custodial parent, the Agency

shall send the non-custodial parent a Letter of Request for Support and Financial Disclosure

form to the non-custodial parent.

(b) If the non-custodial parent fails to respond to or take action on the Letter of Request

for Support and Financial Disclosure form within ten (10) business days, the 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 agreementstipulation.

704.5-3. Initiation of Action by a Party Not the Agency. Any of the following individuals may

initiate an action for the establishment of child support at any time by filing a petition with the

Family Court:

(a) a custodial parent;

(b) a child’s mother;

(d) a child’s guardian ad litem;

(e) a child’s non-legally responsible relative; or

(f) a legally incompetent adult’s guardian ad litem.

704.5-4.

Voluntary Agreement.Stipulation.

The parties may enter into a voluntary

agreementstipulation at any time as to the level of the child support obligation.

(a) The Agency shall assist parties in reaching a voluntary agreementstipulation upon

request or when the parties are referred to the Agency by an entitlement program. Parties

may also submit a voluntary agreementstipulation to the Family Court for approval without

the Agency’s assistance.

(b) In order for a voluntary agreementstipulation to be valid the following conditions shall

be met:

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

(2) If the parties deviate from the percentage standards, the agreementstipulation

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 agreementstipulation free of duress and coercion; and

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

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

guideline, if applicable.

the same force and effect as an order issued by the Family Court. The obligation of the

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obligor to pay child support shall commence on the date specified in the agreement, but no

later than the date the agreementstipulation 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

agreementstipulation, 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(a) Requirements of the Petition. The petition to establish child support shall include

the following:

(1) The name, date of birth and, address, and tribal affiliation of the petitioner and,

respondent, and child for whom support is requested;

(A) If the address of the respondent is unknown, other departments of the

Nation shall cooperate with the Family Court, at the Family Court’s request,

to provide the Family Court with the respondent’s address. Any such Family

Court requests shall be made in such a way which protects the privacy rights

of all parties and children who are involved in proceedings or actions under

this law.

(B(2) With whom the child currently resides;

(3) When and how paternity was established;

(4) Name and date of birth of other children of the parties, and the child support

obligation for those children, if applicable;

(5) Whether either party is receiving state or tribal benefits, and if so, what benefits;

(6) Whether any other action to determine child support has been commenced or

is pending in a court of another jurisdiction and whether a child support order has

been entered by another court;

(7) Financial information such as the parties’ income;

(8) The relief the petitioner is requesting, which shall include, but is not limited to,

establishment of support, request for support back to date of filing, and/or any other

relief the court may deem just and equitable;

(9) Confidential Petition Addendum. The confidential petition addendum is a

separate form which has the parties and the child’s name, date of birth and social

security number. This form shall be kept separate from the petition and shall be

maintained in a confidential file. The form shall be available only to the parties, the

parties’ attorneys or advocates, the Agency, or any person authorized by the Family

Court to have access to the form.

(b) Nondisclosure of Information in Protected Cases. Upon a finding, which may be made

ex parte, that the health, safety or welfare of a party or child would be unreasonably put at

risk by the disclosure of identifying information, or if an existing order so provides, the

Family Court shall order that the address of the child or party, or other identifying

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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.

determine child support to be held at a time after the filing of the petition and consistent

with the manner of service.

(d) NoticeSummons. 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

(1) Service of the Summons. The summons, which notices the initiation of an

action, shall be served by certified mail (return receipt requested) or in person

within fifteen (15) calendar days after the petition is filed with the Family Court.

All mailing of notice The summons shall include the Family Court clerk’s return

address, with a requestnotice to file an answer to that address. SubsequentAny

notice after the summons shall be served by first-class mail to the recently verified

last-known address of the party.

(1A) Certified mail. Certified mail sent to a party’s most recently verified

last-known address but returned because it was unclaimed or refused shall

constitute constructive service. Certified mail returned for other reasons

shall require service by other methods pursuant to the Oneida Judiciary

Rules of Civil Procedure.

(2B) Publication. When a responding party cannot be found for personal

service after diligent attempts and attempts to serve the responding party by

certified mail have failed, the petitioner may ask the Family Court to direct

the Agency to provideuse service by publication. If the request is granted,

the AgencyThe publication shall publish the petitionbe in the Nation’s

newspaper or a newspaper of general circulation in the county of residence

of the respondent, if known. PublicationThe publication shall be designated

as a Legal Notice and any confidential information shall be redacted.

(Ai) If service by publication is permittedused 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) 2) Requirements of the 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, place, and date for appearance:

(1A) 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;

(2B) That a child support order may require the respondentperson found to

be the obligor to pay child support until the child reaches eighteen (18) years

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of age or until the child graduates from high school, or its equivalent, up to

age nineteen (19);

(3C) That the respondent’s person found to be the obligor may have his or

her license(s) may be suspended or denied for failure to pay child support,

in addition to other enforcement actions;

(4D) That the respondent’sperson found to be the obligor’s employer or

others with evidence of the respondent’shis or her income may be

subpoenaed to provide the Family Court with records of his or her earnings;

(5E) That if the respondentperson found to be the obligor is unemployed,

it shall still be determined that he or she is able to provide some degree of

child support and an order of support shall be calculated according to this

law unless the Family Court makes written findings ordering otherwise; and

(6F) 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.

(fe) Answers. Answers shall be filed with the Family Court and served on the petitioner

within twenty (20) calendar days of the date of service of the petition in accordance with

the Nation’s laws and policies governing civil procedure.

(gf) 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 beinclude, but is not limited to, the

income and expense information necessary to determine the appropriate level of support according

to this law.

704.6-2. The Family Court may utilize discovery procedures and contempt powers, as authorized

by any law, policy, or rule of the Nation to obtain information relevant to the establishment or

enforcement of child support. These procedures may include the following:

(a) Issue subpoenas requiring necessary and relevant parties to appear in person and

provide testimony;

(b) Issue subpoenas requiring the production of evidence;

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 thoseall 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, guardian ad litem, Judges and staff assigned to the case, and those

other persons who first obtain a written release from a party to view material contained in the

record.

704.7. Determining the Child Support Obligation

704.7-1. The Family Court shall determine child support payments by using the percentage

standards established in section 704.7-2 of this law, except as provided elsewhere in this law. The

obligor’s monthly income shall be considered in determining his or her child support obligation.

704.7-2. Percentage Standards to Determine the Amount of Child Support.

(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’sparent’s monthly income, the Family Court may adjust an obligor’sparent’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 obligorparent shall have the burden of proof

to show that any undistributed income is reasonably necessary for the growth of the

business.

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reasonably necessary for the production of that income or operation of the business and

that may differ from the determination of allowable business expenses for tax purposes.

704.7-4. Determining Income Imputed Based on Earning Capacity. When an obligor’sa parent’s

income is less than the obligor’sparent’s earning capacity or is unknown, the Family Court may

impute income to the obligorparent at an amount that represents the obligor’sparent’s ability to

earn.

(a) The obligor’sparent’s ability to earn may be based on the obligor’sparent’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’sparent’s actual income or ability to earn and that information is unavailable,

the Family Court may impute to the obligorparent 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.

his or her earning capacity, the income imputed based on earning capacity shall be the

difference between the obligor’sparent’s earning capacity and the obligor’sparent’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’sa parent’s

assets if the Family Court finds both of the following:

(1) The obligorparent 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’sparent’s assets are underproductive and at least one (1) of the

following applies:

(A) The obligorparent has diverted income into assets to avoid paying child

support.

(B) Income from the obligor’sparent’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

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obligation by subtracting the amount of the child’s benefit. In no case may this adjustment require

the obligee to reimburse the obligor for any portion of the child’s benefit. If the obligor is receiving

the child’s benefit, the support amount is either the percentage standard applied to the obligor’s

income or the amount of the child’s benefit, whichever is greater.

(a) Determining the Child Support Obligations of Shared-Placement Parent when the

Child Receives Social Security Benefits. If the shared-placement guidelines under section

704.8-2 apply, the child’s benefit is split between the parents in proportion to the amount

of time the child spends with each parent. Add the proportion of the child’s benefit that

represents the proportion of time the child spends with the parent not receiving the benefit

to the support obligation of the parent who is receiving the child’s benefit. Child support

shall be determined as follows:

(1) Determine each parent’s monthly income available for child support under

section 704.7-2. If a parent has one (1) or more previous child support obligations,

determine the parent’s monthly income available for child support adjusted for the

previous obligations as provided in section 704.8-1. Include the parent’s federal

disability or old age insurance benefits under 42 U.S.C. §401 to 433 in that parent’s

income, but do not include the child’s benefit under 42 U.S.C. §402 (d) in either

parent’s income.

(2) Multiply each parent’s monthly income available for child support by the

appropriate percentage standard under section 704.7-2.

(3) Multiply each amount determined under section 704.7-6(a)(2) by one hundred

and fifty percent (150%).

(4) Multiply the amount determined for each parent in section 704.7-6(a)(3) by the

proportion of time that the child spends with the other parent.

(5) Multiply the amount of the child’s benefit by the proportion of the time the

child spends with the parent who is not receiving the child’s benefit.

(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.

date of adoption or the date that paternity is legally established.

(D) For a non-marital maternal child in an intact family, it is incurred on

the child’s date of birth.

(3) Determine the first child support obligation as follows:

(A) If the obligor is subject to an existing support order for that legal

obligation, except a shared-placement order, the support for that obligation

is the monthly amount of that order; or

(B) If the obligor is in an intact family, has primary placement of another

child, or is subject to a shared-placement order, the support is determined

by multiplying the appropriate percentage for that number of children by

the obligor’s monthly income.

(4) Adjust the monthly income by subtracting the support for the first legal

obligation from the obligor’s monthly income.

(5) Determine the second child support obligation as follows:

(A) If the obligor is subject to an existing support order for that legal

obligation, except a shared-placement order, the support for that obligation

is the monthly amount of that order; or

(B) If the obligor is in an intact family or is subject to a shared-placement

order, the support is determined by multiplying the appropriate percentage

for that number of children by the obligor’s monthly income.

(6) Adjust the monthly income a second time by subtracting the support for the

second legal obligation from the first adjusted monthly income.

(7) Repeat the procedure for determining the child support obligation and adjusting

the monthly income for each additional legal obligation for child support the serial

family obligor has incurred.

(8) Multiply the appropriate percentage for the number of children subject to the

new order by the final adjusted monthly income to determine the new child support

obligation.

704.8-2. Determining the Child Support Obligations of Shared-Placement Parents.

(a) Applicability. The shared-placement formula may be applied when both of the

following conditions are met:

(1) Both parents have periods of placement of at least twenty-five percent (25%)

or ninety-two (92) days a year. When calculating periods of placement based on

equivalent care, the total number of overnights may exceed three hundred and sixtyfive (365). The period of placement for each parent shall be determined by

calculating the number of overnights or equivalent care ordered to be provided by

the parent and dividing that number by the total number of overnights in a year.

The combined periods of placement for both parents shall equal the total number

of overnights.one hundred percent (100%).

(2) Each parent is ordered by the Family Court to assume the child’s basic support

costs in proportion to the time that the parent has placement of the child.

(b) Determination. The child support obligations for parents who meet the requirements

for the shared-placement formula may be determined as follows:

(1) Determine each parent’s monthly income.

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(A) In determining whether to impute income based on earning capacity

for an unemployed parent or a parent employed less than full time, the

Family Court shall consider benefits to the child of having a parent remain

in the home during periods of placement and the additional variable day

care costs that would be incurred if the parent worked more.

(2) Multiply each parent’s monthly income by the appropriate percentage standard.

(3) Multiply each amount determined under section 704.8-2(b)(2) by one hundred

and fifty percent (150%).

(4) Multiply the amount determined for each parent under section 704.8-2(b)(3) by

the proportion of the time that the child spends with the other parent to determine

each parent’s child support obligation.

(5) Offset resulting amounts under section 704.8-2(b)(4) against each other. The

parent with a greater child support obligation is the shared-placement obligor. The

shared-placement obligor shall pay the lesser of the amount determined under this

section or the amount determined using the appropriate percentage standard. If the

shared-placement obligor is also a low-income obligor, the child support obligation

may be the lesser of the amount determined under the shared placement

determination or the low-income determination.

(6) In addition to the child support obligation determined under section 704.82(b)(5), the Family Court shall assign responsibility for payment of the child’s

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 pera 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;

(4) provide that non-cash payment cannot be used to satisfy assigned child support

obligations.

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(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, not including the

Agency, may file a motion for a modification of a child support order at any time based upon a

substantial change of circumstances supported by affidavit.

(a) Such motion shall state why the previous decision should be prospectively modified.

(b) The motion and affidavit shall be served by the moving party on the responding party

by first-class mail to the recently verified last-known address, or by any method provided

by law.

of service.

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704.10-4. An obligor shall not raise a substantial change in circumstances as a reason not to pay

a past due reward.current child support order or arrears. If a child support awardorder 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 awardmodification to the child support

order at that time.

704.11. Modification of a Child Support Order for an Incarcerated Parent

704.11-1. In the event an obligor is incarcerated for one hundred and eighty (180) days or more,

the obligor shall have the right to have the Agency review his or her child support order to

determine if modification or suspension of the child support order is appropriate. The obligor shall

notice the Agency of his or her incarceration.

(a) An ordered child support obligation shall be suspended for an incarcerated obligor who

has been sentenced to one hundred and eighty (180) days or more and has an income of

less than two hundred dollars ($200) per month.

(b) If while incarcerated the obligor’s income is two hundred dollars ($200) or more per

month the Agency shall review the order and seek temporary modification of the child

support order based on the incarcerated obligor’s income, if necessary.

incarcerated for a criminal offense which includes:

(1) felony failure to pay support;

(2) a crime against a child; and/or

(3) a crime against the obligee.

(d) Past due child support related debt and/or arrears shall not be suspended or reduced as

a result of the obligor’s incarceration without stipulation by the parties.

704.11-2. Notification of Review. Within fifteen (15) business days of the receipt by the Agency

of verification of the obligor’s incarceration, the Agency shall send out a letter to the parties of the

case informing them of the obligor’s right to have his or her child support obligation reviewed,

and of the Agency’s intent to review the current child support order.

704.11-3. Agency Review of Order. The Agency shall review the obligor’s child support order

and make one of the following determinations:

(a) that the obligor’s income while incarcerated is two hundred dollars ($200) or more per

month, and the Agency shall seek temporary modification of the obligor’s child support

order based on the incarcerated obligor’s income, if necessary; or

(b) that the obligor’s income while incarcerated is less than two hundred dollars ($200)

per month, and the Agency shall seek temporary suspension of the obligor’s child support

order while incarcerated.

704.11-4. Suspension of Order by the Agency. If the Agency determines the obligor’s income is

less than two hundred dollars ($200) per month while incarcerated, the Agency shall file with the

Family Court a Motion and Order to Suspend without a request for a hearing with notice to all

parties that the child support order shall be suspended.

(a) Either party shall have the right to object to the suspension of the order within ten (10)

business days of the date of the notice by filing such objection with the Family Court and

providing a copy of the objection to the Agency.

(b) If no objection to the suspension is received, the Family Court shall enter the order as

proposed.

hearing on the issue.

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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 orderto Modify.

(a) Either partyThe Family Court shall haveschedule a hearing on the rightmotion with the

Agency providing notice to object toall parties with the proposed modification ofto the

child support order withinby first class mail at least ten (10) business days of the date of

the notice by filing such objection with the Family Court and providing a copy of the

objectionprior to the Agencyhearing.

(b) If no objection to the modification is received at the hearing, 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, theThe 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 administratively reinstated by the Agency to the

previous child support order in effect before the suspension or modification of the order based on

the obligor’s incarceration.

(a) The Agency shall send notice to both parties of the obligor’s release from incarceration

and the intent of the Agency to reinstate the original order.

(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.

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

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or action, the Agency shall attempt to engagemeet with the obligor through the development ofto

develop a compliance plan.

704.12-2. AAn Appointment Letter of Non-Compliance may be sent by the Agency at any time

deemed appropriate, but the Agency shall send out the Appointment 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 to discuss barriers to payment and how to avoid future enforcement action.

(b) If the party does not respond to the Letter within five (5) business days after receipt of

the letter, the Agency may proceed with appropriate enforcement action.

determine the reasons and barriers for the non-compliance and create a compliance plan.

The compliance plan may include an increase in payment and/or any activity that is

necessary to ensureassist in payment, including programs that focus on:

(1) Employment and training;

(2) Social service and mental health;

(3) Physical and learning disabilities;

(4) Tribal traditions and customs;

(5) Family counseling and parenting; and

(6) Any other program deemed necessary.

(d) If the party successfully completes the compliance plan, no further enforcement action

is necessary. However, if the party fails to complete the compliance plan, the Agency shall

proceed with appropriate enforcement action.

704.13. 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;

have been appropriate under the circumstances; and

(d) RefundAssist in refunding amounts that were improperly withheld, terminate income

withholding when appropriate, and allocate amounts across multiple cases.

704.13-3. Notice to the Obligor of Delinquency. In the event that an obligor owes a debt equal to

or exceeding the monthly amount due, the Agency shall send a notice of delinquency to the obligor.

The notice of delinquency shall inform the obligor of the following:

(a) The total amount of the delinquency; and

(b) The enforcement action that may be taken as a result of the delinquency.

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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 (30twenty (20) days prior to an enforcement being used

against an obligor, the Agency shall send a notice of enforcement action to the obligor.

(a) The notice of enforcement action shall inform the obligor of the following:

(1) The total amount of the delinquency;

(2) The enforcement action that may be taken as a result of the delinquency;

(3) The obligor may request, in writing to the Agency, to negotiate an alternative

payment plan with the Agency within ten (10) business days after the notice in order

to stay any enforcement action;

(4) The obligor has ten (10) business days after the notice of enforcement action to

file an objection with the Agency presenting good cause why an arrears payment

or other enforcement action should not be implemented. The only allowable

objections are:

(A) There is an error in the amount of current or overdue support; or

(B) The identity of the obligor is mistaken.

(b) If the obligor does not file an objection or request to negotiate an alternative payment

plan:

(1) the enforcement action shall be taken; and/or

(2) an income withholding order, or revised order if one is already in place, shall

be imposed on the payor. No more than an additional twenty percent (20%) of the

current support payment order can be withheld to satisfy the delinquency provided

that the total amount withheld does not exceed forty percent (40%) of the obligor’s

monthly income.

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.

mailing address has not been identified, the Agency may proceed with the administrative

enforcement action.

704.13-6. Notice to the Obligee of Enforcement Proceedings. The Agency shall provide written

notice to the obligee when an enforcement action has been initiated against the obligor or when

the obligor requests a hearing and the hearing has been scheduled. The notice to the obligee shall

be sent at the same time notice is sent to the obligor.

704.13-7. Notice to Individuals Other Than the Obligor with a Recorded Ownership Interest in

Property. The Agency shall provide notice related to the seizure of property to any individual,

other than the obligor, with a recorded ownership interest in property subject to seizure. The

individual may request a hearing for a determination of the proportion of the value of the property

that is attributable to his or her net contribution to the property. The hearing shall be requested

within thirty (30) days after the notice was received by the individual.

7 O.C. 704 – Page 22

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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.suspension lifted.

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

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.

7 O.C. 704 – Page 23

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(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 because an agreement cannot be reached or the reasonableness of the plan is

questioned, 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

or requests a hearing because of a substantial change in circumstances.

(b) If an obligor makes a fullan arrears payment agreeable to the Agency, the

administrative enforcement action shall be suspended.

704.14-7. Default on an Alternative Payment Plan. In the event that the obligor defaults on the

plan, the Agency shall notify the obligor in writing that an administrative enforcement action shall

be implemented unless the child support lien is paid in full.

704.14-8. Renegotiation of an Alternative Payment Plan. After the entry of an alternative payment

plan, the plan may be renegotiated upon the written request of the obligor or Agency if the

requesting party can show a substantial change in circumstances. A substantial change in

circumstances includes any of the following:

(a) A change in the obligor’s income or assets, including the sale or purchase of real or

personal property;

(b) A change in the obligor’s earning capacity; and/or

704.15. Administrative Enforcement Action

704.15-1. The Agency shall have the authority to use administrative enforcement actions to

enforce a child support order without obtaining an order from the Family Court in the event that

an obligor is at least one (1) month delinquent in paying his or her child support obligations.

704.15-2. Liens. The Agency shall have an obligor placed on the lien docket if the obligor owes

a debt in one or more of the obligor’s cases equal to or exceeding the monthly amount due or five

hundred dollars ($500.00), whichever is greater.

(a) Lien Amount. The lien amount on the lien docket shall equal the sum of lien amounts

from the cases in which the lien amount meets or exceeds the lien threshold.

(b) Filing Date. The filing date on the lien docket is the date that a lien is first docketed

and delivered to the register of deeds. The filing date is the effective date of the lien. The

effective date does not change if the lien amount is adjusted up or down within five (5)

years after the date that the lien is first docketed.

7 O.C. 704 – Page 24

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except:

(1) tax and special assessment liens;

(2) purchase money mortgages;

(3) construction liens;

(4) environmental liens;

(5) liens that are filed or recorded before the child support lien becomes effective;

and

(6) any other lien given priority under the law.

(d) Property subject to a lien includes personal property in which the obligor has a recorded

ownership interest.

(e) Effect on a Good Faith Purchaser. A child support lien is not effective against a good

faith purchaser of titled personal property unless the lien is recorded on the title.

(f) Credit Bureau Reporting. The Agency may report the total amount of an obligor’s

liens to the credit bureau, so long as the lien is fully enforceable and the case is not barred

from credit bureau reporting.

(g) Agency Lien Responsibilities. The Agency shall be responsible for:

(1) updating the lien docket periodically;

(2) providing a copy of the lien docket to the appropriate register of deeds;

(3) responding to inquiries concerning information recorded on the lien docket;

(4) ensuring the satisfaction of a lien is recorded on the lien docket;

(5) renewing a lien if the lien amount equals or exceeds the lien threshold at the

end of the five (5) year effective period;

(A) When a lien is renewed, the date on which the lien is renewed shall

become the effective date of the lien, and a new five (5) year period shall

commence.

(6) sending the obligor a notice when a lien has been renewed; and

(7) developing procedures for releasing a lien and releasing specific property from

a lien.

(h) Financial Record Review.

(1) An obligor may request a financial record review in writing to the Agency

within ten (10) business days of the date of notice of a lien, to determine the

correctness of the financial records in a case.

(2) Upon receiving a request for a financial record review, the Agency shall, at no

charge to the obligor, provide the obligor with:

(A) all relevant financial records;

(B) information explaining how to interpret the records; and

(3) Within twenty (20) days after receiving the relevant financial records, the

obligor may:

(A) request a meeting with the Agency to review the financial records and

to discuss any alleged errors; and/or

(B) provide a statement of alleged error on the documents.

(i) The Agency shall review the records to determine whether the

alleged error is correct and provide a written determination within

sixty (60) days after the obligor’s request for a financial record

review is received as to whether the lien against the obligor is in the

correct amount.

7 O.C. 704 – Page 25

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(4) The Agency may proceed with the lien if:

(A) the obligor does not request a meeting with the Agency or provide a

statement of alleged error within twenty (20) days after receiving the

financial records;

(B) no errors are found in the financial records of the case; or

financial records are corrected.

704.15-3. Seizure of Property. The Agency shall have the authority to seize property, whether an

account or personal property, of an obligor. The Agency shall presume that an obligor’s equity or

ownership in the property is an equal pro-rata share of the equity or ownership based on the number

of individuals with a recorded ownership interest in the property.

(a) Account Seizure. Once a lien is placed against an obligor, the Agency may initiate an

account seizure if the lien amount in the obligor’s case equals or exceeds three hundred

percent (300%) of the monthly amount due in the order, or one thousand dollars ($1,000),

whichever is greater.

(1) The Agency may not issue a notice of seizure unless the sum of the funds in all

of the obligor’s financial accounts, minus expected seizure fees and any early

withdrawal penalty, exceeds five hundred dollars ($500). The first five hundred

dollars ($500) of each account shall not be frozen and/or seized.

(2) The notice issued by the Agency shall instruct the financial institution of the

following:

(A) The maximum amount frozen in an account may not exceed the amount

specified by the Agency in the notice.

(B) The maximum amount frozen in an account may not exceed the

obligor’s ownership interest.

assets held by the financial institution in response to instructions from the

Agency for the purpose of enforcing a child support order.

(b) Seizure of Personal Property. Once a lien is placed against an obligor, the Agency

may initiate the seizure of personal property if the lien amount equals or exceeds six

hundred percent (600%) of the monthly amount due in the order.

(1) The Agency may seize personal property if the obligor’s equity in the property,

minus expected seizure fees, exceeds five hundred dollars ($500) per item total.

(2) Ceremonial or religious property and/or real property are exempt and shall not

be seized by the Agency.

(3) Process for Seizing Property. The Agency shall follow the following process

for seizing personal property:

(A) The Agency shall notify the obligor of the intent to request the Family

Court to issue an order of execution for the seizure of property.

(B) The Agency shall request the Family Court to grant a written order of

execution for the seizure of property. The Agency shall provide the Family

Court an affidavit that notice of this request has been provided to the

obligor.

non-exempt personal property may be seized and sold in a reasonable

manner.

7 O.C. 704 – Page 26

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704.15-4. Attachment of Per Capita Payments. The Agency may initiate the attachment and/or

seizure of per capita payments of members of the Nation in accordance with applicable laws of the

Nation.

704.15-5. License Suspension. The Agency may initiate the suspension or denial of both State

and Oneida issued licenses if there is a lien against an obligor that equals or exceeds three hundred

percent (300%) of the monthly amount due in the child support order, or one thousand dollars

($1000), whichever is greater.

(a) The types of State or Oneida issued licenses that the Agency may initiate the suspension

or denial of include, but are not limited to, vendor, professional, occupational, hunting,

fishing, recreational, and/or motor vehicle licenses.

(b) The Agency shall not initiate the suspension of an occupational and/or motor vehicle

license if:

(1) there is an order in place that prohibits the suspension of the license;

(2) the obligor has filed for bankruptcy; or

(3) action has already been taken to suspend the license.

given effect by the license issuing agencies. Orders affecting licenses issued by other

governmental agencies shall be sent to such agencies for enforcement.

704.15-6. Lump-Sum Pension Payments, Judgments, and Settlements Intercepts. Once an obligor

has been placed on the lien docket the Agency may initiate the intercept of lump-sum pension

payments, judgments and/or settlements.

(a) When initiating the intercept of lump-sum pension payments, judgments and/or

settlements, the Agency shall specify in the notice that the amount withheld from the lumpsum pension payment, judgment or settlement may not exceed the obligor’s ownership

interest in the payment.

704.15-7. Tax and Lottery Intercepts. The Agency may coordinate with a federal or state agency

in order to enforce a child support order through a tax and/or lottery intercept. Once an obligor

has been notified that his or her tax refund and/or lottery winnings may be intercepted, that notice

is valid until all arrears are paid in full.

(a) Federal Tax Intercept. The Agency may certify a federal tax intercept when the

requirements pertaining to federal tax intercept contained in an agreement between the

State and the Nation have been met.

(b) Wisconsin State Tax and/or Lottery Intercept. The Agency may certify a Wisconsin

state tax intercept and/or a Wisconsin state lottery intercept, when the lottery winnings are

one thousand dollars ($1,000) or more, when the following requirements are met:

(1) The arrears shall be at least one hundred and fifty dollars ($150);

(2) The arrears shall be at least thirty (30) days old; and

(3) The arrears shall be for a minor child or a child who has reached the age of

eighteen (18) within the last twenty (20) year.

704.15-8. Passport Denial. If a federal tax intercept is in place and the obligor owes two thousand

five hundred dollars ($2,500) or more in arrears, an obligor may be denied a passport. The arrears

must meet the criteria for federal tax intercept in order for passport denial to be used as an

enforcement tool. An obligor shall be removed from the passport denial list if:

(a) The federal tax intercept certification amount is zero (0);

(b) The obligor makes a lump-sum payment and/or negotiates a payment plan with the

Agency;

immediate family member; or

7 O.C. 704 – Page 27

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(d) The obligor was denied a passport in error.

704.16. Family Court Enforcement Action

704.16-1. If the Agency does not have the authority to conduct the appropriate enforcement action,

or the obligor is unresponsive to the enforcement actions being imposed by the Agency, the case

shall be referred to the Family Court for enforcement. The Family Court may order any of the

enforcement actions the Agency is authorized to implement, in addition to the enforcement actions

described in this section.

704.16-2. Bonds and Other Guarantees. The Family Court may require an obligor to provide a

surety, bond or guarantee to secure the payment of arrears, if income withholding is not applicable,

practical, or feasible to secure payment of arrears.

704.16-3. Claims Against Estates. The Family Court may approve a claim for past and future

support against an obligor’s estate. The Family Court may issue a restraining order against an

estate from which an obligor will inherit.

704.16-4. Contempt. The Family Court may hold an obligor who fails to comply with a lawful

child support order in contempt. An obligor found to be in contempt shall be subject to the

following punishmentsCommunity Service. The Family Court may order an obligor to perform

community service. The number of hours of work required may not exceed what would be

reasonable considering the amount of arrears the obligor owes. The obligor shall be provided a

written statement of the terms of the community service order and that the community service

order is monitored. The order shall specify:

(a) Community Service. The Family Court may order an obligor to perform community

service. The number of hours of work required may not exceed what would be reasonable

considering the amount of arrears the obligor owes. The obligor shall be provided a written

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

is monitored. The order shall specify(a:

(1) how many hours of community service the obligor is required to complete;

(b2) the time frame in which the hours must be completed;

(c3) how the obligor will report his or her hours; and

(d4) any other information the Family Court determines is relevant.

704.16-5. (b) Fines.Contempt. An obligor who disobeys a lawful child support order shall be

subject to punishment for contempt of court.

(a) An obligor found in contempt of court may be fined in an amount not to exceed one

thousand dollars ($1,000.00) per act of contempt and may not exceed five thousand dollars

($5,000.00) in total. In instances of continuing contempt, each day shall constitute a

separate act of contempt.

704.16-6.(c) Incarceration. The Family Court may order an obligor be incarcerated.

Before a jail sentence is imposed, the Family Court mayshall provide other conditions that

require a certain amount of money be paid or action be taken for an obligor to avoid

incarceration.

704.16-7.(d) Criminal Non-Support. A criminal non-support action may be initiated, in

the appropriate county, against an obligor who has the ability to pay child support and

willfully or intentionally failed to pay and the obligor knew or reasonably should have

known he or she was legally obligated to provide.

7 O.C. 704 – Page 28

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704.17. Full Faith and Credit for Foreign Child Support Orders

704.17-1. Child support orders, judgments, or decrees of other federally recognized tribes, and

states that relate to child support shall be recognized and modified in accordance with the

requirements under the Full Faith and Credit for Child Support Orders Act, 28 U.S.C. 1738B.

704.17-2. A foreign order is authenticated by reasonable proof that the document tendered to the

Family Court is a true certified copy of the foreign order as it is recorded in the agency or court of

the issuing jurisdiction. An authentication stamp issued by a court clerk or custodian of records,

or a court seal, is sufficient evidence of authenticity.

704.17-3. Unless defects in jurisdiction are apparent on the face of the foreign order, the person

contesting enforcement of the order has the burden of showing the order is not valid. Upon a

failure to respond to notice of the order and to timely contest it, the Family Court shall enforce it

as an order of the Family Court.

704.17-4. If a foreign order is brought before the Family Court solely for an interpretation of the

terms of the order, and the order has been recognized and given full faith and credit by the Family

Court, the Family Court shall interpret the order by applying the law of the forum that issued the

foreign order.

704.18. Right of Appeal

704.18-1. Appeals of Administrative Enforcement Action. Any enforcement action implemented

by the Agency may be appealed to the Family Court within thirty (30) calendar days after the date

that the action is enforced. The decision of the Family Court as to the Agency’s administrative

enforcement action shall be final and non-appealable.

704.18-2. Appeals of Family Court Decisions. A party may appeal a Family Court decision, other

than the decision of the Family Court in regard to administrative enforcement action as referenced

in section 704.18-1, to the Nation’s Court of Appeals within thirty (30) calendar days after the date

the Family Court made the decision. The review of the Court of Appeals shall be based on the

record and the original decision of the Family Court.

End.

Emergency Adopted - BC-06-30-08-C (Expired)

Emergency Extended – BC-12-10-08-H (Expired)

Permanently Adopted- BC-06-24-09-B

Emergency Amended - BC-10-28-09-E

Amended - BC-02-24-10-G

Amended - BC-06-22-11-K

Amended - BC-10-10-12-C

Amended – BC-08-13-14-E

Amended – BC-__-__-__-__

7 O.C. 704 – Page 29

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ONEIDA NATION PUBLIC MEETING NOTICE

Thursday, October 17, 2019, 12:00 pm

Find Public Meeting Materials at

Oneida-nsn.gov/government/register/public meetings

Send Public Comments to

LOC@oneidanation.org

Norbert Hill Center-Business Committee Conference Room

N7210 Seminary Rd., Oneida, Wisconsin

Ask Questions here

LOC@oneidanation.org

920-869-4312

CHILD SUPPORT LAW AMENDMENTS

The purpose of this law is to establish the legal responsibility of parents to provide financially for their children’s general well-being, as well as to make support payments more equitable by ensuring consistent treatment of persons in similar circumstances; make support payments based on the real earning capability of parents; and improve the efficiency of child support establishment and enforcement.

The amendments to the Child Support law will:

1. Create a process to suspend or modify child support orders for parents incarcerated for one hundred and eighty (180) days or more.

2. Update notice requirements and timelines for initiating an action by the Agency, as well as sending

appointment letters, notices of delinquency, notices of enforcement action, and income withholding orders.

3. Clarify how the Family Court may redact addresses and identifying information from court documents to ensure the safety of a party.

4. Make updates to how child support obligations are calculated in certain special circumstances involving shared-placement parents, split-placement parents, and a serial family obligor.

5. Repeal Child Support Rule No. 1 - Deviation from Child Support and Rule No. 2 - Enforcement

Tools and move the contents of the rules into the body of the law itself.

6. Make additional updates and clarify language throughout the law.

PUBLIC COMMENTS PERIOD CLOSES THURSDAY, OCTOBER 24, 2019

During the Public Comment Period, anyone may submit written comments. Comments may be

submitted to the Oneida Nation Secretary’s Office or the Legislative Reference Office in person, by U.S.

mail, interoffice mail, or e-mail.

PROVIDING EFFECTIVE PUBLIC COMMENTS

Providing public comment is an important way to make your voice heard in

decision making. Public comments can strengthen a decision or provide different perspectives. The Legislative Operating Committee wants to hear

from you!

READ THE PUBLIC MEETING MATERIALS: Before you provide comments familiarize yourself with

the legislation. A public meeting packet is made for every public meeting and they include 1) a

notice with the date, time, location, 2) a draft of the proposed legislation, and 3) a plain language

review of the legislation and its impact on the Oneida Nation.

PREPARE YOUR COMMENTS: When you are familiar with the legislation, start to prepare comments. The LOC is responsible for reviewing every comment received. To get your message across

effectively, frame your comment clearly and concisely. Here is an example of how to create an effective comment:

Least Effective Comment

More Effective Comment

Most Effective Comment

This law isn’t fair for parents in the We need better enforcement for Section 704.15-3(a)(1) should be

community.

those parents who do not pay their amended to allow money to be

child support.

seized from an account that has

less than $500 dollars.

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shakoti>nuk&=lale> latiksash&ha>

They watch over the children

AMENDMENTS TO CHILD SUPPORT LAW

LEGISLATIVE ANALYSIS

SECTION 1. EXECUTIVE SUMMARY

REQUESTER:

Oneida Child

Support Agency

Intent of the

Amendments

Purpose

Affected Entities

Public Meeting

Fiscal Impact

SPONSOR:

David P. Jordan

DRAFTER:

Clorissa N. Santiago

ANALYST:

Brandon Wisneski

To create a process to suspend or modify child support orders for parents

incarcerated for one hundred and eighty (180) days or more;

To update notice requirements and timelines for initiating an action by the Agency,

sending letters of noncompliance, sending notice of delinquency, sending notice of

enforcement action, and sending income withholding orders;

To clarify how the Family Court may redact addresses and identifying information

from court documents to ensure safety of a party;

To make updates to how child support obligations are calculated in certain special

circumstances, such as:

 updating how overnights and equivalent care are calculated for sharedplacement parents;

 updating the formula for calculating child support obligations of splitplacement parents;

 updating the date when legal obligation for child support is incurred for a

non-marital child of a serial family obligor;

To update what constitutes a “substantial change in circumstance” that warrants a

modification of a child support order;

To repeal Child Support Rule #1 Deviation from Child Support and Rule #2

Enforcement Tools and move the contents of the rules into the body of the law

itself;

To make additional updates and clarify language throughout the law.

The purpose of this law is to establish the legal responsibility of parents to provide

financially for their children’s general well-being; make support payments more

equitable by ensuring consistent treatment of persons in similar circumstances;

make support payments based on the real earning capability of parents; and improve

efficiency of child support establishment and enforcement [7 O.C. 704.1-1].

Oneida Child Support Agency, Oneida Family Court, Oneida Court of Appeals,

Oneida license-issuing agencies such as Oneida Licensing and Oneida

Conservation, and any individuals with child support cases that fall under the

jurisdiction of the Oneida Family Court [7 O.C. 704.4].

A public meeting has not yet been held.

A fiscal impact statement prepared in accordance with the Legislative Procedures

Act has not yet been requested.

Page 1 of 18

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What Is Child Support?

“When parents separate, they still have shared rights and responsibilities as to their children. The

most basic of these responsibilities is supporting their children so they have food, clothing, shelter

and health care. Child support is a payment made by one parent to another for the support of a child.

The amount of the payment is based on a percentage, determined by law, of the paying parent’s

income.” Source: Oneida Child Support Agency FAQ.

“Child support is the financial support paid by parents to support a child or children of whom they

do not have full custody. Child support can be entered into voluntarily, by court order or by an

administrative agency (the process depends on the state or tribe). The noncustodial parent or

obligor—the parent who does not have primary care, custody, or control of the child or children—

often has an obligation to the custodial parent or obligee—the parent who has primary care, custody

and control of the child or children.” Source: National Association of State Legislatures (NCSL).

SECTION 2. LEGISLATIVE DEVELOPMENT

A. The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 gave tribal

nations the authority to establish child support agencies. Wisconsin (WI) Statute 801.54 allows WI

circuit courts to transfer civil actions to tribal courts in matters where tribal nations have concurrent

jurisdiction, such as child support cases.

B. The Oneida Child Support Agency was established by the Oneida Business Committee on June 20,

2007. Oneida Nation’s application for a child support services grant was approved by the U.S.

Department of Health and Human Services on April 4, 2008.

C. The Oneida Nation’s Child Support law was first adopted by emergency amendment on June 30, 2008

and permanently adopted on June 24, 2009 by the Oneida Business Committee. It was most recently

amended on August 13, 2014.

D. At the end of 2008, the Oneida Child Support Agency had 482 cases. As of 2018, the Oneida Child

Support Agency now handles over 3,050 cases and has completed case transfers from Brown and

Outagamie counties.

E. On February 28, 2018, the Oneida Child Support Agency submitted a request to amend the Oneida

Child Support law. The LOC added the Child Support Law amendments to the Active Files List on

March 7, 2018. Since that time, the LOC has worked with Child Support Agency to review the law and

develop potential amendments.

SECTION 3. CONSULTATION AND OUTREACH

A. Representatives from the following departments or entities participated in the development of this law

and legislative analysis: Oneida Child Support Agency, Oneida Law Office, Oneida Police Department,

and Oneida Judiciary Family Court.

B. The following laws were reviewed in the drafting of this analysis: Administrative Rulemaking law;

Paternity law; Per Capita law; Oneida Judiciary Rules of Civil Procedure; Rules of Appellate

Procedure; Workers Compensation law; Garnishment law; Family Court law; Family Court Rules; Per

Capita law; Children’s Code; Divorce, Annulment and Legal Separation; Child Custody, Placement

and Visitation law. In addition, the following laws from other tribal nations and the state of Wisconsin

were reviewed:

 Ho Chunk Nation - Child Support Code 4HCC7

 Forest County Potawatomi - Child Support Law

 Lac Du Flambeau - Child Support Law Ch 31

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 Menominee Nation – Financial Support of Children Law

 Stockbridge Munsee Child Support Law

 White Earth Child Support Act

 State of Wisconsin Child Support Administrative Enforcement – Chapters DCF 150 & 152.

C. In addition, the following documents or articles were reviewed in the drafting of this analysis:

 Child Support Enforcement: Tribal Programs – Congressional Research Service Report. July

5, 2016.

 Final Rule: Flexibility, Efficiency, and Modernization in Child Support Enforcement

Programs, Federal Register, Volume 81, Number 244. December 20, 2016.

 Child Support Final Rule Fact Sheet: Flexibility, Efficiency and Modernization in Child

Support Enforcement Programs. Office of Child Support Enforcement, Administration for

Children and Families, Dept. of Health and Human Services. January 5, 2017. DCL-17-01.

SECTION 4. PROCESS

A. Thus far, amendments to this law have followed the process set forth in the Legislative Procedures Act

(LPA).

B. The law was added to the Active Files List on March 7, 2018.

C. At the time this legislative analysis was developed, a total of twenty-six (26) work meetings were held

regarding the development of this law and legislative analysis:

 April 5, 2018: Work meeting with Child Support.

 April 18, 2018: Work meeting with LOC.

 May 17, 2018: Work meeting with Child Support.

 June 8, 2018: Work meeting with Child Support.

 June 22, 2018: Work meeting with Child Support.

 July 13, 2018: Work meeting with Child Support.

 August 9, 2018: Work meeting with Child Support, Family Court and Oneida Police Department.

 August 17, 2018: Work meeting with Child Support.

 September 18, 2018: Work meeting with Child Support.

 October 12, 2018: Work meeting with Child Support.

 October 26, 2018: Work meeting with Child Support.

 October 31, 2018: Work meeting with LOC and Child Support.

 November 9, 2018: Work meeting with Child Support.

 December 6, 2018: Work meeting with Child Support.

 December 10, 2018: Work meeting with Child Support and Oneida Police Department.

 December 19, 2018: Work meeting with LOC.

 January 4, 2019: Work meeting with Child Support.

 February 1, 2019: Work meeting with Child Support.

 March 3, 2019: Work meeting with Child Support.

 April 4, 2019: Work meeting with Child Support.

 April 30, 2019: Work meeting with Child Support.

 May 16, 2019: Work meeting with Child Support & Law Office.

 July 17, 2019: Work meeting with LOC.

 July 18, 2019: Work meeting with LOC.

 July 25, 2019: Work meeting with LOC.

 August 21, 2019: Work meeting with LOC and Child Support.

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SECTION 5. CONTENTS OF THE LEGISLATION

The following provides a summary of the changes proposed in the amendments to the Child Support Law:

A. Moving Child Support Rules into the Law. The Child Support Law currently includes two (2) rules:

Rule #1 Deviation from Child Support and Rule #2 Enforcement Tools. Both rules became effective

June 24, 2009, prior the adoption of the Nation’s Administrative Rulemaking law [1 O.C. 106]. The

proposed amendments delete the rules and move the contents of both Rule #1 and Rule #2 into the body

of the law itself.

 Rule #1 Deviation from Child Support. The information from Rule #1 Deviation from Child

Support, unless otherwise noted in this analysis, has been moved to the following sections:

o 704.7 Determining Child Support Obligation

o 704.8 Determining the Child Support Obligation in Special Circumstances

o 704.9 Child Support Order

 Rule #2 Enforcement Tools. The information from Rule #2 Enforcement Tools, unless otherwise

noted in this analysis, has been moved to the following sections:

o 704.12 Compliance Plan

o 704.13 Enforcement of an Order

o 704.14 Alternative Payment Plans

o 704.15 Administrative Enforcement Action

o 704.16 Family Court Enforcement Action

 Deleted Examples. Rule #1 contained example calculations and scenarios to illustrate how to

determine child support in special circumstances. These examples have been deleted. Such

examples could be provided in a separate document or worksheet by the Agency.

B. Notice for Initiation of Action by Oneida Child Support Agency.

 Requesting Services. When the Oneida Child Support Agency receives an application or referral

for services, the Agency is required to send notice to the non-custodial parent. The non-custodial

parent is the parent who does not hold primary care, custody or control of the child.

 Current Notice Requirements. Within five (5) business days of receiving a referral or application,

the Agency is currently required to send two (2) letters to the non-custodial parent before initiating

a hearing in the Family Court. The purpose of the letters is to request information and attempt to

negotiate a stipulation, or voluntary agreement, between the parents. If the non-custodial parent

does not respond to the letters, then the Agency will initiate a hearing in the Family Court.

 Changes to Notice Requirements. [7 O.C. 704.5-2].

o Meeting with Custodial Parent Prior to Sending Notice. The Agency will now be required

to meet with the custodial parent (the parent who has primary custody of the child) within

thirty (30) days of receiving a referral or application. Only after meeting with the custodial

parent will the Agency send the notice letter to the non-custodial parent.

 Effect. This change reflects the Agency’s current practice. The Agency reports that

most child support cases begin as referrals from other agencies rather than an

application from the custodial parent. The Agency reports that meeting with the

custodial parent first ensures that the Agency has the information it needs before

contacting the non-custodial parent and/or initiating an action.

o Deadline for Agency to Send Letter. The Agency will now have seven (7) business days

rather than five (5) business days to send the Letter of Request for Support and Financial

Disclosure form to the non-custodial parent.

o Number of Letters. Rather than sending two (2) letters, the Agency is now only required to

send one (1) letter before initiating a hearing. This will allow for child support hearings to

be scheduled more quickly. Rather than waiting at least fifteen (15) days as the law

currently requires, the Agency can now request a hearing after ten (10) days.

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Chart 1. Current Notice Requirements – Initiating an Action by Child Support Agency.

Agency Receives

Application/

Referral

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Agency sends

letter to NCP

within 5

business days

NCP has 10

business days to

respond

If no response,

Agency sends

2nd letter

NCP has 5

business days to

respond

If no response,

Agency may

initiate Family

Court hearing

Chart 2. Proposed Notice Requirements – Initiating an Action by Child Support Agency.

Agency Receives

Application/

Referral

Agency meets

w/CP within 30

days

Agency sends

letter to NCP

within 7 days of

meeting with CP.

NCP has 10

business days to

respond

If no response,

Agency may

initiate Family

Court hearing

*CP = Custodial Parent. NCP = Non-Custodial Parent.

C. Requirements of the Petition. If the parents do not enter into a voluntary agreement, then a petition to

establish child support may be filed with the Family Court. Currently, the petition only requires the

name, date of birth and address of the petitioner and respondent and a separate form with the child’s

identifying information. These new amendments require more detailed information to be included on

the petition. This was added at the request of the Child Support Agency to reflect current petition forms

[7 O.C. 704.5-5(a)].

 New Information Required on Petition: Name, date of birth, address and tribal affiliation of the

petitioner and respondent; with whom the child currently resides; when and how paternity was

established; information regarding other children of the parties and the child support obligation for

those children; information about any state or tribal benefits either party receives; whether any

other action to determine child support is pending or has been entered by another court; financial

information such as the parties’ income; the relief the petitioner is requesting; and a separate

confidential form that includes the child’s identifying information.

D. Nondisclosure of Information in Protected Cases. A new provision has been added giving the Family

Court judge authority to limit access to the child or party’s address or other identifying information [7

O.C. 704.5-5(b)(1)(B)].

 Limiting Address or Identifying Information. The Family Court may limit disclosure if the health,

safety or liberty of a child or party would be unreasonably put at risk. This change was made to

address safety concerns for individuals who do not wish to have their address included in court

documents.

E. Child Support Hearings.

 Factual Determinations at Hearings. Currently, factual determinations made at child support

hearings are limited to “the income and expense information necessary to determine the appropriate

level of support” in accordance with the law. These amendments remove this limitation. Now,

factual determinations at child support hearings shall include, “but not be limited to,” income and

expense information [7 O.C. 704.6-1].

o Effect. The Family Court may make factual determinations on issues other than income

and expenses during a Child Support hearing. This is an expansion of the Family Court’s

authority during these particular hearings.

 Closed Hearings and Records for Child Support Cases. The current Child Support law already

states that Child Support Hearings in the Family Court are closed to anyone other than those

necessary to the action or proceeding. A new provision has been added stating that the records of

child support proceedings will also be kept confidential [7 O.C. 704.6-6].

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Confidential Case Records. Records may only be viewed by the parties, legal guardians,

the parties’ attorney or advocate, guardian ad litem, Judges and staff assigned to the case,

and those with written authorization from a party to view the material in the record.

o Existing Law. The Nation’s Rules of Civil Procedure already state: “At the request of any

party or on its own motion, the Court may seal any part of a case file, preventing public

disclosure. A file or part of a file may only be sealed where the safety of a party, witness

or other individual may be in jeopardy if the material is not placed under seal” [8 O.C.

803.32-2(b)(3)]. Now, rather than being optional, the court will automatically keep records

of child support cases confidential.

F. Authority of Family Court to Order Parent to Search for a Job or Participate in Job Training

Program. Typically, a child support order is based on a percentage of a parent’s income. When a

parent’s income is less than their earning capacity or unknown, the court may “impute,” or “estimate”

the parent’s earning capacity based on available evidence.

 Order Parent to Search for Job or Participate in Job Training. For these cases, a new provision

has been added allowing the Family Court to order a parent to search for a job or participate in a

work experience or job training program [7 O.C. 704.7-4(b)].

 Comparison to WI. This language is similar to updates made to Wisconsin (WI) regulations utilized

by county child support agencies. However, unlike WI, Oneida’s Family Court may order a job

search or job training program “in addition to” imputed income, rather than as “an alternative” to.

G. Formula for Determining Child Support Obligations When the Child Receives Social Security

Benefits. The Nation’s current Child Support law includes a provision to account for a child’s social

security benefits when calculating a parent’s child support obligation.

 Updates to Formula. These amendments add a new formula to specifically address sharedplacement parents whose child receives social security benefits. The intent of this new formula is

to ensure that Child Support orders accurately take this income into account in these unique cases

[7 O.C. 704.7-6(a)].

 Comparison to WI. This updated formula mirrors recent updates to Wisconsin regulations.

H. Claiming Children for Tax Purposes. A provision from Child Support Rule #1 regarding the

“dependency exemption” for federal tax purposes [1.3-7] is deleted. The dependency exemption was

eliminated by Congress as a result of the Tax Cuts and Jobs Act of 2017, also known as the “tax reform

bill.” In its place, these amendments add a new provision regarding claiming children for tax purposes

[7 O.C. 704.7-7].

 New provision. This new provision gives the Family Court authority to address who may claim a

child for tax purposes. It also gives the Family Court authority to accept a stipulation entered into

by the parties regarding children and taxes. This change was recommended by the Family Court

and Child Support Agency Attorney.

I. Determining Child Support for Serial Family Obligor. When one parent has multiple children in

separate families, that parent is known as a “serial family obligor.” In these cases, the court must

determine the order of the parent’s child support obligations, because the order determines how much

support is owed for each child.

 New Date for Non-Marital Children. For a non-marital child, the legal obligation for child support

will now be incurred on the date that paternity was legally established rather than the date that the

child support order is entered [7 O.C. 704.8-1(b)(2)]. This change was recommended by the

Agency to reflect their current practice and mirror Wisconsin regulations.

J. Determining Child Support for Shared-Placement Parents.

 Changes to Overnights and Equivalent Care. At the recommendation of the Agency, changes have

been made to how overnights and periods of equivalent care calculated. These changes now give

more consideration to periods of time a parent cares for the child that is not technically an overnight,

but where the court determines that a parent is still assuming basic support costs that are equivalent

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to what a parent would spend to care for that child overnight. These changes are consistent with

updates to Wisconsin regulations [7 O.C. 704.3-1(n) and 704.8-2(a)(1)].

o Effect. The number of overnights and periods of equivalent care are important in

determining the percentage of time each parent is caring for the child. That information is

one of the factors used by the Court to determine the amount of child support ordered for

shared placement parents.

 Change in Variable Costs. A new provision has been added that states that a change in the child’s

variable costs will not, in and of itself, be considered a “substantial change in circumstances” to

justify a modification of a child support order. These changes are consistent with updates to

Wisconsin regulations [7 O.C. 704.8-2(b)(7)].

o What are Variable Costs? “Variable costs” are the reasonable costs above basic support

costs incurred by or on behalf of a child, such as the cost of child care, tuition, special needs

or other activities [7 O.C. 704.3(mm)].

o Effect. In other words, a change to a child’s variable costs (such as child care) will not, by

itself, justify modifying the amount of a child support order. Ultimately, the decision as to

whether a change in circumstances justify modification of an order will be up to the Family

Court.

K. Determining Child Support Obligations of Split-Placement Parents. The formula for calculating child

support obligation for a split-placement parent has been clarified. The split-placement formula may be

applied when parents have two (2) or more children and each parent has placement of at least one, but

not all, of the children.

 Change to Formula. The Agency reported that the wording of the formula in the current rule [1.43] is unclear, resulting in different interpretations of how to calculate support in these cases. These

changes were recommended by the Agency to clarify the formula so that support is calculated

correctly and uniformly. [7 O.C. 704.8-3(b)].

L. Expression of Ordered Support. The Child Support amount must be expressed as a fixed sum. This

means that the child support order must include the specific dollar amount the parent is required to pay.

[7 O.C. 704.9-1].

 Option to Agree to Percentage Deleted. Previously, parents had the option to agree to a percentage

of the obligor’s income instead of a specific dollar amount if both parties agreed through a

stipulation. This option has been deleted. Oneida Child Support Agency reports that ordering a

specific dollar amount is the standard practice for child support orders.

 Modifying an Order. If the fixed sum in the child support order needs to be modified due to a

change in circumstances (for example, a change in income), the parties may request to modify the

child support order in accordance with the process included in this law [7 O.C. 704.10].

M. How to Send Income-Withholding Orders. After an order to withhold income has been issued, the

Child Support Agency is required to send a copy of the order to the obligor’s payor (typically their

employer) within three (3) business days. This notifies the payor to start withholding a portion of the

obligor’s income for child support.

 Method for Sending Orders. Previously, the law stated the order could be sent “by any business

method acceptable to the payor” and that the order is binding upon notice through service by

personal delivery or certified mail. Now the order can be sent “by mail, fax or electronic means.”

[7 O.C. 704.9-3(a)].

 Comparison to Other Agencies. Agencies in the state of Wisconsin send income withholding

notices by mail, fax or through the Electronic Income Withholding system known as “e-IWO.”

N. Non-Cash Payment Options. The current law states that non-cash payment options may be used to

satisfy part or all of a child support order if both parties and the Family Court agree to allow non-cash

payments. Examples of non-cash payments include clothing, groceries, child care, deer/venison, wood,

transportation and skilled trades and services. The list of non-cash options has been updated to add “gift

cards” at the recommendation of the Child Support Agency [7 O.C. 704.9-9(b)].

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Comparison. The Agency reports that tribal nations, such as Oneida, have the option to issue noncash support orders while county agencies in Wisconsin cannot.

O. Modification of Child Support Order. The language in this section has been clarified at the request of

the Agency to clearly state when and how a modification of a child support order may occur. There are

two ways that a Child Support order may be modified: [7 O.C. 704.10-2].

 Modification Sought by Agency. Every two (2) years, the Oneida Child Support Agency will

conduct a review of each child support order. If there is a substantial change in circumstances, the

Agency will request an order from the Family Court to modify the child support order.

o Comparison to WI. WI Child Support agencies review child support orders every 33

months. Oneida Child Support Agency reviews more often in an effort to ensure accurate

child support orders.

 Modification Sought by Parties. In addition to the two-year reviews automatically conducted by

the Agency, either parent may file a motion for modification of a child support order at any time if

there has been a substantial change in circumstances.

P. Substantial Change in Circumstance. In order to modify a child support order, there must be a

“substantial change in circumstance.” The law includes several examples of what qualifies as a

substantial change of circumstance, including a “significant change in finances” [7 O.C. 704.10-2].

 Change to “Significant Change in Finances” Definition.

o Current Definition. The current law states that “a significant change in finances” that

would lead to a change in child support is “more than fifteen percent (15%) or fifty dollars

($50.00) per month.”

o Proposed Definition. In the amendments, this has been changed to “more than fifteen

percent (15%) and fifty dollars ($50.00) per month.” [704.10-2(b) and 704.3-1(nn)].

 Effect. This change sets a higher threshold to modify a child support order. This means that small

changes in finances that do not meet both thresholds will not justify changing a child support order.

This change was requested by the Oneida Child Support Agency.

Q. Modification of Child Support for Incarcerated Parent. A new section regarding incarcerated parents

has been added to the law. This new provision allows for the temporary suspension or modification of

a child support order for an incarcerated parent who has been sentenced to at least one hundred and

eighty (180) days in jail or prison. In other words, the incarcerated parent will not be required to make

child support payments (or may make smaller child support payments) while they are serving time in

jail or prison [7 O.C. 704.11].

 Who Qualifies for Modification of Child Support Order? An obligor who has been sentenced to

180 days or more in jail or prison. The obligor must notify the Agency of his or her incarceration.

The obligor’s income level while incarcerated will determine whether the order is suspended or

modified [7 O.C. 704.11-1]:

o Temporary Suspension: If the obligor has an income of less than $200 dollars per month,

the Child Support order may be temporarily suspended.

o Temporary Modification: If the obligor has an income of $200 per month or more, the

Child Support order may be temporarily modified based on the obligor’s income.

 Example: An obligor who continues to receive large per capita payments while

incarcerated or who participates in a work release program.

o Exceptions. Child Support orders will not be suspended for individuals incarcerated for the

following crimes, regardless of the length of sentence or monthly income:

 Felony failure to pay support;

 Crime against a child; or

 Crime against the obligee (i.e., the other parent).

o Past Due Arrears. Past due child support debt or arrears will not be suspended or reduced

without stipulation (agreement) by both parties. In other words, incarceration does not wipe

out any previous child support debt incurred before being sentenced to jail or prison.

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Why Modify Child Support Orders for Incarcerated Parents?

Incarcerated parents have little or no ability to earn income during their sentence. This results in

accumulation of high levels of child support debt. The Office of Child Support Enforcement

(OFCSE) reports that incarcerated parents leave prison with an average of $20,000 or more in

unpaid child support with no means to pay upon release. “This accumulated child support debt

is rarely paid.”

The goal of child support is to increase consistent child support payments for children by setting

realistic orders based on the parent’s ability to pay. OFCSE reports that “setting and modifying

realistic child support obligations for incarcerated parents can improve their ability to provide

consistent support for their children upon release from prison… Formerly incarcerated parents

will be more likely to meet their child support obligations, benefitting their children by

improving child support compliance and reliability.”

In addition, setting realistic child support orders may also reduce “underground employment

activity” and increase contact between children and their parents. According to the Office of

Child Support Enforcement, “children do not benefit when their parents engage in a cycle of

nonpayment, underground income generation, and re-incarceration.”

On December 20, 2016, the OFCSE issued federal rule AT-16-06, “Flexibility, Efficiency, and

Modernization in Child Support Enforcement Actions,” which created a standard process for the

suspension or modification of child support orders for incarcerated parents. Since then, child

support agencies and courts nationwide have implemented this rule.

The Oneida Family Court already modifies child support orders for incarcerated parents. The

Oneida Child Support Agency supports incorporating this process into Oneida Nation’s Child

Support Law. The intent of adding a standard process to the Nation’s Child Support law is to

ensure that all incarcerated parents and impacted parties are treated uniformly.

Source: Final Rule Fact Sheets: Flexibility, Efficiency and Modernization in Child Support

Enforcement Programs. Office of Child Support Enforcement, Administration for Children and

Families, U.S. Dept. of Health and Human Services. January 5, 2017. DCL-17-01.

https://www.acf.hhs.gov/sites/default/files/programs/css/fem_final_rule_incarceration.pdf

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What is the Process to Suspend or Modify the Order? The Agency will use the following process:

o Notice to Both Parties. Within fifteen (15) business days of receiving verification of the

obligor’s incarceration, the Agency will send notice to both parties informing them of the

obligor’s right to have his or her child support obligation reviewed, and the Agency’s intent

to review the order [7 O.C. 704.11-2].

o Agency Review. The agency will review the incarcerated obligor’s child support order and

determine whether the obligor’s monthly income is less than or greater than $200 per

month while incarcerated [7 O.C. 704.11-3].

o Suspension of Order by Agency. If the obligor is sentenced to 180 days or greater with an

income of less than $200 per month, the Agency will file a motion and order to suspend

with the Family Court without a request for a hearing [7 O.C. 704.11-4].

 Notice & Right to Object. Notice shall be sent to all parties. Either party may file

written objection with the Family Court within ten (10) business days. If no

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objection is received, the Family Court will enter the order as proposed. If an

objection is received, the Family Court will hold a hearing on the issue.

Modification of Order by Agency. If the obligor is sentenced to 180 days or greater with an

income of $200 per month or more, the Agency will file a motion with the Family Court

to modify the child support order [7 O.C. 704.11-5].

 Notice & Right to Object. The Family Court will schedule a hearing and the

Agency will provide notice to all parties at least ten (10) business days prior to the

hearing. be sent to all parties. If no objection is received at the hearing, the Family

Court will enter the order as proposed.

Chart 3. Modifying or Suspending Child Support Order for Incarcerated Parent

Agency notified

obligor sentenced to

180 days or more

incarceration

Agency sends

notification of

review to both

parties within 15

business days

Agency reviews

obligor’s child

support order

If no objection

received, Family

Court enters

suspension.

Obligor’s income

while incarcerated

is less than $200 per

month

Agency seeks temporary

suspension of child

support order while

incarcerated (no hearing)

Agency notifies both

parties

Either party has right

to object within 10

business days

If either party

objects, Family

Court schedules

hearing on the issue

Obligor’s income

while incarcerated is

$200 per month or

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Agency seeks temporary

modification of child

support order while

incarcerated

(hearing scheduled)

Agency notifies both

parties at least 10

days prior to hearing



If no objection at

the hearing, the

Family court enters

modification.

How is the Original Child Support Order Reinstated after the Incarcerated Parent is Released?

Sixty (60) days after the obligor is released from jail or prison, the original child support order prior

to the individual’s incarceration will be reinstated by the Agency. [7 O.C. 704.11-8].

 What Happens if the Obligor’s Probation or Extended Supervision is Revoked? If the obligor is

released from incarceration and is later sentenced to another one hundred and eighty (180) days or

more in jail or prison, the Agency will use the provisions of this section to determine if another

suspension or modification of the child support order is appropriate [7 O.C. 704.11-9].

R. Compliance Plans. At any point when the Agency believes an obligor is or may become non-compliant

with their child support payments, the Agency can work with the obligor to develop a compliance plan.

 Purpose of Compliance Plan. The purpose of a compliance plan is to address barriers to making

regular payments so that a parent can once again make regular payments and meet their child

support obligations [7 O.C. 704.12].

 Components of Compliance Plan. A compliance plan may include requirements to participate in

employment and training programs, social service and mental health services, physical and learning

disability programs, tribal traditions and customs, and family counseling. The agency may suspend

enforcement actions if the party successfully completes the compliance plan. Failure to complete

the compliance plan will result in enforcement action [7 O.C. 704.12-2(c)].

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New Components. These amendments add parenting programs and “any other programs

deemed necessary” to the list of acceptable programs that can be included in a compliance

plan. The intent is to increase flexibility for the Oneida Child Support Agency to address

unique needs of each obligor.

Changes to Timelines and Notice Letters. The following changes have been made to more

accurately reflect the Child Support Agency’s practices regarding notices and timelines for

initiating compliance plans [7 O.C. 704.12].



Chart 4. Notice and Timelines for Compliance Plans.

Current Law

When is first letter sent?

Within five (5) days of

learning of the obligor’s

failure to pay.

How many days to

respond to first letter?

Agency required to send a

2nd letter?

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Five (5) days.

Proposed Amendments

At any time deemed

appropriate, but at least thirty

(30) days prior to initiating

any enforcement action.

Five (5) days.

Yes, agency must send a 2nd

letter regarding the

compliance plan.

No, agency not required to

send a 2nd letter regarding the

compliance plan.

S. Notice of Delinquency and Notice of Enforcement. When an obligor fails to make their ordered child

support payments, the Agency is required to send notices to the obligor informing them that they are

delinquent. The Oneida Child Support Agency uses a state software system known as “KIDS” to

monitor child support payments and arrears. This system allows the Agency to track and send notices

to delinquent obligors. The Agency suggested the following changes to the notices to more accurately

reflect their practices and ensure compliance:

 Notice of Delinquency: The Agency will send this notice to an obligor in the event that the obligor

owes a debt equal to or exceeding the monthly amount. In other words, if the obligor is a month

behind on their payments. This notice will include the total amount of the delinquency and the

enforcement action that may be taken if they do not pay [7 O.C. 704.13-3].

 Notice of Enforcement Action. The Agency will send this notice after the “Notice of Delinquency”

and at least twenty (20) days prior to an enforcement action being used against an obligor. This

notice is more detailed, and will include the total amount of the delinquency, the enforcement action

that may be taken, notice that the obligor may request to negotiate an alternative payment plan

within ten (10) business days in order to stay an enforcement action, and notice that the obligor has

ten (10) business days to file an objection [7 O.C. 704.13-4].

 Use of Mail for Notices. The Agency is required to send notices to the last known-mailing address

provided by the obligor. If notice to that address is returned undeliverable, the Agency must send

notice to the current employer’s mailing address provided by the obligor. If that notice is also

returned, the Agency is then required to use all resources available to identify the obligor’s current

mailing address before they can proceed with an enforcement action [7 O.C. 704.13-5].

o Time frame. Currently, Agency must spend at least sixty (60) days attempting to identify

an obligor’s current mailing address before they can proceed with an enforcement action

[2.4-3 in Rule #2]. These amendments shorten this timeframe to thirty (30) days. This

means that the Agency will be able to use enforcement actions more quickly in cases where

the obligor’s address cannot be determined.

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Chart 5. Notice of Delinquency & Notice of Enforcement Prior to Enforcement Action.

Obligor owes debt

equal to or

exceeding monthly

support amount

Agency sends

Notice of

Delinquency

Obligor still

delinquent

Agency sends

Notice of

Enforcement

Action at least 20

days prior to using

enforcement action

Obligor fails to

respond

Agency may use

enforcement action

in accordance with

7 O.C. 704.15

Obligor responds

Obligor negotiates

alternative

payment plan or

files an objection

Obligor has 10 business

days to negotiate

alternative payment plan

or file an objection

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T. Alternative Payment Plans.

 Obligors with Cases in Multiple Jurisdictions. A provision in the law regarding obligors that

negotiate alternative payment plans in other jurisdictions (i.e., other County or Tribal child support

agencies) has been deleted. This provision informs the reader of requirements of other agencies.

The Law Office advises that this is unnecessary within the law and can be incorporated into the

Child Support Agency’s internal processes [2.9-10 in Rule #2].

 Amount of Payment Required to Suspend Enforcement Action. Currently, the law states that if an

obligor makes a “full” arrears payment, an administrative enforcement action will be suspended.

This has been changed to “an arrears payment agreeable to the Agency.” The Agency does not

require a “full” arrears payment, as this may be tens of thousands of dollars. The Agency may

suspend enforcement action in cases where partial payments are made and may work with obligors

in arrears to establish alternative payment plans [7 O.C. 704.14-6(a)].

U. Administrative Enforcement Actions. The current Child Support law contains enforcement actions the

Agency has the authority to use if the obligor is at least one (1) month delinquent in paying his or her

child support obligations. These enforcement actions are listed below, with any changes noted: [7 O.C.

704.15].

 Liens. The Agency will place the obligor on the lien docket if the obligor owes a debt equal to or

exceeding the monthly amount due or five hundred ($500) dollars, whichever is greater [7 O.C.

704.15-2].

 Seizure of Property. The Agency has the authority to seizure property, including accounts and

personal property. The Agency may initiate account seizure if the lien amount in the obligor’s case

equal or exceeds 300% of the monthly amount due or one thousand dollars ($1000), whichever is

greater. The Agency may initiate seizure of personal property if the lien amount equals or

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