WELFARE REFORM ISN’T JUST FOR WOMEN AND CHILDREN ANYMORE

This pamphlet was prepared by Stephanie A. González, Supervising Attorney and Michele Marie Borbe, Staff Attorney, both of the Family Law Unit at Philadelphia Legal Assistance. This material may not be reprinted, adapted, altered or used without the permission of the authors. © 1998.

House Bill No. 1412 amends Title 23 of the Pennsylvania Code in large part, although not solely, due to welfare reform agendas and federal requirements. It was passed into law on December 16, 1997, and went into effect on January 28, 1998. While the bill addresses issues of child custody, domestic violence, and alimony, it primarily amends the child support portion of the statute. The bill grants the Department of Public Welfare (hereinafter the Department) and the Domestic Relations Section the power to reach deeper into the pockets of support defendants, and impose harsher penalties when they come up empty-handed.

While few would argue with the premise that parents should financially support their children, most of us would agree that it is difficult for poor couples, and next to impossible for single parents, to do so without struggling. Low income men will most deeply be effected by HB 1412. The bill aims to force "deadbeat" parents to own up to the responsibility of supporting their children, yet affords few safeguards for those who cannot afford to pay more support and still maintain a minimum standard of living.

This information is meant to be a summary only of some of the major provisions which will significantly impact low income clients. Note that the bill not only implicates Family Law, but also Public Benefits, Housing, Employment, and Consumer Law. As this is a new law, it will be important to monitor how it is implemented to gauge the actual effect on our clients.

# STANDING TO SEEK SUPPORT §4341 Caretakers no longer need a custody order of a child in order to seek support for that child. This overturns a PA case (Larson v. Diveglia, 700 A.2d 931, PA 1997) which prevented those without custody from seeking support.

This could be a mixed blessing. On the one hand, we do not want children to miss out on financial support while a non-parent caretaker waits for months to get a custody order. However, we also do not want just anyone to have the power to file support complaints, i.e. someone who is temporarily caring for a child. Although caretakers in Philadelphia have often been able to do this without a custody order, now it is statutorily authorized.

# EVIDENCE & SERVICE IN SUPPORT CASES §4342 Evidence rules are relaxed regarding hearsay and best evidence by allowing copies of bills to be admissible, testimony by phone, faxes of documents rather than originals, etc.. We suspect that this section will particularly impact interstate cases.

§4353 Service rules are relaxed for enforcement proceedings. Parties have had a duty to advise the court of any change of employment or address once a support order is established. Now parties also have a duty to provide and update location information, which includes Social Security number, residential and mailing addresses, telephone number, driver’s license number and name, and address and telephone number of employer. In light of this responsibility, mail service to the last home or employer address the court has shall be deemed proper service comporting with due process requirements for notice. However, this mail service to the last address can only be made upon sufficient showing that due diligence by the court or DPW has been made to ascertain the location of a party. One can only begin to imagine the constitutional issues which will arise from this section.

# PUTATIVE FATHERS & PATERNITY §4343 Throughout the country, most states have had a presumption that the husband was always the father of a child born to a married woman, and "the other man" was barred from establishing paternity. Over time this has been relaxed, particularly in separation situations. Now the language of the statute implies that a marital presumption of paternity may be a thing of the past in Pennsylvania: "A putative father may not be prohibited from initiating a civil action to establish paternity." While this may indeed just deal with filing, it seems to say something about the presumption by making it clear that a putative father can initiate an action to establish himself as the father and does not have to wait to be sued.

Temporary orders for support also may now be issued pending a final hearing on paternity if the genetic tests indicate that the man is the father . (Despite popular belief, positive genetic testing did not and still does not automatically determine the outcome of a paternity case.) One can also read the statute to say that a temporary order can be entered prior to genetic testing, but it is doubtful that the court would enter such an order. This is good for mothers since a paternity hearing can take months. However, if the court ultimately determines that the man is not the paternally responsible party (i.e. based on estoppel, faulty testing, etc.), it remains unclear how the man will get his money back from the mother or the Department.

§5103 Paternity can be acknowledged in hospitals. However, the hospital or other person accepting the acknowledgment must provide written or oral notice to both the mother and father of the alternatives to, the legal consequences of , and the rights and responsibilities arising from signing the acknowledgment. (Acknowledgments must include the consent of the birth mother.) A signed acknowledgment shall be conclusive evidence of paternity "without further judicial ratification" in a support action and full faith and credit must be given to those signed in other states. Acknowledgment in hospitals may negatively affect victims of domestic violence, who are often unprepared to have contact with and acknowledge their abusers as the fathers of their children.

Recission of a signed, voluntary acknowledgment of paternity is possible if done within 60 days of signing or by the date of a judicial proceeding relating to the child (not necessarily a support proceeding), whichever is earlier. After 60 days, a signed acknowledgment can only be challenged in court on the basis of fraud, duress or material mistake of fact, which must be established by clear and convincing evidence.

# ATTORNEY’S FEES & INTEREST & PENALTIES - §4302 In Philadelphia, Orders of Support have for a long time included health coverage, arrears and income withholding. However, this has not necessarily been the case in other parts of Pennsylvania. Thus, the statute has added language which specifically authorizes these provisions. Other things which are also now authorized are the following: "... related costs and fees, interest and penalties, . . . attorney’s fees and other relief." It is unclear how this provision will be used or how vigorously it will be pursued in Philadelphia. Will the District Attorney’s Office which represents the Department pursue attorney’s fees? What are "related costs and fees"? To whom will penalties go? How high will they be?

§4351 Prevailing parties in paternity cases may also seek attorney fees which will be paid directly to the attorney. Payment of support owed shall take priority over payment of these fees and costs.

# PERSONAL, EMPLOYEE & FINANCIAL INFORMATION §4303.1 Previously government agencies were statutorily required to provide personal information about employees to the Department. Now non-government agencies, i.e. all employers, are also required to cooperate with the Department. This information includes wages, income, telephone numbers, addresses, Social Security numbers, date of birth and employer’s name, address and telephone number. Social Security numbers are now also required to be on any application for a professional or occupational license, permits, driver’s licenses, recreational licenses, marriage licenses, divorce decrees and death records. For employers there is a "New Hire Reporting" requirement effective 1/1/98. An employer who fails to submit an employee’s information is subject to a written warning, and $25.00 for each subsequent violation.

Financial institutions, at the request of the Department or the Court, must provide quarterly reports containing identifying information, asset information and benefit information for any support obligor who owes past due support. Financial institutions are also specifically not required to give the obligor notice of the request. Financial institutions also have an obligation to cooperate with enforcing new child support property liens, which will be discussed later.

There is a penalty for non-cooperation by government agencies, labor organizations and financial institutions of up to $1000 per violation. Non-government agencies are not included in the penalty section, but this was probably just an oversight which we suspect will be corrected eventually. Government agencies, labor organizations and financial institutions are also granted immunity from prosecution for divulging this information. Non-governmental agencies are not immune,but again we suspect this is an oversight.

Obviously this raises numerous privacy concerns. The statute specifies that all of this information must remain confidential and can only be used for the purposes of support enforcement. Nevertheless, having all of this information collected and available to the Court or the Department makes it susceptible to accidental distribution. Many people will not want the Department to have such information at all. Additionally, allowing only the Department to be privy to some of this confidential information places those low income obligees not on welfare at a disadvantage. If an obligee does not receive cash assistance, her attorney does not have the power to receive the same personal, employment, and financial information as the Department without conducting discovery. Some may argue that those not receiving cash assistance can afford to conduct discovery, but those of us who represent low income and working class clients know otherwise.

General Privacy Protection §4305 & §4352 The Domestic Relations branch of the Court is charged with implementing safeguards to protect all of the confidential information which it receives regarding paternity, support or custody. This duty of privacy protection specifically applies regarding the whereabouts of a party where one party has a protection order against another party, or where the Domestic Relations Section has reason to believe that the release of information may result in physical or emotional harm to the party or child.

Although Philadelphia’s Family Court makes efforts to keep addresses confidential, battered women should know that the information sheets which the court requires to file a custody or support action are kept in the general court file which attorneys can usually access. The file may be marked "confidential address" at some point, but the Prothonotary’s office does not redact the files before attorneys review them. Although the Court makes a good effort to keep information confidential, there are confidentiality gaps.

# DEFINITION OF INCOME - §4302 Additional forms of income have been added to the definition of income for purposes of collecting child support. The following have been included: "lottery winnings; income tax refunds; insurance compensation or settlements; awards or verdicts; and any form of payment due to and collectible by an individual regardless of source." [This codifies Darby v. Darby, 686 A.2d 1346 (Pa. Super 1996) which deals with a personal injury award.] Many consumer issues will likely arise regarding forms of payment due.

# MEDICAL EXPENSES §4326 The court was already mandated to ascertain the ability of each parent to provide health care coverage. However, now a support order shall provide health care coverage for each child "as appropriate". It remains unclear what is meant by "as appropriate".

There is also a new uninsured expenses provision. It has always been the case that a party could seek to recover birth-related expenses incurred prior to the filing of a support complaint. However, now this can include birth-related expenses incurred by DPW in cases referred by the Department to the Domestic Relations Section for child support services. Birth related expenses are those incurred before, during or after the birth of the child. Thus, fathers will be reimbursing the state for both cash assistance and medical assistance related to births. This provision is actually an information section (i.e. "upon request from the domestic relations section the Department shall provide information about these expenses") but we strongly suspect that the intent is to provide a mechanism for DPW reimbursement.

This provision will likely add a lot of arrears to obligors’ accounts. Also, arrears to the Department are paid before arrears owed to the obligee, so this money to Mom will be delayed and Dad will have a lot of debt. If the parties were together and the child or mother qualified for medical assistance, the father would not have to reimburse the Department, but now if they are separated he must. Furthermore, there is no indication that this reimbursement will be based on ability to pay. Most likely, it will be a lump sum debt.

# ENFORCEMENT & DISCOVERY POWER OF THE COURT §4305 The court has already wielded numerous powers, but they are now greatly expanded. Furthermore, these powers can be exercised by the Domestic Relations Section without the need for a prior judicial order. The Court now has the power to:

# order paternity testing

# issue subpoenas against any entity within PA to require production of employment, compensation and benefit information

# access records of all State and local governments and some private agencies including records of:

# vital statistics (marriage, birth, divorce)

# State and local tax and revenue

# real and titled personal property

# occupational and professional licenses

# incorporation and partnerships

# employment security

# agencies administering public assistance programs

# motor vehicle registration and operator licensing

# probation and parole

# corrections

# public utilities and cable television

# financial institutions

# issue subpoenas for financial or other necessary information

# issue orders directing an obligor or other payor to change the payee

# increase an order for payment of arrearages

# intercept or seize periodic or lump sum payments from a government agency, including unemployment compensation, worker’s compensation and other benefits

# where there are arrears intercept or seize judgments or settlements

# where there are arrears attach and seize assets of the obligor held in financial institutions

# where there are arrears attach public and private retirement funds

# where there are arrears impose liens on property

# where there are arrears direct the sheriff to levy and sell other real and personal property

# transmit requests to other states and respond to requests from other states for assistance

There is a $1,000 administrative penalty per violation for any person or entity which fails to comply with a subpoena or request for information. The Supreme Court must establish due process and judicial review procedures for Domestic Relations Sections exercising powers under this section. These are pretty substantial powers, especially regarding the interception and seizure of assets.

# PROPERTY LIENS Several sections are involved here, including those mentioned above and §4352. Although prior law stated that each support payment which was not paid became a judgment by operation of law against the obligor on or after the date it was due, the modifications make getting property liens much easier and more expansive. First, liens can be against real or personal property. Second, financial institutions have to cooperate in encumbering or seizing property after receiving a lien notice from the Domestic Relations Section or the Department. Third, once the Department establishes procedures for publication of liens, the lien becomes a lien against all property owned by the obligor in PA, and has the effect of a fully perfected security interest. The Supreme Court shall also establish a system to enforce these liens. This section eradicates the requirement of reducing support to a judgment before getting a lien for past support, and seemingly the requirements of notice and other due process protections to the property owner. Instead, the Court may now exercise its powers via an administrative order. It will be very important to watch these developments.

# WORK ACTIVITIES §4352 The Department’s work activities are no longer just for TANF recipients. Now, if the obligor owes overdue support to any child receiving cash or medical benefits (why not all kids?) the court may, by motion of the Domestic Relations Section or the Department (why not Mom?) order that the support be paid in accordance with a plan for the obligor to participate in work activities approved by the Department. These activities include:

# subsidized or unsubsidized public or private sector employment

# work experience programs

# work training programs

# community service programs

# job search requirements

# job readiness programs

# education directly related to employment

# attendance at a secondary school

# study leading to a GED

While this provision may force those men claiming the inability to pay or working under the table to come clean when ordered to attend job training, there are enough truly unemployed men out there to clog up an otherwise overburdened system. The work activities program already has lots of problems, and adding all those men into the system will no doubt cause more problems. Including these men in the program also may negatively affect women. Based on what we know about job discrimination, men may be more likely to get the jobs before the women in the program. Additionally, it is unclear whether the Department will monitor enrollment closely enough to protect battered women from attending the same activities as their abusers.

# ATTACHMENT OF INCOME §4348 The court has had the ability to order a wage attachment even if the parties agreed otherwise. Now attachment also shall occur "without amendment to the order and, if arrearages occur, without the need for a judicial or administrative hearing." So, the Bureau of Accounts can just attach income administratively whenever arrearages occur. The obligor does have a right to notice but not necessarily before attachment occurs. Notice can be within 10 days after the issuance of the attachment. Employers are immune from liability for carrying out an attachment, but there is a $1000 penalty for willfully failing to comply. Support attachments take first priority over any other attachment. Priority among multiple support attachments will be determined pursuant to rules promulgated by the Supreme Court.

DRIVING PRIVILEGES & CUSTODY & SUPPORT §4346 In the past, the punishment for willfully failing to comply with a custody or visitation order was imprisonment for up to six months, a maximum fine of $500, and/or probation for up to six months. However, now you can also lose your driving privileges.

§4355 discusses in detail what can happen to driving privileges in both custody and support proceedings. Privileges can be revoked in the support context not just because you owe support (three months worth), but if you fail to comply with subpoenas or warrants relating to paternity or support proceedings. The section has also been amended to say that driving privileges can be suspended not just for the obligor, but for any "other individual". Does this mean that if a mother receiving welfare does not appear at a hearing that she will also lose her license, in addition to part of her welfare grant for non-cooperation? Does this mean that the employer or the custodian of records at a Bank could lose his or her license for not complying with a subpoena for information? There is also no right of appeal in this matter to the Department of Transportation, but rather only to Family Court. Fortunately, insurance companies are prohibited from increasing premiums for a license suspension based on this section.

# OTHER LICENSES §4355 The Supreme Court is ordered to develop a procedure to bring disciplinary proceedings against attorneys or not renew their licenses for failure to pay past due support. There is also a huge section about how one can lose his recreational licenses. Obligors can lose their hunting, fishing and other recreational licenses issued by the PA Game Commission and the PA Fish and Boat Commission. While this will not be such a hot topic in Philadelphia, this section has caused a huge uproar in the rest of the State.

# MODIFICATION §4352 A petition for modification may be filed at any time and shall be granted if the requesting party demonstrates a substantial change in circumstances. However, automatic review of support orders by the court at least once every three years should be conducted, and an order may be modified without applying the substantial changes standard. Automatic review is not required if it is not in the best interest of the child and neither the parent nor the Department requests a review. This will cause problems for battered women, who may not request a review, but the Department might.

Under this section there will also be "automated adjustments" for cost of living changes at least once every three years based on wage or State income tax data. In other words, apparently the computers will just automatically increase support orders based on cost of living data without any action pending and without considering the support guidelines. If there is an automated adjustment, the Domestic Relations Section must send out a notice to the obligor so that the obligor can request an individual review of his case by applying the support guidelines. However, this notice merely has to occur within 30 days after the adjustment.

# SPOUSAL SUPPORT - §3702 In most Pennsylvania counties, spousal support has generally been much easier to obtain than alimony -- in part because it is easier for pro se parties to petition for spousal support than alimony, and in part because the court did not have to follow a statutory list of factors in determining whether an award of spousal support would be made. This section has now been amended to state that the 17 alimony factors of §3701 must now be considered when issuing spousal support awards. This will particularly impact low income and abused women in Philadelphia who up until now have had a relatively easy time getting some spousal support.

# PASS THROUGH & TITLE IV-D There is a new Subchapter E, which incorporates all of the support sections of the Public Welfare Code and IV-D. This is too complicated to discuss at length here. However, note that Support Pass-Through payments to DPW recipients are authorized.

# UIFSA & FOREIGN ORDERS, ETC. §7207 - §7614. These sections have been amended to deal with interstate support. The new system is called the Uniform Interstate Family Support Act. The amendments deal with what order controls when there is more than one support order, the facilitation of the transmission of information between states, how employers should treat attachments from other states, etc.. We recommend reading UIFSA in its entirety if you are interested in exploring the interstate issue further.

# MARITAL MISCONDUCT - §3701(b) For purposes of awarding alimony, courts have always been able to consider marital misconduct during the marriage. The provision has been amended to specify that "the abuse of one party by the other party" is included in the definition of marital misconduct. [This section was also amended to say that marital misconduct after final separation could also be considered. However, this was later discovered to be a mistake and the statute is in the process of being amended to take this out.]

# CUSTODY §5303 When determining custody, partial custody or visitation the court is now required to consider the preference of the child. The child’s preference has always been a factor in the caselaw, depending upon the age and maturity of the child. The amended statute does not mention anything about the age or maturity of the child. Fortunately, the child’s preference is not the only factor.

A paragraph was added to say that no parent convicted of first degree murder of the child’s other parent may not receive custody or visitation of the child unless the child is of suitable age and consents to custody or visitation. The statute fails to clarify what age is suitable.

# DOMESTIC VIOLENCE §6107 Defendants must be given notice that the entry of a protection order can effect other domestic relations proceedings. This will probably result in far fewer agreements for protection orders. Pro se victims will have a difficult time conducting hearings and getting protection. Under §6108 Defendants can be ordered to relinquish firearm licenses, as well as the firearm. Previously it was just the firearm.