Child Support will be withheld or garnished in accordance with CS&KT Laws Codified, and the Tribal Child Support Enforcement Program Guidelines. TCSEP works to ensure that all cases have an income withholding in place; this is the most effective method of providing consistent Child Support to child(ren).
TCSEP automatically requests in all orders a stipulation that allows for automatic income withholding in the event that the NCP is forty-five (45) days delinquent in Child Support. In cases where there is an order for arrears, TCSEP will request immediate income withholding.
TCSEP has include into the IV-D plan that the only basis for contesting a withholding is a mistake in fact, in which means an error in the amount of current or overdue support or the identity of the alleged non-custodial parent is in question.
In the event that a participant feels that there is good cause not to require income withholding, the TCSEP Case Manager will advise the participant that they should present the case to the Judge, who can enter a finding to disallow a withholding.
Participants can also enter a signed agreement that provides for an alternative arrangement for payment, which will be entered into the Court’s record. However, in the event that payments become delinquent, TCSEP will proceed with collection actions that may include income withholding.
Voluntary Income Withholding
A voluntary income assignment can be sufficient to meet the Child Support Obligation calculated by the Court or Tribal Child Support Enforcement Guidelines. The TCSEP Case Manager will encourage all employed NCP parents to voluntarily withhold their Child Support for automatic payment to TCSEP.
A. Wage Withholding: If the NCP is thirty (30) days past due, the TCSEP Case Manager will send a letter requesting payment within fifteen (15) days. If no payment is made in that time frame then the following procedure will be followed:
1) TCSEP Case Managers will review the file for a stipulation and/or Court order allowing TCSEP to automatically withhold income to satisfy Child Support Obligation.
2) If there is a Court order or stipulation on file authorizing TCSEP to garnish the NCP’s wages and there is verification of the NCP’s employment, the TCSEP Case Manager will prepare a Court order/notice to withhold income for Child Support to serve on the employer.
3) If there is no Court order or stipulation that will allow for income withholding, the case will be referred to the TCSEP Attorney to proceed with a Motion to Enforce.
4) If an NCP’s employer is unknown, the TCSEP Case Manager will utilize all locate actions in accordance with Chapter Eight (8).
B. Motions to Enforce in Tribal Court: If there is no stipulation for income withholding in the Court order and no other income withholding order in place, or if the income withholding order or stipulation has proven ineffective in producing Child Support payments, then the TCSEP Case Manager will refer the case to the TCSEP Attorney to proceed with a Motion to Enforce Child Support. The TCSEP Attorney will adhere to the requirements of CS&KT Laws Codified in moving for an enforcement remedy. The TCSEP Attorney may request a variety of enforcement actions from the Tribal Court, including but not limited to: wage withholding, garnishment, and per capita assignment.
Other Enforcement Actions
Federal Collection Actions: Under new Federal regulations, Tribal Child Support Enforcement tools include various and numerous tactics to encourage delinquent NCPâ€™s to comply with Court ordered obligations. If it is determined by the TCSEP Project Director and/or TCSEP Attorney that a case would benefit from utilizing Federal enforcement tools, the TCSEP Case Manager may use a transmittal form to request that the State provide collection actions dependent on the agreement with the State. Collection actions may include the following:
1) Federal tax intercept; and/or
2) State tax intercept
Consumer Credit Protection Act, 15 U.S.C. 1673
Income shall not be subject to withholding in any case where the total amount to be withheld exceeds the maximum amount permitted under the above-mentioned act.
1) The maximum part of the aggregate disposable earnings of any person for any work week which is subject to garnishment or income assignment for the support of a minor child(ren) shall not exceed:
a) Fifty percent (50%) of such person’s disposable earnings for that week, if such person is supporting his spouse or a dependent child(ren) other than the child(ren) with respect to whose support such order is used; and
b) Sixty percent (60%) of such person’s disposable earnings for that week if such person is not supporting a spouse or dependent child(ren). The fifty percent (50%) specified in paragraph one (1) of this subsection shall be deemed to be fifty-five percent (55%) and the sixty percent (60%) specified in paragraph two (2) of this subsection shall be deemed to be sixty-five percent (65%), if and to the extent that such earnings are subject to garnishment or income assignment to enforce a support order with respect to a period which is prior to the twelve
(12) week period which ends with the beginning of such work week.
Improperly Withheld Child Support
To avoid improperly collecting Child Support, the TCSEP Case Manager will immediately terminate income withholding and any other collection action on closed cases as defined in Chapter Three (3).
In the event that Child Support is improperly withheld, the TCSEP Administrative Assistant will immediately refund the payment and amend the Notice of Collections to ensure proper accounting.
Employers who fail to withhold Child Support as ordered are liable for the full amount that they should have withheld from the NCP’s income. In the event that an employer does not comply with an order, the TCSEP Case Manager will first contact the employer to attempt to resolve the situation without Court action. If the TCSEP Case Manager is not successful, the case will be referred to the TCSEP Attorney who will proceed with legal action.
Employers may not discharge, refuse to employ, or take any disciplinary action against a NCP parent due to a wage withholding requirement or request. TCSEP Case Managers should reassure participants of this fact. In the event that any staff member of TSCEP becomes aware that an employer has engaged in the above actions, they should inform the TSCEP Project Director, who can work with the TCSEP Attorney to take appropriate action.
Employers will be subject to a fine for discharging a non-custodial parent from employment, refusing to employ, or taking disciplinary action against any non-custodial parent because of the withholding.
Employers will be given notice as outlined in the Policy and Procedure Manual, Chapter 2: TCSEP Guidelines and Child Support Schedule.