Orginally published in the Family Law Section’s Spring 2022 Commentator
by Temi Zeitenberg, Esquire
“My Ex put me on child support”. How many times have we heard this phrase from potential clients? Or you are in court and a litigant complains to the Judge that they were put on child support? But what does that really mean? Can your potential client be put on child support? The answer of course is: Kind of.
In Florida, there are two ways for child support to be established. First, is through Florida Department of Revenue’s administrative establishment of child support. Second, is through filing the appropriate petition in the circuit court. This article will focus on the administrative establishment of child support through Florida Department of Revenue’s administrative process.[i] It is important to note that the administrative establishment of child support pursuant to Fla. Stat. § 409.2563 does not include or involve the establishment of paternity (as an administrative establishment of paternity would be pursuant to Fla. Stat. § 409.256) and for males, presumes the prior establishment of paternity.[ii]
The Florida Department of Revenue (“DOR”) is authorized to administratively establish child support obligations in a quasi-judicial process.[iii] It does not supplant or replace the traditional judicial process but provides an alternative procedure when there is not a circuit court child support order already in effect. Chapter 12E-1 of the Florida Administrative Code Rules sets forth the rules by which DOR must govern itself. Specifically, Chapter 12E-1.030 governs the administrative establishment of child support obligations when paternity has been established.
SCENARIO ONE: Potential client (father) walks into your office and says: “My Ex put me on child support, but I give her money and always take care of my kid.” The potential client goes on to say that the mother of his child is “on welfare”. The salient issue in this scenario is the mother is receiving public assistance on behalf of the child. The mother in these facts would be an “assistance client” under informal DOR terminology. Any parent who receives public assistance from the state, such as food stamps, monthly cash assistance, or Medicaid for the child subrogates their rights to collecting child support to DOR by operation of law.[iv] The “Petitioner” or “Petitioning Parent” is defined as the parent or caregiver with whom the child resides.[v] The Petitioner applying for public assistance must report that the other parent is not financially supporting the child and not living in the same household. Once the Petitioner receives certain state public assistance benefits on behalf of the child, DOR then begins to initiate an administrative action to collect money from the non-recipient parent.[vi] “Respondent” means the parent from whom the Department is seeking support.[vii]
So, to answer your potential client’s question: Yes, a father can be put on child support in this scenario. But it is not exactly your ex doing it, rather a government agency (DOR) is establishing a child support obligation for the potential client because the mother of the child is getting some form of public assistance from another government agency (Department of Children and Families “DCF”).
SCENARIO TWO: Potential client (father) walks into your office and says: “My Ex threw me out of the house and now she put me on child support. She doesn’t deserve a dime.” In this scenario, the mother is not receiving any public assistance. The mother in these facts would be a “non-assistance client” under informal DOR terminology. A parent can apply with DOR to collect child support from the other parent, irrespective of their financial circumstances.[viii] There is no requirement that the Petitioner be indigent or low income to start a child support case. Per statute, support services provided by DOR shall be made available on behalf of all dependent children.[ix] This scenario most commonly occurs when parents were living together in one household and split up. The parent who has the child all, or a majority of the time, seeks DOR’s assistance in establishing and collecting child support from the parent who left the home.
So, to answer your potential client’s question: Yes, a father can be put on child support in this scenario. The potential client can have a child support obligation established if the mother applies with DOR to establish, enforce, collect and/or disburse child support.
START OF THE ADMINISTRATIVE PROCESS
How did your potential client know there was a child support case in the works? DOR starts an administrative support proceeding by issuing a Notice of Proceeding to Establish Administrative Support Order (“Initial Notice”).[x] DOR serves the Initial Notice by regular mail, certified mail, restricted delivery, return receipt requested, or by any other means of service that meet the requirements for service of process in a civil action. Service by certified mail is completed when the mail is received or refused by the addressee or by an authorized agent.[xi] However, if a person other than the Respondent signs the return receipt, DOR must attempt to reach the Respondent via telephone to confirm if the Initial Notice was received and shall document the telephonic communications.[xii] If the signature on the certified mail receipt is illegible, DOR can confirm it is the Respondent’s signature by comparing it to another source such as Department of Highway Safety and Motor Vehicles DAVID database, or DOR confirms with the Respondent by telephone or in-person that the Respondent received the Initial Notice.[xiii] Lastly, if DOR does not receive confirmation of receipt, but the Respondent returns the financial affidavit or other information in response to the Initial Notice, then DOR considers that service is complete because the Respondent submitted something in writing.[xiv]
HOW TO AVOID THE ADMINISTRATIVE PROCESS
Potential client goes on to show you the Notice of Proceeding to Establish Administrative Support Order he received a week ago. Potential client says “Help, I do not want to deal with DOR. Can you stop this?” The answer is, yes, but the potential client must move quickly. The potential client can stop the administrative proceeding and opt out if they comply with specific timely requirements outlined herein.
Opt Out Option One: Within the 20-day time frame from receipt of the Initial Notice, the Respondent files a support action in circuit court and provides DOR with a copy of the petition.[xv] The administrative process is then terminated when DOR receives from the Respondent a petition filed in circuit court.[xvi]
Opt Out Option Two: The Respondent can ask DOR to proceed in circuit court. While this seems like it should be simple, it is quite complicated, and requires multiple actions. Within the 20-day time frame from receipt of the Initial Notice, the Respondent must request in writing that DOR proceed in circuit court or request in writing the Respondent’s intent to address issues concerning time-sharing or parental responsibility in circuit court. Oral requests are not accepted.[xvii] The written request must be sent to DOR and not the Clerk of Court.
If timely received, DOR will proceed with opening a new case in the circuit court. DOR will send to the Respondent by certified mail, with return receipt, a docketed copy of its Petition for Support and Waiver of Service of Process form. Within ten (10) days from receipt of the Petition for Support and Waiver of Service of Process, the Respondent must sign and return the Waiver of Service of Process form to DOR. If the Respondent timely completes and returns the Waiver of Service of Process form within ten (10) days, DOR will then end the administrative proceeding and proceed in circuit court.[xviii]
However, if the Respondent does timely opt out by requesting circuit court action, or the Respondent does not timely return the Waiver of Service of Process form, the opt out is voided, and the administrative support action will continue.[xix] The Department will file a voluntary dismissal of the circuit court case with the clerk of court and mail a copy of the voluntary dismissal to the Respondent.[xx]
Practice tip: Once the 20 day opt out window has expired, there are only two ways to terminate the administrative proceedings: (1) prior to the entry of the Administrative Support Order, obtain a circuit court order awarding some form of child support, whether temporary or permanent; or (2) convince DOR to terminate the process and dismiss the administrative support proceeding. Only DOR is authorized to end the administrative child support proceeding and close the case or proceed judicially at any time before the entry of a Final Administrative Support Order.[xxi]
HOW AN ADMINISTRATIVE ORDER IS RENDERED
After explaining to the potential client his options, he leaves your office to try and scrounge up money for a retainer. In the meantime, the potential client does nothing in response to the Initial Notice.
If the Respondent does not comply timely with the opt out options, DOR will calculate the child support obligation pursuant to child support guidelines in accordance with Fla. Stat. § 61.30.[xxii] DOR will prepare a Proposed Administrative Support Order which establishes the terms of the support obligation.[xxiii] The Proposed Administrative Support Order is then mailed to the Respondent by regular mail, along with a notice of rights informing the Respondent of: (1) the right to an informal discussion with the DOR; (2) the right to a formal administrative hearing; and (3) the right to consent to the entry of an Administrative Support Order. Copies of the child support guidelines worksheet prepared by DOR and the financial affidavit submitted by the other parent are mailed with the Proposed Administrative Support Order.[xxiv]
If the Respondent does not timely request a formal administrative hearing, the Respondent will be deemed to have waived the right to request a hearing.[xxv]
If the Respondent waives the right to a hearing or consents in writing to the entry of an order without a hearing, DOR may render a Final Administrative Support Order.[xxvi]
Potential client returns to your office with the retainer payment a month later. This time, the potential client hands you a Proposed Administrative Support Order he received twelve (12) days ago. “Now what can I do?” he asks. “I am not paying her $1,200 a month! She makes more than minimum wage.” While it may seem tempting to run to the courthouse and file a petition in the circuit court to end the administrative process, just filing an action in circuit court will not terminate the administrative support case.[xxvii] That ship sailed a long time ago.
The last option at this point is to challenge the Proposed Administrative Support Order at an administrative hearing before the Division of Administrative Hearings (“DOAH”). An Administrative Law Judge (“ALJ”) employed with DOAH presides over an administrative hearing. To request an administrative hearing, the Respondent must submit a written request to DOR’s Deputy Agency Clerk at the address provided in the Proposed Administrative Support Order within 20 days of the mailing date.[xxviii] If the request is timely made and received by the Deputy Agency Clerk, DOR will send the Respondent an Acknowledgement of Hearing Request Administrative Proceeding. The ALJ will send the Respondent a notice of the date, time, and location of when and where the administrative hearing will occur.
If an administrative hearing is held, following the hearing the ALJ must issue either (1) a Final Administrative Support Order; or (2) a Final Order Denying An Administrative Support Order.[xxix] A Final Administrative Support Order has the same force and effect as a court order and may be enforced by any circuit court in the same manner as a support order issued by the court, except for contempt.[xxx] DOAH then transmits the order to DOR for filing and rendition. In addition to the Final Administrative Support Order, DOR enters an Income Deduction Order. The Respondent is responsible for making the ordered payments to the State Disbursement Unit until the income deduction begins.
In conclusion, navigating the waters of the DOR administrative process is no easy feat. There is an interplay of regulations, statutes, administrative codes, and rules of court. If a potential client seeks your representation in an administrative support case, it is important to determine what stage of the process the potential client is in, what options remain for the client to avoid the administrative process, and to move quickly, as time is of the essence.
Temi Zeitenberg, Esq. is the founder and owner of DivorceSmartEsq., PLLC, located in Palm Beach County providing full-time Mediation services. In addition, Ms. Zeitenberg accepts appointments as a Special Magistrate and Guardian Ad Litem. Prior to becoming a full-time Mediator, Ms. Zeitenberg was appointed as a General Magistrate with the Fifteenth Judicial Circuit in Palm Beach County assigned to the family and mental health divisions. Ms. Zeitenberg is serving her second term as Treasurer of the Susan Greenberg Family Law American Inn of Court of the Palm Beaches, is a member of the Family Law Section of the Florida Bar, DOR/Administrative Support Issues Sub-Committee, Palm Beach County Bar Association, South Palm Beach County Bar Association, and an allied professional of the South Palm Beach County Collaborative Law Group.
To schedule a mediation with Temi, click here!
[i] Many times, folks will refer to child support cases as “Title IV-D” matters. Briefly, Title IV-D is a section of federal law entitled, “Grants to States for Aid and Services to Needy Families with Children and for Child-Welfare Services.” Title IV-D is part of the Social Security Act and mandates, among other things, that every state have a system to collect and enforce child support. 42 USC §§ 651, et. Seq.
[ii] Where paternity has already been established by affidavit, a birth certificate, or a prior judicial proceeding, the father is not a “putative father” and DOR, the mother, or the child do not bear the burden of proving paternity in seeking to administratively establish a child support obligation. Fernandez v. Department of Revenue, Child Support, 971 So. 2d 875, 878 (Fla. 3d DCA 2007).
[iii] Fla. Stat. § 409.2563.
[iv] Fla. Stat. § 409.2561(2)(a) and Fla. Stat. § 414.095 (2021); See F.A.C. 12E-1.039(1)(a), “Public assistance recipient” means a person receiving temporary cash assistance under Fla. Stat. § 414.095, Medicaid under Fla. Stat. § 409.963, or food assistance under Fla. Stat. § 414.31.
[v] F.A.C 12E-1.030(2)(i)
[vi] See F.A.C. 12E-1.039(3)(b), a public assistance recipient receiving temporary cash assistance or food assistance does not need to apply for services. A case is created automatically upon receipt of a referral from the Florida Department of Children and Families. F.A.C. 12E-1.039(3)(c), a public assistance recipient receiving only Medicaid benefits must apply for services. A case is not automatically created.
[vii] F.A.C. 12E-1.030(2)(k)
[viii] F.A.C. 12E-1.039(4)(a), to apply for services, an individual who does not receive temporary cash assistance or food assistance must submit a signed and complete electronic or paper application.
[ix] Fla. Stat. § 409.2567(1)(a).
[x] F.A.C. 12E-1.030(5)(a)
[xi] Fla. Stat. § 409.2563(4).
[xii] F.A.C. 12E-1.030(5)(b)1.
[xiii] F.A.C. 12E-1.030(5)(b)2.
[xiv] F.A.C. 12E-1.030(5)(b)3.
[xv] F.A.C. 12E-1.030(7)(a)
[xvi] Johnson v. State, 200 So. 3d 802 (Fla. 1st DCA 2016);Fla. Stat. § 409.2563(4)(o) and Fla. R. Gen. Prac. & Jud. Admin. 2.516(b)(1)(C) and that the same is complete upon mailing per Fla. R. Gen. Prac. & Jud. Admin. 2.516(b)(2). Formal service of process upon DOR is not required.
[xvii] F.A.C. 12E-1.030(7)(b).
[xviii] F.A.C. 12E-1.030(7)(c).
[xix] State, Dept. of Revenue v. Manasala, 982 So. 2d 1257 (Fla. 1st DCA 2008).
[xx] F.A.C. 12E-1.030(7)(c).
[xxi] F.A.C. 12E-1.030(15), (16).
[xxii] Fla. Stat. § 409.2563(5)(a).
[xxiii] F.A.C. 12E-1.030(8)
[xxiv] F.A.C. 12E-1.030(8)(c); Fla. Stat. § 409.2563(5)(c).
[xxv] Fla. Stat. § 409.2563(7)(b).
[xxvi] Fla. Stat. § 409.2563(7)(c), which may also include a parenting time plan or Title IV-D Standard Parenting Time Plan agreed to and signed by both parents.
[xxvii] See Flat. Stat. § 409.2563(a). Had the Legislature intended to terminate DOAH’s jurisdiction upon the filing of a circuit court action relating to child support, it could have said so.” Dep’t of Rev. v. Graczyk, 206 So. 3d 157, 161 (Fla. 1st DCA 2016).
[xxviii] Fla. Stat. § 409.2563(5)(c)(1), Fla. Stat. § 409.2563(5)(c)(2) and Fla. Stat. § 409.2563(6), and F.A.C. 12E-1.030(9).
[xxix] Fla. Stat. § 409.2563(7)(a).
[xxx] Fla. Stat. § 409.2563(10)(b).
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