Parenting Time Plans in Department of Revenue, Title IV-D Administrative Proceedings By: Michelle Klinger Smith, Esq.

Effective January 1, 2018, Florida Statute §409.2563 allows parties to enter into a Parenting Time Plan in administrative actions to establish or modify child support or to determine paternity, thereby allowing parenting time to be agreed upon in non-judicial actions. Due to the non-judicial nature of parenting time plans, the inapplicability of Chapter 61, and the failure of the statute to address several issues involving parenting time plans, there are many unknowns.  This article will provide a general overview of the administrative process in paternity and child support matters, address parenting time plans in administrative actions, and explain the significant uncertainties involving Title IV-D Parenting Time Plans. [i]   
For an individual to be eligible to receive Title IV-D services, a child may be receiving public assistance in the form Temporary Assistance for Needy Families (TANF), temporary cash assistance, foster care, Medicaid, or food assistance benefits.  It is necessary for the parent with the child or children to cooperate with the State of Florida in paternity and child support proceedings in order to obtain said benefits.  Other means of eligibility are if an individual applies for services through the Department of Revenue, if an individual formerly received public assistance, or if another state or local government requests the State of Florida’s assistance.
A Title IV-D case may be brought judicially or administratively.  If the case proceeds administratively, an administrative order may order genetic testing, establish paternity, establish child support, and modify administrative support orders. As of January 1, 2018, an agreed upon parenting time plan must be incorporated into an administrative support order. Parenting issues, dissolution of marriage, separation, alimony or spousal support, termination of parental rights, dependency, or a change in timesharing can never be determined by the Department of Revenue or administratively.
Parenting time plans in administrative actions are intended to provide the Department of Revenue with an alternative procedure for establishing child support obligations and establishing a parenting time plan only if the parents are in agreement.  It is intended to be a fair and expeditious process when there are no prior support orders. Fla. Stat. §409.2563.  The intent of the statute is not to limit the circuit courts’ jurisdiction to hear and determine issues regarding child support or parenting time. Id. 
A Title IV-D Standard Parenting Time Plan shall be presented to the parents in any administrative action taken by the Title IV-D program to establish or modify child support or to determine paternity. Fla. Stat. §409.25633(1)(emphasis added). Florida Statute §409.256 addresses administrative proceedings to establish paternity or paternity and child support and to issue orders to appear for genetic testing. The statute does not require that the parties receive a copy of the Title IV-D Standard Parenting Time Plan with the Notice and it does not reference the parenting time plan in the Notice requirements.  Furthermore, it does not state that it must be incorporated into a paternity order.  There appears to be a requirement that in order to obtain a Parenting Time Plan in a paternity action, support must be ordered. 
Florida Statute §409.2563 addresses the administrative establishment of child support obligations. The statute provides that if there is no support order for a child in a Title IV-D case whose paternity has been established or is presumed by law, or whose paternity is the subject of a proceeding under s. 409.256, the Department of Revenue may establish a parent's child support obligation pursuant to this section, Florida Statute §61.30, and other relevant provisions of state law.
In initiating administrative proceedings, the Department of Revenue generates a Notice of Proceeding to Establish Administrative Order, a blank financial affidavit, a copy of the Title IV-D Standard Parenting Time Plan and Parenting Information Form Administrative Support Proceeding.[ii]  The Title IV-D Standard Parenting Time Plan will not be sent in any case where Florida is not the child’s home state, if one parent does not reside in Florida, if either parent has requested nondisclosure for fear of harm from the other parent, or when the parent who owes support is incarcerated. The Notice and forms are sent to the parent owing support via certified mail, restricted delivery, or return receipt requested. Service is complete when the certified mail is received or refused. If someone else in the household signs the return receipt, the Department calls the intended recipient and verifies receipt.  If there is no response to the Notice, and the Department is unable to confirm receipt, there has been no service and personal service will be attempted.  However, personal service can be effectuated by any means permitted for service of process in a civil action or by an authorized employee of the Department.  The person who is owed support is sent the Notice and forms by regular mail to their last known address. 
Florida Statute §409.25633 provides that the best interest of the child is the primary consideration when entering into a parenting time plan.  However, since parenting time plans are only a creation between parties by agreement, there are no best interest factors for a court to consider.  If this provision was intended for the parents to consider the best interest of the child, there are no factors provided or referenced to that end (i.e. Fla. Stat. §61.13 best interest factors).  The statute also requires that special consideration be given to the age and needs of the child.  But, again, the statute provides no guidance on how to consider the age and the needs of the child.
The statute states that the parent who owes support is entitled to parenting time with the child. This means that any parent, whether the parent has abandoned the child, abused the child, or has neglected the child, is entitled to spend time with the child, as long as he or she is ordered to pay support.  This seems to contradict the best interest standard.    
Although the statute states that there is no presumption for any timesharing schedule, the statute also provides a very detailed schedule for a Title IV-D Standard Parenting Time Plan.  The schedule is as follows:
1. Every other weekend — the second and fourth full weekend of the month from 6 p.m. on Friday through 6 p.m. on Sunday. The weekends may begin upon the child(ren)’s release from school on Friday and end on Sunday at 6 p.m., or when the child(ren) returns to school on Monday morning. The weekend time may be extended by holidays that fall on Friday or Monday.
2. One evening per week — one weekday beginning at 6 p.m. and ending at 8 p.m. or, if both parents agree, from when the child(ren) is released from school until 8 p.m.
3. Thanksgiving break — in even-numbered years, the Thanksgiving break from 6 p.m. on the Wednesday before Thanksgiving until 6 p.m. on the Sunday following Thanksgiving. If both parents agree, the Thanksgiving break parenting time may begin upon the child(ren)’s release from school, and end upon the child(ren)’s return to school the following Monday.
4. Winter break — in odd-numbered years, the first half of winter break, from the child(ren)’s release from school, beginning at 6 p.m. or, if both parents agree, upon the child(ren)’s release from school, until noon on December 26. In even-numbered years, the second half of winter break from noon December 26 until 6 p.m. on the day before school resumes or, if both parents agree, upon the child(ren)’s return to school.
5. Spring break — in even-numbered years, the week of spring break from 6 p.m. the day the child(ren) is released from school until 6 p.m. the night before school resumes. If both parents agree, the spring break parenting time may begin upon the child(ren)’s release from school and end upon the child(ren)’s return to school the following Monday; and
6. Summer break — for 2 weeks in the summer beginning at 6 p.m. the first Sunday following the last day of school.
The Title IV-D Standard Parenting Time Plan form is sent to the parties by the Department. The parents are unable to select certain provisions or otherwise specify their agreement in terms of when the timesharing ends (Sunday evening or Monday morning), or if there is an agreement to extend the weekend parenting time if there is holiday on a Friday or Monday. This is a form that is issued state-wide.  Therefore, there is no consideration for the fact that some schools may be closed for the entire week of Thanksgiving and some schools may only close on Thanksgiving Day and the Friday following Thanksgiving. This, of course, affects the overnights the parents receive.  It is therefore difficult to determine the number of overnights to use in the child support calculation.  For instance, if the parties were to follow the school calendar for the Miami-Dade School District, and if the parties agreed to exchange the child on Sunday evening and agree that the Thanksgiving holiday begins on the Wednesday before Thanksgiving, the parent paying support will receive an average of 69 overnights per year.  If the parties decide to exchange the child on Monday morning, and the holidays begin on the release of the child from school on the Friday prior to Thanksgiving, the parent paying support will receive an average of 87 overnights per year.  Since the threshold to determine a substantial amount of time in terms of calculating the gross up of child support pursuant to Florida Statute §61.30 is 20% or 73 overnights per year, the issue lies with which number of overnights to use when calculating support.  Considering that a parenting time plan provides that weekends may begin on Friday and end on Sunday at 6 p.m., or when the child(ren) returns to school on Monday morning, the parties are free to choose a Sunday or Monday return of the child.  If the parties abide by a Monday exchange, the payor will receive additional overnights.  In view of the fact that the Department is unable to inquire into the specifics of the plan, the Department or Division of Administrative Hearings may default to a Sunday return in calculating support, thereby not using the correct number of overnights in doing so.   
Another concern is that the Title IV-D Parenting Time Plan form does not inform the parties that they are free to enter into a parenting time plan of their choosing. Although the statutes allow for the parties to enter into “another” parenting time plan, the form they receive does not specific their ability to do so. The parties may therefore feel restricted to agree to only the terms of the Title IV-D Parenting Time Plan form provided.   
An initial administrative order will not include a plan if the parties do not have an existing timesharing schedule or parenting plan, and do not agree to a plan.  However, the order must include a statement explaining its absence. Either party may at any time file a civil action in a circuit court having jurisdiction and proper venue for a determination of child custody and rights of parental contact. 
If the parties have a judicially established parenting plan, the plan may not be included in the administrative order or initial judicial order. However, the support order must still take timesharing actually exercised into consideration pursuant to Florida Statute §61.30(11)(a) when calculating child support.
The Department shall terminate the administrative proceeding and proceed in circuit court if within 20 days after receipt of the initial notice the parent from whom support is being sought requests in writing that the Department proceed in circuit court and if within 10 days after receipt returns the waiver of service form to the department.  A parent may also opt out if the Respondent files an action in circuit court and serves the Department with a copy of the petition within 20 days after being served the Notice. The administrative process will end without prejudice and the proceedings must proceed in circuit court.
 If the parent owing support does not opt out within 20 days, the administrative action will proceed concurrently with any judicial action and will only terminate if a support order is issued in the judicial action prior to a support order being issued in the administrative action.  A support order obtained judicially after the entry of an administrative support order may be a superseding order.  Judicial enforcement does not supersede an administrative order.  Circuit court orders that refer back to the administrative order for support or that do not prospectively change any obligation do not supersede. A superseding order can only modify the support obligation prospectively, meaning any retroactive child support or child support arrears owed under the administrative order cannot be modified judicially, except as provided by Florida Statute §61.14(1)(a).  Any unpaid support must be included in the superseding order as an arrearage.  Any judicial proceedings concerning the support of the same child must plead the existence of an existing administrative order and the obligor must provide the Department a copy of the initial pleading.
If the matter proceeds administratively, the Department will calculate support using all information available and will incorporate the obligation into a proposed order.  The proposed order is sent by regular mail to the parties, along with the child support guidelines worksheet and any financial affidavits submitted. If the parties sign and return a parenting time plan, the parenting time plan is incorporated into the proposed order.  If only one parent signs and returns a parenting time plan, then the form is sent again with the Proposed Order.  If there is no signed, agreed upon plan, the proposed and final orders will not incorporate any plan, but the support calculations will use any time-sharing information received from the parties.   If there is no agreement, the Department must refer the parties to the court of appropriate jurisdiction to establish a parenting time plan.  The Department must note on the referral that an administrative support order has been entered.  The Department must provide information to the parents on the process to establish a plan.  The Department has created a blank Petition to Establish a Parenting Time Plan that will be sent to both parties with the Final Administrative Order.  The parents can use the petition to file to establish a parenting time plan at the time of the child support hearing.  The parents may not be required to pay a fee to file the petition to establish a parenting plan. The Department shall be a party only with respect to those issues of support allowed and reimbursable under Title IV-D of the Social Security Act.  It is the responsibility of the parents to take the necessary steps to present other issues for the court to consider.  The Department cannot file a petition for timesharing or represent either parent at the hearing.
If there is an objection to the proposed support order, the parent owing support must file a request for a hearing within 20 days after the date of mailing of the proposed administrative support order or a hearing is waived.  If a hearing is not timely requested, the department will issue an administrative support order that incorporates the findings of the proposed order and any agreed-upon parenting time plan.  After a support order is rendered incorporating any agreed-upon parenting time plan, the Department will file it with the clerk of the circuit court.  When it is filed with the clerk, a local case number will be assigned. However, this is not a judicial case number but simply a depository number through which the child support will flow. 
If a hearing is timely requested, it is heard by an administrative law judge of the Division of Administrative Hearings.  The parties can provide the agreed-upon plan prior to the hearing or they can bring the agreement to the hearing.  The Department does not represent either party or inquire into the plan.  The parents cannot contest the agreed upon parenting plan at the administrative hearing.
At the time of the hearing, the parties are advised that the proposed amount may increase or decrease.  The administrative judge will hear evidence regarding the ongoing support (current income of parties, deductions, daycare costs, health insurance costs, and number of overnights), retroactive support (income and deductions during retroactive period, daycare costs, health insurance costs, and number of overnights), and any credits owed to the payor towards the retroactive support obligation. The administrative law judge calculates the child support, retroactive child support with repayment, and percentages of unreimbursed medical expenses.  The administrative law judge will issue the administrative support order and will include a parenting time plan or Title IV-D Standard Parenting Time Plan agreed to and signed by both parties.  The order is filed with the clerk of the circuit court in order to obtain a depository number, to act as the official record-keeper for payments, and to establish and maintain payment accounts.
There appears to be an inconsistency in the statutes regarding the incorporation of the agreed parenting time plan into an administrative order.  Florida Statute §409.2563(4)(n) provides that the Department of Revenue or the Division of Administrative Hearings may incorporate, if agreed to and signed by both parents, a parenting time plan or Title IV-D Standard Parenting Time Plan when the administrative support order is established.  However, Florida Statute 409.2563(2)(e) provides that if both parents have agreed to and signed a parenting time plan before the establishment of the administrative support order, the department or the Division of Administrative Hearings shall incorporate the agreed-upon parenting time plan into the administrative support order.  Florida Statute §409.2563(2)(f) states that the administrative support order must include a parenting time plan or Title IV-D Standard Parenting Time Plan as agreed to and signed by both parents.  Furthermore, Florida Statute §409.25633 provides that if the parents agree to the Title IV-D Standard Parenting Time Plan or to another parenting time plan, the plan must be signed by the parents and incorporated into the administrative order.  Given the use of the term “must” and the fact that the Department and administrative law judges have absolutely no discretion in incorporating agreed upon parenting time plans, it appears that there is a requirement to incorporate the agreement into an administrative order. 
After an administrative support order is rendered, the Department may modify and enforce the administrative support order.  Administratively support orders may only be modified administratively, unless judicially superseded.  To have the administrative support order enforced judicially, the Department must file a petition to recognize and enforce the administrative support order and must request that the administrative order be recognized judicially prior to finding an obligor in contempt. When an enforcement action is initiated judicially, and if a parenting time plan has not been previously entered into, the parties can enter into a parenting time plan at that time. This does not modify or supersede the administrative order. The Department is able to seek enforcement of the administrative order by other lawful means if the administrative order is not superseded (i.e. license suspension, income deduction orders, IRS tax intercepts).
The Department does not have jurisdiction to enforce a parenting time plan that is incorporated into an administrative support order.  It is unknown if the circuit court must first recognize the parenting time plan and if so, determines whether or not the parenting time plan is in the best interests of the minor child in accordance with Chapter 61.
Regarding a modification of the parenting time plan, neither the Department or Division of Administrative Hearings has jurisdiction to change child custody nor rights of parental contact or timesharing, and these issues may be addressed only in circuit court. Fla. Stat. §409.2563. Florida Statute §409.25633 provides that after the incorporation of an agreed-upon parenting time plan into an administrative order, a modification or enforcement of the parenting time plan may be sought through a court of appropriate jurisdiction.  Neither statute addresses the method of modification, except, if after the incorporation of an agreed-upon parenting time plan in an administrative support order, a parent becomes concerned about the safety of the child during the child’s time with the other parent, a modification of the parenting time plan may be sought through a court of appropriate jurisdiction.  There are uncertainties regarding the burden of proof necessary to modify a parenting time plan.  Pursuant to Chapter 61 proceedings, a modification of a parenting plan and time-sharing schedule requires a showing of a substantial, material, and unanticipated change of circumstances that are in the best interests of the child.  However, a parenting time plan is not a Chapter 61 parenting plan or time-sharing schedule since a Chapter 61 parenting plan or time-sharing schedule must be approved by the circuit court after the court makes a best interest determination. 
Florida Statute §61.13 specifically provides that “the court shall determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act”.  In that case, time-sharing must be agreed to by the parties and approved by the court, or if the parties do not agree, then established by the court.  If the court does not approve the parenting plan, then the court will establish one for the parties.
A Chapter 61 parenting plan must include parental responsibility (decision making authority); must contain a time-sharing schedule for the parents and child; must address jurisdictional issues, including the UCCJEA; International Child Abduction Remedies Act; the Parental Kidnapping Prevention Act; and the Convention on the Civil Aspects of International Child Abduction enacted at the Hague; must describe in adequate detail how the parents will share and be responsible for the daily tasks associated with the upbringing of the child; must designate who will be responsible for any and all forms of health care, school related matters, and other activities; and must address the methods and technologies that the parents will use to communicate with the child.
A Title IV-D Parenting Time Plan must contain a timesharing schedule and be agreed upon and signed by each party.  It may be a Title IV-D Standard Parenting Time Plan or another parenting time plan. A parenting time plan does not provide for parental responsibility, exchanges of the child, transportation, travel, communication, school issues, activities, and other details regarding the child.  If the parents are unmarried, it is presumed that the Mother has sole parental responsibility as per Florida Statute §742.031.
If there is a disagreement as to the terms of the parenting time plan or if the plan needs to be changed, the Department is unable to modify or enforce the terms of the parenting time plan. It is unknown what the burden is to modify the parenting time plan judicially or whether the circuit court can enforce it without a finding that the parenting time plan is in the best interest of the minor child.  Since there are so many uncertainties involving parenting time plans, it is a matter of allowing the courts to interpret Florida Statute §409.2563 and §409.25633.

[i] Title IV-D refers to the Social Security Act, Title IV, Grants to State for Aid and Services to Needy Families with Child and for Child-Welfare Services, Part D—Child Support and Establishment of Paternity.
 
[ii] The Parenting Information Form must be completed and returned within 20 days and requires the parents or non-parent caretaker to provide information such as addresses, employments, dates of when parents resided together and ceased residing together, any support provided and any timesharing arrangements or parenting plans.