Section 58.09. Procedures for requesting an exemption for good cause to the requirement for cooperation in securing child support.

 

(1)   Definitions. In this section:

(a) "Emotional harm" means that the child or relative is so emotionally impaired that his or her functioning is substantially affected.

(b) "Serious nature" means:

1. In reference to a relative, that the physical or emotional impairment is or will be substantial enough to affect the relative's capacity to care for the child.

2. In reference to a child, that the physical or emotional impairment is or will be substantial enough to affect the child's emotional, mental or physical functioning.

(2)   Right to request good cause exemption. An applicant or kinship care or long-term kinship care relative may request a good cause exemption from the requirement under s. DCF 58.04 (3) (b) to cooperate with the kinship care agency in referring the child's parent or parents to the child support agency.

(3)   Claiming good cause.

(a) Good cause notice.

1. A kinship care agency shall provide a printed good cause notice developed by the department to each applicant for kinship care or long-term kinship care benefits.

2. The notice shall describe the right to refuse to cooperate for good cause in securing child support and shall include advising the applicant or kinship care or long-term kinship care relative of all of the following:

a. The potential benefits the child may derive from securing child support.

b. That, by law, cooperation in securing child support is a condition of eligibility for kinship care and long-term kinship care benefits.

c. That good cause for refusing to cooperate may be claimed and that if the kinship care agency finds that there is good cause, the applicant or kinship care or long-term kinship care relative will be excused from the cooperation requirement.

d. That upon request or on receipt of a claim of good cause, the kinship care agency will provide a printed good cause claim under par. (c) .

3. The notice shall be signed and dated by the applicant or kinship care or long-term kinship care relative and the kinship care agency worker. The original shall be placed in the applicant's or kinship care or long-term kinship care relative's case record and the applicant or kinship care or long-term kinship care relative shall be given a copy.

4. The child support agency shall ask each applicant for kinship care or long-term kinship care benefits or the kinship care or long-term kinship care relative, upon initial contact, if the good cause notice under subd. 1. has been received. If notice has not been received, the person shall be given the notice and shall be given the opportunity to claim good cause for not cooperating. The child support agency shall refer any kinship care or long-term kinship care applicant or relative who wishes to claim good cause back to the kinship care agency for good cause determination.

(b) Good cause claim.

1. A kinship care agency shall provide a printed good cause claim form developed by the department to any applicant or kinship care or long-term kinship care relative on request.

2. The good cause claim form shall describe the circumstances that support a good cause claim and how a claim should be documented. The claim form shall state that the kinship care agency directs the child support agency to proceed to attempt to secure child support without the participation of the kinship care or long-term kinship care applicant or relative.

3. The claim form shall be signed by the applicant or kinship care or long-term kinship care relative in the presence of a kinship care agency worker or a notary public. The signature of the applicant or kinship care or long-term kinship care relative initiates the claim.

4. The original signed claim form shall be placed in the applicant's or kinship care or long-term kinship care relative's case record and the applicant or kinship care or long-term kinship care relative shall be given a copy. A copy shall be sent to the child support agency with instructions to either not initiate or to suspend activities to secure child support until the claim is determined. The copy shall be attached to the referral to the child support agency when good cause is claimed at the time of application for kinship care or long-term kinship care, and at other times the copy shall be forwarded to the child support agency within 2 days after the claim is signed.

(c) Burden on applicant or kinship care or long-term kinship care relative to establish good cause circumstances. An applicant or kinship care or long-term kinship care relative who refuses to cooperate in securing child support and who claims good cause for refusing to cooperate has the burden of establishing existence of a good cause circumstance, except as provided in subs. (5) (c) and (11) (a) .

(4)   Good cause circumstances. The kinship care agency, upon reviewing a claim for exemption from the requirement to cooperate in securing child support, shall determine if requiring cooperation is contrary to the best interests of the child or of the applicant or kinship care or long-term kinship care relative. An exemption may be granted only for one of the following reasons:

(a) The kinship care or long-term kinship care relative's cooperation can be reasonably anticipated to result in any of the following:

1. Physical harm of a serious nature to the child for whom the benefit is sought or to the kinship care or long-term kinship care relative with whom the child is living.

2. Emotional harm of a serious nature to the child for whom the benefit is sought or to the kinship care or long-term kinship care relative with whom the child is living.

(b) One of the following circumstances exists and it can be reasonably anticipated that proceeding to secure child support would be detrimental to the child:

1. The child for whom support is sought was conceived as the result of incest or sexual assault.

2. A petition for adoption of the child has been filed with a court.

3. The parent or parents are being assisted by a social services agency in deciding whether to terminate parental rights and the discussions have not gone on for more than 3 months.

(5)   Determination of good cause.

(a) Within 45 days from the date a claim is signed, the kinship care agency shall determine if there is good cause for an applicant or kinship care or long-term kinship care relative to refuse to cooperate in securing child support. The 45-day period may be extended by the kinship care agency upon written notice to the applicant or kinship care or long-term kinship care relative if the applicant's or kinship care or long-term kinship care relative's case record documents that additional time is needed for either of the following reasons:

1. Information needed to verify the claim cannot be obtained by the kinship care agency within 45 days.

2. Supporting evidence was not submitted by the applicant or kinship care or long-term kinship care relative within 20 days as required under sub. (10) (a) .

(b) The determination of whether there is good cause or not shall be reviewed by the kinship care or long-term kinship care worker's supervisor and signed by that person.

(c) The final determination of whether there is good cause or not shall be in writing and shall be placed in the applicant's or kinship care or long-term kinship care relative's case record. This shall include all evidence submitted in support of the claim and a written statement as to how the kinship care agency reached its determination. If there is no evidence or verifiable information available which suggests otherwise, the kinship care agency shall conclude that a refusal to cooperate was, in fact, a case of cooperation to the fullest extent possible.

(d) Written notice of the final determination shall be given to the applicant or kinship care or long-term kinship care relative, including the right to an appeal under s. DCF 58.08 (2) (b) , and to the child support agency.

(e) If the kinship care agency determines that good cause does not exist, the applicant or kinship care or long-term kinship care relative shall be notified and have 45 days from the date of the notification to do one of the following:

1. Withdraw the claim and cooperate.

2. Exclude any affected child from the application or case.

3. Withdraw the application or request that the case be closed.

4. Request a hearing under s. DCF 58.08 (2) (b) .

(f) When the 45 days provided for in par. (e) have expired and no action as specified in par. (e) has occurred, the kinship care agency shall deny the kinship care or long-term kinship care application or payment for the affected child. The denial shall remain in effect until there is cooperation or until cooperation is no longer an issue.

(6)   Approving or continuing kinship care or long-term kinship care payment.

(a) If the applicant or kinship care or long-term kinship care relative is cooperating with the kinship care agency in furnishing evidence and information for a determination on good cause, the kinship care agency may not deny, delay, reduce or discontinue the kinship care or long-term kinship care benefit, pending the determination, provided that all other eligibility criteria are met.

(b) The kinship care agency shall not use the 45-day period in sub. (5) (a) to extend an eligibility determination beyond the maximum period allowed in s. DCF 58.06 for processing applications.

(7)   Participation of the child support agency.

(a) The child support agency shall be given the opportunity to review and comment on the findings of the kinship care agency prior to the final determination on good cause by the kinship care agency. Consideration shall be given to any recommendation from the child support agency.

(b) The child support agency may participate in any hearing resulting from a good cause determination.

(c) The final decision on good cause is made by the kinship care agency.

(8)   Evidence. An initial good cause claim shall be based on evidence in existence at the time of the claim. There is no limitation on the age of the evidence. Once a final decision, including any hearing, is made on the claim, any subsequent claim shall have new evidence as its basis. Any of the following types of evidence may be used in determining good cause:

(a) Birth certificates or medical or law enforcement records that indicate that the child may have been conceived as a result of incest or sexual assault.

(b) Court documents or other records which indicate that a petition for the adoption of the child has been filed with a court.

(c) Court, medical, criminal, child protective services, social services, psychological, school or law enforcement records which indicate that a parent might inflict physical or emotional harm on the child or on the applicant or kinship care or long-term kinship care relative.

(d) Medical records indicating the emotional health history and present emotional health status of the applicant or kinship care or long-term kinship care relative or the child, or a written statement from a mental health professional indicating a diagnosis or prognosis concerning the emotional health of the applicant or kinship care or long-term kinship care relative or the child.

(e) A written statement from a public or private social services agency that the parent is being assisted by that agency to determine whether or not to terminate parental rights.

(f) Sworn statements from persons other than the parent or applicant or kinship care or long-term kinship care relative with knowledge of the circumstance on which the good cause claim is based.

(g) Any other supporting or corroborative evidence.

(9)   Special requirements for proof of good cause.

(a) Emotional harm. If a good cause claim is based on emotional harm to the applicant or kinship care or long-term kinship care relative or to the child, the kinship care agency shall consider all of the following:

1. Present emotional state of the person subject to emotional harm.

2. Emotional health history of the person subject to emotional harm.

3. Intensity and probable duration of the emotional harm.

4. Degree of cooperation to be required.

5. Extent of involvement of the child, the applicant or kinship relative in the establishment of the support enforcement activity to be undertaken.

(b) Physical harm. If a good cause claim is based on anticipated physical harm and no evidence is submitted, the kinship care agency shall conduct an investigation according to the provisions of sub. (11) .

(c) Incest or sexual assault. If a good cause claim is based on the applicant's or kinship care or long-term kinship care relative's statement that the child was conceived as a result of incest or sexual assault, but this is not documented, the claim may be reviewed as one based on emotional harm.

(10)   General requirements for proof of good cause.

(a) The applicant or kinship care or long-term kinship care relative who claims good cause shall provide supporting evidence within 20 days from the day the claim is signed. The kinship care agency worker may, with supervisory approval, determine that more time is necessary because of difficulty in obtaining certain evidence.

(b) There shall be at least one document of evidence, in addition to any sworn statements from the applicant or kinship care or long-term kinship care relative. The applicant or kinship care or long-term kinship care relative shall be encouraged to provide as many types of evidence as possible. The kinship care agency shall offer assistance in obtaining necessary evidence.

(c) When sufficient evidence to substantiate a good cause claim has not been submitted, the kinship care agency shall do all of the following:

1. Notify the applicant or kinship care or long-term kinship care relative that additional evidence is required and specify that evidence.

2. Advise the applicant or kinship care or long-term kinship care relative on how to obtain the evidence.

3. Make a reasonable effort to obtain specific documents that are not reasonably attainable by the applicant or kinship care or long-term kinship care relative without assistance.

(d) If after having been notified that additional evidence is required, the applicant or kinship care or long-term kinship care relative continues to refuse to cooperate or the evidence obtained does not establish good cause, the kinship care agency shall then notify the applicant or kinship care or long-term kinship care relative that if no further action is taken within 45 days from the date of the notification, good cause will not be found and that the applicant or kinship care or long-term kinship care relative may do any of the following:

1. Withdraw the claim and cooperate.

2. Exclude affected children from the application or case.

3. Withdraw the application or request that the case be closed.

4. Request a hearing under s. DCF 58.08 (2) (b) .

(e) When the 45 days provided for in par. (d) have expired and no action as specified in par. (d) has occurred, the kinship care agency shall deny the application for, or close the case of, any affected child.

(11)   Investigation of good cause claim.

(a) The kinship care agency shall conduct an investigation of any good cause claim based on anticipated physical harm, both when the claim is credible without supporting evidence and when supporting evidence is not available. Good cause shall be found when both the applicant's or kinship care or long-term kinship care relative's statement and the investigation satisfy the kinship care agency that the applicant or kinship care or long-term kinship care relative has good cause.

(b) The kinship care agency may also investigate any good cause claim when the applicant's or kinship care or long-term kinship care relative's statement, together with the corroborative evidence, does not provide a sufficient basis for a determination.

(c) Neither the kinship care agency nor the child support agency shall, in the course of any investigation, contact the parent from whom support would be sought without first notifying the applicant or kinship care or long-term kinship care relative in writing of the intention to do so. The applicant or kinship care or long-term kinship care relative shall have a 45-day period from the date of the notification to:

1. Present additional supporting or corroborative evidence or information so that contact with the parent is unnecessary.

2. Exclude an affected child from the application or case.

3. Withdraw the application or request that the case be closed.

4. Request a hearing.

(d) When the 45 days provided for in par. (c) have expired and no action as specified in par. (c) has occurred, the kinship care agency shall deny the application for or close the case of any affected child.

(12)   Notice of good cause finding.

(a) Notice to the child support agency. The kinship care agency shall notify the child support agency in writing whether good cause is found or is not found and, if found, whether or not the child support agency should proceed to secure child support without participation of the applicant or kinship care or long-term kinship care relative.

(b) When good cause is found. When good cause is found, the kinship care agency shall do one of the following, as appropriate:

1. Direct the child support agency to suspend all further case activities if it is determined that the child support agency's action, even without participation of the applicant or kinship care or long-term kinship care relative, can be reasonably anticipated to result in physical or emotional harm to the child or the kinship care or long-term kinship care relative.

2.

a. Advise the child support agency to proceed without the participation of the applicant or kinship care or long-term kinship care relative if the child support agency's action can reasonably be anticipated to not result in physical or emotional harm to the child or the kinship care or long-term kinship care relative.

b. The kinship care agency shall notify the applicant or kinship care or long-term kinship care relative immediately of its intended recommendation to the child support agency under subd. 2. a. , but shall wait for 45 days from the date of the notification to notify the child support agency in order to give the applicant or kinship care or long-term kinship care relative time to exclude any affected child from the application or case, to withdraw the application or request that the case be closed or to request a hearing.

c. The kinship care agency's recommendation under subd. 2. a. to the child support agency shall be in writing and shall contain the kinship care agency's findings and the basis for its determination. A copy of the written recommendation shall be included in the applicant's or kinship care or long-term kinship care relative's case record.

(c) When good cause is not found. When good cause is not found, the kinship care agency shall do all of the following:

1. Provide written notice to the applicant or kinship care or long-term kinship care relative.

2. Wait 45 days before taking further action. If after the 45 days, the applicant or kinship care or long-term kinship care relative still refuses to cooperate and did not exclude the affected child or withdraw the application or request that the case be closed, the kinship care agency shall deny the application for any affected child or close the case. If the application is denied or the case is closed for not cooperating in securing child support, the kinship care agency shall inform the applicant or kinship care or long-term kinship care relative, in writing, of the right to a hearing under s. DCF 58.08 (2) (b) . If a hearing is requested, the kinship care agency shall direct the child support agency not to proceed with any support enforcement action during the hearing process.

(13)   Review of good cause determinations.

(a) Good cause determinations based on permanent circumstances need not be reviewed.

(b) The kinship care agency shall review good cause determinations involving circumstances that are subject to change at each reassessment of eligibility under s. DCF 58.13 or 58.16 , as appropriate, or upon the receipt of new evidence.

(c) When good cause is determined to no longer exist, the kinship care agency shall rescind its determination and immediately notify the applicant or kinship care or long-term kinship care relative, in writing, of this and of the right to a hearing under s. DCF 58.08 (2) (b) , but shall not notify the child support agency for 45 days from the date of the notification to allow the applicant or kinship care or long-term kinship care relative to do one of the following:

1. Cooperate.

2. Exclude any affected child from the case.

3. Request that the case be closed.

4. Request a hearing under s. DCF 58.08 (2) (b) .

(d) When the 45 days provided for in par. (c) have expired and no action as specified in par. (c) 1. to 3. has occurred, the kinship care agency shall do both of the following:

1. Deny the application for or close the case of any affected child.

2. Inform the applicant or kinship care or long-term kinship care relative of the right to a hearing under s. DCF 58.08 (2) (b) .

CR 99-071 : cr. Register January 2002 No. 553 , eff. 2-1-02; corrections in (2), (5) (d), (e) 4., (6) (b), (10) (d) 4., (12) (c) 2., (13) (b), (c) and (d) 2. made under s. 13.92 (4) (b) 7. , Stats., Register November 2008 No. 635 .