Questions and Arguments
For Your Lawyer to
Address
I. Introduction
The Minnesota Department of Human Services (“DHS”)
holds the Title IV-D authority. The IV-D program is state supervised and county
administered. The agency will most likely send you a “letter of intent to suspend” your driver’s license after you become
the equivalent of three months behind in your child support. Each month a
computer-generated list is automatically produced to record all obligors who
are in arrears. The system automatically sends out a computer generated letter
of “intent to suspend.” At one time, the child support case worker would use
their discretion to determine who would get suspended. It appears the case
worker no longer has discretion regarding who will receive this letter, and the
letter is sent every month to everyone on the list.
The DHS provides
a suspension list to the Department Public Safety(“DPS”).
Only the Public Safety holds the authority and jurisdiction in the driver’s license
matter. Public Safety takes the administrative action against you. Suspensions are
completed by the DPS. The DHS has been granted the statutory authority to be a
moving party in the suspension. You must be allowed a hearing. You must initiate
and be prepared for this hearing.
It
is estimated that 1500 driver’s licenses are suspended each month in
The
Minnesota Child Support Enforcement and Collections scheme has established a
goal to be the #1 state in the country for the highest dollars collected per
case. This means, they have had to ensure that child support orders are
established at the highest possible level. It is no wonder fathers in
The
legal authority to take away your drivers
license is the IV-D (Child Support Enforcement and Collections) agency. If you
were not a IV-D case, your driver’s license would not
be automatically suspended.
II. Background
Intent
and Purpose:
According to legislative authority, the statute
suspending driver’s licenses over child support arrears, was never meant to be
enforced, it was merely meant to scare people into paying their child support.
In reality, currently about 7500 licenses are suspended each year due to child
support arrears. Currently 20,000 driver’s licenses are in suspension due to
child support. The agencies policy to suspend your driver’s license goes beyond
the intent and scope of the law, unless there has been proof that you willfully
and intentionally have not supported your child(ren) and they now qualify for public assistance.
Legislative intent is a critical element when making a legal argument and
interpreting the statute.
U.S. Supreme
Court – K mart Corp v. Cartier, Inc., 486 U.S. 281, 291-292 (1988)
“If the statute
is clear and unambiguous ‘that is the end of the matter, for the court, as well
as the agency, must give effect to the unambiguously expressed intent of
Congress.’ … In ascertaining the plain meaning of the statute, the court must
look to the particular statutory language at issue, as well as the language and
design of the statue as a whole.”
Involuntary
reasons NCPs fall behind:
·
They don’t know it is better to make a
partial payment than no payment at all
·
Unemployment compensation doesn’t cover the
full amount.
·
Job loss
·
Self-employed individuals have
·
Child support was not factored correctly for
the seasonal worker
Problems Frequently Causing Arrears are a result of
the IV-D agency misinterpreting and misapplying the law:
Ø
Child
support payments are often based on imputed income, in violation of the ability
to pay statutes. When the child support payment ordered is an outrageously
impossible child support amount you could never afford, it renders performance
impossible.
Ø
Virtually
no motion to modify (reduce or suspend) child support is ever granted,
regardless of the reasons or your change in circumstances. Even during times of
unemployment, when arrearages mount, your drivers license can be threatened,
which is a violation of MN Statutes 518.64.
Ø
State
child support record keeping is not always accurate, they frequently make
errors, and accountability and verification of their accounting is nearly
impossible to obtain.
Ø
The
State creates an artificial arrears scheme:
o
When
the applicant signs up for IV-D services, it often takes two months for the
agency to process the first invoice; the obligation to the state begins at the
date of the application, making most non-custodial parents at least 2 months in
arrears upon receiving their first invoice.
o
When
the applicant (usually the mother) requests retroactive back support for two
years (commencement of action), even when the unmarried man may not even know
he had fathered a child.
o
When
the applicant (usually the mother) applies for services, it takes the agency up
to 2-3 months to sent the first billing statement to
the father. The amount owed begins at the date of the application, so the DHS
falsely claims the father is automatically 2-3 months in arrears.
Ø
A
misguided policy that seems to believe license suspensions won’t hamper ability
to pay, but facilitate or coerce compliance.
Ø
A
misguided policy that erroneously assumes that every father in arrears has an
ability to pay and is willfully choosing not to pay.
Ø
And
many more reasons.
III. Remedy/Finding a Solution
While
many non-custodial parents are forced into a position of driving without a
license, attempting to get your license back is critical. You must attempt to
remedy the situation or the agency will assume that you are willfully not
complying and will label you as uncooperative. Don’t feed into this myth. By
showing that you tried to do something to correct the situation you will have
much better grounds should the county some after you for criminal non-support
charges (MN 609.375) or constructive civil contempt charges. This will provide
evidence for the record, that you are acting in a
responsible manner to carry out the liabilities of your support obligation.
Even if you took no action because you didn’t know what to do, the court will
tell you that ignorance is not an excuse.
1) Respond to the letter of intent to suspend,
don’t ignore it. Formally request a
hearing to object.
a. Ask the commissioner of DHS for your right
to an administrative hearing under 7409.4600 Administrative hearing. Write a
letter directly to the commissioner. This is an administrative action, and the
remedy is an administrative hearing. Copy your case worker on the letter. Serve
all interested parties (your ex and the county).
b. If your administrative hearing is not
forthcoming, file a court motion and ask for a judicial hearing.
2) Request
a 90-day limited license. Only
one time during the duration of your child support order will you be allowed
the opportunity to get a 90-day limited license after suspension for child
support arrears. While this doesn’t seem fair, it will
help you get by for the moment.
a.
You can find the document on the internet at www.dps.state.mn.us/dvs.
b. It
is a one page form and that should be sent to your child support case worker.
The request cannot be denied.
3) File
a 1301 d exception objection.
4) Request
and Sign a Payment Agreement.
Notify your case worker in writing that you are willing to sign a payment
agreement consistent with your ability to pay. The case worker will try tell
you that the payment agreement is required to comply with your original court
ordered child support obligation PLUS 20% MORE for arrears. This is not true. A
payment agreement can be signed for as little as $30 a month. As you know, if
you have fallen behind in your support because you could not afford the court
ordered amount, you certainly can not afford to pay an extra 20%.
5) Write
a letter to your case worker indicating that you demand a full accounting of every single debit and every
single credit – the date, and the reason, in order to verify that the charges
are legally justified. The agency has been known to make numerous errors. Make
sure your license isn’t being taken away due to an accounting error on their
part.
6) Contact your legislators
(state and federal) to complain and let them know how counter productive this
law is.
IV. Applicable Laws, Rules, Case Law
MN 518.551 Subd 12
Occupational license suspension
MN 518.551 Subd 13
Drivers license suspension
MN 518.551 Subd 15
Recreational license suspension
MN 518.553 Payment Agreements
MN 171.166 Review of Disqualification Subd 3 Reconsideration of License disqualification
Chapter 7400 Public Safety: Driving Privileges, Loss, Reinstatement
MN Rule 7409.0500
MN Rule 7409.4200 Reinstatement After
Suspension, Generally
MN Rule 7409.4600 Administrative Hearing (to go to
through the administrative process without having to motion the court)
Case Law
“It is
irrational and unconstitutional to revoke driver’s license over a debt, where
revocation would hamper the ability of the person to pay the debt over which
the punishment arose.” Kathleen L. Piercy, v. Seymore G. Heyison, 565 F2d 854
(1977)
“Offenses
leading to license revocation include crimes and multiple misdemeanors. See,
e.g. Minn. Stat 171.17 subd. (3), (7) (1996). The
occurrence leading to license suspension in the instant case was non-criminal;
failure to timely pay child support is not a crime.” State of
Federal Law
Compliance with Title IV-D of the federal Social
Security Act requires the States to implement laws which mandate the suspension
of drivers and occupations license upon failure to pay an obligation of child
support, where such obligation was properly established under the act. This
enforcement measure is limited to IV-D cases.
42 USC 666 (a) (16)
You must set
everything up for appeal. To protect yourself on appeal, you must raise
constitutional issues in the very first hearing, or it can never be brought up
again for that motion. You don’t want to be burdened with the amended motion
process.
ü The
drives license suspension has lead to a complete and egregious level of frustration
of performance that has rendered the payment of support impossible,
rendering compliance impossible, and expectations impossible to perform.
ü An
inability to pay is lawful excuse; all ability to pay
statues must apply to you. Know all the statutes and include them in your
pleadings.
ü Ability
to pay is an element to willfulness (i.e. intent) therefore,
it has to be considered in the appropriate manner for adjudication of your
drivers license suspension. Be prepared to show proof that you are unable to
make the full amount.
ü It
is a violation of your due process because the invalid assignment of
rights to the IV-D agency. Challenge the underlying validity of the
original order.
ü Write in your motion and
affidavit that the suspension of your drivers license
compels you to motion the court for a temporary suspension of your child support
– because if you can’t get to work, you can’t pay your child support.
ü Request for relief for reinstatement
(or prevention of suspension) of drivers license based on the
material fact that not having a driver’s license is:
o
hampering
ability and right to work, to travel to get to work, hampering your ability to
self sustain, preventing your ability to make any support payments, making it
impossible to fulfill your responsibilities as a parent, depriving you of your
ability to fulfill your parenting time with your children, and depriving you of
your relationship with your children.
ü Argue
all applicable constitutional violations:
o
Violation of your right to work (1st
and 4th Amendment)
o
Violation of your right to earn a living (1st
and 4th Amendment)
o
Violation of your right to vote, because you
now have no valid and recognized picture ID (1st and 5th
Amendment)
o
Violation of your right to travel (1st
and 4th Amendment)
o
Impedes and interferes with ability to see
your children (9th and 14th Amendment)
If
you don’t try to deal with this, the system will label you as uncooperative and
willfully not complying. That may be the furthest thing from the truth. The
truth is probably that you don’t know how to take care of the problem and you
can’t afford an attorney to help you figure it out, and the child support case
worker is of no help to you. If you don’t deal with the suspension, sooner or
later, you will get stopped, and you will then be worse off because you can
expect:
1)
Citation
2)
Summons
to appear in court
3)
Further
financial burden
a.
Fine
– ticket for driving after suspension ($125)
b.
Court
costs
c.
Reinstatement
fee ($55)
d.
Potential
insurance consequences - skyrocketing premiums
e.
Possible
towing and impound costs
4)
Jail
DISCLAIMER: The viewing of material
from this site, the exchange of mail, and/or other communications with CPR
does not constitute legal advice. CPR makes no representation or warranty
regarding the resources or other professionals to which or from which this site
is linked. The information at this site is provided as educational public
service. However, it may not be relevant to your situation and is not intended
to replace a thorough and proper consultation with a competent and experienced
attorney.
“I continue
to be concerned about the unconstitutionality of this enforcement scheme.”
Source: Peter Erlinder,
Constitutional Law Professor,
cant charge you with contempt becaue you have acted in good afiath
to deal with it to get licnec eback
to comply….
1301 d
It can take a long time to get a hearing.
The child support office will lead you to believe
that you have to sign a payment agreement that includes your original court
ordered child support plus 20% for arrears. This is NOT true. The payment
agreement can be for as little as $30.
The child support agency will tell you to “get a
job on a bus line.”
Approximate anticipated costs: file the motion
($55), copying and mailing ($5), attorney costs ( $500),
Appeal to Court of Appeals ($500), etc
dd
cc
everything has to be set up for appeal…this means…
Arguments
when you make plea to the court you are asking for a payment agreement …. If
they won’t grant the payment agreement grant suspention
of child support otherwise rendering circumstances impossible to performa…rat in a maze…..reuction
in child support rendering performance impossible
·
Non-Custodial dad, B.D. (
Remember M.B. had
luck too … get details to add to brochure.
“Having canceled the bond which stood against
us with its legal demands; this He set aside, nailing it to the cross.”
Colossians 2:14
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bi-partisan, gender-neutral, tax-exempt public policy and educational
organization to protect the civil rights of both parents in divorce and
paternity actions.
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Educational Booklet #03-2
The purpose of this information is to help ensure that you are asking your lawyer all the pertinent questions that must be addressed in your motion, affidavit, and memorandum of law, in order to help ensure a thorough argument based on all merits of the law. No argument should be overlooked, because every document is critical to the record. Your case must be appropriately and adequately presented to the court, to protect and safeguard you for all possible appeal issues.
Prepared
By:
Center
For Parental Responsibility
CPR
Voicemail: 651/490-9277
Website:
cpr-mn.org
Email:
info@cpr-mn.org
Latest Update:
What to do with all of this??????
Ø If
the custodial parent is not on public assistance, is there
a compelling state interest to assert themselves
in this COLA issue?
o
If you don’t owe the public authority any
money as a result of your child support case, and have not been a public burden
for any reason under Title IV, there is no compelling state interest.
o
If, without your child support, you’re child(ren) would not be in a
position to qualify for public assistance, there is no compelling state
interest.
o
COLA’s should only apply when the custodial
parent is on public assistance, as defined in Title IV.
o
COLAs are only meant to recover public money
provided to the custodial parent.
Ø Were
you aware of the IV-D welfare application prior to the assignment
of rights to the
o
By law, you must be properly notified and
allowed a fair hearing process to challenge the assignment of rights of your child(ren) over to the state.
o
Your due process has been violated if you
were not informed by the county that the application had been submitted, and if
you did not have an opportunity to object to the applicant or verify the facts
provided in the application, as they relate to you and your child(ren).
o
If you can take care of the children without
public assistance, that is your option as a parent.
Ø Has
the state established the proper burden of proof that
there has been an increase in your wages or salary?
o
Establish and maintain your constitutional
right to privacy which protects the privacy of your tax records.
o
It is a violation of privacy to require tax
records when you have filed jointly with a new spouse – their information is
not pertinent to the case.
o
Show, with payroll documentation, that you
have not had an increase, or that you have had a decrease, when applicable.
Ø Has
the state established proper burden of proof that there
has been an increase in the cost of the living for the child(ren)?
o
Does the child(ren)’s cost of living expenses for the basic needs equate to the same increase imposed on you
for their cost-of-living increase?
o
Be prepared to refute the states “best
interests” argument – no best interest statute has any reference to finances.
Ø Are
the basic financial needs of the children being met?
o
Show the cost to raise child(ren) by using the foster care standard
§
The state has determined the true cost of
raising children, by defining specific amounts required to cover the basic
needs of the child(ren),
through the foster care program.
o
If you meet the current state foster care
standard, which in MN is $448 a month (with each parent equally responsible for
their half at $224 each), the basic needs of the
children are being met.
o
The state has no compelling interest beyond
the basic needs of the children – If the state can not prove that the child(ren) are being deprived of basic needs, there is no
compelling state interest.
o
Child support must be based on the true cost
of raising child(ren).
o
The state cannot dictate how much money a
parent chooses to spend on their children, above and beyond their basic needs.
Anything more is “lifestyle support” and is not child support.
Ø Table
of Authorities
o
MN Statute 518.641
o
Federal Law 666 (10) (A)
Ø Are
my constitutional rights being violated?
o
Violation of Right of Privacy:
§
If a private agreement has been made, there
is no compelling state interest and there should be no delivery of government
services.
o
Violation of Procedural Due Process:
§
If they notified the employer of a mandatory
cost-of-living increase before you have been notified and/or before you have
been given a fair hearing and so adjudicated.
o
Violation of Substantive Due Process:
§
If you have not been offered an opportunity
to challenge the assignment of rights, and seek appropriate relief.
o
Violation of 1st Amendment and 9th
Amendment:
§
If you are a fit parent and have been
prevented from protected liberty interest of parenting the way you chose.
o
Violation of Equal Protection (5th
and 14th Amendment):
§
The law is there to make sure that your
rights as a non-custodial parent are as protected as the custodial parent.
§
Since the state can’t require a married
family to spend more on their children, they can’t require you to spend more.
o
Violation of Civil Rights
§
If your 1301 (d) objection is not honored
the public authority is in violation of federal law if they continue the
unwanted, unnecessary government intrusion in your family.