[Adopted 12-19-1985 by Ord. No. 85-22;
amended in its entirety 6-17-1999]
A.
Purposes. It is the purpose of this article to assert
tribal sovereignty to its fullest by incorporating Menominee traditions,
values and customs which will facilitate the stability of families
and the community by:
(1)
Providing a measure of financial security for children
through clarification of the legal obligation of their parents to
contribute to their financial support;
(2)
Ensuring that the father of each child is identified
and has all rights and responsibilities arising from that identification;
(3)
Establishing procedures by which child support is
determined;
(4)
Creating a tribal agency to recommend appropriate
amounts of financial support, collect amounts ordered to be paid,
institute proceedings to enforce payment of support orders and to
administer all agreements with other jurisdictions concerning child
support; and
(5)
Establish procedures by which any person on the Reservation
of the Menominee Nation shall acquire the benefits and/or the obligations
of this article, as appropriate.
B.
CHILD
CHILD SUPPORT AGENCY or AGENCY
LEGAL CUSTODY
NONLEGALLY RESPONSIBLE RELATIVE
PHYSICAL PLACEMENT
SUPPORT
Definitions. As used in this article, the following
terms have the meanings prescribed herein:
Any unmarried person under the age of 18 years, including
persons who have "independent living" status under the laws of the
State of Wisconsin, or an unmarried person who is attending high school
after attaining the age of 18 who has not reached the age of 19.
The Menominee Tribal Child Support Agency.
The legally acknowledged right and responsibility to make
major decisions concerning a child, such as consent to marry, consent
to enter military service, consent to obtain a motor vehicle operator's
license, authorization for nonemergency medical care, and the choice
of school and religion.
A relative who assumes responsibility for the care of a child,
excepting a relative who has physical custody during a court-order
visitation period.
The condition under which a person has a right to have a
child physically placed with that person and has the right and responsibility
to make, during that placement, routine daily decisions regarding
the child's care, consistent with the major decisions made by a person
having legal custody.
Payment of the expenses of necessary shelter, food, care,
clothing, medical and dental care, child care and education.
A.
Exclusive jurisdiction. The Menominee Tribal Court
shall have exclusive jurisdiction in the following proceedings:
(1)
Actions establishing paternity in which the alleged
father resides or is domiciled on the Menominee Reservation.
(2)
Actions establishing child support in which the children
for whom support is sought and the person(s) from whom support is
sought reside or are domiciled on the Menominee Reservation.
(3)
Actions seeking enforcement of a child support order
of a foreign court entered against a person who, at the time filed,
resides or is domiciled on the Menominee Reservation.
B.
Jurisdiction in all other actions. The Menominee Tribal
Court shall have jurisdiction over any action brought under this article
to the extent not prohibited by other tribal law or federal law.
A.
Legal obligation to support children. It is the legal,
as well as moral, responsibility of parents to provide financially
for their children's food, clothing, shelter, medical care and general
well-being. A parent with legal custody or with whom the child resides
at least 60% of the time is presumed to be carrying out this obligation.
D.
Amount of child support; state percentage standard.
After hearing, the Court shall order either or both parents to pay
an amount reasonable and necessary to carry out the obligation of
supporting the children. It is a rebuttable presumption that the amount
of support ordered utilizing the percentage standard established by
the Wisconsin Department of Workforce Development, as that may from
time to time be amended, is the reasonable and necessary amount required,
unless a party requests a modification of that standard.
E.
Factors for modification of standard. The party requesting
modification of the Wisconsin standard shall demonstrate that its
application is unfair to the child or any of the parties. Such demonstration
shall be based on the following factors:
(1)
The financial resources of the child;
(2)
The financial resources of both parents, including
property received pursuant to a divorce decree;
(3)
Maintenance/alimony received by either parent;
(4)
The needs of each parent in order to support him/herself
at a level equal to or greater than the federal poverty income standards;
(5)
The needs of any person, other than the child, whom
either parent is legally obligated to support;
(6)
The desirability that the custodian remain in the
home as a full-time parent;
(7)
The cost of day care if the custodian works outside
the home or the value of custodial services performed by the custodian
if the custodian remains in the home;
(8)
The award of substantial periods of physical placement
to both parents;
(9)
Extraordinary travel expenses incurred in exercising
the right to visitation;
(10)
The physical, mental and emotional health needs
of the child, including any costs for health insurance;
(11)
The child's educational needs;
(12)
The tax consequences to each parent;
(13)
The best interests of the child;
(14)
The earning capacity of each parent, based on
each parent's education, training and work experience and the availability
of work in or near the parent's community of residence;
(15)
The recommendation, if any, of the Child Support
Agency;
(16)
The cost of substitute care ordered by a court
of competent jurisdiction; and
(17)
Any other factors deemed relevant by the Court.
F.
Order deviating from standard for support. Upon determination
that the application of the standard for support would be unfair to
the child or a parent, the Court may enter an order of support which
establishes an amount which differs from said standard, which includes
findings of fact supporting its determination.
G.
Payment of support orders; administrative fee. The
order of support shall provide that all payments made thereunder shall
be made to the Child Support Agency. The first such payment shall
include an administrative fee of $35; said administration fee shall
be included for each 12 months for which the support order is in effect,
including any modification to the initial order.
H.
Health insurance as component of support. In addition
to a monthly payment of support, the Court may require one or both
parents to obtain and maintain health care coverage that is available
to them, as a benefit of employment, for the benefit of the minor
children until each has graduated from high school.
I.
Child Support Agency notification. Each order for
support shall be transmitted to the Child Support Agency by the Clerk
and shall include a requirement that the parties keep said Agency
informed of and provide notice within 10 days of any change in any
of the following:
(1)
Current address;
(2)
Current source of income and any change in income
source or amount;
(3)
Any change in availability of health insurance coverage
through employment, including the name of the insurance company, health
care organization or health maintenance organization, the policy or
certificate or contract number, and the names and birth dates of the
persons for whom health care coverage is maintained; and
(4)
Any change in custody of the child for whom support
is ordered.
J.
Order for parent determined unable to pay support.
In any case in which child support is sought or enforcement of an
existing child support order is requested, the Court may, if the parent
is found to be unemployed and financially unable to pay support, order
said parent to do any or all of the following:
(1)
Register for work at a public employment office operated
by the Tribe or the State of Wisconsin;
(2)
Apply for work;
(3)
Participate in job training programs; or
(4)
Pursue an accredited course of instruction leading
to the acquisition of a high school diploma or its equivalent; and
(5)
Authorize a parent determined unable to pay support
in cash to provide in lieu thereof goods and/or services, the value
of which is validated by the Child Support Agency and the usefulness
of which is affirmed in writing by the child's custodian. The continued
appropriateness of an authorized in lieu contribution shall be reviewed
by the Tribal Court every 90 days that such an order is in effect.
K.
Order for income withholding. In the absence of a
finding of good cause not to issue an order for income withholding,
the Court shall issue, in addition to its order of support, an order
directed and served on the payer's employer to withhold from the payer's
wages and salary and pay to the Child Support Agency as child support
an amount which is the lesser total of the following: the child support
amount ordered by the Court or the amount allowed under Section 303(b)
of Title III of the Consumer Credit Protection Act, P.L. 90-321, 15
U.S.C. § 1673(b). The Child Support Agency shall provide
the employer with the notification of income withholding and the forms
necessary to comply with the order of withholding.
L.
Modification of child support order. The Court may,
upon application by the parties, the Child Support Agency, or Department
of Social Services and due notice to the opposite party, revise and
alter any judgment or order respecting the amount of child support
which is subject to enforcement by the Court, upon a finding of substantial
change of circumstances.
(1)
Circumstances presumed to be substantial. Any of the
following constitute a rebuttable presumption of a substantial change
of circumstances sufficient to justify a revision of the support judgement
or order:
(a)
Commencement of receipt of temporary assistance
for needy families by either parent since the entry of the last child
support order.
(b)
The expiration of 33 months after the date of
entry of the last child support order, unless the amount of child
support was expressed as a percentage of parental income.
(c)
Failure of the payer to furnish a timely disclosure
of assets.
(2)
Circumstances which may be substantial. Any of the
following may constitute a substantial change in circumstances sufficient
to justify a revision of the support judgment or order:
(3)
Circumstances not a basis for modification. Violation
of physical placement rights by the custodian does not constitute
reason for modification of child support obligations.
M.
Enforcement of child support order. An order for child
support by the Menominee Tribal Court, or an order of any other Court
with personal and subject matter jurisdiction, may be enforced by
the Tribal Court by any of the following proceedings:
(1)
An order to show cause requiring the payer to demonstrate
at a reasonable time therein specified why the payer should not be
held in contempt and subject to:
(2)
Issuance of an order for income withholding, requiring assignment to the Child Support Agency of all commissions, earning, salaries, wages, pension benefits, lottery prizes that are paid in installments, per capita payments made to adult members by the Menominee Indian Tribe of Wisconsin, and any other money due or to be due in the future. Said amount shall be sufficient to pay any arrearages due at a periodic rate not to exceed 50% of the amount of support due under the order, subject to the maximum specified in Subsection K above.
(3)
Execution of the order or judgment.
(4)
Attachment of assets.
N.
Credits against child support amount. It is not a
valid basis for failure to pay ordered support that the custodian
violates the rights of the payer to visitation and/or physical placement;
however, any financial expense incurred by the payer to correct such
violation may be credited to the support obligation upon order of
the Court.
O.
Employer provisions. Employers may not use an assignment
of income for the purposes of this article as a basis for discharge
or refusal to employ a person or for taking a disciplinary action
against an employee payer. An employer who takes any of these prohibited
actions against a person or employee will be subject to a fine of
up to $5,000 and may be responsible for full restitution to the person,
including reinstatement and back pay. An injured party or the Agency
may request an action for enforcement from the Tribal Prosecutor.
[Added 6-6-2002]
A.
Creation. The Child Support Agency established by
this article shall carry out all responsibilities and duties under
the supervision of the Menominee Department of Social Services.
B.
Initiation of child support action. The Child Support
Agency shall file a petition for an order for child support when:
(1)
Upon request of the custodial parent or nonlegally
responsible relative and the request is based upon the failure or
refusal of a parent to provide for the support of his/her child.
(2)
Upon notification by the Department of Social Services
or any other public agency providing public aid to a spouse or minor
child and the notice is based on the:
C.
Recommendation to Court on child support amount. At the Court's request, the Child Support Agency shall investigate all relevant facts and make a written report and recommendation to the parties and the Court regarding child support. Any such report shall utilize the support standard of the Wisconsin Department of Workforce Development, as it may from time to time be amended, as a basis; any deviation from that standard shall be founded on the factors enunciated in § 368-12E above.
D.
Agency disbursement of support payments. After a support
order is entered, the Child Support Agency shall receive all payments
of support orders. Not less than once each month, the Agency shall
record the support payments due, paid, and past due. All monies received,
excluding administrative fees, shall be disbursed to the recipient
of support within 10 days of receipt.
E.
Disbursement to social service agency. In any case
in which support payments have been assigned to a social service agency
as a result of receipt of temporary assistance for needy families
or as a result of placement of the child in substitute care by a social
service agency, the Agency shall transmit support payment to the assignee
agency as required by federal law. Said payment shall not be made
to a licensed foster parent of the child.
F.
Application of payments received. The Child Support
Agency shall apply all payments received for child support as follows:
(1)
First, to payment of child support due within the
calendar month during which payment is received. For payments made
pursuant to an income withholding order, no interest will be assessed
for a payment received subsequent to the calendar month during which
payment is withheld.
(2)
Second, to payment of unpaid child support due before
the payment is received.
G.
Annual statement of payments. The Child Support Agency
shall provide annually to each party, without charge, one statement
of account upon request. Additional statements may be provided upon
payment of a fee to cover the costs of reproduction.
H.
Child support order enforcement. Any action to enforce
an order of support in the Menominee Tribal Court shall be initiated
by the Child Support Agency.
I.
Criteria for initiating enforcement action. The Child
Support Agency shall initiate enforcement of the support order when
the arrearage in the payer's support payment account is equal to the
amount of support payable for one month under the order. The Agency
shall not initiate enforcement if the support order was entered ex
parte and the Agency has not received a copy of proof of service of
the order.
J.
Notice to alleged violator required. The Child Support
Agency shall provide to the Court as part of its enforcement action
request a copy of the enclosed notice, sent by ordinary mail to the
alleged violator, which states: "Failure to respond to the Child Support
Agency within 10 days of the date of this notice to work out a satisfactory
arrangement may result in contempt of court proceedings being brought
against you."
K.
Child Support Agency as petitioner. In any proceeding
in the Menominee Tribal Court to enforce an order of support, the
Child Support Agency shall act on behalf of the child for whom support
is ordered and file as petitioner for enforcement of the order.
L.
Administrative adjustment of support prohibited. The
Child Support Agency is without power and authority to amend any order
of support or to abolish any arrearage. All support order modifications
must be made by the Menominee Tribal Court.
M.
Agency petition for support modification. The Child Support Agency shall periodically review each support payment account to determine whether the amount should be increased or decreased due to a change in circumstances. The basis for modification shall be those detailed in § 368-12L above. These reviews shall occur not less than each 33 months, and may result in a petition for modification, which includes a report enunciating the change of circumstances.
N.
Agency assistance to interested parties. The Child
Support Agency shall make available to support payers and payees from
motions, responses and orders for use by them in requesting the Court
to modify their support order or in responding to a motion for support
modification without the assistance of counsel. The Agency shall also
provide instructions on scheduling a support modification hearing.
O.
Authority to enforce tribal support orders in other
forums. The Child Support Agency may seek enforcement of any order
for support entered by the Menominee Tribal Court through any other
forum, including the courts of the state in which the payer resides,
the utilization of interstate support collection agreements, the attachment
of any income tax refunds due the payer, and any other mechanism approved
by the Tribal Legislature.
A.
Acknowledgement of paternity. The paternity of any child may be established through the signing of a statement by the father and mother of the child before the Clerk of Tribal Court. The acknowledgement statement shall identify the father and mother by birth date, social security number, and residence and shall likewise so identify the child. Upon receipt of such statement, witnessed by the Clerk, a Judge of the Menominee Tribal Court may enter an order of filiation and refer the matter to the Child Support Agency for a recommendation as to child support and the initiation of a child support proceeding. If the child is an Indian child who may qualify for enrollment in the Menominee Tribe of Wisconsin, the Menominee Tribal Court shall be further required to conduct a hearing pursuant to Chapter 69, Enrollment, of this Code, and the Court may then enter an order of filiation and refer the matter to the Child Support Agency for a recommendation as to child support and the initiation of a child support proceeding.
B.
Initiation of paternity determination. The Menominee
Tribal Court may entertain a petition to determine the paternity of
a child filed by:
C.
Time for filing paternity action. If a petition to
determine paternity is brought before the birth of the child, no hearing
shall be conducted until after the birth, unless the Court shall determine
that any action is necessary in order to preserve testimony. If a
petition to determine paternity is brought more than 20 years after
the birth of the child and the alleged father is deceased, the Court
may dismiss the petition.
D.
Content of petition. A petition to determine paternity may be joined with a request to order child support under § 368-12B above. It shall state the name and date of birth of the child if born, or that the mother is pregnant if the child is unborn, the name of any alleged father, whether any party has filed an action to determine paternity in any other court, and if a judgment of paternity has been rendered by any other court. The petition shall also give notice of a party's right to request a genetic test under Subsection N herein.
E.
Paternity adjudication necessary for determination
of father's rights. The Menominee Tribal Court shall decline to issue
an order for child support, physical placement or legal custody unless
the man has been adjudicated or has acknowledged paternity.
F.
Summons. The summons to be served, along with the
petition, shall include the following notice, in addition to providing
a time and date for appearance:
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Notice to Respondent
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1.
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You have been named in a petition alleging paternity.
A judgment of paternity would legally designate the child as your
child, grant parental rights to you, create the right of inheritance
for the child, obligate you to pay child support until the child reaches
the age of 18 or until the child graduates from high school or its
equivalent up to age 19, and make your failure to pay child support
punishable by contempt of court.
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2.
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You may request genetic tests which will indicate
the probability that you are or are not the father of the child. The
Court will order genetic tests on request by you, the Child Support
Agency, or any other party. Any person who refuses to take Court-ordered
genetic tests may be punished for contempt of court.
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3.
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The petitioner has the burden of proving by
clear and convincing evidence that you are the father. If genetic
tests show that you are not excluded as the father and that the statistical
probability of your being the father is 99.0% or higher, you are rebuttably
presumed to be the father.
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4.
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The following defenses are available to you:
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(a)
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That you were sterile or impotent at the time
of conception;
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(b)
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That you did not have sexual intercourse with
the mother of the child during the conceptive period; or
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(c)
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That another man did have sexual intercourse
with the mother of the child during the conceptive period.
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5.
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If you fail to appear at any stage of the proceeding,
including a scheduled genetic test, the Court may enter a default
judgment finding you to be the father. A default judgment will take
effect 30 days after it is served on or mailed to you, unless within
those 30 days you present to the Court good cause for your failure
to appear or present yourself for the genetic test. You need not appear
at the time and place specified in the summons if you complete the
enclosed waiver of first appearance statement and deliver it to the
Court by the date specified in the waiver statement.
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G.
Time of first appearance. The first appearance may
not be held any sooner than 30 days after service or receipt of the
summons and petition, unless the parties agree that first appearance
may be held in less time.
H.
Waiver of first appearance. The respondent may waive
first appearance if he signs a statement which reads substantially
as follows:
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Waiver of First Appearance
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1.
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I understand that by signing this waiver and
agreeing to its terms I am not required to appear at the time and
place specified in the summons. If I do not sign this statement, I
am required to appear at the time and place specified.
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2.
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I understand that I will be notified by the
Court of all future stages of the proceeding and agree to appear at
those stages. If I fail to appear at any stage, including a scheduled
genetic test, the Court may enter a default judgment against me.
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3.
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I enter the following plea:
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___ I agree that I am the child's father.
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___ I deny that I am the child's father.
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___ I agree that I am the child's father, subject
to the confirmation by a genetic test.
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If I enter a plea agreeing that I am the child's
father, a judgment of paternity will be entered against me. If I enter
a plea denying that I am the child's father, or a plea agreeing that
I am the child's father subject to a genetic test, I agree to undergo
a genetic test.
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4.
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This waiver of first appearance is valid only
if delivered to the Court on or before _________________.
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5.
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I will keep the Menominee Tribal Child Support
Agency informed of my address at all times. The following is my current
address:
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_________________________
Respondent
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I.
First appearance. At the first appearance, the Court shall inform the parties of the legal consequences of paternity, as described in the summons contents in Subsection F, and shall order all parties to submit to genetic tests and/or enter a judgment of paternity if admitted by the alleged father on the waiver of first appearance statement. In the event that a judgment is entered, the Court shall schedule a hearing on child support.
J.
Hearings on contested paternity. When the alleged
father denies paternity, the Court shall determine whether the case
should proceed formally or informally.
(1)
Informal hearing. At an informal hearing, the Court
may hear witnesses presented by the parties and, based upon that evidence,
recommend that the action be dismissed, that the alleged father voluntarily
admit paternity, and that the alleged father agree to provide support
and have granted reasonable and liberal rights of visitation and/or
physical placement and, if the parties agree to the recommendations,
enter an order of paternity and support.
(2)
Formal hearing. The petitioner must demonstrate, by
clear and convincing evidence, that the alleged father is in fact
the child's father. Upon a determination that the petitioner has met
this burden, the Court shall then determine child support, legal custody,
periods of physical placement and like matters.
K.
Testimony relating to paternity.
(1)
In
any hearing relating to paternity, evidence may include, but is not
limited to:
(a)
Evidence of sexual intercourse between the mother
and alleged father at any possible time of conception or evidence
of a relationship between the mother and alleged father at any time.
(b)
An expert's opinion concerning the statistical
probability of the alleged father's paternity based upon the duration
of the mother's pregnancy.
(c)
Genetic test results.
(d)
The statistical probability of the alleged father's
paternity based upon the genetic tests.
(e)
Medical, scientific or genetic evidence relating
to the alleged father's paternity of the child based on tests performed
by experts.
(f)
A copy of the child's birth certificate, if
born in the State of Wisconsin, to indicate the existence of any name
inserted as the child's father and the date on which insertion occurred.
(2)
Evidence
offered by the alleged father that another identified man who is not
subject to the Court's jurisdiction had sexual intercourse with the
mother may be admitted only after the alleged father has submitted
to the ordered genetic tests.
L.
Judgment of paternity after failure to appear. If
a respondent is the alleged father and fails to appear at any time
not waived by the Court, the Court may, if there is no good cause
to contrary, enter an order adjudicating the respondent to be the
father and enter appropriate orders for support, legal custody and
physical placement, which shall be served on the respondent or mailed
by registered or certified mail to his last known address. Such order
shall take effect 30 days after service unless, with that time, the
respondent presents to the Court evidence of good cause for his failure
to appear or to undergo a genetic test.
M.
Reopening default judgment of paternity. A default
judgment adjudicating a person to be the father of a child may be
reopened upon petition for good cause shown.
N.
Genetic tests in paternity actions. Any genetic test
ordered by the Court in a paternity action is subject to this section.
A genetic test must be ordered in any action in which the petitioner
is an adult and seeks to establish the identity of his/her father.
(1)
Persons to be tested. The Court may, and upon request
of any party shall, require the child, mother, any male for whom there
is probable cause to believe that he had sexual intercourse with the
mother during a possible time for the child's conception, or any male
witness who will testify or testifies as to his sexual relations with
the mother to submit to genetic tests. Probable cause may be established
by the petition of an affidavit from the child's mother or after examination
under oath of a complainant or witness.
(2)
Genetic test administration and evidence. Any ordered
genetic test shall be performed by an expert qualified as an examiner
of genetic markers present on blood cells and components appointed
by the Court. A report completed and certified by the expert stating
genetic test results and the statistical probability of the alleged
father's paternity based upon the genetic tests is admissible as evidence
without expert testimony and may be entered into the record at any
hearing if, at least 10 days prior to the hearing, the party offering
the report files it with the Court, with notice to the other parties.
(3)
Genetic test results; presumption. If the ordered
genetic tests show that the alleged father is not excluded and that
the statistical probability of the alleged father's paternity is 99.0%
or greater, the alleged father is rebuttably presumed to be the child's
parent.
(4)
Genetic test exclusion. Whenever the results of the
genetic tests exclude the alleged father as the father of the child,
this evidence shall be conclusive evidence of nonpaternity, and the
Court shall dismiss the action. Whenever the results of the tests
exclude any male witness from possible paternity, the tests shall
be conclusive evidence of nonpaternity of the male witness.
(5)
Costs of genetic tests. The fees and costs of genetic
tests shall be paid by the Child Support Agency, which may seek federal
reimbursement through the Wisconsin Department of Workforce Development,
Menominee County, or from either the mother or father, if one or both
have sufficient resources to pay the costs of genetic test. Fees and
costs of such tests shall be paid by the child seeking to establish
the identity of his/her father when such child is 18 years of age
or older.
O.
Judgment of paternity. The judgment or order of the Court determining the existence or nonexistence of paternity is determinative for all purposes. If paternity is found to exist, the order may contain any other provision appropriate, including the duty of support, the legal custody and guardianship of the child, periods of physical placement, or any other matter in the best interests of the child. Unless the Court specifically orders otherwise, the mother shall have sole legal custody of the child. Any order of support shall comply with the provisions of § 368-12 of this article.
P.
Confidentiality. Upon the request of any interested
party, the Tribal Court proceedings and records under this section
shall be closed to the public.
