Archive for category Family Law

Medicaid Expansion is Right for Ohio (letter to editor, Columbus Dispatch, 4.4.13)

The Medicaid expansion currently being debated in the state budget would improve the health, safety and stability of Ohioans and Ohio families.

People who have access to health care are healthier. They get more appropriate preventive care and avoid emergency-room visits and heath crises. Many low-wage workers do not have access to employment-based health insurance, and they cannot afford to buy private insurance.

Families and individuals with access to health care are safer. They can get the health care they need, including immunizations and prescription medications, to avoid health risks and address chronic conditions.

Families and individuals with access to health care are more stable. Medical debt was a factor in 62 percent of the 38,000 bankruptcy filings in Ohio in 2012. Medical debts also play a significant role in home foreclosures. Access to health care would significantly reduce the number of bankruptcies and home foreclosures so that more Ohioans could remain economically stable and independent.

Debt also is a factor in domestic violence. Reducing medical debt would lessen family stress and domestic violence, keeping more families intact and stable.

Access to health care also will make Ohioans more employable, increasing their financial and social stability.

The Medicaid expansion would provide a helping hand to Ohio, Ohioans and Ohio families. It would keep Ohioans healthy, safe and stable. It is the right decision for Ohio and all of our residents.

– EUGENE R. KING

Director

Ohio Poverty Law Center

Columbus

http://www.dispatch.com/content/stories/editorials/2013/04/04/1-medicaid-expansion-is-right-for-ohio.html

 

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Child Support Bill Likely to be Passed During General Assembly’s Lame Duck Session

House Bill 561 (HB 561)—sponsored by Representative Lynn Slaby—was introduced last May and has been assigned to the House Judiciary and Ethics Committee.  It is on a “fast track” and will likely be passed by the Ohio General Assembly before the end of this year.

The Ohio Child Support Directors Association (OCDA) drafted and is pushing for quick passage of HB 561 in order to address inconsistencies in current child support laws and to bring Ohio into full compliance with federal IV-D rules governing expedited administrative processes and applications for IV-D child support enforcement services. There are significant changes regarding the timeframes for appealing certain CSEA actions or recommendations, the scope of the state income tax intercept mechanism, the requirements for discharging an existing lien on a defaulting obligor’s property, the effective date on an administrative child support order, and the effective date of initial administrative child support orders.  The bill is also likely to be amended to include language drafted by Mike Smalz of the Ohio Poverty Law Center (OPLC) giving courts and child support enforcement agencies (CSEAs) jurisdiction and  authority to lower arrearage-only payments and income withholding after the termination of the current child support order.  This article summarizes the major proposed changes.

1)      Reduces from thirty to fourteen days after the issuance of a CSEA administrative order, decision or notice or receipt of notice the time period for:

  • objecting to an administrative order determining parentage, objecting to an administrative support order by bringing an action for the payment of support and provision for a child’s health care;
  • requesting a hearing on modification of child support by a CSEA;
  • requesting an administrative hearing following a CSEA investigation of a reason to terminate child support; and
  • moving for a judicial determination of a CSEA decision following investigation of a reason to terminate child support.

2)      Increases from seven to fourteen days the time period for an obligor to request a mistake of fact hearing or a subsequent court hearing regarding a CSEA default determination or a CSEA determination regarding the availability of private health insurance at a reasonable cost.

3)      Expands the State income tax intercept mechanism to include collection of overdue spousal support.

Current law allows CSEAs to work with the Tax Commissioner to collect overdue child support; the law will allow CSEAs to recover any overdue support, not just child support, through a state income tax intercept so long as the case is a IV-D case.  (This change will affect cases involving both child support and spousal support orders, but should not affect spousal support-only cases.)

4)      Eliminates the automatic requirement that CSEAs discharge a lien against a delinquent support obligor upon the issuance of a new income withholding or a deduction notice or a new support order.

CSEAs would have discretion to decide whether or not to file a notice requesting that the county recorder discharge the lien on an obligor’s real or personal property in cases where a new income withholding notice or support order has been issued to collect accrued arrears.

5)      When the CSEA issues an initial administrative child support order, the order will become effective on the date of the administrative hearing.

Therefore, if the obligor or obligee appeals the administrative child support order to the juvenile court and the administrative order is upheld, the order will be in effect retroactive to the date of the CSEA’s administrative hearing.

6)      Gives the court discretion to reduce arrearage-only payments and income withholding below the amount ordered to be paid and withheld to pay both current child and arrears under the child support order that was in effect during the child’s minority.

This change should benefit low income obligors who experience a drastic decline in income sometime after the termination of their current child support obligation and before the liquidation of the entire arrearage.  For example, if the child turns 18, thereby terminating the current child support obligation, and the obligor later becomes disabled and his only income is SSD benefits, he could ask the court or CSEA to lower his arrearage-only payments because of his drastically changes circumstances. By contrast, under current law the obligor would be required to continue to pay the same amount, regardless of any change in circumstances or personal hardship, until the entire arrearage was paid off.

The ODJFS Child Support Guidelines Council voted to recommend the last change as an amendment to HB 561.  Although that provision is not currently in the bill, the OCDA plans to incorporate that amendment into HB 561 before it is passed by the General Assembly during the lame duck session.  The proposed language is:

3121.36 Authority to collect arrearage after termination of order.

The termination of a court support order or administrative child support order does not abate the power of any court or child support enforcement agency to collect any overdue and unpaid support or arrearage owed under the terminated support order or the power of the court to punish any person for a failure to comply with, or to pay any support as ordered in, the terminated support order. The termination does not abate the authority of the court or agency to issue any notice described in section 3121.03 of the Revised Code or to issue any applicable order as described in division (C) or (D) of 3121.03 of the Revised Code to collect any overdue and unpaid support or arrearage owed under the terminated support order. If a notice is issued pursuant to 3121.03 of the Revised Code to collect the overdue and unpaid support or arrearage, the amount withheld or deducted from the obligor’s personal earnings, income, or accounts shall be REBUTTABLY PRESUMED TO BE at least equal to the amount that was withheld or deducted under the terminated child support order. A COURT OR CHILD SUPPORT ADMINISTRATIVE AGENCY ADMINISTERING THE CHILD SUPPORT ORDER MAY CONSIDER EVIDENCE OF HOUSEHOLD EXPENDITUTES, INCOME VARIABLES, EXTRAORDINARY HEALTH CARE ISSUES, AND OTHER REASONS FOR DEVIATION FROM THE PRESUMED AMOUNT.

Effective Date: 03-22-2001

3123.14 Collecting arrearage where order is terminated.

If a child support order is terminated for any reason, the obligor under the child support order is or was at any time in default under the support order and, after the termination of the order, the obligor owes an arrearage under the order, the obligee may make application to the child support enforcement agency that administered the child support order prior to its termination or had authority to administer the child support order to maintain any action or proceeding on behalf of the obligee to obtain a judgment, execution of a judgment through any available procedure, an order, or other relief. If a withholding or deduction notice is issued pursuant to section 3121.03 of the Revised Code to collect an arrearage, the amount withheld or deducted from the obligor’s personal earnings, income, or accounts shall be REBUTTABLY PRESUMED TO BE at least equal to the amount that was withheld or deducted under the terminated child support order. A COURT OR CHILD SUPPORT ENFORCEMENT AGENCY ADMINISTERING THE CHILD SUPPORT ORDER MAY CONSIDER EVIDENCE OF HOUSEHOLD EXPENDITURES, INCOME VARIABLES, EXTRAORDINARY HEALTH CARE ISSUES, AND OTHER REASONS FOR DEVIATION FROM THE PRESUMED AMOUNT.

Effective Date: 03-22-2001

The Ohio Poverty Law Center will monitor the progress of HB 561 and, in particular, the proposed arrearage-only payment amendment.  If anyone has any questions about HB 561, they should contact Mike Smalz at the Ohio Poverty Law Center, at msmalz@ohiopovertylaw.org.

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New Civil Rule 65.1 Will Change Domestic Violence Practice

Ohio’s new Civil Rule 65.1 governing civil protection orders (CPO) for domestic violence victims will take effect on July 1, 2012. It reflects and incorporates nearly 2 years of work by the Supreme Court Advisory Committee on Domestic Violence and the Supreme Court Civil Rules Commission, including the participation of Mike Smalz of the Ohio Poverty Law Center, Alexandria Ruden of the Legal Aid Society of Cleveland,  and Robin Bozian of Southeastern Ohio Legal Services.

The new rule 65.1 addresses a number of problems that have arisen under existing domestic violence laws and Civil Rule 53 governing magistrates’ proceedings, including:

  • gaps in protection for victims resulting from abusers’ filing of objections to magistrates’ orders, which trigger an automatic stay of the Full Hearing CPO;
  • lack of discovery requirements or standards protecting victims in CPO cases; and
  • conflicts between the language of the Supreme Court standard protection order forms and the literal requirements of existing Civil Rule 53 in magistrates’ proceedings as reflected in several Court of Appeals decisions.

The adoption of the new Civil Rule 65.1 will greatly impact CPO practices and procedures in Ohio because an estimated 80% of CPO cases are heard by magistrates.

Among the highlights of Civil Rule 65.1 are:

  • It governs all types of CPO cases, including domestic violence CPOs (R. C. 3113.31), stalking/sexually oriented offense CPOs (R. C. 2903. 214), and juvenile CPOs (R. C. 2151.34).
  • It supersedes and replaces existing Civil Rule 53 in prescribing CPO procedures in cases that are referred to magistrates.
  • Initial service of the CPO petition, ex parte order, and all other documents shall be made upon the respondent in accordance with Civil Rules 4 through 4.6, thereby authorizing the use of residence or certified mail service upon the respondent if efforts to obtain personal service are unsuccessful.
  • Discovery may only be had by leave of court, and the court’s discovery order must set forth the time and place of discovery; the identities of the persons permitted to be present (at a deposition) shall include any victim advocate; and “such terms and conditions deemed by the court to be necessary to assure the safety of the Petitioner, including if applicable, maintaining the confidentiality of the Petitioner’s address.”
  • The magistrate may conduct the ex parte hearing and, upon the conclusion of the hearing, may grant or deny an ex parte CPO, and, unlike other magistrates’ orders, the ex parte CPO may not be appealed by filing a motion to set aside the order.
  • After the full hearing, the magistrate may grant or deny a full hearing CPO, and the judge may then adopt, deny, or modify the full hearing CPO provided there is no error of law or other defect evident on the face of the order.
  • The full hearing CPO becomes effective when signed by the judge and filed by the clerk, and it is a final, appealable order.
  • A party may file written objections to the court’s adoption, modification, or rejection of a full hearing CPO, but the filing of objections does not stay the execution of the order.
  • Instead of filing written objections, a party may appeal the order of the court concerning the issuance of a full hearing CPO to the court of appeals.
  • The filing of objections stays the running of the time for appeal until the filing of the court’s ruling on the objections.

The full text of new Civil Rule 65.1 can be accessed by clicking here.  Once on the Final Rule Amendments page of the Ohio Supreme Court website, select “Ohio Rules of Appellate Procedure, Ohio Rules of Civil Procedure, Ohio Rules of Criminal Procedure, Ohio Rules of Juvenile Procedure, and Ohio Rules of Evidence” – the correct selection has an effective date of July 1, 2012 (this link and the instructions take you to the full document describing several amendments to Ohio rules of court; rule 65.1 begins on page 43). We’ve also posted the text of the new Civil Rule 65.1 by itself on the Ohio Poverty Law Center website, here.

Any questions concerning the new Civil Rule 65.1 can be addressed to Mike Smalz of the Ohio Poverty Law Center at (614) 824-2502.

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