December 12, 1984
Mr. William D. Gerdes
Deputy State's Attorney
Post Office Box 1453
Aberdeen, South Dakota 57401
OFFICIAL OPINION NO. 84-49
Obligations and duties of the State's Attorney in child support cases
Dear Mr. Gerdes:
You have requested an official opinion from this office based upon the following factual situation:
FACTS:
The Brown County State's Attorney's Office repeatedly is asked to help enforce child support obligations of absent parents (the frequency of the requests has increased since the state-wide crackdown). I am uncertain of the extent of our official duties and obligations. Due to limited time and personnel, we must devote available resources to those duties as set forth by law. The most common situations are:
(1) The custodial parent wishes to enforce a court ordered obligation. All parties are present in Brown County. The custodial parent, however, simply wishes to collect the money and is not interested in criminal prosecution.
(2) The custodial parent and child are in Brown County and the father is out of state. Again, there is no desire to prosecute criminally.
Based upon these facts, you have asked the following question:
QUESTION:
In each situation, is there an applicable duty or responsiblity of the State's Attorney?
The statutes that appear to govern this matter are as follows: (All citations to SDCL)
7-16-9. Prosecution and defense of actions for state and county-- Proceedings outside county. The state's attorney shall appear in all courts of his county and prosecute and defend on behalf of the state or his county all actions or proceedings, civil or criminal, in which the state or county is interested or a party. No state's attorney is required to appear in courts outside his county to prosecute and defend on behalf of the state or his county, and action or proceeding, civil or criminal, in which the state or county is interested or a party, except as required under § 7-16-15. If a part-time state's attorney appears in courts outside his county to represent the state or his county, he may receive extra compensation for the legal services pursuant to § 7-16-6.
7-16-12. Prosecution of actions for support of illegitimate child. It shall be the duty of the state's attorney to commence and prosecute all actions and proceedings brought for the support of any minor illegitimate child of an unmarried woman, whether such action be brought by or on behalf of the mother of such child, by the child, or its representative, or by the authorities charged with the support of said child.
7-16-13. Prosecution of actions by public authorities for child support. It shall be the duty of the state's attorney to commence and prosecute forthwith all actions and proceedings, civil or criminal, brought by the authorities charged with the support of any legitimate or illegitimate child for the recovery and enforcement of support for such child, including actions commenced under chapter 25-9.
25-9A-11. Officials to represent obligee. If this state is acting as in initiating state the state's attorney upon the request of the court or state department of social services shall represent the obligee. If the state's attorney neglects or refuses to represent the obligee, the attorney general shall undertake the representation.
25-9A-19. Duties of court and officials of this state as responding state. After the responding court receives copies of the petition, certificate and act from the initiating court the clerk of the court shall docket the case and notify the state's attorney of his action.
The state's attorney shall prosecute the case diligently. He shall take all action necessary in accordance with the laws of this state to enable the court to obtain jurisdiction over the obligor or his property and shall request the court to set a time and place for a hearing and give notice thereof to the obligor in accordance with law.
If the state's attorney neglects or refuses to represent the obligee the attorney general may order him to comply with the request of the court or undertake the representation.
25-9A-20. Further duties of court and officials in responding state. The state's attorney on his own initiative shall use all means at his disposal to locate the obligor or his property, and if because of inaccuracies in the petition or otherwise the court cannot obtain jurisdiction the state's attorney shall inform the court of what he has done and request the court to continue the case pending receipt of more accurate information or an amended petition from the initiating court.
If the obligor or his property is not found in the county, and the state's attorney discovers that the obligor or his property may be found in another state he shall so inform the court. Thereupon the clerk of the court shall forward the documents received from the court in the initiating state to a court in the other county or to a court in the other state or to the information agency or other proper official of the other state with a request that the documents be forwarded to the proper court. All powers and duties provided by this chapter apply to the recipient of the documents so forwarded. If the clerk of a court of this state forwards documents to another court he shall forthwith notify the initiating court.
If the state's attorney has no information as to the location of the obligor or his property he shall so inform the initiating court.
Initially, your request for an opinion properly recognizes the duty of a state's attorney to prosecute criminal non-support actions. See SDCL 25-7-16 and statutes following. It is worth noting that it is the duty of the state's attorney to determine whether or not to pursue criminal prosecution for non-support, just as for other offenses. The desires of the custodial parent are not determinitive on the question of whether a criminal non-support action should be brought. The state's attorney must exercise sound discretion in making this determination.
Once it is determined that no criminal prosecution will be brought, the above-referenced statutes come into play. SDCL 7-16-12 requires the state's attorney to commence and prosecute all actions, of whatever nature and at whatever time, if the action is for the support of an illegitimate child. SDCL 7-16-13 requires that the state's attorney both commence and prosecute any action brought by the authorities charged with support of any child. This is only an obligation on behalf of the public authorities, however, and not on behalf of the custodial parent. Under this statute, the duty would be limited to actions on behalf of public bodies or officials. In most cases, these officials would probably be seeking to enforce support, the absence of which has created an expenditure of public funds. I do not believe, however, that the statute is expressly so limited. If the appropriate public authorities requested institution of an action, the state's attorney would be obligated to prosecute it. See Slaton v. Campbell, 229 Ga. 59, 189 S.E.2d 69 (1972) (Uniform Reciprocal Enforcement of Support Act [hereinafter URESA] case.)
There are also obligations under SDCL 25-9A, 11, 19, and 20. Chapter 25-9A is entitled 'Revised Reciprocal Enforcement of Support,' and is based upon the revised Uniform Reciprocal Enforcement of Support Act (1968), found in Uniform Laws Annotated, Master Edition (West, 1979). In spite of the widespread adoption of the 1968 URESA, there are very few decisions regarding the duty of the state's attorney under it. I am, however, of the opinion that the duties are fairly clear on the face of the statute. SDCL 25-9A contemplates that the state's attorney has a duty to represent a resident, when this state is the initiating state, if requested to do so by the court or the State Department of Social Services. Absent such a request, there is no duty to represent the obligee when this is the initiating state.
On the other hand, if this state is the responding state (which is not, so far as I can determine, the case in either of the two factual situations you set forth) the duty of representation is more extensive. There is a requirement that the state's attorney prosecute the case diligently, and take all action necessary to enforce the obligation. Thus, if this is a responding state pursuant to URESA, the state's attorney must represent the obligee.
Under the fact situation described, an ongoing crime is being committed by the non-paying parent. The final choice of whether to prosecute is that of the State's Attorney. I would, however, assume that a State's Attorney would file charges and dispose of the matter. I believe that once the policy of the State's Attorney is known in the county the need for future actions would diminish.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
