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Giving Hope and Support to America's Children |
Role of IV-D Agency and Its Staff in Delivering Program Services
TO:ALL STATE AGENCIES ADMINISTERING CHILD SUPPORT ENFORCEMENT PLANS APPROVED UNDER TITLE IV-D OF THE SOCIAL SECURITY ACT AND OTHER INTERESTED INDIVIDUALS.
SUBJECT:THE ROLE OF THE IV-D AGENCY AND ITS STAFF IN DELIVERING PROGRAM SERVICES
BACKGROUND:Attached is a document which examines the role of the IV-D agency and its attorneys vis-a-vis the public it serves. It incorporates an appendix of State statutory material which provides examples of the various ways in which States have chosen to address representation. Also included are a formal opinion by one State's court/bar advisory committee examining related issues in the context of review and adjustment responsibilities, an example of one State's policy guidance document, and a copy of a policy statement issued by the American Association of Public Welfare Attorneys on the issue of representation.
ATTACHMENT:The Role of the IV-D agency in relation to the public.
RELATED REFERENCE:State Best Practices in Child Support Enforcement, OSCE-IM-92-05, (October 19, 1992).
INQUIRIES:ACF Regional Administrators
This document examines the role of the State IV-D agency and its personnel in performing IV-D functions. It describes various approaches taken by States to define the IV-D agency's relationship to the individuals affected by the program. Through the examples of State practices, the document illustrates various alternatives States may wish to consider to address or alleviate concerns about the scope of their role, as well as resolving such issues as "representation," conflicts of interest, and children's best interests when taking action to establish, enforce, or adjust a child support obligation.
Frequently, in order to deliver the program's services, IV-D agencies engage attorneys to take the appropriate legal action to establish and enforce support obligations. Remedies available under State law are relied upon to ensure compliance when the obligated parent(s) fail to voluntarily honor these obligations. Since the inception of the IV-D program, State IV-D agencies have wrestled with the public perception that lawyers who work for the program--such as prosecutors under cooperative agreement or as hired counsel for the agency--"represent" in an "attorney-client" sense, the individuals the program serves.
The issue of "legal representation" of parties in child support proceedings is a matter to be determined by State law, regulations, or bar association requirements. There are no Federal statutory or regulatory requirements addressing this matter. The IV-D agency, on the other hand, must perform certain functions in accordance with Federal statutory and regulatory requirements. Section 303.20(f) of the Federal regulations requires States to have sufficient staff to achieve the standards for an effective program which must include attorneys or prosecutors to represent the agency in court or administrative proceedings with respect to the establishment and enforcement of orders of paternity and support.
At least 26 States and two territories have laws which clearly state that neither the custodial parent nor the non-custodial parent is the "client" of the IV-D program or the attorneys who work for the IV-D program. (See Attachment A). This clarification is advantageous in that it may reduce the possibility of confusion concerning who the attorney represents when the apparent interests of the parent and those of the State differ. Such conflicts may arise for example, when a IV-D attorney learns that a parent has received public assistance at the same time that he or she received support directly from another parent, and therefore, the interests of the State(possible prosecution for welfare fraud), conflict with those of the parent (defense).
A Nebraska Bar Association Advisory Opinion (No. 92-1; Attachment B) provides a particularly helpful analysis of the role of the agency attorneys in review and adjustment cases, and concludes that there is no conflict of interest even when the government advocates a reduction in child support payments in a review and adjustment case. It states:
Government attorneys represent only the State of Nebraska when performing child support enforcement related duties and no attorney-client relationship ever exists between the government attorney and persons served by the NDSS. The NDSS and the county or authorized attorneys have an affirmative duty to notify persons applying for services or receiving services that the legal services provided by the enforcement program are solely on behalf of the state and that no attorney-client relationship exists between the attorney and the applicant or recipient and that there is no privilege of confidentiality to the individual. Applicants and recipients of services should execute a written acknowledgement, which is fully understood, that no such relationship exists, as early as possible in the process. There is no conflict in the government attorney advocating a reduction in child support payments pursuant to his statutory duties.
The Kansas Child Support Enforcement Program has dealt with this potential problem by issuing a memorandum on "representing" IV-D obligors/obligees, which it distributed to its child support enforcement attorneys, the office of judicial administration, and the child support enforcement central office management staff among others. Kansas specifies explicitly that the "client" of the IV-D attorney is the Secretary of the Kansas State Department of Social and Rehabilitation Services, that no express attorney-client relationship is created between a IV-D attorney and an applicant or recipient of program services, and that the agency attorneys should advise all applicants and recipients of the child support enforcement program's services accordingly. In addition, the memorandum instructs program attorneys never to refer to applicant/recipient of IV-D services as their "client" in order to avoid even an "implied" attorney-client relationship. (See Attachment C. For more information, contact David Sutton, Chief of Litigation, Child Support Enforcement Program, (913) 296-2629.)
The American Association of Public Welfare Attorneys (AAPWA), has also prepared a policy memorandum addressing the question of who the IV-D attorney represents. This document developed from a workshop which the Association conducted, and asserts that the IV-D attorney represents only the IV-D agency and that noattorney-client relationship exists between the IV-D agency and the IV-D recipient. The documents states: "[t]his position is taken because the services of the IV-D agency and the IV-D attorney enure to the recipient as a by-product of a government program, and not as the result of an attorney-client relationship." (See Attachment D).
See also Oregon Formal Ethics Opinion No. 527 (1989); Tennessee Formal Ethics Opinion 90-F-123 of the Board of Professional Responsibility of the Supreme Court of Tennessee (1990), Gibson v. Johnson, 582 P.2d 452, 456 (Or. 1978)("[t]he mere fact that the assignor (custodial parent) is required to cooperate with the attorney for the assignee (State) does not establish an attorney-client relationship. The contact between the recipient and the SED (State) attorneys is for the benefit of the State in recouping some of the funds paid out for aid to dependent children"); Haney v. Oklahoma, 850 P.2d 1087 (Okla. 1993), (no attorney-client relationship was formed between the district attorney and the State Department of Human Services when the district attorney attempted to collect child support from the noncustodial parent).
In addition, several States have made statutory, regulatory, and procedural revisions to clarify or define the IV-D agency's relationship with the parties in IV-D cases. Some of the efforts States have taken to address these concerns include removing references to the parent or child as "clients" in all statutes, regulations, policies, forms, and legal pleadings; captioning all legal pleadings relating to the delivery of IV-D services for establishment and enforcement of child support in the name of the State, and clearly specifying that the IV-D attorney is not the attorney for either of the parents; and, notifying both parents in writing that the IV-D agency or its attorneys do not represent either parent and that either parent may obtain private counsel. See State Best Practices in Child Support Enforcement (OCSE-IM-92-05, October 19, 1992).
Alabama, Utah, and Virginia clearly set forth in the State's application for
IV-D services in non-AFDC cases that the State attorney does not "represent" the parent, and that, in the case of a conflict between the interests of the State, and those of the parent, the IV-D attorney will represent the State.
As a practical matter, it is advisable for IV-D attorneys to notify any parent on whose behalf a case is worked that the attorney represents the State. The attorney may wish to provide examples to inform the parent of the implications of that fact (no attorney/client relationship is formed between them). Should a judge or judicial officer inquire about the attorney's "client" the attorney may wish to politely inform the judge that the "client" is in fact the State.
Federal law and regulations require that each parent subject to a child support order in effect in the State and being enforced through the IV-D program has a right to request a review of that order. Because the law does not distinguish between the parties with respect to the right to request a review, either parent in a IV-D case is entitled to make the request. Consequently, it is conceivable that an absent parent may request a review to obtain a reduction in the amount of child support previously ordered. In addition, if appropriate, the State must adjust the order in accordance with State guidelines for setting child support award amounts. However, this does not mean that the IV-D agency or its attorneys must "represent" the interest of the party who requested the review. The State's role is not to advocate either an increase or a reduction in the amount of the order, but rather, to facilitate whatever adjustment is appropriate in accordance with the guidelines.
Some States have developed processes through which the IV-D agency conducts the review. Following the review, any adjustments are made through the judicial or administrative process in place in the State for setting child support orders, without any necessity of "representation" of either party.
Providing an opportunity for parties to a child support order to access the court for the purpose of updating or changing a child support obligation does not mean that the State places itself in an advocacy role with respect to the interests of either party, and does not create an attorney-client relationship between the IV-D agency and either party. If States are unbiased in the application of child support guidelines, then they should proceed with a review in all eligible cases regardless of the nature of the request or the anticipated outcome. In some cases, a downward adjustment may even be advantageous to the child if it results in an amount of support which can be paid fully, regularly, and timely by the obligor. An unrealistic order, which is inconsistent with the guidelines and the obligor's ability to pay, may result in only sporadic payments or none whatsoever.
Although many States have made and will continue to make efforts to resolve any problems in this area, the posture that a State IV-D agency or its attorneys and other staff may have taken previously in the case or perceptions and beliefs the parties may have regarding the IV-D agency/attorney's role may create potential conflicts. Even in States which have made it clear that no attorney-client relationship is created by virtue of their application for or delivery of IV-D services, rules governing the legal profession may impose ethical responsibilities and certain duties of disclosure on the part ofattorneys dealing with "unrepresented persons." However, these are matters which State law and individuals bound by such professional rules of conduct must address at the State level, and not issues governed by Federal law and regulations on the IV-D program.
States are encouraged to enact legislation or obtain an Attorney General's opinion that specifically identifies who the IV-D agency and its attorneys represent. It may also be helpful for States to include an explicit statement on the IV-D application or referral form that provision of IV-D services does not constitute or create an attorney-client relationship between either party and the State IV-D agency or its employees or agents. Such a statement could also specify that IV-D attorneys are bound by and will follow State and Federal rules and policy. The interests of the applicant or recipient of IV-D services, although important, do not prescribe the IV-D attorney's activities as they might in a private attorney-client relationship.
Our examination of State statutes and policy opinions regarding the party or parties who IV-D agencies or the State attorney/prosecutor represents revealed that:
þTwenty-six States and one territory specifically indicate that the IV-D agency or attorneys performing child support enforcement functions represent the State, and/or that no attorney-client privilege is created;
These States are: Arizona, California, Colorado, Connecticut, Florida, Georgia, Iowa, Kansas, Louisiana, Maine, Mississippi, Nebraska, Nevada, New York, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia, Wisconsin, Virgin Islands;
þFourteen States specify that the agency and/or attorneys performing child support functions represent or act on behalf of either the State or the parties;
These States are: Alabama, Arkansas, District of Columbia, Hawaii, Idaho, Maryland, Washington, Massachusetts, Minnesota, New Hampshire, Pennsylvania, Texas, Vermont, Wyoming;
þIn two States it was unclear who the agency or attorneys represent, or whether any restrictions upon representation have been imposed.
These States are: Illinois and Missouri.
STATES WITH LAWS EXPLICITLY DEFINING WHO THE IV-D AGENCY AND/OR IV-D ATTORNEYS REPRESENT
The following State statutes have language which either specifically mentions that the agency or State attorneys represent the State, or that no attorney/client relationship is formed when the state conducts IV-D services.
The statutory language in the following States indicates that the agency or attorneys will represent either the parties, or both the State and the parties.
District of ColumbiaNew Hampshire
In the following States, it was unclear who the department or State attorneys represent.
STATE STATUTORY LANGUAGE ON ROLE OF ATTORNEY/IV-D AGENCY [The language of the State statutes is replicated as closely as possible, including capitalizations and varying use of child support terminology. Therefore, inconsistencies may be apparent. An effort was made to obtain the most recent State statutory material, but note that this langugage may not reflect current amendments. If you are aware that a State has amended its statute, or has discussed this issue in an Attorney General's Opinion, please send it to us at OCSE. ]
Alabamaõ 30-3-63 Filing Fees and Costs (Marital and Domestic Relations) (1989).
(a) When a petition seeking an order of income withholding as provided in subsection 30-3-62(a) is initiated in any case which does not arise pursuant to Title IV-D of the Social Security Act, there shall be collected, by the clerk of the court, the filing fee prescribed for other civil cases, generally, as set forth in section 12-19-71 and other applicable statutes. The fee shall be collected by the clerk at the time the proceeding is initiated and shall be disbursed as provided in section 12-19-72 and other appropriate provisions of law. Provided, that when representing or otherwise acting on behalf of the obligee neither the state of Alabama nor any agency thereof, nor any person whom the court finds incapable of payment, upon execution of an affidavit of substantial hardship, as provided in section 12-19-70, shall be required to pay the fees prescribed by this subsection. . . .
Alaskaõ 25.27.045 Determination of support obligation (Marital and Domestic Relations) (1991).
The agency may appear in an action seeking an award of support on behalf of a child owed a duty of support, or to enforce a spousal support order if a spousal support obligation has been established and if a support obligation, established with respect to a child of that spouse, is also being administered, and may also appear in an action seeking modification of a support order, decree or judgment already entered.
(See also, Patch v. Patch, 760 P.2d 526 (Alaska1988), where the obligor argued that attorney's fees should not be awarded to the Child Support Enforcement Division (CSED), because if the attorney general was representing the State of Alaska, he should have been either named as a party, or joined as a party. In dicta, the court responded that Alaska statute 47.23.045 provides authority for the CSED to "appear in an action seeking modification of a support order, decree or judgment already entered," and that when the custodial parent applied for child support services, she authorized the appearance of the attorney general in court proceedings. The court then added, "[a]s the statutory representative of Colleen, the CSED is entitled to the attorney's fees.")
ArizonaTitle 4A õ 12-2454.03 Representation by attorney general or county attorney; modification of order by attorney general or county attorney (Courts and Civil Proceedings) (1992).
A. The attorney general or county attorney on behalf of this state may initiate an action or intervene in an action to establish, modify, or enforce a duty of child support, including medical support, regardless of the welfare or nonwelfare status of the person to whom the duty of support is owed.
Arkansasõ 9-14-210 Child Support Enforcement Unit--Employment of attorneys. (Family Law) (1991).
(a) The Child Support Enforcement Unit shall employ attorneys to assist in the establishment and enforcement of support orders in this state.
(b) An attorney employed by the Child Support Enforcement Unit or employed by a county, prosecuting attorney, or local child support enforcement unit pursuant to a cooperative agreement with the Child Support Enforcement Unit shall represent the petitioner instead of the prosecuting attorney in actions brought pursuant to Title IV-D of the Social Security Act under the Uniform Reciprocal Enforcement of Support Act, õ 9-14-301 et seq.
(c) An attorney employed under this subchapter may be designated a special prosecutor and may be authorized to prosecute in a court of competent jurisdiction actions brought under õ 5-26-401.(State criminal nonsupport statute). However, nothing in this section shall be construed to entitle such attorneys to those rights, benefits, or privileges which accrue to a prosecuting attorney under any other provision of state law.
(c) An attorney employed under this subchapter may be designated a special prosecutor and may be authorized to prosecute in a court of competent jurisdiction actions brought under õ 5-26-401. However, nothing in this section shall be construed to entitle such attorneys to those rights and benefits, or privileges which accrue to a prosecuting attorney under any other provision of state law.
Californiaõ 11478.2 Representation of public interest in establishment, modification and enforcement of support obligations (Welfare and Institutions Code) (1992).
(a) In all actions involving paternity or support . . .the district attorney and Attorney General represent the public interest in establishing, modifying, and enforcing support obligations. No attorney-client relationship shall be deemed to have been created between the district attorney or Attorney General and any person by virtue of the action of the district attorney or the Attorney General in carrying out these duties.
Coloradoõ 20-1-102 Appear on behalf of state and counties (District Attorneys) (1992).
The district attorney, when enforcing support laws pursuant to statute, contract, or request of the court, may use any remedy, either civil or criminal, available under the laws of this state and may appear on behalf of the people of the state of Colorado in any judicial district in this state. When doing so, the district attorney represents the people of the state of Colorado, and nothing within this section shall be construed to create an attorney-client relationship between the district attorney and any party, other than the people of the state of Colorado, or witness to the action;
Connecticutõ 46b-231 Family Support Magistrate's Act (Family Law) (1992).
(t) Duties of attorney general. The attorneygeneral shall: (1) Represent the interest of the State in all actions for child or spousal support in all cases in which the state is furnishing or has furnished aid or care to one of the parties to the action or a child of one of the parties;
õ 30-308 Representation of plaintiff by Corporation Counsel or private counsel (Domestic Relations).
In any instance in which the Corporation Counsel of the District of Columbia is satisfied that the duties of support sought to be enforced are child or spousal support obligations that are being enforced pursuant to a plan as described in 42 U.S.C. õ 654, . . .it shall be the Corporation Counsel's duty to represent the plaintiff in any proceedings arising under this chapter or a similar reciprocal act.
Floridaõ 88.031 Definitions (Civil Practice and Procedure) (1993).
(11) "Program attorney" means an attorney employed by, or under contract with, the department to provide legal representation for the department in a proceeding related to determination of paternity or child support enforcement brought pursuant to law.
Georgiaõ 19-11-23 Authority of district attorneys (Enforcement of Duty of Support) (1992).
(b) When acting pursuant to subsection (a) (authorizes district attorney to prosecute child support cases), the district attorney shall represent the department and the department shall be the sole client of the district attorney.
Hawaiiõ 576D-3 Obtaining or enforcing child support (Child Support) (1991).
(b) In order to carry out its responsibilities imposed under this chapter, the agency, through the offices of the corporation counsel, the county attorneys, or the attorney general, may commence or appear in any proceeding before any court or administrative agency for the purpose of obtaining, enforcing, or modifying an order ofsupport on behalf of any dependent or any other person for whom the agency has a duty to obtain or enforce an order of support under this chapter. The agency may commence or appear in any action on its own behalf, on behalf of any dependent child or custodial parent, or on behalf of any other person for whom the agency has a duty to obtain or enforce an order of support under this chapter.
Idahoõ 56-203 C Powers of Department (1992).
In order to carry out its responsibilities imposed under this chapter, the state department of health and welfare, through the attorney general or the respective county prosecuting attorney, or through private counsel is hereby authorized to:
(1) Represent a dependent child or dependent children on whose behalf public assistance is being provided in obtaining any support order necessary to provide for his or their needs or to enforce any such order previously entered.
(2) Appear as a friend of the court in divorce or separate maintenance suits, or proceedings supplemental thereto, when either or both of the parties thereto are receiving public assistance, for the purpose of advising the court as to the financial interest of the state of Idaho therein.
(3) Appear on behalf of a dependent child or children on whose behalf public assistance is being provided, for the purpose of securing a modification of a divorce or separate maintenance decree wherein no support, or inadequate support, was given for such child or children. If a parent does not request assistance, or refuses it when offered, the attorney general, prosecuting attorney or private counsel may nevertheless appear at any supplemental proceeding to advise the court of such facts as will show the financial interest of the state of Idaho therein; but the attorney general, prosecuting attorney or private counsel shall not otherwise participate in the proceeding. . . .
(6) Appear on behalf of a minor child, who is not a recipient of public assistance, to obtain or modify any support order necessary to provide for his or their needs or to enforce any such order previously entered.
Indianaõ 12-17-2-18 Agreements with local officials (Children's Services) (1992).
(a) The bureau shall make the agreements necessary for the effective administration of the plan with local governmental officials within Indiana. The bureau shall contract with:
(1) A prosecuting attorney; or
(A) Four-fifths (4/5) of the nonlegislative members of the committee established under 10 [IC 12-17-2-10] of this chapter determine after a hearing that a reasonable contract cannot be entered into with a prosecuting attorney; and
(B) Four-fifths (4/5 of the nonlegislative members of the committee established under section 10 of this chapter approve the contract;
in each judicial circuit to undertake activities required to be performed under Title IV-D of the federal Social Security Act (42 U.S.C. 651) including determination of paternity, determination and enforcement of child support, activities under the Uniform Reciprocal Enforcement of Support Act (IC 31-2-1), and if the contract is with a prosecuting attorney, prosecutions of welfare fraud. . . .
IllinoisIllinois Supreme Court Rule 291 (1992)
Representation by counsel under this rule shall be limited to enforcement of offers for support and shall not include matters of visitation, custody, or property.
Iowa11 õ 252B.7 Legal services (Social Welfare and Rehabilitation) (1992).
4. An attorney employed by or under contract with the child support recovery unit represents and acts on behalf of the state when providing child support enforcement services.
Kansasõ 39-756 Support enforcement services; . . . attorney-client relationship (Social Welfare) (1991).
(e) In any action brought pursuant to this sectionor pursuant to subsection (g) of K.S.A. 39-709 and amendments thereto, or any action brought by a governmental agency or contractor, to establish paternity or to establish or enforce a support obligation, the social and rehabilitation services' attorney or the attorneys with whom such agency contracts to provide such services shall represent the state department of social and rehabilitation services. Nothing in this section shall be construed to modify statutory mandate, authority or confidentiality required by such governmental agency. Any representation by such attorney shall not be construed to create an attorney-client relationship between the attorney and any party, other than the state department of social and rehabilitation services.
Louisianaõ 46:236.1 (Public Welfare and Assistance) (1993).
(K)(3) Any attorney initiating legal proceedings pursuant to this section and Titles IV-D and IV-A of the Social Security Act shall represent the state of Louisiana, Department of Social Services exclusively. An attorney-client relationship shall not exist between the attorney and any applicant or recipient of child support enforcement services for and on behalf of a child or children, without regard to the name in which legal proceedings are initiated. The provisions of this paragraph shall apply to a staff attorney in support enforcement services, district attorney, or contract attorney providing support services pursuant to Title IV-D.
Maine19 õ 448-A State's role in support enforcement cases (Domestic Relations) (1992).
In any child support action brought by the department under this Title or Title 22, the department or prosecuting attorney represents solely the interest of the State in providing child support enforcement services under Federal law. Nothing in this section may be construed to modify statutory mandate, authority or confidentiality required of any governmental agency, nor does representation by a prosecuting attorney create an attorney-client relationship between the attorney and any party, other than the State.
Marylandõ 10-115 Legal Representation (Family Law) (1992).
(b) By whom provided--In a legal proceeding, theAdministration or an individual whom the Administration approves for child support services shall be represented by: (1) the Attorney General; (2) the State's Attorney, if the State's Attorney has agreed to provide representation under subsection (c) of this section; or (3) a qualified lawyer representing the Administration who is appointed by and subject to supervision and removal by the Attorney General.
Massachusetts209C õ 7 Civil Action; Representation by IV-D agency; Court Appointed counsel; Burden of Proof. (1992)
Actions under this chapter shall be civil actions. The plaintiff in a case filed to establish paternity may be represented by the IV-D agency as set forth in chapter one hundred and nineteen a. In actions in which custody or visitation are contested, court may appoint counsel to represent a party wherever the interests of justice require.
Minnesotaõ 257.69 Right to counsel (Public Welfare, Related Activities) (1992).
Subdivision 1. In all proceedings under sections 257.51 to 257.74, any party may be represented by counsel. If the public authority charged by law with support of a child is a party, the county attorney shall represent the public authority. If the child receives public assistance and no conflict of interest exists, the county attorney shall also represent the custodial parent. If a conflict of interests exists, the court shall appoint counsel for the custodial parent at no cost to the parent. If the child does not receive public assistance, the county attorney may represent the custodial parent at the parent's request. The court shall appoint counsel for a party who is unable to pay timely for counsel in proceedings under sections 257.51 to 257.74.
Mississippiõ 43-19-35 status of attorney initiating proceedings. (Support of Natural Children) (1992).
(3) Any attorney initiating legal proceedings under Sections 43-19-31-43-19-53 shall be deemed to represent the interest of the State Department of Human Services exclusively; no attorney-clientrelationship shall exist between said attorney and any recipient of services pursuant to Title IV-D of the Federal Social Security Act for or on behalf of a child or children, regardless of the name in which the legal proceedings are initiated;
Missouriõ 568.040 Section 1. (eff. 8/28/93) Any attorney initiating any legal proceedings at the request of the Missouri division of child support enforcement shall represent the state of Missouri, department of social services, division of child support enforcement exclusively. An attorney/client relationship shall not exist between the attorney and any applicant or recipient of child support enforcement services for and on behalf of a child or children, without regard to the name in which legal proceedings are initiated. The provisions of this section shall apply to a prosecuting attorney, circuit attorney or attorney under contract with the division of child support enforcement.
NevadaTitle 11 õ 125B.150 Assistance by district attorney to establish parentage and obligation of support and to enforce payment of support; confidentiality; regulations of welfare division (Obligation of Support) (1991).
3. The district attorney and his deputies do not represent the parent or the child in the performance of their duties pursuant to this chapter and chapter 31A, 126, 130 or 425 of NRS, but are rendering a public service as representatives of the state.
New Hampshireõ 546.12 Official to Represent Obligee (Proceedings in Special Cases).
If this state is acting as an initiating state, the prosecuting attorney upon the request of the court, division of human services, a county commissioner, an overseer of public welfare or other local welfare officer shall represent the obligee in any proceeding under this chapter. If the prosecuting attorney neglects or refuses to represent the obligee, the attorney general may order him to comply with the request of the court of my undertake representation.
New YorkComment to Family Court Act õ 254 Presentation by corporation counsel, county attorney or district attorney (1993).
The 1983 Practice Commentary explains that there is no attorney/client relationship between the petitioner and the attorney presenting the petition. Although the following comments were made in relation to a delinquency proceeding under Article 7, they
have equal applicability whenever a public officer presents a petition in the Family Court:
The petitioner's attorney is a prosecutor and does not appear on behalf of an individual client. It is clear that a "public prosecutor cannot take as a guide for the conduct of his office the standards of an attorney appearing on behalf of an individual client". (citations omitted). Rather, she appears on behalf of the state. The Code of Professional Responsibility recognizes this fact and states: "[t]he prosecutor represents the sovereign and therefore should use restraint in the discretionary exercise of governmental powers, such as the selection of cases to prosecute." EC 7-13(1). Most dispositive of the issues presently before us is EC 7-13(2) which explains that "during trial the prosecutor is not only an advocate but he also may make decisions normally made by an individual client." (citations omitted).
North Carolinaõ 110-135 Debt to State created (Child Support) (1991).
. . .The United States, the State of North Carolina, and any county within the State which has provided public assistance to or on behalf of a dependent child shall be entitled to share in any sum collected under this section, and their proportionate parts of such sum shall be determined in accordance with the matching formulas in use during the period for which assistance was paid.
No action to collect such debt shall be commenced after the expiration of five years subsequent to the receipt of the last grant of public assistance. The county attorney or anattorney retained by the county and/or State shall represent the State in all proceedings brought under this section.
North Dakotaõ 14-09-09.27 Attorney represents people's interest in the enforcement of child support obligations (Parent and Child) (1991).
In any action brought to establish paternity, secure repayment of governmental benefits paid, secure current or future support of children, or establish, enforce, or modify a child support obligation, the public authority or a child support agency may employ or contract with a licensed attorney. An attorney so employed or contracted represents the interest of the people of the state of North Dakota in the enforcement of child support obligations. Nothing in this section may be construed to modify confidentiality required of the public authority or a child support agency. Representation by the employed or contracted attorney may not be construed to create an attorney-client relationship between the attorney and any party or witness to the action, other than the people of the state of North Dakota, regardless of the name in which the action is brought.
Oklahomaõ 237.3 Attorneys employed by Department of Human Services--Duties--Relationship (Poor Persons) (1993).
B. Department attorneys represent the state and not the interests of any other party. Providing services under Title IV-D of the Federal Social Security Act does not create an attorney-client relationship with any other party.
The Supreme court of Oklahoma, in a recent opinion, Haney v. Oklahoma, 850 P.2d 1087 (Okla. 1993), held that no attorney-client relationship was formed between the district attorney and the State Department of Human Services when the district attorney attempted to collect child support from the noncustodial parent.
Oregonõ 25.080 Agency, primarily responsible for support enforcement services (Procedure in Civil Proceedings) (1991).
(1) This subsection describes the entity primarilyresponsible for providing support enforcement services described in subsection (4) (e.g., child support services). . . .The entity shall provide the support enforcement services described in subsection (4) of this section on behalf of the State of Oregon and no other party or either parent. . . .
(See also, Gibson v. Gibson, 582 P.2d 452 (Or. Ct. App. 1978)).
Pennsylvaniaõ4306 Duties of district attorney (Domestic Relations) (1991).
(b) Representation of complainant.--The district attorney, upon the request of the court or a Commonwealth or local public welfare official, shall represent any complainant in any proceeding under this subchapter.
Rhode Islandõ 15-9-3 Department of human services as legal representative--Payment of costs. (Domestic Relations) (1988).
In any proceeding under this chapter the department of human services shall represent the department for children and their families, and the department of human services shall remit to the general treasury the net collections after deducting all reasonable costs and expenses of any action or proceeding under this chapter.
South Carolinaõ 43-5-590 Powers and duties of Department of Social Services in accordance with approved child support plan (Public aid, assistance and relief) (1992).
In accordance with a child support plan approved by the federal government, the department has the power and its duty must be to:
(j) to provide that in rendering services under the plan to individuals with respect to whom an assignment is effective under this section, the State represents the public interest in establishing and enforcing child support obligations and the assignment does not create an attorney-client relationship between the agency and the custodial parent, the child, or any other party.
South Dakotaõ 28-1-11 Assistant attorney general fordepartment--Enforcement of support and public assistance laws--Representation of department (State department of social services) (1992).The attorney general shall appoint an assistant attorney general for the department of social services whose compensation shall be fixed by the attorney general, to be paid from public welfare funds.Subject to the direction of the attorney general, it shall be the duty of such assistant attorney general to supervise the enforcement of all laws pertaining to desertion, nonsupport, recipient fraud and similar statutes for which penalty is provided in cases where public assistance has been granted or applied for under the welfare laws of this state. Such assistant attorney general shall cooperate with and assist the several state's attorneys of the state of South Dakota in such actions and proceedings; he shall be the official information agent for the state of South Dakota under the Uniform Reciprocal Enforcement of Support Act, and shall have authority to initiate and prosecute civil and criminal actions on behalf of the department of social services, and to enter appearance on behalf of said department in any court wherein any action or proceeding is pending involving the welfare of the indigent.
õ 7-16-13 Prosecution of actions by public authorities for child support (Counties) (1981).
It shall be the duty of the state's attorney to commence and prosecute forthwith all actions and proceedings, civil or criminal, brought by the authorities charged with the support of any legitimate or illegitimate child for the recovery and enforcement of support for such child, including actions commenced under chapter 25-9.
Tennesseeõ 36-5-309 District attorney general to enforce petition (Domestic Relations) (1991).
When one (1) county is acting as the responding county, the district attorney general shall take such action as is necessary to enforce the petition in any cause filed under the provisions of this part in any county within his judicial district, as set out in õ 36-5-314. No such action shall create an attorney-client relationship between the district attorney general and the petitioner. (cites omitted).
Texasõ 76.007 Attorneys Representing State (Human Resources) (1990).
(a) Attorneys employed by the attorney general may represent the state or other parties in a suit to establish or modify a child support obligation, collection child support, or determine paternity brought under the authority of federal law or this chapter.
(b) The attorney general may contract with private attorneys or political subdivisions of the state to represent parties in legal actions to establish or modify child support obligations, to collect child support, or to determine paternity, brought under the authority of federal law and this chapter.
Utahõ 78-45-9 Enforcement of right of support (1992).
(1)(b) Whenever any court action is commenced by the office to enforce payment of the obligor's support obligation, it shall be the duty of the attorney general or the county attorney of the county of residence of the obligee to represent the office.
Vermont11 õ 594 Representation and testimony of child (Annulment and Divorce) (1989).
(a) The court may appoint an attorney to represent the interest of a minor or dependent child with respect to child support and the allocation of parental rights and responsibilities. . . .
33 õ 4106 Assignment of rights (Human Services) (1991).
(a) When an assignment of the right to support is in effect pursuant to section 3902 of Title 33 or pursuant to this section, the custodial parent shall be considered to have appointed the director of the office of child support as his or her attorney in fact to perform the specific act of endorsing over to the registry all drafts, checks, money orders, or other negotiable instruments for support of the child.
VirginiaLegal ethics opinion No. 964 Attorney General--Communication with an Unrepresented Party: Representation of Custodial Parent in Lawsuits Against the Division of Child Support Enforcement(1988).
With regard to whom the Assistant Attorneys General represent when employed in the support division, the committee opined that in light of the Attorney General's November 23, 1987 letter, the Attorneys General represent the state, deriving their authority through state and federal support enforcement legislation. The committee further opined as follows with regard to the questions presented in the inquiry.
1. The Attorney General's Office represents the Virginia Department of Social Services of which the DCSE is a unit. Representation by the Attorney's Office is provided to the agency and its employees when acting within the scope of their employment. [See õ2.1-121, Code of Virginia.]
4. In all other circumstances involving the custodial parent, whether or not he or she is a current or former recipient of public assistance in an action against the DCSE, the Attorney General represents only the state when establishing or enforcing an order.
5. In all circumstances involving the custodial parent, whether or not he or she is a current or former recipient of public assistance and where a state debt for the payment of public assistance exists, the Attorney General represents only the state when establishing or enforcing an order.
Washingtonõ 74.20.220 Powers of department through the attorney general or prosecuting attorney (Public Assistance) (1993).
In order to carry out its responsibilities imposed under this chapter and as required by federal law, the state department of social and health services, through the attorney general or prosecuting attorney, is hereby authorized to:
(2) Appear as a party in dissolution, child support, parentage, maintenance suits, or other proceedings, for the purpose of representing the financial interest and actions of the state of Washington therein.
(3) Petition the court for modification of a superior court order when the office of supportenforcement is providing support enforcement services under RCW 74.20.040.
(4) When the attorney general or prosecuting attorney appears in, defends, or initiates actions to establish, modify, or enforce child support obligations he or she represents the state, the best interests if the child relating to parentage, and the best interests of the children of the state, but does not represent the interests of any other individual.
West Virginiaõ 48A-3-3a Representation by the children's advocate (Enforcement of family obligations).
The Legislature recognizes a paramount interest of the State in the establishment and enforcement of family obligations as a function of the State in protecting the health and welfare of the citizens of the State. Accordingly, the State of West Virginia is, by operation of law, a party in actions and proceedings arising from the rights and obligations of persons involved in family law issues. The Legislature recognizes that the children's advocates, with the duties assigned to them under the provisions of this chapter, represent the interests of the State in carrying out such duties. The Legislature further recognizes that, at times, the interests of the State, while being advanced by a children's advocate, may coincide with the interests of the child, the obligee, the obligor, or other persons, as the case may be, and the children's advocate may therefore actively advance the interests of one or more such persons while furthering the interests of the State. It is the intent of the Legislature that under such circumstances, the fact that the children's advocate has actively advanced the interests of a party other than the State shall not preclude the children's advocate from advancing interests adverse to such party.
Wisconsinõ 46.25 Child and spousal support; establishment of paternity; medical liability (Social Services) (1992).
(1) There is created a child and spousal support and establishment of paternity and medical liability support program in the department. the purpose of this program is to establish paternity when possible, to establish or modify support obligations, to enforce support obligations owedby parents to their children and maintenance obligations owed to spouses or former spouses with whom the children reside. . .to locate persons who are alleged to have taken their child in violation of s. 948.31 or of similar laws in other States, and to locate and value property of any person having a support duty. To accomplish the objectives of this program and of other assistance programs under ch. 49, county and State agencies will cooperate with one another to implement a child and spousal support and paternity establishment program in accordance with State and Federal laws, regulations and rules and to assure proper distribution of benefits of all assistance programs authorized under ch. 49.
(7) . . .The department may represent the State in any action to establish paternity or to establish or enforce a support or maintenance obligation. The department may delegate its authority to represent the State in any action to establish paternity or to establish or enforce a support or maintenance obligation under this section to an attorney responsible for support enforcement under s. 59.458(1) pursuant to a contract entered into under s. 59.07(97). . . .
Wyomingõ 20-6-106 Powers and duties of department regarding collection of support (Domestic relations) (1992).
(b) The department shall have a cause of action against an obligor with respect to nay child on behalf of whom public assistance has ben paid to recover support due to that child, or to establish parentage for the dependent child if born out of wedlock. The action may be brought and maintained either in the department's own name or in the name of the obligee or obligor.
Virgin Islands3 õ 119 Paternity and Child Support Division (Dept. of Justice) (1992).
There is established within the Department of Law a Paternity and Child Support Division. This Division is the designated State Agency of the approved State Plan under Title IV-D of the Social Security Act and is responsible for the administration and operation of the State Plan within the Virgin Islands. The Division is also responsible for and shall insure compliance withthe requirements of the State Plan, the Title IV-D Program and any other program as may be required under Public Law 93-647, as amended from time to time. The Attorney General shall effect an administrative procedure to establish and enforce support orders in Virgin Islands and interstate cases within the Paternity and Child Support Division and shall make and promulgate rules and regulations necessary to carry out its functions. (citations omitted).
3 õ 114 Powers and duties of Attorney General; budget (Dept. of Law) (1967).
(a) The Attorney General shall have the following powers and duties:
(1) except in cases where the United States attorney is representing the Government of the Virgin Islands at the request of the Governor, to appear for and represent the executive branch of the Government of the Virgin Islands before the courts in all civil proceedings in which the said Government, or nay executive department, board, commission, agency, instrumentality or officer thereof is interest;
(6) to appear for and represent the executive branch of the Government of the Virgin Islands, and all departments, boards, commissions, agencies, instrumentalities or officers thereof, before all administrative tribunals or bodies of any nature, in all legal or quasi-legal matters, hearings or proceedings. All duties and functions with respect to the Government of the Virgin Islands, or any department, board, commission, agency, instrumentality or officer thereof, heretofore assigned to the United States attorney solely by virtue of laws of the Virgin Islands are hereby transferred to the Attorney General; . . . .
This was not in proper format so is not included. A complete copy can be found in the National OCSE Training Center.
This was not in proper format so is not included. A complete copy can be found in the National OCSE Training Center.
This was not in proper format so is not included. A complete copy can be found in the National OCSE Training Center.
This was not in proper format so is not included. A complete copy can be found in the National OCSE Training Center.
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