CHILD SUPPORT PROCESSES
OPTIONS FOR CANADA

STAFFING ISSUES (continued)

C. Integrated Staff - The Washington State Example

In the Washington State administrative scheme, personnel with the same qualifications provide most of the services within the system. In other words, there is no delineation of specific duties from one position to the next. The responsibilities of the Support Enforcement Officer I include the following:

  1. independently monitoring, evaluating and working an assigned caseload of public assistance, non-assistance, interstate and foster care files for the establishment and enforcement of paternity, child support, maintenance and medical obligations;
  2. independently initiating, signing and serving formal notices of debt, liens on real and personal property, garnishment of wages, labour and industrial benefits and unemployment compensation;
  3. initiating special collection actions including full IRS collection referrals, attachment of IRS refunds and state lottery winnings, seizure and sale of real and personal property, and the use of bonds, securities and guarantees;
  4. reviewing and signing legal actions;
  5. reviewing, preparing and referring cases as appropriate for interstate collections, either administrative or judicial;
  6. reviewing, preparing and referring cases for judicial establishment of paternity, contempt actions or other remedies requiring the involvement of other agencies;
  7. initiating locate and/or skiptrace activity as required to administer the assigned caseload, including but not limited to review and search of the records of state and federal agencies, credit bureau files and contact with relatives, employers and the general public;
  8. conducting interviews in person, via telephone or correspondence with custodial and non-custodial parents and/or attorneys to clarify legal issues, responsibilities and alternatives;
  9. negotiating agreements and settlements that facilitate the interests of the state, child(ren) and the department;
  10. contacting in person, by telephone and correspondence with applicants for services, employers, attorneys, various private and governmental agencies and the general public providing information on all aspects of support enforcement activities; and
  11. responding as appropriate to clients and public complaints.

In addition to enforcing child support, the support enforcement officers are also responsible for administering the entire child support establishment and modification processes through to the administrative hearing stage. The experience in the state has been that if one staff member is involved with a file throughout the process, there will be more consistency.

The required qualifications of the support enforcement officer consist of one of the following:[63]

  1. bachelor's degree and one year of professional experience in a related financial job (i.e., collection of civil debts, adjustment of claims, determination of financial responsibility, research into financial backgrounds and claims, determination of program eligibility or the field of personal finance);
  2. three years experience as a Support Enforcement Technician; or
  3. two years of college and three years professional experience in a related financial job (as outlined above).

A master's degree in a related field can be substituted for one year of professional experience.

D. Mediators

During recent years, there has been substantial controversy about the appropriate qualifications of a mediator dealing with domestic relations cases. This controversy proves particularly relevant when financial matters are in issue.

On the one hand, there is the concern that non-legally trained mediators may not understand all the implications arising from negotiating child support even if provided with training in this area. The proposed Canadian guidelines establish that even when the parties have arrived at a consent arrangement in regard to a workable child support arrangement, this agreement will be subject to judicial review whereby the guideline standards will serve as the framework for the review.

Julien and Marilyn Payne suggest, "Mediators without legal expertise tread on dangerous ground if they assume the responsibility for drafting a formal settlement. They may even be accused of engaging in the unauthorized practice of law."[64]

On the other hand, mediators with backgrounds in social or behavioural sciences are often considered more qualified to deal with the range of emotional issues and the impact on the child or children following the break-up of a relationship between two people.

In Florida, the Dispute Resolution Centre, officially an arm of the state's Supreme Court, is responsible for establishing the certification standards for mediators in the state. In order to mediate any aspect of a divorce case, a person must hold a masters or doctoral degree in health, social or behavioural sciences or be a certified general accountant or a licensed attorney. In addition, the person must also have four years related experience. Finally, he or she must also have taken at least 40 hours of related training with specific learning objectives centring on mediation. The goal is to ensure that all mediators involved in this complex area have a baseline of relevant education and practical experience.

In the Clackamus County Family Court Services program in Oregon, the mediators' minimum qualifications are that they possess a formal degree. Masters of social work and law degrees are the two most common degrees held by the mediators. Statute law in Oregon establishes the minimum qualifications of mediators in the state.

In California, statute law establishes the required qualification for family mediators. The applicable statutory provision states the following.

1. A person employed as a supervising counsellor of conciliation or as an associate counsellor of conciliation shall have all of the following minimum qualifications:

  1. a master's degree in psychology, social work, marriage, family and child counselling or other behavioural science substantially related to marriage and family interpersonal relationships;
  2. at least two years of experience in counselling or psychotherapy, or both, preferably in a setting related to the areas of responsibility of the family conciliation court and with the ethnic population to be served;
  3. knowledge or the court system of California and the procedures used in family law cases;
  4. knowledge of other resources in the community to which clients can be referred for assistance;
  5. knowledge of adult psychopathology and the psychology of families; and
  6. knowledge of child development, child abuse, clinical issues relating to children, the effects of divorce on children, the effects of domestic violence on children and child custody research sufficient to enable a counsellor to assess the mental health needs of children.[65]

As previously stated, the issue of child support has been separated out from custody and visitation through various programs in the state because of these strict qualifications for mediators engaging in custody and visitation mediation and because attorneys are not considered to hold the appropriate qualifications to act as mediators in this subject area.

In Michigan, the mediators operating within the Friend of the Court program are also regulated by statute. Subsection 13(4) of the Friend of the Court Act establishes the minimum qualifications for a domestic relations mediator performing mediation pursuant to the Act. The mediator can be a licensed psychologist or hold a master's degree in counselling, social work and have successfully completed the Friend of the Court training program. Alternatively, the person would have five years related experience or a graduate degree in a behavioural science, supplemented by mediation training and practical experience or be an attorney who has successfully completed the Friend of the Court training program. In addition, the qualified person would have knowledge of the court system and domestic relations procedures, knowledge of other resources in the community and knowledge of child development and clinical issues relating to children.

The general trend is that when only certain family issues are dealt with by the mediator, such as the more open-ended issues, custody and access or visitation, the required qualifications tend to focus on a background in social or behavioural sciences or, in other words, a background that could provide the mediator with well-developed people skills and relevant knowledge about the complex psychological and social factors involved in the relationship between two people.

However, in those mediation programs where the mediation might also focus on the financial aspects of the relationship such as spousal or child support or property division, people with backgrounds in either law or accounting tend to be more involved. These issues call for a certain amount of knowledge on the part of the mediator about the legal and financial implications of the parties arriving at a particular resolution of the issues.

E. Quasi-Judicial Decision-Makers

An integral component of an effective expedited child support system would involve an individual who could potentially function in a quasi-judicial role for the purpose of resolving a matter, whether through bringing the parties to their own resolution of the matter or through making a recommendation to the court or, alternatively, presenting the relevant materials to the judge in a systematic and orderly manner. This individual's objective would be to both free up some of the judge's time on a given case and to provide a means whereby the parties could have a matter processed in a more timely fashion than through waiting for an available court date to have the matter heard by a judge.

The specific qualifications of quasi-judicial decision-makers or hearing officers vary from one place to another. Not all places require that the officer have legal experience, but most places allow for legally trained people to occupy these positions. The New Jersey example represents an interesting and somewhat unusual approach. In that state, the hearing officer can be a graduate from an accredited college with a bachelor's degree in psychology, sociology or criminology with three years professional experience. Attorneys are also permitted. Similarly in Montana, the arbitration master who conducts child support mediation-arbitration sessions does not need to have legal training. Rather, this person receives a month of training in mediation. However, the arbitration masters also have extensive experience through working in the child support process.

In most other places, the focus tends to be on legal training. It stands to reason that a person with legal training and related experience will be in a good position in regard to carrying out the duties of a hearing officer.[66] The quasi-judicial hearing officer model functions from within the court system in most jurisdictions and the proceedings are premised on the rule of law. The process is basically adversarial although not as formal as traditional litigation. The rules of evidence apply although they are somewhat relaxed. Familiarity with these rules is therefore useful. Some program administrators suggest it is possible to train officers without legal backgrounds about these procedural issues, especially in those programs where at least a couple of the officers have legal training and can provide assistance to their peers.

In regard to the special master program of Northern California, which was discussed in this report, the Marin County Task Force on Special Masters suggested the masters should be psychologists, psychiatrists, marriage, family or child counsellors, licensed clinical social workers or attorneys with the following qualifications:

  1. Psychologists and Psychiatrists
    1. membership in a national or state professional association;
    2. three years related experience in child/family therapy, diagnostic evaluations or court-based family mediation;
    3. training in family systems, child development, psychology of divorce and custody and possibly mediation;
    4. familiarity with the ethical issues relating to custody disputes; and
    5. working knowledge of custody law with a minimum of six cases working with attorneys or appearing in court.
  2. Marriage, Family and Child Counsellors and Licensed Clinical Social Workers
    1. same as above qualifications but with five years related experience.
  3. Attorneys
    1. membership in a national or state professional association;
    2. ten out of the last twelve years experience in family law;
    3. at least twenty custody cases through judgement; and
    4. training including mediation, custody law and child development and family systems.
  4. In Michigan, the required qualifications of persons acting as Domestic Relations Mediators are set out in the court rules. In order to act in this capacity, the person must:
    1. be a member in good standing of the State Bar of Michigan;
    2. have been a practicing lawyer for at least five years; and
    3. have had an active practice in the area of domestic relations during three of the last five years.[67]

In Clark County, Nevada, the child support (URESA) paternity hearing master must:

  1. possess a certificate of admission to the Nevada Bar; and
  2. have two years experience as a practicing attorney. While functioning as a hearing master, the person is not permitted to practice law.

In addition to these qualifications, the hearing master must also exhibit:

  1. a thorough knowledge of the principles, methods, materials and practices of legal research, case and statutory law, court procedure and rules of evidence in their application to establishment of child support, family support enforcement or paternity;
  2. an ability to analyze and organize facts, evidence, legal documents and precedents concerning difficult and complex cases, to analyze legal documents and to appraise and organize facts and legal principles in a clear written or oral form; and
  3. an ability to deal tactfully and effectively with administrative and government officials, employees, court officials and the public.

A knowledge of court process and judicial protocol is also something that the qualified person should exhibit. Not only will this experience and knowledge legitimize the hearing officer's role, particularly if lawyers are attending the hearings, but also, the recommendation forwarded to the court will likely be more appropriate and accepted by the judge. This characteristic of the hearing officer should increase efficiency through reducing the number of challenges to the recommendation by the other players in the system.