TCSEP Child Support Guidelines (45 CFR 309.65 (a) (10))
TCSEP will work to establish, modify, and enforce Child Support for all cases in the jurisdiction of the Tribal Court and in any case that is appropriately referred from a foreign jurisdiction. All Child Support Obligations will be based on the Child Guidelines unless there is a finding by the Court that the application of these guidelines would be unjust or inappropriate in a particular case, or that deviation is in the best interest of the child(ren).
Tribal Child Support Guidelines Review
TCSEP establishes the Child Guidelines for approval and adoption by the Tribal Council. The guidelines are reviewed at a minimum of every four (4) years. The TCSEP Project Director will prepare the guidelines for review and adoption by the Tribal Council.
DHRD TCSEP has provided that there shall be a rebuttable presumption in any proceeding for the award of child support, the amount of the award that would result from the application of the guidelines established are consistent with this section and is the correct amount of child support to be awarded.
Establishing a New Child Support Obligation
TCSEP will recommend a Child Support Obligation to the Court based only on the Tribal Child Support Guidelines and worksheets. The TCSEP Case Manager will request that each participant complete a financial declaration that will be filed with the Court. In addition, the TCSEP Case Manager will work to locate and verify all income and asset information of both parents prior to computing a Child Obligation.
Once the financial information of both participants is complete, the TCSEP Case Manager will follow the Tribal Child Support Guidelines to calculate the basic Child Obligation and any additional support obligations (such as child care, health care and extraordinary expenses). The case will then be referred to the Project Director for review. If the Project Director verifies that the calculation is correct and based on all available facts, the Project Director may refer the case back to the TCSEP Case Manager to assist the participants in developing an agreed Child Support Order based on the Tribal Child Support Guidelines. The TCSEP Case Manager will proceed with establishing an order through the Court process.
Once an order is established, a copy will be given to the TCSEP Administrative Assistant who will record the order amount and begin tracking payments and distributions. The TCSEP Case Manager will continue to oversee the case to ensure continued and timely collections.
Child Support Orders from the Tribal Court are based upon these guidelines under the statutory authority of CS&KT Laws Codified. These guidelines are established by the TCSEP and adopted by the Tribal Council, and are reviewed, at a minimum, every four (4) years.
The Tribal Child Support Guidelines and Schedule will be used to determine the amount that the NCP must pay for support of his or her child(ren) in all Child Support Orders. Unless, there is a finding by the Court that the application of these guidelines would be unjust or inappropriate in a particular case, or that deviation is in the best interest of the child(ren).
Child Support Computation for Cases of Residential Custody
In cases where the Court has ordered residential custody to one parent, custodial parent (CP), a basic Child Support Obligation is determined by calculating the adjusted monthly income of the non-custodial parent (NCP) and the total number of biological or adoptive children that the NCP is responsible for supporting. The following method is used to compute an obligation. (See Appendix B-Worksheets.)
1) Determine the Monthly Gross Income of the NCP by adding gross income from all sources including: salaries and wages, Treaty income, commissions, bonuses, dividends, severance pay, taxable per capita payments, interest, trust income, annuities, deferred compensation, capital gains, workers compensation benefits, unemployment insurance benefits, any and all employment including Tribal work programs (WIA, Passages/Fatherhood and General Assistance), gifts, gaming winnings, prizes, spousal maintenance, periodic payments for pension, retirement, and insurance programs.
a. Exclude income from public assistance programs such as TANF, supplemental security income, food stamps or other Federally-exempted programs (Voc-Rehab).
b. For self-employment income, gross income should be determined by gross receipts minus ordinary and necessary business expenses.
c. Average any seasonal, overtime, or any other fluctuating income by getting a yearly amount and dividing it by twelve (12) to determine a Monthly Gross Income.
d. When the income from a full-time job is consistent with income during the marriage, income earned as the result of overtime hours or a second job may be disregarded.
e. Other Tribal benefits, such as the CP’s or NCP’s Tribal disability payments may be included, at the Court’s discretion.
f. If the NCP is unemployed or is working below full earning capacity, the Court may determine the full gross income earning capacity by averaging part-time work into full-time work or by imputing income or determining the NCP’s full working income, based on prior history.
g. If there is no reliable evidence concerning the NCP’s income, the Court may impute an NCP’s gross income based on the Tribal government’s minimum wage as defined in the most current Wage Allocation Plan for all new hires.
2) Subtract deductions to determine the NCP’s adjusted gross income. Deductions include: Federal income taxes; Tribal, State or local income taxes; FICA; health insurance premiums paid by the NCP for the benefit of the child(ren) if additional health coverage beyond Contract Health Services is ordered by the Court; State Industrial Insurance Premiums; mandatory union and professional dues; mandatory pension plan payments; reasonable payments of pre-existing debt that was jointly acquired by the NCP and CP. These expenses can include a forecasted downward adjustment for the anticipated reduction or elimination of the debt.
3) If the NCP has multiple Child Orders, the NCP or CP may petition the Court to modify the order to reflect all of the NCP’s child(ren) who have existing Child Orders.
4) Determine the basic support obligation by calculating the following percentages to the number of children affected by the order. The minimum Child Order per child is $25.00 per month.
a. One child: 15%
b. Two children: 20%
c. Three children: 25%
d. Four children: 30%
e. Five children: 35%
f. If the NCP has six (6)or more children, the percentage remains at 35% divided by the number of children. The attached schedule only shows up to five children.
i. For example, if the NCP has a net monthly income of $2,150 the total Child Support Obligation is $179 per child. If the NCP has one child living in their home, with two other children living with the CP, the CP would receive $358 per month ($179x2).
Basic Child Support Computation for Cases of Shared Custody
In cases where the Court has ordered shared custody, meaning that the participants have equal time with the child(ren), there will be no order for Basic Child Support. There may, however, still be a Child Support Order that addresses additional Child Support Obligations such as day care, health care and other extraordinary expenses. If there is a large discrepancy between incomes, the Court may make a determination on a need for basic Child Support.
1) If child(ren) are in Court ordered relative placement/foster care and the Court determines that they are working with Tribal/State Social Services to re-unite, a ZERO order for Child Support may be established.
2) If child(ren) are placed in permanency or long-term Court ordered care, a Child Support Order will be established based on TCSEPâ€™s guidelines and schedule for each parent.
Additional Child Support Obligations
Daycare and special child-rearing expenses, such as: tuition and long distance transportation costs to and from the parents for visitation purposes, are not included in the basic Child Support Obligation, but may be ordered by the Court in its discretion. If the Court determines that any of these expenses exists, the costs will be shared by the parents in the same proportion as the division of gross income. The Child Support Obligation will then increase by the percentage of the NCP’s portion of the expenses, up to a maximum of 35% of gross income. These expenses may be shared by the parents in the same proportion as the basic Child Support Obligation or one parent may be required to make such payments.
Basic health care expenses are presumed to be covered by Contract Health Services, unless the participants prove otherwise. The Court may order additional health care if it is the best interest of the child.
Non-monetary Child Support Payments (In-Kind Contributions)
Child Support Orders that allow non-monetary payments must include a specific dollar amount of the support obligation and the exact types and amounts of non-monetary goods and/or services that can satisfy that dollar amount. Acceptable non-monetary resources may include, but are not limited to clothing, car/home maintenance, child-care, tutoring/volunteering and extra-curricular/school that will assist in the support of the child(ren). Non-cash payments cannot be applied to assigned current support and arrears obligations. In the event that an NCP is delinquent by a month on a non-monetary payment, the obligation becomes due as a cash arrears payment.
1) Child care - $20/day
2) Home/car maintenance - $25.00/hour
3) Extra-curricular/school activities - @ minimum wage
4) Tutor/volunteering - @ minimum wage
5) Transportation - @ mileage rate
6) Other non-monetary payments - Reviewed on case by case basis for specific dollar amount to be determined by TCSEP Project Director and approved by the Tribal Court.
Both the CP and NCP shall provide a financial disclosure to the TCSEP Case Manager. Additionally, self-employed participants shall provide tax returns for the preceding two years and employed participants shall provide current pay stubs to verify income and deductions. Other sufficient verification shall be required for income and expenses that do not appear on tax returns or pay stubs.
Presumption of Substantial Hardship
When an NCP’s income falls at or below 150% of the Federal poverty level and is not ordered to be imputed, a support payment order no less than twenty-five dollars ($25.00) per child per month may be entered unless the NCP establishes that it would be unjust or inappropriate to do so in that particular case.
Deviations from the Tribal Child Support Guidelines
The Court may order Child Support in an amount different from that which is provided in these Guidelines, only if all the following three (3) criteria are met:
1) The participant requesting deviation shows by a preponderance of the evidence that application of the guidelines is inappropriate, unjust, or causes substantial hardship in the particular case;
2) Deviation is in the best interest of the child;
3) The Court sets out in its order what the monthly support obligation would have been under the schedule without the deviation and what the Court is ordering as the monthly support obligation with the deviation.
By Agreement of Participants: The Court also may deviate from these Tribal Child Support Guidelines based upon an agreement of the participants if all of the following criteria are met:
1) The agreement is in writing;
2) All participants have signed the agreement with the knowledge of the amount of support that would have been ordered by the Tribal Child Support Guidelines;
3) All participants have signed the agreement free of duress and coercion, and;
4) The Court makes written findings as required for deviation.
Child Support Order Modification
When there has been a substantial change in the income of the NCP or other factors that determined the original support obligation, a participant may request, by motion, modification of a Court Child Support Order. Grounds for modification of a Child Support Order include:
1) A substantial (15% increase or decrease) in the gross income that was the basis of the current support order;
2) A change in custody of a child;
3) A change in the Tribal Child Support Guidelines and Schedule; or
4) Other substantial change in circumstance that justifies a modification; or
CS&KT Laws Codified shall not be interpreted to allow the retroactive modification of Child Support Orders. All modifications shall conform to the Full Faith and Credit for Child Support Orders Act, 28 U.S.C. 1738B.
The Court has the right to forgive arrears owed to the Tribe, if deemed appropriate.
Child Support Arrears
In the event that there are Child Support arrears in a case, an additional 20% of current order should be ordered to be applied toward the liquidation of any overdue support. In cases where this is not a current Child Support Order, up to 10% of the NCP’s gross income can be ordered to pay back arrears (for the CP, Tribal or State debt).
Income Withholding Requirements
All Child Support Orders must provide for automatic income withholding as necessary to comply with the order. Income will not be subject to withholding in any case where the Court finds that there is good cause not to require the withholding or where there is a signed agreement between the participants that provides for an alternative arrangement that is entered into the Court’s record.
TCSEP will utilize the standard Federal Income withholding form in contacting the employer to provide a notice of withholding order. In addition, staff will follow up with the employer to make sure that they have received, reviewed, and understood the form. Staff will alert them of the potential penalties for failing to withhold or discriminating against the employee with a withholding order. Staff will establish a cooperative working relationship with the employer to make the collection of withholding smoother for all parties involved
The NCP can voluntarily choose to have per capita payments assigned to satisfy any Child Support Obligation. However, if the NCP parent has not paid Child Support payments in three (3) or more consecutive months and has $1,000 or more in arrears owed to the CP, up to 50% of per capita will be automatically assigned, not to exceed the amount owed directly to the CP. However, per capita assignments cannot be used to satisfy State Child Support arrears.