You have asked whether the agency should honor an Income Withholding for Support Notice,
(Notice) served upon the Aberdeen, South Dakota Field Office on March 22, 2014 by
North Dakota Child Support Enforcement Agency.
Yes. The agency was properly served with a valid Notice and is obligated to honor
it and process the withholding request.
On March 22, 1014, the Aberdeen Field Office received an Original Income Withholding
for Support Notice/Order from North Dakota Child Support Enforcement Agency. The Notice
stated the name of the obligor (parent owing child support) Daniel and the name of
the child to whom the child support obligation is assigned. The Notice seeks a deduction
from Daniel’s income in the amount of “$729.00 Per Month” for both current child support
and past-due child support arrears greater than 12 weeks. The Notice directed that
payment should be sent to the North Dakota Child Support Enforcement Division. Daniel
contacted the Aberdeen, South Dakota Field Office questioning the legality of the
Notice based on his claim that paternity has never been proven and the garnishment
order was issued from a Tribal Court.
In general terms, child support enforcement is governed by a number of federal and
state laws that ensure interstate child support enforcement: the Uniform Interstate
Family Support Act (UIFSA), enacted in all jurisdictions; the Full Faith and Credit
for Child Support Orders Act (FFCCSOA); and the Uniform Enforcement of Foreign Judgments
Act (UEFJA). The FFCCSOA and UIFSA interact together. The FFCCOA and UIFSA enables
enforcement of child support obligations when the parties do not live in the same
state or country and require states to cooperate with each other to establish and
enforce child support orders. These federal statutes lay out jurisdictional requirements
for state courts to recognize, enforce, and modify orders of sister states.
North Dakota Law
North Dakota’s version of the UIFSA (N.D. Cent. Code Chapter 14-12.2 – Uniform Interstate
Family Support Act) gives the North Dakota support enforcement agency the power to
use any administrative procedure authorized by the law of North Dakota to enforce
a support order issued by a tribunal of another state. See N.D. Cent. Code § 1412.2-34. Pursuant to N.D. Cent. Code § 14-09-09.11, an income
withholding order is an acceptable administrative method that may be used by the North
Dakota support enforcement agency to enforce a judgment or order requiring payment
of child support. “Tribunal” is defined as “court, administrative agency, or quasi-judicial
entity authorized to establish, enforce, or modify support orders or to determine
parentage” and “[s]tate” includes an Indian tribe. See N.D. Cent. Code § 14-12.2-01(22 and 8).
Further, N.D. Cent. Code § 14-09-09.13 requires that the parent who owes child support
(obligor) be notified that the enforcement action (income withholding order) is being
taken by the support enforcement agency. This notice provision provides the obligor
with the notice of the enforcement action and the opportunity to receive a hearing
upon request, to contest the action. Id. The obligor, upon receipt of the notice or order has 14 days to file a request for
hearing to contest the validity of the order or notice. See N.D. Cent. Code § 14-09-09.14.
At the same time the above referenced process is occurring, the support enforcement
agency may also serve upon an employer or income payer an income withholding order.
See N.D. Cent. Code § 14-09-09.16(1). Service is proper if served by first-class mail
or in another manner agreed to by the income payer. Id. The child support agency must also serve the obligor with a copy of the order/notice.
The income withholding order served upon the obligor and the employer or payer, pursuant
to N.D. Cent. Code § 14-09-09.15, must be in the following form: “issued in the name
of the state of North Dakota in the standard format for notice of the order prescribed
by the secretary of the United States department of health and human services under
authority of 42 U.S.C. 666(b)(6)(A)(ii), contain only the information necessary for
the income payer to comply with the income withholding order, and be directed to all
current and subsequent income payers of the obligor.” Once properly served upon the
payer (in this case SSA), it is binding until further notice from the state. Id.
Social Security benefits may be garnished to enforce an individual’s legal obligation
to provide child support. See Social Security Act § 459(a) & (h)(1)(A)(ii)(I); 42 U.S.C. § 659(a) & (h)(1)(A)(ii)(I);
5 C.F.R. § 581.103(c)(1); 20 C.F.R. § 404.1820(b); Program Operations Manual Support
(POMS) GN 02410.200 (A). The agency must comply with legal process, defined as “any writ, order, summons,
notice to withhold income . . . or other similar process in the nature of garnishment”;
directed to a governmental entity to compel it to make a payment, from moneys otherwise
payable to an individual, to another party in order to satisfy the individual’s legal
obligation to provide child support or alimony; and issued by (1) a court of competent
jurisdiction (domestic or foreign), (2) an authorized official pursuant to a court
order or pursuant to state or local law, or (3) a state agency that is authorized
to issue income withholding notices pursuant to state or local law or pursuant to
section 466(b) of the Social Security Act. See Social Security Act § 466, 42 U.S.C. § 666; 5 C.F.R. § 581.102(f); POMS 02410.200(B).
An Indian tribal court may be a court of competent jurisdiction. POMS GN 02410.200(B) (“A court of competent jurisdiction include[es] Indian tribal courts within any
State, territory, or possession of the U.S. or the District of Columbia”).
In addition, a notice or order must be facially valid; that is, it must conform, on
its face, to the laws of the issuing jurisdiction, and service of the decree on the
agency must be proper. See 5 C.F.R. §§ 581.202, 581.305(a)(1); POMS GN 02410.205, GN 02410.210(A)(3)(b). Service of legal process that is regular on its face must
be in accordance with the law of the issuing state. See Social Security Act § 466, 42 U.S.C. § 666; 5 C.F.R. § 581.202; POMS GN 02410.205.If facially valid and service is proper, SSA must honor the notice/order and effectuate
As mentioned above, the income withholding order must contain only the information
necessary for the income payer to comply with income withholding. See: N.D. Cent. Code § 14-09-09.15. Per the statute and the standardized form, failure
to withhold income from the employee-obligor’s income as directed by the notice can
expose the employer, trustee or payer to liability for the amount that should have
been withheld and the any applicable penalties.
In this instance, the “Income Withholding Order/Notice for Support was properly served
upon the agency office in Aberdeen, South Dakota and is valid on its face. See N.D. Cent. Code § 14-09-09.16. As such, the agency is obligated to comply and, in
doing so, cannot be held liable for any issues Daniel may have with the validity and
legality of the notice or order. See N.D. Cent. Code § 14-09-09.3(8).
The agency should not be concerned with Daniel’s claims regarding the legality or
validity of the underlying support order issued by the Turtle Mountain Band of Chippewa
Tribal Court or the establishment of paternity. The agency’s role is only to determine
if the support withholding order is valid on its face (that is, contains the information
required by statute) and was properly served.
Additionally and as mentioned above, a state hearing procedure is available for Daniel
to contest the legality and validity of the notice or order. If utilized, that process
will provide Daniel with the right and opportunity to challenge the support order
issued by the tribal court including his allegation that paternity was not established.
Per North Dakota statute, the North Dakota Child Support Enforcement Division properly
served the agency with a valid notice of withholding of support. As such, the agency
is obligated to effectuate a withholding.
Daniel should address any concerns regarding the legality of the Notice to the North
Dakota Child Support Enforcement Division or the tribal court that issued the underlying
orders concerning support and paternity. The agency’s only responsibility is to comply
with the Notice.
John J. Lee
Regional Chief Counsel, Region VIII
Paul R. Ritzma
Assistant Regional Counsel