9.08.120 Setting of Support Obligations

(a) Purpose. The Tribe, in order to assure uniformity for child support orders entered by the Tribal Court, and to provide certain guidelines to tribal court judges when setting child support orders, does hereby enact this section laying out the considerations for the tribal court when establishing support obligations and authorizing the Tribe's Judicial Board, with consultation of the judges of the Tribal Court, to establish judicial guidelines for child support.

(b) Definitions. For purposes of this title,

(1) "Absent Parent" means a parent of a child or children either during the course of marriage or outside marriage who is not providing the custodial parent with child support for the benefit of the child or children, or whom is not residing with the child or children and thus not providing parental control and supervision, and who is bound by an administrative or court order to pay child support;

(2) "Child Support" means the financial obligation an absent parent has towards his or her children whether such action is established through judicial or administrative process, by stipulation, or by any other process recognized by tribal law. The financial obligation of an absent parent shall be met through the payment of monies or through the provision of other goods and services as ordered by the tribal court;

(3) Court means a court of the Turtle Mountain Tribe;

(4) Court order means any order for support established by a court of competent jurisdiction;

(5) Custodial parent means the parent or other guardian who has legal custody of a child or children pursuant to a court order or who exercises physical custody over a child on the basis of an agreement between the parents or because one parent has absented himself from the child's home.

(6) Gross Income is income from any source, including but not limited to salaries, wages, commissions, bonuses, dividends, severance or retirement pay, pensions, interest trust income, annuities, capital gains, unemployment compensation, worker's compensation, disability insurance benefits, tips, gifts, prizes, alimony, general assistance payments and any per capita payments. It also includes in-kind contributions calculated at reasonable market value.

(7) In-Kind Contributions are those contributions to the support of a minor child other than cash contributions. Examples include food or sustenance provided to the child and his family in the form of game or fish, necessaries provided to the family such as heating wood or fuel, or necessary day care services.

(c) Setting of Child Support Obligation. In any case where the tribal court is determining the paternity of a child, decreeing a divorce between parties or establishing child support for a custodial parent when the absent parent is away from the home for more than thirty (30) days, the tribal court shall set an amount of support to be paid by an absent parent to the custodial parent using the standards set out herein. Upon request by either parent, the Court may review any order of child support every three years to determine if more or less support is called upon under the child support guidelines. If there is a substantial and material change of circumstances, any party may petition the tribal court for a modification of child support at any time.

(d) Presumptive Child Support. The presumptive child support established by guidelines adopted by the Tribal Judicial Board and Court shall be rebuttably presumed to be the correct amount of support to be awarded in any child support proceeding to establish or modify an order of support. Every order or decree setting or modifying a child support order shall state the presumptive amount of support and justify either an upward or downward deviation based upon the deviations prescribed by the Tribal Judicial Board and court.

(e) Establishing Child Support Guidelines. The Turtle Mountain Judicial Board, in consultation with the Tribal Court, shall establish child support guidelines which must, at a minimum:

(1) Take into consideration all gross income of the absent parent;

(2) Be based on specific and descriptive criteria and result in a computation of an amount of child support which is sufficient to meet the basic needs of the child or children for housing, clothing, food, education, health care, and goods and services required by physical and mental disability;

(3) Provide for the children's health care needs either through assuring Indian Health Service coverage or benefits that supplement those benefits and providing for each parent to pay his/her share of uninsured medical expenses;

(4) Consider the economic condition of the absent parent and his ability or inability to obtain gainful employment within the reservation;

(5) Provide for review and revision, where appropriate, of the child support guidelines at least once every four years to ensure that the amounts provided for in the guidelines are periodically adjusted for increases or decreases associated with the cost of caring for children on the Turtle Mountain reservation;

(6) Allow for deviation from the guidelines based upon factors such as: the amount of visitation exercised by the absent parent, including provisions for abatement of support, when the absent parent exercises visitation for a consecutive period of more than 29 days; whether the absent parent provides the transportation for visitation; income contributed to the child by third persons including extended family members of the absent parent; income contributed to the absent parent by a third party including spouse; special medical needs of the child; day care expenses; age of the child; the responsibility of the absent parent to support other children, either in his care or children he is paying support for; and any other ground cited by the Board or court. In any case where deviation is granted the Court shall expressly state the ground for deviation.

(7) Consider the in-kind contributions of the absent parent as child support and develop guidelines that take into consideration the in-kind contributions of the absent parent and his family.

(f) Public Assignment of Child Support Rights. Establishment and Amount of Obligation

(1) Assignment

(2) Any person who receives Temporary Assistance for Needy Families either from the State of North Dakota or the Tribe shall, upon applying for such benefits, assign all accrued child support rights and the right to future support to the Tribe through the execution of an assignment of support rights. Said assignment shall authorize the Tribe to bring an action in the Tribal Court, or other appropriate court of competent jurisdiction, to both establish a support order and to collect on that order from the absent parent.

(3) Any other person, not receiving TANF benefits, may apply to the Tribe for services and execute an assignment of support rights to the Tribe for the establishment and collection of support. In those non-TANF cases, the Tribe shall be entitled to collect a fee from the custodial parent for the collection of support in accordance with a fee schedule to be set by the Tribal Judicial Committee in consultation with the Tribal Court.

(4) Any person, required to execute an assignment of support rights to the Tribe, but whom refuses to do so without good cause, or who fails to cooperate with the Tribe or State Office of Child Support Enforcement in the collection of support shall be subject to a sanction in the amount of $50 from the TANF grant for the first refusal, $100 for the second refusal and exclusion from the TANF program for a third refusal. Good cause to refuse cooperation shall include the following situations:

(A) When the custodial parent has a well-founded fear of violence from the non-custodial parent as evidenced by the existence of a order of protection in which the custodial parent is protected from the absent parent;

(B) When the child was the product of rape or incest which was reported to appropriate law enforcement officials within a reasonable time after the commission of such an act;

(g) Child Support Agreements. Agreements regarding child support may be submitted to the Court. All such agreements shall be accompanied by financial affidavits, including pay stubs and an expense report if a person is self-employed, submitted by each party disclosing the financial condition of each party as required to determine a presumptive child support order. If the agreed amount of support deviates from the presumptive amount of support the parties shall furnish statements explaining why they have agreed to a lesser amount than that presumed. The Court may reject an agreed-upon support amount if the parties do not demonstrate good grounds for deviating from the presumptive amount.

(h) Modifications. After passage of guidelines by the Tribal Judicial Board and Court, current child support orders may be modified to conform to the guidelines, unless the amount of support previously entered was the result of an agreement which the Court finds to be equitable in light of the guidelines.

(i) Voluntary Unemployment or Underemployment. Where either parent is voluntarily unemployed or underemployed, the Court shall compute the amount of support based upon the potential earning capacity of the unemployed or underemployed person. In making that determination the Court shall consider:

(1) Prior employment and educational background and history;

(2) Availability of employment in the area which- the parent is qualified for;

(3) Prevailing wage rates and unemployment rate in the area;

(4) In no circumstance shall a parent who is a member of the Tribe be subject to a determination that he/she voluntarily became unemployed or underemployed because he returned to the reservation for purposes of being closer to his family.