In Santa Clara County the child support enforcement program is referred to as the "IV-D program" because Title IV-D of the Social Security Act (42 U.S.C. Section 601 et seq.) requires each state to establish and enforce support orders when public assistance has been expended or, upon request of either parent. California has designated the State Department of Child Support Services as the agency to establish paternity and enforce support orders. In Santa Clara County, prior to July of 2002 the District Attorney's Office, Family Support Division, provided those services, but since that time those responsibilities fall to the new Santa Clara County Department of Child Support Services.
Santa Clara County’s two IV-D courtrooms are located at 99 Notre Dame Avenue in downtown San Jose. Cases are assigned to the two court commissioners by the letters of the last names of the obligors. Names beginning with the letter A-LOO are in Department 94. Last names with LOP-ZZ are in Department 95.
Attorneys from the local child support agency do not represent either parent or the child in the proceeding, but rather act in the public interest. There is no attorney-client relationship with either parent or with the child. Family Code §17406; In re Marriage of Ward, 29 Cal. App. 4th 1452 (1994).
Contested hearings or trials of local child support agency matters are usually short, under fifteen minutes, and the calendars are usually very busy (up to fifteen cases per calendar). The majority of parents are unrepresented, and some fail to appear for the hearings. Santa Clara County Local Rule 3(D) requires a current Income and Expense Declaration or, if applicable, Financial Statement (Simplified), be filed and served by both parties as part of the moving or responding papers if support is at issue. If any party is non-compliant, the court may take whatever action is appropriate, including but not limited to ordering the matter off calendar and/or continuing the matter with conditions.
In any trial or hearing involving financial issues, each party must produce the following documents:
The three most recent pay records showing year-to-date wages, salaries, overtime, commissions, bonuses and withholdings.
Records showing rents, trust income, workers' compensation benefits, unemployment insurance benefits, disability benefits, social security benefits.
The most recent W-2, 1099, and K1 forms
A copy of the most recent signed and filed state and federal income tax returns with schedules.
If self-employed, a current (most recent twelve months) profit and loss statement and balance sheet
When the Department of Child Support Services has filed a Motion for Judgment, to establish paternity and set child support, the defendant has certain rights:
The right to an attorney, including the right to court-appointed counsel for paternity only, if the party cannot afford counsel. Salas v. Cortez, 24 Cal. 3 d 22 (1979). The right to request genetic testing, if paternity is an issue in the case. Family Code §§7550-7557.
The right to present and cross examine witnesses.
The right to testify himself or herself.
The privilege against self-incrimination.
The Child Support Services attorney will often present factors agreed upon by the parties and frame the contested issues for the Court. The parents or their attorneys can supplement those issues as needed. This process often reduces the time required for a hearing by focusing on only the contested issues. Each side is then allowed to produce evidence regarding their positions. The Court Commissioner may ask questions in order to obtain additional information needed to complete the Guideline Calculator input screen and calculate child support.
Child support in a Title IV-D case is calculated under Family Code § 4050 et seq., just as in other Family law actions. Child Support attorneys and IV-D Commissioners are required to obtain ‘guideline’ child support orders. The main factors in determining the amount of child support to be ordered are the percentage of time the minor children spend with the non-custodial parent, and the gross wages of each parent.
The percentage of custodial time will be calculated based on the testimony of the parties, and the Commissioner will use the actual number of hours per year the child(ren) spend with the non-custodial parent, not necessarily the terms of a visitation order. If the non-custodial parent does not appear at the hearing and offer evidence, whatever admissible evidence is available will be utilized to determine the factors.
The gross monthly income of the parents is typically calculated from pay stubs or W-2 forms or tax returns. When those are not provided CSS may utilize other source information, to include statements from employers, Federal Case Registry (FCR) income reporting, or sometimes the testimony of the other parent. Temporary Orders are sometimes made when one or more of the main factors is unknown or subject to change in the near future.
A child support modification may be filed by any party to change the amount of child support, due to a change in circumstances since the last order. Changes in the income of either parent (to include unemployment), an increase or decrease in child care expense, or a change in visitation could be qualifying factors. In support modification proceedings, the modified order can only be made effective beginning the first of the month after the motion or order to show cause was filed with the court (not when a request is made to Department of Child Support Services).
A motion to release driver’s (and other state) licenses can be filed by a party paying child support, seeking a judicial review of the Department of Child Support Services decision not to release the license. Family Code §17520 provides that holds be placed on licenses issued by the state when the obligor is not in compliance with a support order; these licenses include professional, trade, driver's and recreational licenses. If a suspension notice is received, the obligor must first attempt to reach an agreement with the Department of Child Support Services, and if unsuccessful, he or she may file a request for judicial review of the license denial.
Santa Clara County has two Child Support Commissioners whose primary responsibility is to hear Title IV-D support matters pursuant to Family Code §4251. The commissioners are variously referred to as Child Support Commissioners, Title IV-D Commissioners, or AB 1058 Commissioners, after the enabling legislation. A Child Support Commissioner has the same powers as other court commissioners under California law, but is specifically responsible for hearing actions to establish paternity and establish and enforce child support under Family Code §4251(a). Code of Civil Procedure §259.
A Child Support Commissioner shall act as a temporary judge absent an objection from the local child support agency or any other party. A specific notice to this effect is contained on the Judicial Council summons and complaint forms filed by the local child support agency, and will be used in other forms regarding Title IV-D proceedings. The Child Support Commissioner will normally advise the parties prior to the commencement of a hearing that the matter is being heard by a commissioner who shall act as a temporary judge.
If a party objects to the Child Support Commissioner hearing the matter as a temporary judge, the Commissioner will normally still hear the matter and make findings and a recommended order. Within ten (10) court days, a judge shall review and may ratify the recommended order, absent an objection from a party or an error in the recommended order. If there is an objection or an error in the recommended order, the judge shall issue a temporary order and set a de novo hearing within ten (10) court days. Any party may waive his or her right to the review hearing at any time. Family Code §4251(c).