In Orange County the child support enforcement program is referred to as the "IV-D program" because Title IV-D of the Social Security Act (42 U.S.C. Section 601 et seq.) requires each state to establish and enforce support orders when public assistance has been expended or, upon request of either parent. California has designated the State Department of Child Support Services as the agency to establish paternity and enforce support orders. In Orange County, prior to July of 2002 the District Attorney's Office, Family Support Division, provided those services, but since that time those responsibilities fall to the new Orange County Department of Child Support Services (hereinafter CSS), the “local child support agency."
Orange County’s three IV-D courtrooms are located on the 5th floor of the Lamoreaux Justice Center at 341 City Drive in Orange. Cases are assigned to the three court commissioners by the last two digits of the court case number. Numbers 00 to 33 are set in L-51, 34-66 are set in L-52, and 67-99 are set in L-54.
Attorneys from the local child support agency do not represent either parent or the child in the proceeding, but rather act in the public interest. There is no attorney-client relationship with either parent or with the child. Family Code §17406; In re Marriage of Ward, 29 Cal. App. 4th 1452 (1994).
Contested hearings or trials of local child support agency matters are usually short, between five and fifteen minutes, and the calendars are usually very busy (At least eighteen cases per half day session). The majority of parents are unrepresented, and some fail to appear for the hearings. With a high volume of pro per litigants, too often there is little documentation to work with on the Title IV-D calendar as the parents frequently fail to mail or bring Income and Expense Declarations or copies of their check stubs. Orange County Local Rule 702 requires that any party appearing on a child support matter shall complete, file and serve a current Income and Expense Declaration (FL-150) and shall bring a copy to court. If any party is non-compliant, the court may take whatever action is appropriate, including but not limited to ordering the matter off calendar and/or continuing the matter with conditions.
In any trial or hearing involving financial issues, each party must produce the following documents:
- The three most recent pay records showing year-to-date wages, salaries, overtime, commissions, bonuses and withholdings
- Records showing rents, trust income, workers' compensation benefits, unemployment insurance benefits, disability benefits, social security benefits
- The most recent W-2, 1099, and K1 forms
- A copy of the most recent signed and filed state and federal income tax returns with schedules
- If self-employed, a current (most recent twelve months) profit and loss statement and balance sheet
When the Department of Child Support Services has filed a Motion for Judgment, to establish paternity and set child support, the defendant has certain rights:
- The right to an attorney, including the right to court-appointed counsel for paternity only, if the party cannot afford counsel. Salas v. Cortez, 24 Cal. 3 d 22 (1979). There is no right to an attorney if the contested issue is solely welfare reimbursement. Clark v. Superior Court of Orange County, 62 Cal. App. 4th 576 (1998).
- The right to genetic testing, if paternity is an issue in the case. Family Code §§7550-7557. It is an abuse of discretion to order genetic tests if there is an existing paternity judgment with regard to the child and alleged father. San Francisco v. Cartagena, 35 Cal. App. 4th 1061 (1995). Similarly, genetic tests should not be ordered after the Defendant has stipulated to paternity.Robert J. and Leslie M., 51 CA 4th 1642 (1997); City and County of San Francisco v. Stanley, 24 Cal. App. 4th 1724 (1994).
- The right to present and cross examine witnesses.
- The right to testify himself or herself.
- The privilege against self-incrimination.
If a Defendant requests genetic tests in a non-marital case where paternity has not been previously determined through a court order or Paternity Opportunity Program Declaration, the Court will order the mother, alleged father, and the child or children to participate in genetic testing. The Court should advise the Defendant under Family Code § 7551 that failure to submit to blood tests can lead to an order finding the Defendant to be the parent of the child.
Genetic test results are admissible into evidence without foundation testimony, if the results are accompanied by a declaration from the custodian of records, are served on all parties no later than 20 days prior to the hearing, and no written objection to the results has been filed prior to 5 days before the hearing. Family Code §7552.5. If a finding of paternity is made, the Court will next consider child support.
The Child Support Services attorney will often present factors agreed upon by the parties and frame the contested issues for the Court. The parents or their attorneys can supplement those issues as needed. This process often reduces the time required for a hearing by focusing on only the contested issues. Each side is then allowed to produce evidence regarding their positions. The Court Commissioner may ask questions in order to obtain additional information needed to complete the Guideline Calculator input screen and calculate child support.
Child support in a Title IV-D case is calculated under Family Code § 4050 et seq., just as in other Family law actions. CSS attorneys and IV-D Commissioners are required to obtain ‘guideline’ child support orders. The main factors in determining the amount of child support to be ordered are the percentage of time the minor children spend with the non-custodial parent, and the gross wages of each parent.
The percentage of custodial time will be calculated based on the testimony of the parties, and the Commissioner will use the actual number of hours per year the child(ren) spend with the non-custodial parent, not necessarily the terms of a visitation order. If the non-custodial parent does not appear at the hearing and offer evidence, whatever admissible evidence is available will be utilized to determine the factors.
The gross monthly income of the parents is typically calculated from pay stubs or W-2 forms or tax returns. When those are not provided CSS may utilize other source information, to include statements from employers, Federal Case Registry (FCR) income reporting, or sometimes the testimony of the other parent. Temporary Orders are sometimes made when one or more of the main factors is unknown or subject to change in the near future.
A child support modification can be filed by any party to change the amount of child support, due to a significant change in circumstances since the last order. Changes in the income of either parent (to include unemployment), an increase or decrease in child care expense, or a change in visitation could be qualifying factors. In support modification proceedings, the modified order can only be made effective beginning the first of the month after the motion or order to show cause was filed with the court (not when a request is made to CSS).
A motion to release driver’s (and other state) licenses can be filed by a party paying child support, seeking a judicial review of the CSS decision not to release the license. Family Code §17520 provides that holds be placed on licenses issued by the state when the obligor is not in compliance with a support order; these licenses include professional, trade, driver's and recreational licenses. If a suspension notice is received, the obligor must first attempt to reach an agreement with the CSS, and if unsuccessful, he or she may file a request for judicial review of the license denial.
Custody and visitation issues will not be heard in a IV-D courtroom. The Commissioner has no jurisdiction to resolve those issues, and cannot make orders involving those topics. However, since January 1, 1997, once a support order has been entered and the custodial parent is joined, custody, visitation, and restraining order issues may be raised in a Title IV-D initiated case (those with “FL” designations in the court case number). Filings seeking those orders (under the FL case number) must be made in a court other than the IV-D courts on the fifth floor.
Orange County currently has three Child Support Commissioners whose primary responsibility is to hear Title IV-D support matters pursuant to Family Code §4251. The commissioners are variously referred to as Child Support Commissioners, Title IV-D Commissioners, or AB 1058 Commissioners, after the enabling legislation. A Child Support Commissioner has the same powers as other court commissioners under California law, but is specifically responsible for hearing actions to establish paternity and establish and enforce child support under Family Code §4251(a). Code of Civil Procedure §259.
A Child Support Commissioner shall act as a temporary judge absent an objection from the local child support agency or any other party. A specific notice to this effect is contained on the Judicial Council summons and complaint forms filed by the local child support agency, and will be used in other forms regarding Title IV-D proceedings. The Child Support Commissioner will normally advise the parties prior to the commencement of a hearing that the matter is being heard by a commissioner who shall act as a temporary judge.
Ordinarily, a temporary judge only hears a matter upon the stipulation of the parties. In the absence of a stipulation, however, an objection to a commissioner acting as a temporary judge may be deemed waived by the actions of the parties. In re Horton, 54 Cal. 3d 82 (1991); Stern v. Hassen 34 Cal. App. 3d 294 (1973). The Commissioner may continue to act as a temporary judge until the final determination of that proceeding. Anderson v. Bledsoe, 139 Cal. App. 650 (1934). Ancillary proceedings, such as contempt and other enforcement actions, are not a continuation of the original cause, and the Commissioner does not have the power to hear them as a temporary judge without giving the parties a new opportunity to object. Reisman v. Shahverdian, 153 Cal.App.3d 1074 (1984).
If a party objects to the Child Support Commissioner hearing the matter as a temporary judge, the Commissioner will normally still hear the matter and make findings and a recommended order. Within ten (10) court days, a judge shall review and may ratify the recommended order, absent an objection from a party or an error in the recommended order. If there is an objection or an error in the recommended order, the judge shall issue a temporary order and set a de novo hearing within ten (10) court days. Any party may waive his or her right to the review hearing at any time. Family Code §4251(c).
Parties are free, of course, to use other challenges to the Child Support Commissioner, including the procedures set forth in CCP § 170.6.