§28.06 Administrative Establishment of Child Support

• Jurisdiction: Washington

§ 28.06 ADMINISTRATIVE ESTABLISHMENT OF CHILD SUPPORT

In Washington, child support may be established administratively by the Division of Child Support (DCS). DCS will establish support at the request of a custodial parent, an obligor, a custodian of the child who is not a parent, or when public assistance or foster care benefits are paid.

[1] Authority

There are two statutes that authorize the administrative establishment of child support, RCW 74.20A.055 and RCW 74.20A.056. The first statute is generally used when the parents are married or the father has signed an acknowledgment of parentage on or after July 1, 1997. The second is used when the father has signed an acknowledgment of parentage before July 1, 1997. WAC 388-14A-3102.

[a] RCW 74.20A.055

Support may be established administratively against a "responsible parent" if there is no order that "establishes" or "specifically relieves" that parent of a support obligation. RCW 74.20A.055. A responsible parent is a "natural parent, adoptive parent, or stepparent of a dependent child or a person who has signed an affidavit acknowledging paternity . . . ." RCW 74.20A.020(7). This statute does not include the father of a child whose paternity needs to be established. Taylor v. Morris, 88 Wn.2d 586, 564 P.2d 795 (1977).

A superior court order is defined in RCW 74.20A.020(5) as "any judgment, decree, or order of the superior court of the state of Washington, or a court of comparable jurisdiction of another state, establishing the existence of a support obligation and ordering payment of a set or determinable amount of support moneys to satisfy the support obligation . . . ."

The determining factor is whether the superior court order establishes "a set or determinable amount of support." An excellent example of this principle is contained in Powers v. Department of Social & Health Services, 32 Wn. App. 310, 317, 648 P.2d 439 (1982).

POWERS V. DEP'T OF SOC. & HEALTH SERVS., 32 Wn. App. 310, 648 P.2d 439 (1982). Mr. Powers was divorced in 1966. The decree awarded the mother custody of the children and ordered Mr. Powers to pay $50 per month per child. In 1970, an agreed order of modification was entered that granted the father custody of the children. The modification was silent as to child support. Subsequently, the mother took custody of the children and began to receive welfare. Held: DCS could not set support administratively because the modification order did not cancel the father's support obligation originally set forth in the divorce decree. Therefore, he was liable in the amount of $50 per month per child after the mother resumed custody of the child.

The modification order in Powers was "silent" because it did not order a set or determinable amount of support to be paid. The original decree, however, was not silent. A decree that orders an obligor to pay "no child support" or "x dollars of child support" is not "silent" and is enforced according to its terms. However, if a decree does not expressly state the obligation or the obligation can only be implied, the decree is "silent," and DCS can establish support administratively. A separation contract setting support does not bar the administrative establishment of support.

In Barson v. Department of Social & Health Services, 58 Wn. App. 616, 794 P.2d 538, review denied, 115 Wn.2d 1029 (1990), DCS sought to administratively establish support against Mr. Barson. Mr. Barson objected, arguing that he was not liable for support because the child support provision in his decree of dissolution was crossed out. The court held that the order was silent and that DCS could set support administratively. Id. at 619 n.2.

In Robinette v. Harsin, 136 Wn. App. 67, 147 P.3d 638 (2006), the support order stated that the father of the unborn child was "unknown." The court held that the order did not specifically relieve the presumed father of the obligation to pay support and upheld the administrative establishment of support.

In a juvenile dependency proceeding placing a child in foster care, a shelter care order that does not mention child support is silent, and DCS may set a support obligation administratively pursuant to RCW 74.20A.055. Cole v. Dep't of Soc. & Health Servs., 54 Wn. App. 342, 345-46, 773 P.2d 866 (1989).

The absence of a superior court order is not a jurisdictional prerequisite to DCS's authority to act administratively. The existence of a superior court order bars the administrative establishment of support only if the existence of the court order is affirmatively and successfully raised in the administrative hearing or on direct appeal. In re Marriage of Aldrich, 72 Wn. App. 132, 864 P.2d 388 (1993).

There are four general situations under RCW 74.20A.055 in which DCS establishes support administratively. The first is before or during a dissolution action when neither party has obtained a court order for support. Dep't of Soc. & Health Servs. v. Handy, 62 Wn. App. 105, 813 P.2d 610 (1991). The second is when a superior court order addresses a specific period of time, and support may be due for an earlier or later period of time. Id. See § 28.06[10], below. The third situation is when a court order deals with support only in one residential situation. For example, a divorce decree may state: "It is ordered that the child shall reside with his father and the mother shall pay no child support." This order is not silent when the child resides with the father. However, the order is silent if the child resides with the mother because it does not order the father to pay a set or determinable amount of support. DCS can set support administratively in this situation. Brown v. Dep't of Soc. & Health Servs., 136 Wn. App. 895, 151 P.3d 235 (2007).

The fourth situation is when a parentage acknowledgment was signed on or after July 1, 1997, and...