DEPARTMENT OF HEALTH AND SOCIAL SERVICES

Division of Social Services

Statutory Authority: 31 Delaware Code, Section 512 (31 Del.C. §512)

PUBLIC NOTICE

PROPOSED

Temporary Assistance for Needy Families (TANF) – Joint Custody

In compliance with the State's Administrative Procedures Act (APA - Title 29, Chapter 101 of the Delaware Code) and under the authority of Title 31 of the Delaware Code, Chapter 5, Section 512, Delaware Health and Social Services (DHSS) / Division of Social Services (DSS) is proposing to amend the Division of Social Services Manual (DSSM) as it relates to Joint Custody and TANF.

Any person who wishes to make written suggestions, compilations of data, testimony, briefs or other written materials concerning the proposed new regulations must submit same to Sharon L. Summers, Policy and Program Development Unit, Division of Social Services, 1901 North DuPont Highway, P.O. Box 906, New Castle, Delaware 19720-0906 by December 31, 2005.

The action concerning the determination of whether to adopt the proposed regulation will be based upon the results of Department and Division staff analysis and the consideration of the comments and written materials filed by other interested persons.

Summary of Proposed Regulation

Citation

Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996

Background

There are often situations when two parties want to receive TANF benefits for the same child at the same time. In most circumstances, the party that has physical custody and cares for the child most of the time will be able to receive the TANF benefits. When the parties have joint custody or shared custody, determining which party can receive those benefits is more difficult.

Summary of Proposal

DSSM 3004.1.1, Joint Custody: Adds specific language to describe the criteria and procedures for determining which party receives TANF when two parties have joint custody or shared custody.

DSS PROPOSED REGULATION #05-68

NEW:

DSSM 3004.1.1 Joint Custody

The home exists even if the responsible caretaker relative or child is temporarily absent per DSSM 3023.4, 3023.5, and 3023.6 for TANF purposes. Joint custody cases can complicate deciding if a child is eligible for TANF and with which specified relative.

The Division of Social Services uses the following terms and definitions. (Note: The court system may use similar terms having different definitions.)

Joint Custody-Two parties are given the control to make major life decisions for a child. Joint custody exists when two parties are given, by court decree, the responsibility for making the major decisions in a child's life. (This is not meant to be an exhaustive list but a guide. There may be other decisions that fall into this category.) Major life decisions revolve around:

• Religious upbringing;

• Medical treatment options; and

• Education.

• Primary Residence- The physical home/location of the child the majority of the time. The court may indicate which party should maintain a primary residence for the child. This decision is often with one party but can sometimes be an equal split between the adults seeking custody. A court decree indicating that one party has the primary residence does not automatically mean only that party is permitted to apply for and receive TANF for that child.

• Day-to-Day Care and Control- The person(s) who provide the care for the child the majority of the time. These care decisions do not necessarily rise to the level of major life decisions but they are the ones that the responsible adult makes on a daily basis.

The Division of Social Services provides that in joint custody situations, the first party to apply for and have eligibility determined for TANF can receive it for that child. This is permitted, whether or not the party in the joint custody case has the primary residence of the child. We allow this situation because the child will have just one parent providing the day-to-day care or no parent providing the day-to-day care at any given time. This only applies in joint custody cases.

When both parties in the joint custody arrangement wish to receive TANF:

• Determine with whom the child resides most of the time; and

• Determine who maintains the day-to-day care and control of the child.

The party with whom the child resides most of the time and the party who maintains the daily care and control of the child will be able to receive TANF for that child. If both parties have equal time and decision making for the child each month, then the party that applies first will be able to receive the TANF benefits.

9 DE Reg. 928 (12/01/05)