Transfer of Title IV-D Cases to a Tribal Court
Tribal Case Transfers Anna L. Maves, Senior Attorney, Judicial Council Denise H. Bareilles, Attorney/Manager, YCSS Vickie K. Contreras, Deputy Director, DCSS Transfer of Title IV-D Cases to a Tribal Court Background ■ Tribes officially became part of the Child Support Enforcement program with the passage of welfare reform in 1996. Personal Responsibility and Work Opportunity Reconciliation Act(PRWORA). ■ PRWORA allowed tribes to join in the IV-D program & authorized the operation of tribal CSE programs and tribal cooperative agreements with state IV-D agencies. ■ More than 50 tribes currently operate tribal child support programs throughout the United States. ■ In 2014 the Yurok tribe became the first tribe located in California to achieve comprehensive program status— providing child support services that meet the requirements of 45 CFR 309. Transfer of Title IV-D Cases to a Tribal Court Concurrent Jurisdiction ■ The issue of concurrent jurisdiction between state and tribal courts is governed by statutes and case law. ■ Congress enacted PL 280 in 1953 that extended to 6 states (including California) state jurisdiction over many crime and some civil matters when the cause of action arose in Indian country. ■ While extending state jurisdiction in specified areas, it did not diminish any inherent tribal court jurisdiction. ■ Federal courts have specifically found that tribal courts have concurrent jurisdiction over domestic relations actions as long as they are willing to assume jurisdiction. ■ Full Faith and Credit for Child Support Orders mandates full faith and credit for child support orders between tribal or state courts. Transfer of Title IV-D Cases to a Tribal Court California Rule of Court Rule 5.372 ■ Purpose of the rule was to define procedures for the transfer of title IV-D court cases from California Superior Court to a Tribal Court. ■ Models used in developing case transfer rule ■ Who can request a transfer of the case? ✷ ✷ ✷ LCSA or Tribal CSA Non-custodial parent Custodial parent ■ Notice of Intent to Transfer ■ Response to Notice of Intent (consent/objections/no response to transfer) Transfer of Title IV-D Cases to a Tribal Court California Rule of Court Rule 5.372 ■ A court order is required for the transfer ■ Determination of Concurrent Jurisdiction ■ Evidentiary considerations ✷ ✷ ✷ ✷ ✷ ✷ ✷ Nature of the action Interests of the parties Identities of the parties Convenience of the parties and witnesses Whether state or tribal law will apply The remedies available in state or tribal court Any other factors deemed necessary by the superior court ■ Formal Order After Hearing ■ Post-hearing processes for transfer Transfer of Title IV-D Cases to a Tribal Court Case Transfer of Filed Superior Court Actions ■ Yurok Child Support Services provided list of tribal members and DCSS identified IV-D cases associated to those tribal members ■ Yurok Child Support Services verified tribal membership of the IVD case participants and cases where YCSS has jurisdiction over case participants ■ Aside from the initial listing of tribal members, the verification forms will be used to verify tribal membership(s) and existence of any CSE case(s) on an ongoing basis ■ DCSS flags the case as a “DCSS Managed Tribal IV-D Case” when eligible for case transfer ■ Yurok Child Support Services sends “Notice of Intent to Request Case Transfer” form to CP and NCP ✷ CP and NCP have 20 calendar days to respond Transfer of Title IV-D Cases to a Tribal Court The transfer form must include the following: ■ ■ ■ ■ ■ Intent to transfer child support court case from the Superior Court to the Yurok Tribal Court based on the tribe's concurrent jurisdiction over the matter. Notice that the transfer will include related child custody and placement issues related to the child support matter. Copy of the Rule of Court, that outlines factors the court will consider if the participants object to the transfer. Participants right to object in writing and request hearing within 20 calendar days of the date of the Notice Blank “Response To Case Transfer" requiring: ✷ Consent or the reason(s) for objection ✷ ■ Information on any related cases that are filed in Yurok Tribal Court involving the same participants or the case participants' minor children Proof of Service (FL-686) prepared per Family Code §17212, listing all documents served Transfer of Title IV-D Cases to a Tribal Court Responsibilities of the Child Support Agencies ■ DCSS coordinates with the LCSAs in filing of the Notice of Motion ■ LCSAs will: ✷ Prepare, file, and serve Notice of Motion on case participants • Communicate to DCSS when actions are completed • DCSS provides copy of the documents to Yurok Child Support Services ✷ ✷ Attend the hearing Prepare the final disposition of the transfer hearing • Communicate to DCSS the hearing outcome • DCSS communicates to Yurok Child Support Services outcome Transfer of Title IV-D Cases to a Tribal Court Superior Court Process ■ ■ A motion requesting the case transfer must be filed in state court in any case that will be proceeding with the transfer process in order to properly put the issue of case transfer before the court and obtain an order for case transfer A hearing is not scheduled when: ✷ ✷ ■ A hearing is scheduled when: ✷ ✷ ✷ ■ Both CP and NCP object Notices returned undeliverable Either the CP or NCP object to the transfer Timeframe of 20 calendar days have elapsed and no response from either party and no notices returned as undeliverable Both parties consent to the transfer but matter may proceed as uncontested Yurok Child Support Services must provide the following to DCSS: ✷ ✷ ✷ ✷ Copy of Transfer Notice served on each case participant Any completed “Response to Case Transfer" Original redacted Proof of Service for filing with the court Original unredacted Proof of Service for LCSA records Transfer of Title IV-D Cases to a Tribal Court Procedure After Order Granting Transfer ■ Superior Court will send the following packet to Yurok Tribal Court Clerk via e-mail: Order for Request for Case Transfer ✷ Electronic PDF of entire family law/child support court file, including all orders and pleadings ✷ Clerk’s Certificate of authenticated copy ■ Yurok Tribal Court Clerk sends an Acknowledgement of Receipt form back to the Superior Court ■ Yurok Tribal Court is in the process of developing an email site capable of receiving the Superior Court files. ✷ State DCSS Tribal Case Transfer Process Memorandum of Understanding signed by YCSS and DCSS on 11/12/2014 ✷ ✷ ✷ DCSS Tribal Case Manager (TCM) established Manages shared and transferring cases Works directly with LCSAs and YCSS YCSS & DCSS will work cooperatively to provide full range of child support services: ✷ ✷ ✷ Locate custodial (CP) & noncustodial parents (NCP) and their assets Establish paternity Establish and enforce child support orders State DCSS Tribal Case Transfer Process YCSS has not adopted the Uniform Interstate Family Support Act (UIFSA) ✷ ✷ ✷ ✷ They have agreed to utilize some forms and procedures recognized under UIFSA YCSS will not be using CSENet YCSS & DCSS acknowledge the requirements of the Full Faith and Credit for Child Support Orders Act (FFCCSOA) DCSS/YCSS acknowledge inherent jurisdiction per P.L. 280 State DCSS Tribal Case Transfer Process Types of Cases Non-Shared Case Case that DCSS has no interest in ✷ ✷ ✷ CP or children have never received public assistance Formerly Assisted (FA) cases where public assistance has been recouped and remaining obligations are payable to the family IV-D case is closed when YCSS notifies DCSS that the case transfer is complete State DCSS Tribal Case Transfer Process Shared Case Both DCSS and YCSS have a mutual interest in the case ✷ One or more participants are tribal members or are eligible for tribal enrollment ✷ A case that is either Currently Assisted (CA) or FA with Permanently Assigned Arrears (PAA) owed to the state DCSS is responsible to recoup public assistance ✷ Usual distribution hierarchy applies IV-D case remains open in CSE ✷ Case becomes Non-Shared when public assistance is recouped ✷ Case closes State DCSS Tribal Case Transfer Process For shared cases only: YCSS ✷ ✷ ✷ Will send payments to CA SDU Payments are sent via check within 10 business days Will generate a billing notice to NCP DCSS ✷ Distributes the following payments: • • • • ✷ ✷ Disregard to CP Current to CP Recoup public assistance In excess of UAP to the CP Sends the Collection and Distribution Notice to CP Refunds amounts over NCPs court ordered obligation to YCSS YCSS Case Transfer Process Yurok Child Support Services - Case Management ■ Contact parties to follow up with case ■ Case management ■ ■ ■ ■ ■ ■ ■ ■ Income withholding order (judicial process Reservation Employers Fishing Income (Fish buyers) Custody/Support – Review and reassess order if necessary Case manage disbursement payments Contact nearby tribes for assistance (members work for near by tribes Yurok Family Centered Services (Tribal Innov. Grant) Intergovernmental Request Intergovernmental Request Service of an Income Withholding Order LCSA has an existing child support order LCSA will request YCSS to serve the IWO LCSA will provide the following documents to YCSS: ✷ ✷ ✷ ✷ A letter of transmittal requesting service/enforcement of IWO via T1 Certified copies of all support and paternity orders Sworn or certified statement of arrears Name of NCP, address, social security number, and employment information available in accordance with Federal and State law Intergovernmental Request Upon receipt of the package from the LCSA, YCSS will review for accuracy and perform the following: ✷ ✷ ✷ ✷ ✷ Acknowledge receipt of documents and advise LCSA if further information is needed May redact additional information Register and enforce foreign child support order through the Yurok Tribal Court (judicial process) Issue a YCSS IWO and send to the appropriate Yurok payroll department Foreign IWOs are not acknowledged by the Yurok payroll department. They must be forwarded to YCSS for processing. Tribal payroll department withholds wages and sends to CA SDU within 10 business days DCSS TCM will facilitate the process as needed Intergovernmental Request Discovery LCSAs have an open case in CSE and need information to establish or enforce a support order against the NCP ✷ ✷ ✷ ✷ ✷ ✷ Resides on/off the reservation May work for the Yurok Tribe or Yurok Tribal enterprise May have other sources of income the Yurok Tribe is aware of, which may be attached for child support purposes May have health insurance coverage available or child qualifies for Indian Health Services If it is a no legal action pending case then an IG request to YCSS to establish and enforce order (concurrent jurisdiction) DCSS will case manage with YCSS to ensure appropriate enforcement remedies are in place, i.e., tax intercepts, disability and unemployment intercepts. Intergovernmental Request LCSAs will: ✷ Submit UIFSA T3 to YCSS requesting assistance • Income/Employment; Genetic Testing; Service of Process ✷ ✷ Attach CSE Wage & Insurance Verification, Income & Expense Declaration, Health Insurance Verification or other relevant documents Image all supporting documents not already in CSE and enter an Activity Log into CSE YCSS will: ✷ ✷ ✷ ✷ Acknowledge receipt of documents and advise the LCSA if further information is needed May redact additional information Have employer complete the verification form, or comparable form, and return to YCSS Send the completed documents directly to the LCSA DCSS Tribal Case Manager will facilitate the process as needed [email protected] [email protected] [email protected] QUESTIONS?
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