Child Support Services (CSS) is committed to the right of all parties to have access to the justice system. This includes the opportunity to be present and participate in a meaningful way in court proceedings that affect their rights and responsibilities. CSS strives to ensure that customers receive the notice necessary to enable them to appear at court proceedings. CSS also works with customers to remove obstacles that might prevent them from appearing.
Unfortunately, in spite of our best efforts, customers sometimes fail to appear for court. When this happens, CSS must ask the court to proceed with the case based on the best evidence available and enter an order determining the relevant legal issues by default.
Before this occurs, however, CSS staff and the court must ensure that the party had notice of the court date and was given the opportunity to appear. Courts do not look favorably on defaults, and CSS should work to minimize the number of cases where paternity or a support obligation is established by default.
The following steps should be taken at a minimum to ensure that a party has had adequate notice prior to asking the court to enter a default order:
- Check the service sheet. Who was served? If the party was not served in person, the case should be reviewed carefully to ensure the party received notice of the court date;
- If the party was not personally served, do we have a basis to trust the address information? Is there a paper trail or a research trail on CSLOGI showing where the information came from? This information should be noted in a separate case log entry, in case it becomes an issue in later litigation;
- If certified mail, did the party sign a “green card” return receipt? If not, we cannot proceed with the default and will need to attempt service again. If the party signed the green card, does the signature appear to match the signature on any other documents we may have that were signed by that party?;
- Is the party in prison or jail? If so, are we sure that the notice got to the correct institution? If the party is in the penal system, it is usually possible to contact the facility where he or she is located and inquire as to whether the legal issues can be resolved by agreement. In paternity cases, the incarcerated father can be asked whether he wants genetic testing. CSS staff should attempt to contact the party prior to asking for a default order;
- Did the party contact CARE for a continuance or telephonic hearing? If so, did the party receive an indication that he or she could appear on another date or by telephone? Did the party leave a contact number for follow up? CSS should attempt to contact the party prior to asking for a default order; and
- In paternity cases, did father previously request genetic testing in writing? If so, can the testing be set up prior to the court date? If not, can the case be continued so that CSS can contact the father and have genetic testing set on another date in the meantime?
When a default order has been entered, the customer may still have an opportunity to be heard on the relevant issues.
Within the first 30 days:
If a party contacts CSS within 30 days of the entry of the default order, CSS can facilitate a re-examination of the legal issues underlying the default order. In order to do this, the following steps must be taken:
- Written request. The customer must request the reconsideration in writing. Once the written request is received, CSS facilitates the filing of the request with the Office of Administrative Hearings: Child Support (“OAH”). If the default order was issued by a district court, CSS refers the customer to the appropriate court clerk’s office to file the request. CSS treats the request as a “Motion to Vacate.”
- Hearing date set. When the Motion to Vacate is filed, CSS sets the case for hearing and notifies all parties by regular mail of the hearing date.
- Genetic testing. If the default order determined paternity, CSS prepares a genetic test order that includes language about the Motion to Vacate. An example of appropriate language is: “[Defendant’s][Plaintiff’s] Motion to Vacate is reserved pending receipt of genetic test results.”
- Other new information. If the party claims that incorrect information was used to calculate the amounts in a default order, the party must provide correct, reliable information that can be used to calculate a new amount of current child support or a judgment. CSS staff should review the new information carefully and adjust the amounts in the default order accordingly.
- Reviewing the proposed changes. When the new amounts are calculated and a replacement order is prepared, the order should be reviewed carefully with both parties to be sure that they each understand the changes. If the parties agree, the new order can be submitted to the court with a request that it be filed by agreement.
- Leaving a clean paper trail. The new order should contain some language disposing of the Motion to Vacate and the previous default order. An example of appropriate language is: “The [defendant’s][plaintiff’s] Motion to Vacate is sustained. The default order entered on [date of default order] is vacated and the provisions of this order shall control.” If this language does not apply, the State’s attorney should be consulted for language appropriate to the circumstances of the case.7. Objection by the parties. If either party objects to the proposed amended amounts after the review of new information, the case should be referred to the State’s attorney for further action. The parties can be notified that the case will likely be brought to the court for a hearing on the disputed issues. District Office procedure will control how the case is set on the docket for the hearing.
- Objection by the parties. If either party objects to the proposed amended amounts after the review of new information, the case should be referred to the State’s attorney for further action. The parties can be notified that the case will likely be brought to the court for a hearing on the disputed issues. District Office procedure will control how the case is set on the docket for the hearing.
After 30 days:
If the customer contacts CSS after 30 days, it may be more difficult to undo the default order. In most cases, the customer will need legal advice and possibly representation in order to get the issue before the court. Customers in this situation may be referred to legal resources within the community and provided with self-help forms as available.
10 O.S. § 7700-634
12 O.S. § 1031.1
12 O.S. § 2004 (C)(2)(c)
56 O.S. § 238.3a
56 O.S. § 238.4