HOUSE FILE 2110

BY  WOLFE

A BILL FOR

An Act relating to suspension of a child support obligation or order and including effective date provisions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  NEW SECTION.  252B.20A  Suspension of support —— request by one parent.
   1.  If the unit is providing child support enforcement services pursuant to this chapter, the parent who is ordered to pay support for a dependent child for whom support has been ordered pursuant to chapter 252A, 252C, or 252F, may request the assistance of the unit in suspending the obligation for support if all of the following conditions exist:
   a.  The child is currently residing with the parent who is ordered to pay support, and has been residing with that parent for more than thirty consecutive days. If the basis for suspension under this paragraph applies to at least one but not all of the children for whom support is ordered, the condition of this paragraph is met only if the support order includes a step change.
   b.  There is no order in effect regarding legal custody, physical care, visitation, or other parenting time for the child.
   c.  It is reasonably expected that the basis for suspension under this section will continue for not less than six months from the date a request for assistance to suspend support is received by the unit.
   d.  The child for whom support is ordered is not receiving public assistance pursuant to chapter 239B or 249A, or a comparable law of a foreign jurisdiction, unless the person against whom support is ordered is considered to be a member of the same household as the child for the purposes of public assistance eligibility.
   e.  The requesting parent has signed a notarized affidavit, provided by the unit, attesting to the existence of the conditions under paragraphs “a” through “d”, has requested suspension of the support order or obligation, and has submitted the affidavit to the unit.
   f.  No prior request for suspension has been served under this section, and no prior request for suspension has been filed with the unit pursuant to section 252B.20, during the two-year period preceding the request.
   g.  Any other criteria established by rule of the department.
   2.  Upon receipt of the application for suspension and properly executed and notarized affidavit, the unit shall review the application and affidavit to determine that the necessary criteria have been met. The unit shall then do one of the following:
   a.  Deny the request and notify the requesting parent in writing that the application is being denied, providing reasons for the denial and notifying the requesting parent of the right to proceed through private counsel. Denial of the application is not subject to contested case proceedings or further review pursuant to chapter 17A.
   b.  Serve a copy of the application, the affidavit, and notice on the nonrequesting parent by any means provided in section 252B.26. The notice to the nonrequesting parent shall include all of the following:
   (1)  Information sufficient to identify the parties and the support order affected.
   (2)  An explanation of the procedure for suspension and reinstatement of support under this section.
   (3)  An explanation of the rights and responsibilities of the nonrequesting parent, including the applicable procedural time frames.
   (4)  A statement that within twenty days of service, the nonrequesting parent must submit a response, in writing, to the unit agreeing to the assertions or objecting to at least one of the assertions included in the requesting parent’s affidavit. The statement shall inform the nonrequesting parent that if, within twenty days of service, the nonrequesting parent fails to submit a response as specified in this subparagraph (4), the unit will prepare and submit an order as provided in subsection 3, paragraph “b”.
   3.  No sooner than thirty days after service on the nonrequesting parent under subsection 2, paragraph “b”, the unit shall do one of the following:
   a.
  If the nonrequesting parent submits a written objection to any assertion included in the requesting parent’s affidavit, deny the request and notify both parents in writing that the application is denied, providing reasons for the denial, and notifying the parents of the right to proceed through private counsel. Denial of the application is not subject to contested case proceedings or further review pursuant to chapter 17A.
   b.  If the nonrequesting parent did not submit a written response to the unit or submitted a response agreeing with all of the assertions included in the requesting parent’s affidavit, approve the request and prepare an order which shall be submitted, along with the affidavit and any response from the nonrequesting parent, to a judge of a district court for approval, suspending the accruing support obligation. If the basis for suspension applies to at least one but not all of the children for whom support is ordered and the support order includes a step change, the unit shall prepare an order suspending the accruing support obligation for each child to whom the basis for suspension applies.
   4.  An order approved by the court for suspension of an accruing support obligation is effective upon the date of filing of the suspension order. 
   5.  An order suspending an accruing support obligation entered by the court pursuant to this section shall be considered a temporary order for the period of six months from the date of filing of the suspension order. However, the six-month period shall not include any time during which an application for reinstatement is pending before the court.
   6.  During the six-month period the unit may request that the court reinstate the accruing support order or obligation if any of the following conditions exist:
   a.  Upon application to the unit by either parent or other person who has physical custody of the child.

   b.  Upon the receipt of public assistance benefits pursuant to chapter 239B or 249A, or a comparable law of a foreign jurisdiction, by the person entitled to receive support and the child on whose behalf support is paid, provided that the person owing the support is not considered to be a member of the same household as the child for the purposes of public assistance eligibility.
   7.  If a condition under subsection 6 exists, the unit may request that the court reinstate an accruing support obligation as follows:
   a.  If the basis for the suspension no longer applies to any of the children for whom an accruing support obligation was suspended, the unit shall request that the court reinstate the accruing support obligations for all of the children.
   b.  If the basis for the suspension continues to apply to at least one but not all of the children for whom an accruing support obligation was suspended and if the support order includes a step change, the unit shall request that the court reinstate the accruing support obligation for each child for whom the basis for the suspension no longer applies.
   8.  Upon filing of an application for reinstatement, service of the application shall be made either in person or by first class mail upon both parents. Within ten days following the date of service, a parent may file a written objection with the clerk of the district court to the entry of an order for reinstatement.
   a.  If no objection is filed, the court may enter an order reinstating the accruing support obligation without additional notice.
   b.  If an objection is filed, the clerk of court shall set the matter for hearing and send notice of the hearing to both parents and the unit.
   9.  The reinstatement is effective as follows:
   a.  For reinstatements initiated under subsection 6, paragraph “a”, the date the notices were served on both parents pursuant to subsection 8.
   b.  For reinstatements initiated under subsection 6, paragraph “b”, the date the child began receiving public assistance benefits during the suspension of the obligation.
   c.  Support which became due during the period of suspension but prior to the reinstatement is waived and not due and owing unless the suspension was made under false pretenses.
   10.  If the order suspending a support obligation has been on file with the court for a period exceeding six months as computed pursuant to subsection 5, the order becomes final by operation of law and terminates the support obligation, and thereafter, a party seeking to establish a support obligation against either party shall bring a new action for support as provided by law.
   11.  This section shall not limit the rights of a parent or the unit to proceed by other means to suspend, terminate, modify, reinstate, or establish support.
   12.  This section does not provide for the suspension or retroactive modification of support obligations which accrued prior to the entry of an order suspending enforcement and collection of support pursuant to this section.
   13.  Nothing in this section shall prohibit or limit the unit or a party entitled to receive support from enforcing and collecting any unpaid or unsatisfied support that accrued prior to the suspension of the accruing obligation.
   14.  For the purposes of chapter 252H regarding the criteria for a review under subchapter II of that chapter or for a cost-of-living alteration under subchapter IV of that chapter, if a support obligation is terminated or reinstated under this section, such termination or reinstatement shall not be considered a modification of the support order.
   15.  As used in this section, unless the context otherwise requires, “step change” means a change designated in a support order specifying the amount of the child support obligation as the number of children entitled to support under the order changes.
    Sec. 2.  Section 252B.20, subsection 1, paragraph d, Code Supplement 2011, is amended to read as follows:
   d.  No prior request for suspension has been filed with the unit
 
under this section and no prior request for suspension has been served by the unit under section 252B.20A during the two-year period preceding the request, unless the request was filed during the two-year period preceding July 1, 2005, the unit denied the request because the suspension did not apply to all children for whom support is ordered, and the parents jointly file a request on or after July 1, 2005.
    Sec. 3.  ADOPTION OF RULES.  Until such time as the department of human services adopts rules pursuant to chapter 17A regarding section 252B.20A, as enacted in this Act, the child support recovery unit may, to the extent appropriate, apply and utilize procedures, rules, and forms substantially similar to those applicable and utilized pursuant to section 252B.20. 
    Sec. 4.  EFFECTIVE DATE.  This Act takes effect January 1, 2013.
EXPLANATION
   This bill provides a process for suspension of a child support obligation or order if the requesting parent meets the following criteria: the child has been residing with the parent ordered to pay support for more than 30 days and is still residing with that parent; there is no order in effect for legal custody, physical care, visitation, or other parenting time for the child; it is reasonably expected that the basis for the suspension will continue for not less than six months; the child is not receiving public assistance unless the requesting parent is considered a member of the same household as the child for public assistance eligibility; the requesting parent attests to meeting the criteria in a signed notarized affidavit submitted to the child support recovery unit (unit); a request has not been made during the two-year period preceding the request; and any other criteria established by the unit. The bill provides the procedure to be followed by the unit upon submission of the request for suspension; provides that a suspension order approved by the court is effective upon the date of filing of the suspension order; provides that the approved suspension order is considered a temporary order for the initial six-month period; provides for reinstatement of the support order if certain conditions are met and the procedure for reinstatement; and provides that a suspension on file with the court for a period exceeding six months becomes final by operation of law, terminates the support obligation, and if a party seeks to establish a subsequent support obligation, the party must bring a new action. The bill provides that the department of human services may use the procedures, rules, and forms substantially similar to those applicable and utilized for the suspension procedure under Code section 252B.20. The bill takes effect January 1, 2013.