218 R.I. Code R. 218-RICR-30-00-1.22

Current through December 3, 2024

Section 218-RICR-30-00-1.22 - Modification of Child Support Orders

1.22.1. Introduction

A. Under Federal Regulations and State statutes, the Office of Child Support Services is required to provide for the review and modification/adjustment of child support orders being enforced under Title IV-D of the Social Security Act.

B. These reviews will be conducted as a result of an appropriate request from any party subject to a child support order in the State.

C. Although requests for reviews will be evaluated by the Office of Child Support Services staff, only the Rhode Island Family Court is authorized make a decision to actually modify or adjust an order. The Office of Child Support Service's decision whether or not to refer a request for a review of a Rhode Island order to the Rhode Island Family Court will be made in accordance with the criteria specified in § 1.22.2 of this Part.

D. The same criteria will be applied in reviewing requests for reviews in intergovernmental cases.

1.22.2Criteria for Modification-Requested Reviews

A. Criteria and Response from OCSS Under Federal Regulations and State statutes, the Office of Child Support Services is required to respond to requests for reviews of support orders being enforced under Title IV-D of the Social Security Act from either parent subject to a child support order in the State. Requests by either parent for a review must be accompanied by information that demonstrates a change in circumstances that meets the criteria listed below.

B. Denial of Request for Review Referral of requests for reviews to the Rhode Island Family Court for hearing may be denied by the Office of Child Support Services because the request fails to meet any of the criteria listed below. (see § 1.22.5 of this Part for Office of Child Support Services responsibilities on intergovernmental cases).

C. How to Apply for a Review

1. A request for a review must be made in writing. The request must contain information that will enable the Office of Child Support Services to determine if it meets any of the criteria listed below. It should be mailed to:

Office of Child Support Services

77 Dorrance St.

Providence, RI 02903

2. The Office of Child Support Services must make a decision whether or not the order should be reviewed within fifteen (15) days of receipt of all information needed to make a decision.

D. Criteria for Referring Requests for Review to Rhode Island Family Court

1. The Office of Child Support Service's response to a request for a review will consist of evaluating the request to determine if there is sufficient evidence/documentation to meet any of the following criteria that would warrant a hearing in Rhode Island Family Court:

a. The existing support order would deviate fifteen percent (15%) or more as a result of applying new income information to the State's Child Support Guidelines or it has been thirty-six (36) months since the order was entered or it was last reviewed.

b. That health insurance is available at reasonable cost to the noncustodial parent and the existing support order makes no provision for the health care needs of the children covered by the order or does not otherwise provide for health care coverage.

c. To add an additional child of the parties to the order who is not covered by the existing support order.

d. There has been a custody change or a change in the responsibility for care of a child covered by the order.

e. Since the entry of the order, the party is now incurring the expenses of an additional minor dependent not subject to the existing child support order.

1.22.3Requested Reviews

A. Custodial Parents

1. If the Office of Child Support Service's evaluation of the custodial parent's request for a review of the order determines that a hearing before Rhode Island Family Court is warranted, a court date will be assigned and the Office of Child Support Services will provide for the service of process to both parties to the order. Once served, the custodial parent will be required to appear and give testimony at the court hearing. Attorneys for the Office of Child Support Services will only represent the State of Rhode Island and will not legally represent either party at the court hearing.

2. If the Office of Child Support Services determines that circumstances do not warrant a hearing in Rhode Island, the Family Court and the requesting custodial parent are notified. This notification will also inform the custodial parent that s/he may submit additional information not previously provided if s/he would like Office of Child Support Services to reevaluate the request. Also, included in this notice will be information about the self-represented process whereby the custodial parent may file a Motion for Modification with the court without the involvement of the Office of Child Support Services provided that the custodial parent has not presently assigned his or her right to support to the State in accordance with any and all provisions as it relates to eligibility to collect RIW benefits.

B. Non-Custodial Parents

1. The request for relief form is found on the website at www.cse.ri.gov.

2. The Office of Child Support Services will evaluate a written request from a non-custodial parent to see if it meets any of the modification/adjustment criteria listed in § 1.22.2 of this Part and notify the non-custodial parent. If the request has been accepted, OCSS will file a Motion for Relief on behalf of the non-custodial parent and serve the custodial parent for the hearing date. If the request has been rejected, a notice will be sent to the non-custodial parent stating the reason for the rejection. It will also inform the non-custodial parent of his/her right to file a self-represented motion with the court. The forms are available on the website or at Family Court.

3. All decisions on whether or not to modify an order rest with the court.

1.22.4Mandatory Reviews

A. Under Federal Regulations and State statutes, a review of an order is required without the need of a request from either parent in the following type cases; except as provided below, all RIW, Medical Assistance Only, and IV-E Foster Care cases where it has been either thirty-six (36) months since the order was entered or thirty-six (36) months since the order was last reviewed.

B. RIW and IV-E Foster Care cases will automatically be referred to Rhode Island Family Court for adjustment hearings when they meet the above criteria. No other criteria need be met before referral to court is made. (see § 1.22.5 of this Part for procedures on intergovernmental cases.)

C. Medical Assistance Only cases will be referred to Rhode Island Family Court only if there is either no court order providing for the health care needs of a child or a cash Medical Support order where it has been either thirty-six (36) months since the order was entered or thirty-six (36) months since the order was last reviewed of a child who is included in the Medical Assistance Only case. (see § 1.22.5 of this Part for procedures on intergovernmental cases.)

D. Cases with characteristics for mandatory review that need not be reviewed are those where:

1. A Case closure criterion exists. (see §§ 1.10.2 and 1.10.3 of this Part.)

2. The youngest child covered by the order is at least seventeen (17) years six (6) months old, and there is no outstanding past due support.

3. There has been a good cause granted in the case for not pursuing child support. (see § 1.3.6 of this Part.)

E. All other cases will be reviewed every three (3) years upon the request of either party or upon the request of the State, and if appropriate, the order will be adjusted in accordance with the child support guidelines if the amount of the child support award under the order differs from the amount that would be awarded in accordance with the guidelines. The adjustment of the order shall be made without the requirement for proof or showing a change in circumstances.

F. In the case of a request for a review before the three (3) year period, the amount of support may, in the court's discretion, be modified if the court finds that a substantial change in circumstances has occurred. The court, in its discretion, may modify a child support order retroactively only to the date that Notice of a Petition to Modify was given to the adverse party if the court finds that a substantial change in circumstances has occurred.

1.22.5Review and Modification - Intergovernmental Cases

A. Rhode Island as the Responding State

1. If all of the parties who are individuals reside in this State and the child does not reside in the issuing State, a tribunal of this State has jurisdiction to enforce and to modify the issuing State's Child Support order in a proceeding to register that order. After a Child Support order in another State has been registered and confirmed in this State, the responding tribunal of this State may modify that order if the above does not apply and, after notice and hearing it finds that the following requirements are met:

a. The child, the individual custodial parent, and the non-custodial parent do not reside in the issuing State;

b. A petitioner who is a nonresident of this State seeks modification; and

c. The respondent is subject to the personal jurisdiction of the tribunal of this State; or d. The child, or a party who is an individual, is subject to the personal jurisdiction of the tribunal of this State and all of the parties who are individuals have filed a written consent in the issuing tribunal for a tribunal of this State to modify the support order and assume continuing, exclusive jurisdiction over the order.

2. Modification of a registered Child Support order is subject to the same requirements, procedures and defenses that apply to modification of an order issued by a tribunal of this State and the order may be enforced and satisfied in the same manner.

3. Within thirty (30) days after issuance of a modified Child Support order, the party obtaining the modification shall file a certified copy of the order with the issuing tribunal that had continuing, exclusive jurisdiction over the earlier order and in each tribunal in which the party knows the earlier order has been registered.

4. On issuance of an order modifying a Child Support order issued in another State, a tribunal of this State becomes the tribunal of continuing, exclusive jurisdiction.

5. Any requested review of an order on a RIW case with a UR case status where it has been three (3) years since the order was entered or three (3) years since the last review, will automatically be referred to Rhode Island Family Court for an adjustment hearing. No other criteria for review need be met.

6. Notification requirements and the time frames for completion of reviews are the same as they are for in-State cases. The Office of Child Support Services is responsible for sending any required notices regarding the review to the parent in Rhode Island and to the parent in the initiating State through that State's local enforcement agency.

B. Rhode Island as the Initiating State

1. When acting as the initiating State (UI case status), the Office of Child Support Services must respond to a request for review of the order by evaluating the request to determine whether it should be forwarded to the responding State (the State where the order was entered). The decision whether to forward the request to the responding State is based on the same criteria used in determining whether in-State requests for reviews should be referred to Rhode Island Family Court.

2. Any active RIW, or IV-E Foster Care case where it has been three (3) years since the order was entered or three (3) years since the order was last reviewed, will automatically be referred to the responding State for review. There will be no need to evaluate whether the case should be referred or not. Of course, the decision whether to adjust the order or decide that no adjustment is warranted will rest with the responding State.

3. For MAO cases where it has been three (3) years since the order was entered or three (3) years since the order was last reviewed, the case will only be referred to the other jurisdiction if the existing order does not provide for the health care needs of a child who is included in the Medical Assistance Only household or has a cash Medical Support order that has been entered or has not been reviewed in the past three (3) years.

4. In each of these three (3) types of cases, RIW, MAO, and IV-E Foster Care, the Office of Child Support Services will have met its responsibilities under the Federal Regulations pertaining to the periodic review and adjustment of support orders by making the referral to the other State.

1.22.6Emancipation

Pursuant to Rhode Island law, a child is emancipated upon his or her eighteenth (18^th) birthday. However, the court may, if in its discretion it deems it necessary or advisable, order child support and education costs for children attending high school at the time of their eighteenth (18^th) birthday and for ninety (90) days after graduation, but in no case beyond their nineteenth (19^th) birthday. The court may order child support to continue in the case of a child with a severe physical or mental impairment. Furthermore, a non-custodial parent is obligated to continue paying current child support until s/he has obtained a modification terminating that obligation. Therefore, the Child Support Services agent will continue to enforce an order until such time as notification is received from the Family Court that the order has been terminated.

1.22.7Modification

A. An order may be modified prior to the three (3) year review period if the court finds that a substantial change in circumstances has occurred in accordance with R.I. Gen. Laws § 15-5-16.2.

B. An order may be modified in one (1) of two (2) ways:

1. Filing a Motion to Modify when only a modification is being sought. The non-custodial parent is making payments as ordered;

2. Filing a Motion to Adjudge in Contempt and to Modify, when both a modification and enforcement of the order are needed.

C. In non-assistance (NA) cases, the Child Support agent will get prior approval of the Office of Child Support Services attorney before filing for a modification.

D. Motion to Modify An income and expense sheet will be served upon the custodial and noncustodial parent along with the Motion to Modify. Both parties are required to complete the form called the Statement of Income and Assets (OCSS-1) and file it with the Court.

E. Motion for Relief

1. If a non-custodial parent has been placed under a child support or medical order, and becomes unemployed or otherwise is receiving no other income or benefits, or he becomes underemployed, the Office of Child Support Services can assist in filing an action to modify called a Motion for Relief. The non-custodial parent may complete a Request to file a Motion for Relief. Legal counsel for the Office of Child Support Services does not legally represent either party.

2. The State of Rhode Island is the moving party.

The non-custodial parent is entitled to relief only as of the date of Notice of the Motion. The Court is prohibited, by law, from giving the non-custodial parent retroactive relief back to the date of unemployment. The motion therefore should be filed immediately upon termination from employment or when the unemployment benefits stop. A hearing date will be assigned. Once before the Court, the non-custodial parent must present the reasons s/he is seeking a modification or suspension of his/her order. The Court will calculate a new order based upon the Child Support Guidelines.

F. Motion to Adjudge in Contempt and to Modify

The Office of Child Support Services may decide when it is appropriate to file a Motion to Adjudge in Contempt and to Modify. The custodial parent does not make that decision but certainly may file the motion at any time as a self-represented litigant. The agent will obtain an arrearage affidavit if appropriate and will follow procedures as outlined under § 1.20.2 of this Part, Contempt Processing.

G. Modification of Order Upon Termination of Rights

1. A termination of parental rights does not necessarily terminate a parent's obligation to pay child support. However, if a child is adopted, a parent's obligation to pay child support is terminated as of the date of adoption.

2. In order to modify a pre-existing Child Support order upon termination of parental rights, the following must occur:

a. The non-custodial parent must file a motion with the Rhode Island Family Court seeking to modify or terminate his or her child support obligation

b. The child has individual interest that must be represented in a child support hearing before the order can be modified. The Office of Child Support Services may request a Guardian Ad Litem to represent the child in a case that the parent is not the recipient of either RIW benefits or Medical Assistance.

c. In accordance with Rhode Island General Law, the Office of Child Support Services will take the position that a Child Support Petition for a child should be terminated upon the date of the child's adoption.

d. The Office of Child Support Services will seek a hearing in these circumstances and will not agree to a suspension of the Child Support order solely because the non-custodial parent's rights have been terminated. The focus of the hearing will be the income and assets of the non-custodial parent and his or her ability to pay child support.

3. In the above circumstances, it is the position of the Office of Child Support Services that it would be contrary to policy to waive any child support arrears that were due prior to the adoption of the child.

218 R.I. Code R. 218-RICR-30-00-1.22

Amended effective 3/29/2019
Amended effective 1/1/2021