11.03.050 Establishment of Child Support

(a) Establishment or Modification of Child Support

(1) A parent, child, custodial parent, the child's legal guardian, or the SRMT-CSEU on behalf of the Tribe, may petition the court for the establishment of a child support order. No child support can be ordered unless paternity has been established.

(b) Petition for the Establishment of Child Support

(1) In order to petition for child support, a parent, child, custodial parent, guardian or any other person who is providing financial support and with whom the child(ren) reside shall submit a complete child support application to the SRMT-CSEU. Based on that application, the SRMT-CSEU shall file a petition for an order establishing child support.

(2) The petition for establishment of child support shall contain the following information:

(A) The name, date of birth and tribal affiliation (if known) of the child;

(B) The names, dates of birth, tribal affiliation (if known) and addresses of the parents in the action.

(C) If there is a protective order in place, the address of the affected party and of any children shall be redacted from all court documents; or if there is reason to believe that emotional or physical harm may be inflicted should the whereabouts of a party or a child be disclosed, the petitioner shall state the reason and request the Court to issue an Order redacting the personal information from all court documents that respondent can access;

(D) The amount of the proposed child support requested pursuant to the guidelines provided for in this chapter.

(E) A statement indicating how health insurance and/or medical support is to be provided, whether there are any outstanding medical bills, and whether there are any extraordinary medical expenses for the child(ren);

(F) A statement indicating whether there are any work-related child care expenses;

(G) A statement indicating if there has ever been a separate proceeding in another jurisdiction for paternity, custody, placement, or child support involving the subject child(ren);

(H) A copy of any order entered by another jurisdiction for paternity, custody, placement, or child support;

(I) A statement as to the current custody, placement and parenting time of the child(ren);

(J) An official birth certificate, acknowledgment of paternity or court order indicating that the father is named as the legal father of the child or children. A copy of either the official birth certificate, court order or acknowledgment of paternity shall be attached to the petition. If the parties were married at the time of the child(ren)'s birth, then such a statement shall be included in the petition.

(1) Each party to the action shall be required to complete a Financial Disclosure Form and to provide SRMT-CSEU with the disclosure prior to the Mediation as required by Section 11.03.030(a)(3). Each party shall sign a confidentiality statement that will require each of them to keep any information learned during the mediation confidential. If a party fails to attend Mediation then each party shall file the Financial Disclosure Form with the Court prior to the initial court appearance.

(2) Prior to Mediation, each party shall provide the SRMT-CSEU with the following financial documents: the last two (2) years of income tax returns, W-2s, 1099s, and current pay stubs, if available. If a party fails to attend Mediation then each party shall file the required financial documents to Tribal Court prior to the scheduled initial court appearance.

(3) Each party to the action shall complete a Release of Information Authorization which shall allow SRMT-CSEU to obtain additional financial records and to confirm any information provided by a party.

(4) The following SRMT entities are required to release information to SRMT-CSEU for the purpose of establishing, modifying or enforcing a child support order:

(A) All departments of SRMT;

(B) Akwesasne Housing Authority and Community Development;

(D) Any person or entity doing business within the territory of the Saint Regis Mohawk Tribe.

(5) If a party declines to participate in Mediation, or otherwise fails to provide the required financial disclosure as outlined above, the Court and SRMT-CSEU will utilize imputed income to determine his/her child support obligation.

(6) Financial information shall be kept confidential and full disclosure of information shall be available only to the Court and the SRMT-CSEU. When any financial documents are filed with the Court to be placed in the public docket, the Court shall redact all personal and confidential information such as social security numbers, employee identification numbers, tax identification numbers and all other identifying data. The Court shall order the parties to keep confidential any financial information obtained during the hearing.

(7) Any financial information provided to SRMT-CSEU or the Court shall be used for the sole purpose of establishing, modifying, or enforcing child support.

(d) Child Support Guidelines

(1) Every four (4) years, SRMT-CSEU shall prepare a Child Support Standards Chart (CSSC) guideline which shall serve as a guide to parties and the SRMT Court in determining the basic child support obligation. The chart shall be broken down by annual income ranges and by the number of children in a case. It shall establish the upper limit of the combined parental income. To receive an amount of child support above that upper limit the parents can mediate such an amount or the Court can deviate based on the child's needs.

(2) A parent's child support obligation shall be established utilizing the annual gross income of the CP and NCP. If a parent's income is unknown or if the parent is unemployed, imputed income may be used when calculating the child support.

(3) Child support is based on a percentage of income determined by the number of children as follows:

(A) 17% for one child;

(B) 25% for two children;

(D) 31% for four children;

(E) No more than 35% for five or more children.

(4) Child support obligations may be impacted by a "Self-Support Reserve" (SSR) which shall be one hundred thirty-five percent (135%) of the poverty income guidelines amount for a single person as reported by the Federal Department of Health and Human Services and shall be part of the child support calculation.

(5) Child support obligations shall be based on the percentages contained in this section and shall be represented as a whole dollar amount in the Court Order, unless the Court finds good cause to deviate pursuant to Section 11.03.050(f)(4) from the SRMT CSSC or based on the child's needs.

(e) Child Support Calculations

(1) Worksheet. The Child Support Calculation Worksheet provided for in this chapter will determine the proposed amount of child support a parent will be responsible for. The worksheet will be completed utilizing the following steps:

(A) Determine Total Gross Annual Income of each parent. Total Gross Income is determined by totaling all funds received from any source before taxes or other expenses of any kind are taken out. Total Gross Annual Income does not include public assistance payments or child support received or paid on behalf of children of other relationships

(B) Determine Total Annual Deductions of each parent. Total Annual Deductions is determined by totaling all deductions from income which include federal, state, and local taxes, state unemployment and disability taxes, and social security taxes, union dues but it does not include deductions such as voluntary retirement contributions and transportation deductions.

(C) Calculate Annual Net Income of each parent. Annual net income is calculated by subtracting the total annual deductions (b) above from the total gross annual income (a) above.

(D) Calculate Combined Annual Net Income. Combined Annual Net income is determined by totaling the annual net income of the Custodial Parent's (CP) and Non-Custodial Parent's (NCP) annual net incomes with the maximum outlined in the CSSC of the Combined Annual Net Income.

(E) Determine the Basic Child Support Obligation. To determine the Basic Child Support Obligation, multiply the Combined Annual Net Income by the appropriate child support percentage listed in the CSSC.

(F) Determine Proportional Share of Combined Annual Net Income. To determine each parent's proportional share of combined annual net income in order to calculate their proportional share of the basic child support obligation, divide each parent's annual net income by the total combined annual net income.

(G) Calculate Basic Child Support Obligation without consideration of low-income limitations. To calculate each parent's Basic Child Support Obligation without considering low income limitation, multiply the basic child support obligation by each parent's proportional share of combined annual net income.

(H) Determine Low Income Limitations. Low income limitations are determined by utilizing the current Federal Poverty Level (FPL) and the Self-Support Reserve (SSR) as reported by the United States Department of Health and Human Services. These limitations are calculated by subtracting each parent's basic child support obligation from their annual net income and then comparing the result with the current FPL and SSR. If the amount falls between the FPL and the SSR, then the presumptive amount will be $25.00 per month ($300.00 annually). If the amount falls below the FPL, then the presumptive amount will be $0.00. If the amount is greater than the SSR, then the low-income limitations do not affect the obligation and the presumptive amount will be the Child Support Obligation as calculated.

(I) Determine Social Security Offset. If a child is receiving Social Security cash benefits as a result of the parent's disability, the amount owed for child support shall be reduced by the amount of the child's monthly cash benefit. Should the child's monthly cash benefit exceed the amount of the monthly child support obligation there shall be no credit against any child support arrears.

(J) Offset for other child support obligations. If a parent has more than one child support case, any prior child support obligation shall be deducted from his or her gross income.

(K) Amount above maximum of CSSC. If the Combined Annual Income is above the statutory amount of the CSSC then the NCP is responsible for the Basic Child Support Obligation and whatever other amount above the statutory amount as agreed between the parents or as determined in the Tribal Court's discretion utilizing the factors from Section V(E)(4).

(2) Medical Costs. Medical support may be considered if one or both parents have accessible and affordable health coverage available for the child at a reasonable cost. Reasonable cost is defined as being no more than 5% of a parent's gross income. If a child is eligible for Indian Health Service, the Tribal Court will not establish a medical support order. However, the Tribal Court may require parents to share in the child care expenses and/or extraordinary medical expenses not covered under any policy, plan, or Indian Health Service (IHS).

(3) Non-Cash Support. Non-cash support may be considered by the Tribal Court in lieu of cash child support only when agreed upon by both parties.

(A) In determining whether to permit non-cash support, the Tribal Court shall consider the current circumstances of the parties including whether a non-custodial parent is able to obtain employment, and the availability of other financial resources to meet the current cash child support obligation.

(B) If a low-income limitation is determined, non-Cash Support may be considered per the SRMT Child Support Guidelines.

(D) All non-cash support orders must describe the type of non-cash support contribution and the SRMT Court must assign a dollar value to the contribution.

(E) Should a non-cash support contribution not be met, the recipient of the non-cash support is required to notify SRMT-CSEU by the end of each month of the non- compliance in writing. If a notice of non-compliance is not received by the last day of the month, it shall be presumed the non- cash support contribution was met and the payor shall receive a credit based on the Tribal Court Order.

(f) Child Support Establishment

(1) Hearing. If the parties are unable to reach an agreement with respect to the child support and other conditions in Mediation, the hearing shall be held on the date and time shown in the Summons and Petition. At the initial appearance, the Court may enter a temporary based upon the Judge's discretion.

(2) Child Support Worksheet. Prior to the parties' appearance the SRMT-CSEU shall file the Child Support Worksheet. After submitting such worksheet, if the SRMT-CSEU receives new information that impacts the child support obligation requested then the SRMT-CSEU shall file a new Child Support Worksheet with the Court with notice being provided to the parties that a new worksheet has been filed. Acceptable forms of notice include a letter to the parties or an email to the parties as long as there is proof of receipt.

(3) Order. Following a child support hearing, the Court Order for Child Support shall contain the following information:

(A) A statement that SRMT has jurisdiction over the child support case and personal jurisdiction over the respondent;

(B) The amount of child support and any amount to be paid towards arrears, if any exist. Child support arrears may be ordered by the Tribal Court beginning from the date paternity was determined or the date in which the child support petition was filed;

(D) A statement regarding the circumstances under which the child support obligation will terminate;

(E) A statement that each parent shall notify SRMT-CSEU of any change of employer or address within ten (10) days of said occurrence;

(F) A statement that if a payor becomes delinquent in an amount equal to one month's child support or fails to follow the terms of the Court Order, any and all enforcement remedies available to SRMT-CSEU under this chapter shall be taken;

(G) An order to seek work if the NCP is unemployed or underemployed;

(H) That each party may request a review of the support order once every twenty- four (24) months or sooner if there is a change in circumstances warranting a modification;

(I) If the parties request that child support payments not be made to the SRMT-CSEU pursuant to a Federal Notice of Income Withholding, the Tribal Court will take testimony on how the parties intend to remit payments. If either the CP or NCP demonstrates that there is good cause not to require income withholding, the Court may enter such a finding. However, the order also shall state that if the payor becomes delinquent in an amount equal to one month's child support SRMT-CSEU may issue a Notice of Income Withholding and submit it to the employer or other source of income of the payor; and

(J) A referral to any program the Court deems just and proper.

(4) Deviation. There is a rebuttable presumption that the worksheet calculations are correct to support the requested award of child support. However, the Tribal Court has discretion to deviate from the child support calculation based on substantial evidence that the calculation would be harmful to the parent. If the Court decides to deviate from the calculations, the Court shall state in a written order the amount that would have been ordered had the guidelines been followed and the Court must justify such deviation. The Court may only rely on one or more of the following reason(s):

(A) The financial resources of the child(ren) and or parent(s) require it;

(B) One of the parents is a seasonal employee of a trade or profession;

(C) The party has a verified and documented legal financial obligation to a person other than the child, to make payments, such as extraordinary medical or educational expenses;

(D) The party has verified and documented extraordinary travel expenses incurred in exercising the right to periods of physical placement or visitation;

(E) The party has verified and documented extraordinary travel expenses incurred to secure employment;

(F) The best interests of the child including physical, mental and emotional needs and the child's educational needs;

(G) The NCP already provides for the child's needs, without a child support order including but not limited to, shelter, food, and extracurricular activities. The NCP shall provide an affidavit attesting to this claim with supporting affidavits from school officials, social service workers, employers, and any other source that can substantiate the claim; or

(H) An agreement by the parties for a deviation.

(5) Default Order. When the respondent fails to appear or fails to answer a Petition filed herein, the Tribal Court shall enter a Default Child Support Order pursuant to Section 11.03.020(d)

(A) In issuing the Default Order, the Court must also find that the Petition or the recommendation of SRMT-CSEU is based on available, relevant and material financial information and the respondent's child support obligation, at the amount provided for in the Default Order, has been correctly determined under the guidelines and schedule based on calculation of the income provided or based upon the child(ren)'s needs.

(B) The Default Order shall be served on the respondent by the Tribal Court Clerk per the Service requirements at Section 11.03.020(c).

(C) A Default Child Support order may be reopened upon motion of the party and such motion to reopen shall be liberally granted for good cause.

(6) Modification of Child Support Determination. Any party to an action may request a child support review from SRMT-CSEU to determine if there has been a substantial change in circumstances since the last order for child support or if the child support order has not been reviewed for twenty-four (24) months or more. A substantial change in circumstances includes, but is not limited to, a change in annual income of 15% or a change in the actual residence of a child(ren) has changed. If a modification is justified, the SRMT-CSEU shall file a petition for modification of child support. The petition shall be subject to the same procedures as an initial petition for child support including the requirement for Mediation, a worksheet calculation, and a court hearing to review the petition.

(7) Termination of Child Support. Child support shall continue until the child reaches the age of twenty-one (21) years, unless emancipated pursuant to a valid court order. When the child reaches the age of twenty-one (21), the SRMT-CSEU shall file a motion with the Tribal Court to request the termination of any child order.

(g) Payment of Child Support

(1) SRMT-CSEU will be responsible for the receipting, distribution and disbursement of all child support payments pursuant to their IV-D Plan,

(2) After an agreement is reached between the parties or the issuance of an order for child support, SRMT-CSEU, if appropriate, will file a Federal Income Withholding Order/Notice for Support (IWO) (Form # OMB0970-0154) and submit to the employer or other source of income of the payor.

(3) An IWO shall indicate the amounts to withhold and any additional amounts to repay any arrearages pursuant to the terms of the Order. The employer must submit all amounts withheld to SRMT-CSEU no later than five (5) days following the date the income was withheld.

(4) The maximum amounts allowed to be withheld from any source of income shall be no more than fifty percent (50%) of the payor's disposable income available for child support. For the purpose of calculating the amount of income subject to garnishments, Disposable Income means an individual's compensation (including salary, overtime, bonuses, commission, and paid leave) after the deduction of health insurance premiums and any amounts required to be deducted by law. Amounts required to be deducted by law may include federal, state and local taxes, state unemployment and disability taxes, social security taxes, and other garnishments or levies, union dues, but does not include such deductions as voluntary retirement contributions and transportation deductions. This requirement shall be so stated in the court order and any SRMT-CSEU correspondence.

(5) If the Court has not ordered income withholding, the income of the NCP shall become subject to withholding, at the earliest, on the date when the payments which the NCP has failed to make are at least equal to the support payable for one month. In that case, SRMT- CSEU shall issue a Notice of Income Withholding and submit it to the employer or other source of income of the payor.

(6) No employer shall refuse to honor a Notice of Income Withholding or a party's wage withholding request issued under this chapter. If the employer fails to withhold income in accordance with the terms contained in the Notice of Income Withholding, the employer may be held liable for all amounts that should have been withheld from the payor. The SRMT-CSEU has the authority and standing as the Tribal agency with authority to enforce this Tribe's interest in child support, to initiate an action to recoup such amounts. The SRMT-CSEU Standard Operating Procedures will provide detail on when and how this will occur.

(7) An employer may not discharge, refuse to employ or take disciplinary action against an employee because his or her wages have been subjected to withholding for child support. Failure to comply with this section may subject an employer to appropriate penalties as to be determined under SRMT law or custom.

(8) When there is no current child support order and all arrearages have been satisfied, the SRMT-CSEU shall promptly terminate an Income Withholding Order/Notice for Support and provide the employer or other source of income, a termination notice.

(9) Parties will be provided with a detailed account statement, broken down by month, annually and upon request. The SRMT-CSEU will promptly refund amounts which have been improperly withheld.

(10) The SRMT-CSEU shall allocate withheld amounts across multiple withholding orders to ensure that withholding occurs for each case and does not result in any case not being implemented.

(h) Enforcement of Child Support Orders

(1) Should a payor fail to pay his or her support pursuant to the Tribal Court Order, SRMT- CSEU may report the delinquency to credit bureaus and pursue any other enforcement action available under applicable law.

(2) The SRMT-CSEU may take the following enforcement actions by requesting a court order for any or all of the following:

(A) That any tribally issued licenses or permits, or other forms of "permission needed" licenses or permits issued by the Saint Regis Mohawk Tribe from the Tribal Council be suspended or revoked;

(B) That the gaming winnings of the payor be seized;

(D) That the payor attends classes to achieve a high school diploma or equivalent;

(E) That the payor cooperates with SRMT-CSEU and follow any referrals made for services;

(F) That the payor's non-essential personal property be seized and sold to pay off the arrears.

(3) In the event that any of the foregoing does not result in the payor making his/her child support obligations or in the SRMT-CSEU's discretion any other enforcement efforts are futile the SRMT-CSEU may request assistance from other State and Tribal IV-D agencies to take any actions necessary to collect such support. Such actions may include but are not limited to:

(A) Seizure of state and federal tax refunds;

(B) Placement of liens on personal property or real property located off- reservation;

(D) Driver's license and professional license suspension;

(E) Seizure of bank and other financial accounts;

(F) A finding contempt and possible incarceration.

(4) In the enforcement of any child support order, the following shall be exempt from execution as follows:

(A) Supplemental Security Income (SSI); Temporary Assistance for Needy Families (TAN-F);

(B) All wearing apparel of every person in the family except that only $500 in value in furs, jewelry, beadwork and personal ornaments for the person owing the child support obligation;

(D) Equipment, vehicles, tools, instruments and/or other materials determined by the Court to be necessary to enable the payor to obtain income;

(E) Any lands within the SRMT reservation that are used by the payor as a primary residence.