Montana Code 40-5-225. Notice of financial responsibility — temporary and final support obligations — administrative procedure
40-5-225. Notice of financial responsibility — temporary and final support obligations — administrative procedure. (1) In the absence of an existing support order, when the requirements of this section are met, the department may enter an order requiring a child‘s parent or parents to pay an amount each month for the support of the child. An order issued under this section must include a medical support order as required by 40-5-208.
Terms Used In Montana Code 40-5-225
- Allegation: something that someone says happened.
- Child: means :
(i)a person under 18 years of age who is not otherwise emancipated, self-supporting, married, or a member of the armed forces of the United States;
(ii)a person under 19 years of age and still in high school;
(iii)a person who is mentally or physically incapacitated if the incapacity began prior to the person's 18th birthday; or
(iv)in a IV-D case, a person for whom:
(A)support rights are assigned under 53-2-613;
(B)a public assistance payment has been made;
(C)the department is providing support enforcement services under 40-5-203; or
(D)the department has received a referral for IV-D services from an agency of another state or an Indian tribe under the provisions of the Uniform Interstate Family Support Act, the Revised Uniform Reciprocal Enforcement of Support Act, the Uniform Reciprocal Enforcement of Support Act, or Title IV-D of the Social Security Act. See Montana Code 40-5-201
- Department: means the department of public health and human services. See Montana Code 40-5-201
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Guidelines: means the child support guidelines adopted pursuant to 40-5-209. See Montana Code 40-5-201
- Need: means the necessary costs of food, clothing, shelter, and medical care for the support of a child or children. See Montana Code 40-5-201
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- Obligee: means :
(a)a person to whom a duty of support is owed and who is receiving support enforcement services under this part; or
(b)a public agency of this or another state or an Indian tribe having the right to receive current or accrued support payments. See Montana Code 40-5-201
- Obligor: means a person, including an alleged father, who owes a duty of support. See Montana Code 40-5-201
- Parent: means the natural or adoptive parent of a child. See Montana Code 40-5-201
- Person: includes a corporation or other entity as well as a natural person. See Montana Code 1-1-201
- Public assistance: means any type of monetary or other assistance for a child, including medical and foster care benefits. See Montana Code 40-5-201
- Summons: Another word for subpoena used by the criminal justice system.
- support obligation: means the amount created by:
(a)the failure to provide for the medical, health, and support needs of a child under the laws of this or any other state or under a support order;
(b)a support order for spousal maintenance of the custodial parent; or
(c)fines, fees, penalties, interest, and other funds and costs that the department is authorized under this chapter to collect by the use of any procedure available for the payment, enforcement, and collection of child support or spousal maintenance or support. See Montana Code 40-5-201
- Support order: means an order, whether temporary or final, that:
(a)provides for the payment of a specific amount of money, expressed in periodic increments or as a lump-sum amount, for the support of the child, including an amount expressed in dollars for medical and health needs, child care, education, recreation, clothing, transportation, and other related expenses and costs specific to the needs of the child;
(b)is issued by:
(i)a district court of this state;
(ii)a court of appropriate jurisdiction of another state, Indian tribe, or foreign country;
(iii)an administrative agency pursuant to proceedings under this part; or
(iv)an administrative agency of another state, Indian tribe, or foreign country with a hearing function and process similar to those of the department under this part; and
(c)when the context requires, includes:
(i)judgments and orders providing periodic payments for the maintenance or support of the custodial parent of a child receiving services under this chapter; and
(ii)amounts for the recovery of fines, fees, penalties, interest, and other funds and costs that the department is authorized under this chapter to collect by the use of any procedure available for the payment, enforcement, and collection of child support or spousal maintenance or support. See Montana Code 40-5-201
(2)The department shall begin an action to establish a support order by serving a notice of financial responsibility on the parent or parents. The notice must include a statement:
(a)of the names of the child, the obligee, and, if different than the obligee, the child’s guardian or caretaker relative;
(b)of the dollar amount of the support obligation to be paid each month for the child, if any;
(c)that the monthly support obligation, if any, is effective on the date of service of the notice, unless an objection is made and a hearing is requested, and may be collected during the proceeding that establishes the support obligation by any remedy available to the department for the enforcement of child support obligations;
(d)that in addition to or independent of child support, the parent or parents may be ordered to provide for the child’s medical support needs;
(e)that any party may request a hearing to contest the amount of child support shown in the notice or to contest the establishment of a medical support order;
(f)that if a party does not file a request for a hearing in a timely manner, support, including medical support, will be ordered as declared in the notice or in accordance with the child support guidelines adopted under 40-5-209;
(g)that if a party does request a hearing, the other parties may refuse to participate in the proceedings and that the child support and medical support order will be determined using the information available to the department or provided at the hearing;
(h)that a party’s refusal to participate is equivalent to consenting to entry of a child support and medical support order consistent with the department’s determination; and
(i)that the parties are entitled to a fair hearing under 40-5-226.
(3)(a) The department may enter an order requiring a child’s parent or parents to pay an amount each month for the temporary support of the child pending entry of a support order by the district court if:
(i)a support action is pending in district court and a temporary or permanent support obligation has not been ordered; or
(ii)a paternity action is pending and there is clear and convincing evidence of paternity based on paternity genetic tests or other evidence.
(b)The temporary support order must include a medical support order as required by 40-5-208.
(c)A temporary support order may be modified by the department as provided in 40-5-272, 40-5-273, 40-5-277, and 40-5-278 but remains a temporary support order subject to the provisions of this section.
(4)The department shall begin an action to establish a temporary support order by serving a notice of temporary support obligation on the parent or parents. In addition to the statements required in subsection (2), the notice must include a statement that:
(a)a party may request a hearing to show that a temporary support obligation is inappropriate under the circumstances; and
(b)the temporary support order will terminate upon the entry of a final support order or an order of nonpaternity. If the final order is retroactive, any amount paid for a particular period under the temporary support order must be credited against the amounts due under the final order for the same period, but excess amounts may not be refunded. If an order of nonpaternity is issued or if the final support order states that periodic support obligation is not proper, the obligee shall refund to the obligor any improper amounts paid under the temporary support order, plus any costs that the obligor incurs in recovering the amount to be refunded.
(5)(a) If a temporary support order is entered or if proceedings are commenced under this section for a married obligor, the department shall vacate any support order or dismiss any proceeding under this part if it finds that the parties to the marriage have:
(i)reconciled without the marriage having been dissolved;
(ii)made joint application to the department to vacate the order or dismiss the proceeding; and
(iii)provided proof that the marriage has been resumed.
(b)The department may not vacate a support order or dismiss a proceeding under this subsection (5) if it determines that the rights of a third person or the child are affected. The department may issue a new notice of temporary support obligation under this section if the parties subsequently separate.
(6)A notice of financial responsibility and the notice of temporary support obligation may be served either by certified mail or in the manner prescribed for the service of a summons in a civil action in accordance with the Montana Rules of Civil Procedure.
(7)If prior to service of a notice under this section the department has sufficient financial information, the department’s allegation of the obligor’s monthly support responsibility, whether temporary or final, must be based on the child support guidelines established under 40-5-214. If the information is unknown to the department, the allegations of the parent’s or parents’ monthly support responsibility must be based on the greater of:
(a)the maximum amount of public assistance that could be payable to the child under Title 53 if the child was otherwise eligible for assistance; or
(b)the child’s actual need as alleged by the custodial parent, guardian, or caretaker of the child.
(8)(a) A party who objects to a notice of financial responsibility or notice of temporary support obligation may file a written request for a hearing with the department:
(i)within 20 days from the date of service of a notice of financial responsibility; and
(ii)within 10 days from the date of service of a notice of temporary support obligation.
(b)If the department receives a timely request for a hearing, it shall conduct one under 40-5-226.
(c)If the department does not receive a timely request for a hearing, it shall order the parent or parents to pay child support, if any, and to provide for the child’s medical needs as stated in the notice. The child support obligation must be the amount stated in the notice or determined in accordance with the child support guidelines adopted under 40-5-209.
(9)If the department is unable to enter an obligation in accordance with the child support guidelines because of default of a party, the department may, upon notice to the parties to the original order, substitute a support order made in accordance with the guidelines for the defaulted order.
(10)After establishment of an order under this section, the department may initiate a subsequent action on the original order to establish a child support or medical support obligation for another child of the same parents.
(11)A child support and medical support order under subsection (1) is effective as of the date of service of a notice of financial responsibility on the parent or parents and may be collected by any remedy available to the department for the enforcement of child support obligations. A final order is retroactive to the date of service of the notice of financial responsibility as provided in this subsection, except that the final order may also determine child support for a prior period as provided in 40-5-226(3).
(12)A child support and medical support order under subsection (1) continues until the child reaches 18 years of age or until the child’s graduation from high school, whichever occurs later, but not later than the child’s 19th birthday unless the child is emancipated by court order at an earlier time. A temporary support obligation established under subsection (3) continues until terminated as provided in subsection (5) or until the temporary support order is superseded by a final order, judgment, or decree.