ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2167
(By Delegates Beane, Doyle, Farris, Fleischauer,
Jenkins and Walters)
[Passed March 27, 1997; in effect January 1, 1998.]
AN ACT to repeal article seven, chapter forty-eight-a of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended; to amend and reenact section twenty-seven, article
two, chapter forty-eight of said code; to amend and reenact
section three, article three, chapter forty-eight-a of said
code; to amend and reenact section six, article four of said
chapter; to amend and reenact sections two and four, article
five of said chapter; and to amend said code by adding
thereto a new chapter, designated chapter forty-eight-b, all
relating to replacing the revised uniform reciprocal
enforcement of support act with the uniform interstate
family support act.
Be it enacted by the Legislature of West Virginia:
That article seven, chapter forty-eight-a of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
be repealed; that section twenty-seven, article two, chapter
forty-eight of said code be amended and reenacted; that section
three, article three, chapter forty-eight-a of said code be amended and reenacted; that section six, article four of said
chapter be amended and reenacted; that sections two and four,
article five of said chapter be amended and reenacted; and that
said code be further amended by adding thereto a new chapter,
designated chapter forty-eight-b, all to read as follows:.
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 2. DIVORCE, ANNULMENT AND SEPARATE MAINTENANCE.
§48-2-27. Confidentiality of domestic relations court files.
All orders in domestic relations cases entered in the civil
order books by circuit clerks are public records. For purposes
of this section, domestic relations cases shall include actions
for divorce, annulment, separate maintenance, paternity, child
support, custody, visitation, actions brought under the
provisions of the uniform interstate family support act and
petitions for writs of habeas corpus wherein the issue is child
custody.
Upon the filing of a domestic relations case, all pleadings,
exhibits or other documents contained in the court file are
confidential and not open for public inspection either during the
pendency of the case or after the case is closed.
When sensitive information has been disclosed during a
hearing or in pleadings, evidence, or documents filed in the
record, a circuit judge or family law master may, sua sponte or
upon motion of a party, order such information sealed in the
court file. Sealed documents or court files shall only be opened
by order of a circuit judge or family law master:
Provided, That, in any case pending before a family law master, the master
may open and inspect the entire contents of the court file.
The parties, their designees, their attorneys, a duly
appointed guardian ad litem or any person who has standing to
modify or enforce a support order, shall have the right to
examine and copy any document in a confidential court file which
has not been sealed by order of a circuit judge or family law
master. Upon motion and for good cause shown, the circuit court
or family law master may permit a person not a party to the
action the right to examine and copy such documents as are
necessary to further the interests of justice.
CHAPTER 48A. ENFORCEMENT OF FAMILY OBLIGATIONS.
ARTICLE 3. CHILDREN'S ADVOCATE.
§48A-3-3. Duties of the children's advocate.
Subject to the control and supervision of the director:
(a) The children's advocate shall supervise and direct the
secretarial, clerical and other employees in his or her office in
the performance of their duties as such performance affects the
delivery of legal services. The children's advocate will provide
appropriate instruction and supervision to employees of his or
her office who are nonlawyers, concerning matters of legal ethics
and matters of law, in accordance with applicable state and
federal statutes, rules and regulations.
(b) In accordance with the requirements of rule 5.4(c) of
the rules of professional conduct as promulgated and adopted by
the supreme court of appeals, the children's advocate shall not permit a nonlawyer who is employed by the department of health
and human resources in a supervisory position over the children's
advocate to direct or regulate the advocate's professional
judgment in rendering legal services to recipients of services in
accordance with the provisions of this chapter; nor shall any
nonlawyer employee of the department attempt to direct or
regulate the advocate's professional judgment.
(c) The children's advocate shall make available to the
public an informational pamphlet, designed in consultation with
the director. The informational pamphlet shall explain the
procedures of the court and the children's advocate; the duties
of the children's advocate; the rights and responsibilities of
the parties; and the availability of human services in the
community. The informational pamphlet shall be provided as soon
as possible after the filing of a complaint or other initiating
pleading. Upon request, a party to a domestic relations
proceeding shall receive an oral explanation of the informational
pamphlet from the office of the children's advocate.
(d) The children's advocate shall act to establish the
paternity of every child born out of wedlock for whom paternity
has not been established, when such child's primary caretaker is
an applicant for or recipient of aid to families with dependent
children, and when such primary caretaker has assigned to the
division of human services any rights to support for the child
which might be forthcoming from the putative father:
Provided,
That if the children's advocate is informed by the secretary of the department of health and human resources or his or her
authorized employee that it has been determined that it is
against the best interest of the child to establish paternity,
the children's advocate shall decline to so act. The children's
advocate, upon the request of any primary caretaker of a child
born out of wedlock, regardless of whether such primary caretaker
is an applicant or recipient of aid to families with dependent
children, shall undertake to establish the paternity of such
child.
(e) The children's advocate shall undertake to secure
support for any individual who is receiving aid to families with
dependent children when such individual has assigned to the
division of human services any rights to support from any other
person such individual may have:
Provided, That if the
children's advocate is informed by the secretary of the
department of health and human resources or his or her authorized
employee that it has been determined that it is against the best
interests of a child to secure support on the child's behalf, the
children's advocate shall decline to so act. The children's
advocate, upon the request of any individual, regardless of
whether such individual is an applicant or recipient of aid to
families with dependent children, shall undertake to secure
support for the individual. If circumstances require, the
children's advocate shall utilize the provisions of chapter
forty-eight-b of this code and any other reciprocal arrangements
which may be adopted with other states for the establishment and enforcement of support obligations, and if such arrangements and
other means have proven ineffective, the children's advocate may
utilize the federal courts to obtain and enforce court orders for
support.
(f) The children's advocate shall pursue the enforcement of
support orders through the withholding from income of amounts
payable as support:
(1) Without the necessity of an application from the obligee
in the case of a support obligation owed to an obligee to whom
services are already being provided under the provisions of this
chapter; and
(2) On the basis of an application for services in the case
of any other support obligation arising from a support order
entered by a court of competent jurisdiction.
(g) The children's advocate may decline to commence an
action to obtain an order of support under the provisions of
section one, article five of this chapter if an action for
divorce, annulment or separate maintenance is pending, or the
filing of such action is imminent, and such action will determine
the issue of support for the child:
Provided, That such action
shall be deemed to be imminent if it is proposed by the obligee
to be commenced within the twenty-eight days next following a
decision by the children's advocate that an action should
properly be brought to obtain an order for support.
(h) If the child advocate office, through the children's
advocate, shall undertake paternity determination services, child support collection or support collection services for a spouse or
former spouse upon the written request of an individual who is
not an applicant or recipient of assistance from the division of
human services, the office may impose an application fee for
furnishing such services. Such application fee shall be in a
reasonable amount, not to exceed twenty-five dollars, as
determined by the director:
Provided, That the director may fix
such amount at a higher or lower rate which is uniform for this
state and all other states if the secretary of the federal
department of health and human services determines that a uniform
rate is appropriate for any fiscal year to reflect increases or
decreases in administrative costs. Any cost in excess of the
application fee so imposed may be collected from the obligor who
owes the child or spousal support obligation involved.
ARTICLE 4. PROCEEDING BEFORE A MASTER.
§48A-4-6. Matters to be heard by a family law master.
(a) A circuit court or the chief judge thereof shall refer
to the master the following matters for hearing to be conducted
pursuant to sections eight and nine of this article:
(1) Actions to obtain orders of support brought under the
provisions of section one, article five of this chapter;
(2) All actions to establish paternity brought under the
provisions of article six of this chapter and any dependent
claims related to such action regarding child support, custody
and visitation;
(3) All petitions for writs of habeas corpus wherein the issue contested is child custody;
(4) All motions for temporary relief affecting child
custody, visitation, child support, spousal support or family
violence, wherein either party has requested such referral or the
court on its own motion in individual cases or by general order
has referred such motions to the master:
Provided, That if the
family law master determines, in his or her discretion, that the
pleadings raise substantial issues concerning the identification
of separate property or the division of marital property which
may have a bearing on an award of support, the family law master
shall notify the court of this fact and the circuit court shall
refer the case to a temporary or special law master or
commissioner of the court designated by the chief justice of the
supreme court;
(5) All petitions for modification of an order involving
child custody, child visitation, child support or spousal
support;
(6) All actions for divorce, annulment or separate
maintenance brought pursuant to article two, chapter forty-eight
of this code:
Provided, That an action for divorce, annulment or
separate maintenance which does not involve child custody or
child support shall be heard by the circuit judge if, at the time
of the filing of the action, the parties file a written property
settlement agreement which has been signed by both parties;
(7) All actions wherein an obligor is contesting the
enforcement of an order of support through the withholding from income of amounts payable as support or is contesting an
affidavit of accrued support, filed with a circuit clerk, which
seeks to collect arrearages;
(8) All actions commenced under the provisions of chapter
forty-eight-b of this code or under the provisions of the revised
uniform reciprocal enforcement of support act or the uniform
interstate family support act of any other state;
(9) Proceedings for the enforcement of support, custody or
visitation orders:
Provided, That contempt actions shall be
heard by a circuit judge; and
(10) All actions to establish custody of a minor child or
visitation with a minor child, including actions brought pursuant
to the uniform child custody jurisdiction act and actions brought
to establish grandparent visitation:
Provided, That any action
instituted under article six, chapter forty-nine shall be heard
by a circuit judge.
(b) On its own motion or upon motion of a party, the circuit
court may revoke the referral of a particular matter to a master
if the master is recused, if the matter is uncontested, or for
other good cause, or if the matter will be more expeditiously and
inexpensively heard by the circuit judge without substantially
affecting the rights of parties in actions which must be heard by
the circuit court.
ARTICLE 5. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS
AND VISITATIONS.
§48A-5-2. Arrearages; enforcement through writ of execution, suggestion or suggestee execution.
(a) The total of any matured, unpaid installments of child
support required to be paid by an order entered or modified by a
court of competent jurisdiction, or by the order of a magistrate
court of this state under the prior enactments of this code,
shall stand, by operation of law, as a decretal judgment against
the obligor owing such support. The amount of unpaid support
shall bear interest from the date it accrued, at a rate of ten
dollars upon one hundred dollars per annum, and proportionately
for a greater or lesser sum, or for a longer or shorter time. A
child support order shall not be retroactively modified so as to
cancel or alter accrued installments of support. When an obligor
is in arrears in the payment of support which is required to be
paid by the terms of such order, an obligee may file an
"Affidavit of Accrued Support" with the clerk of the circuit
court, setting forth the particulars of such arrearage, and
requesting a writ of execution, suggestion or suggestee
execution. If the duty of support is based upon a foreign
support order, the obligee shall first register the foreign
support order in the same manner and with the same effect as such
orders are registered in actions under the uniform interstate
family support act as set forth in article six, chapter forty- eight-b of this code:
Provided, That a copy of the reciprocal
enforcement of support law of the state in which the order was
made need not be filed with the clerk.
(b) The affidavit may be filed in the county wherein the obligee or the obligor resides, or where the obligor's source of
income is located.
(c) The affidavit may be filed when a payment required by
such order has been delinquent, in whole or in part, for a period
of fourteen days.
(d) The affidavit shall:
(1) Identify the obligee and obligor by name and address,
and shall list the obligor's social security number or numbers,
if known;
(2) Name the court which entered the support order and set
forth the date of such entry;
(3) State the total amount of accrued support which has not
been paid by the obligor;
(4) List the date or dates when support payments should have
been paid but were not, and the amount of each such delinquent
payment; and
(5) If known, the name and address of the obligor's source
of income.
(e) Upon receipt of the affidavit, the clerk shall issue a
writ of execution, suggestion or suggestee execution, and shall
mail a copy of the affidavit and a notice of the filing of the
affidavit to the obligor, at his last known address. If the
children's advocate is not acting on behalf of the obligee in
filing the affidavit, the clerk shall forward a copy of the
affidavit and the notice of the filing to the children's
advocate.
(f) The notice provided for in subsection (e) of this
section shall inform the obligor that if he or she desires to
contest the affidavit on the grounds that the amount claimed to
be in arrears is incorrect or that a writ of execution,
suggestion or suggestee execution is not proper because of
mistakes of fact, he or she must, within fourteen days of the
date of the notice: (1) Inform the children's advocate in
writing of the reasons why the affidavit is contested and request
a meeting with the children's advocate; or (2) obtain a date for
a hearing before the family law master and mail written notice of
such hearing to the obligee and to the children's advocate on a
form prescribed by the administrative office of the supreme court
of appeals and made available through the office of the clerk of
the circuit court.
(g) Upon being informed by an obligor that he or she desires
to contest the affidavit, the children's advocate shall inform
the court of such fact, and the court shall require the obligor
to give security, post a bond, or give some other guarantee to
secure payment of overdue support.
(h) The clerk of the circuit court shall make available form
affidavits for use under the provisions of this section. Such
form affidavits shall be provided to the clerk by the child
advocate office. The notice of the filing of an affidavit shall
be in a form prescribed by the child advocate office.
(i) Writs of execution, suggestions or suggestee executions
issued pursuant to the provisions of this section shall have priority over any other legal process under the laws of this
state against the same income, except for withholding from income
of amounts payable as support in accordance with the provisions
of section three of this article, and shall be effective despite
any exemption that might otherwise be applicable to the same
income.
(j) Notwithstanding any other provision of this code to the
contrary, the amount to be withheld from the disposable earnings
of an obligor pursuant to a suggestee execution in accordance
with the provisions of this section shall be the same amount
which could properly be withheld in the case of a withholding
order under the provisions of subsection (e), section three of
this article.
§48A-5-4. Liens against real and personal property for overdue
support.
An order for support entered by a court of competent
jurisdiction will give rise to a lien imposed against real and
personal property for amounts of overdue support owed by an
obligor who resides or owns property within this state when the
provisions of section seventeen, article two, chapter forty-eight
of this code have been complied with:
Provided, That a foreign
order shall first be registered as a foreign support order with
the clerk in the same manner as such orders are registered in
actions under the uniform interstate family support act as set
forth in article six, chapter forty-eight-b of this code:
Provided, however, That a copy of the reciprocal enforcement of support law of the state in which the order was made need not be
filed with the clerk.
CHAPTER 48B. UNIFORM INTERSTATE FAMILY SUPPORT ACT.
ARTICLE 1. GENERAL PROVISIONS.
§48B-1-101. DEFINITIONS.
As used in this chapter:
(1) "Child" means an individual, whether over or under the
age of majority, who is or is alleged to be owed a duty of
support by the individual's parent or who is or is alleged to be
the beneficiary of a support order directed to the parent.
(2) "Child support order" means a support order for a child,
including a child who has attained the age of majority under the
law of the issuing state.
(3) 'Duty of support" means an obligation imposed or
imposable by law to provide support for a child, spouse, or
former spouse, including an unsatisfied obligation to provide
support.
(4) "Home state" means the state in which a child lived with
a parent or a person acting as parent for at least six
consecutive months immediately preceding the time of filing of a
petition or comparable pleading for support and, if a child is
less than six months old, the state in which the child lived from
birth with any of them. A period of temporary absence of any of
them is counted as part of the six-month or other period.
(5) "Income" includes earnings or other periodic
entitlements to money from any source and any other property subject to withholding for support under the law of this state.
(6) "Income-withholding order" means an order or other legal
process directed to an obligor's employer or other debtor, as
defined by section sixteen, article one-a, chapter forty-eight-a
of this code to withhold support from the income of the obligor.
(7) "Initiating state" means a state from which a proceeding
is forwarded or in which a proceeding is filed for forwarding to
a responding state under this chapter or a law or procedure
substantially similar to this chapter, the uniform reciprocal
enforcement of support act, or the revised uniform reciprocal
enforcement of support act.
(8) "Initiating tribunal" means the authorized tribunal in
an initiating state.
(9) "Issuing state" means the state in which a tribunal
issues a support order or renders a judgment determining
parentage.
(10) "Issuing tribunal" means the tribunal that issues a
support order or renders a judgment determining parentage.
(11) "Law" includes decisional and statutory law and rules
having the force of law.
(12) "Obligee" means: (i) An individual to whom a duty of
support is or is alleged to be owed or in whose favor a support
order has been issued or a judgment determining parentage has
been rendered; (ii) a state or political subdivision to which the
rights under a duty of support or support order have been
assigned or which has independent claims based on financial assistance provided to an individual obligee; or (iii) an
individual seeking a judgment determining parentage of the
individual's child.
(13) "Obligor" means an individual, or the estate of a
decedent: (i) Who owes or is alleged to owe a duty of support;
(ii) who is alleged but has not been adjudicated to be a parent
of a child; or (iii) who is liable under a support order.
(14) "Register" means to record a support order or judgment
determining parentage in the registry of foreign support orders.
(15) "Registering tribunal" means a tribunal in which a
support order is registered.
(16) "Responding state" means a state in which a proceeding
is filed or to which a proceeding is forwarded for filing from an
initiating state under this chapter or a law or procedure
substantially similar to this chapter, the uniform reciprocal
enforcement of support act, or the revised uniform reciprocal
enforcement of support act.
(17) "Responding tribunal" means the authorized tribunal in
a responding state.
(18) "Spousal-support order" means a support order for a
spouse or former spouse of the obligor.
(19) "State" means a state of the United States, the
District of Columbia, Puerto Rico, the United States Virgin
Islands or any territory or insular possession subject to the
jurisdiction of the United States. The term includes: (i) An
Indian tribe; (ii) a foreign jurisdiction that has enacted a law or established procedures for issuance and enforcement of support
orders which are substantially similar to the procedures under
this chapter, the uniform reciprocal enforcement of support act,
or the revised uniform reciprocal of enforcement of support act.
(20) "Support enforcement agency" means a public official or
agency authorized to seek: (i) Enforcement of support orders or
laws relating to the duty of support; (ii) establishment or
modification of child support; (iii) determination of parentage;
or (iv) to locate obligors or their assets.
(21) "Support order" means a judgment, decree or order,
whether temporary, final or subject to modification, for the
benefit of a child, a spouse or a former spouse, which provides
for monetary support, health care, arrearages, or reimbursement
and may include related costs and fees, interest, income
withholding, attorney's fees and other relief.
(22) "Tribunal" means a court, administrative agency, family
law master or quasi-judicial entity authorized to establish,
enforce or modify support orders or to determine parentage.
§48B-1-102. Tribunals of state.
The circuit court and the family law masters are the
tribunals of this state.
§48B-1-103. Remedies cumulative.
Remedies provided by this chapter are cumulative and do not
affect the availability of remedies under other law.
ARTICLE 2. JURISDICTION.
PART 1. EXTENDED PERSONAL JURISDICTION.
§48B-2-201. Bases for jurisdiction over nonresident.
In a proceeding to establish, enforce, or modify a support
order or to determine parentage, a tribunal of this state may
exercise personal jurisdiction over a nonresident individual or
the individual's guardian or conservator if: (1) The individual
is personally served with notice within this state; (2) the
individual submits to the jurisdiction of this state by consent,
by entering a general appearance, or by filing a responsive
document having the effect of waiving any contest to personal
jurisdiction; (3) the individual resided with the child in this
state; (4) the individual resided in this state and provided
prenatal expenses or support for the child; (5) the child resides
in this state as a result of the acts or directives of the
individual; (6) the individual engaged in sexual intercourse in
this state and the child may have been conceived by that act of
intercourse; (7) the individual has committed a tortious act by
failing to support a child resident in this state; or (8) there
is any other basis consistent with the constitutions of this
state and the United States for the exercise of personal
jurisdiction.
§48B-2-202. Procedure when exercising jurisdiction over
nonresident
A tribunal of this state exercising personal jurisdiction
over a nonresident under section two hundred one may apply
section three hundred sixteen (Special Rules of Evidence and
Procedure) to receive evidence from another state, and section three hundred eighteen (Assistance with Discovery) to obtain
discovery through a tribunal of another state. In all other
respects, articles three through seven do not apply and the
tribunal shall apply the procedural and substantive law of this
state, including the rules on choice of law other than those
established by this chapter.
PART 2. PROCEEDINGS INVOLVING TWO OR MORE STATES.
§48B-2-203. Initiating and responding tribunal of state.
Under this chapter, a tribunal of this state may serve as an
initiating tribunal to forward proceedings to another state and
as a responding tribunal for proceedings initiated in another
state.
§48B-2-204. Simultaneous proceedings in another state.
(a) A tribunal of this state may exercise jurisdiction to
establish a support order if the petition or comparable pleading
is filed after a petition or comparable pleading is filed in
another state only if: (1) The petition or comparable pleading in
this state is filed before the expiration of the time allowed in
the other state for filing a responsive pleading challenging the
exercise of jurisdiction by the other state; (2) the contesting
party timely challenges the exercise of jurisdiction in the other
state; and (3) if relevant, this state is the home state of the
child.
(b) A tribunal of this state may not exercise jurisdiction
to establish a support order if the petition or comparable
pleading is filed before a petition or comparable pleading is filed in another state if: (1) The petition or comparable
pleading in the other state is filed before the expiration of the
time allowed in this state for filing a responsive pleading
challenging the exercise of jurisdiction by this state; (2) the
contesting party timely challenges the exercise of jurisdiction
in this state; and (3) if relevant, the other state is the home
state of the child.
§48B-2-205. Continuing, exclusive jurisdiction.
(a) A tribunal of this state issuing a support order
consistent with the law of this state has continuing, exclusive
jurisdiction over a child support order: (1) As long as this
state remains the residence of the obligor, the individual
obligee, or the child for whose benefit the support order is
issued; or (2) until all of the parties who are individuals have
filed written consents with the tribunal of this state for a
tribunal of another state to modify the order and assume
continuing, exclusive jurisdiction.
(b) A tribunal of this state issuing a child support order
consistent with the law of this state may not exercise its
continuing jurisdiction to modify the order if the order has been
modified by a tribunal of another state pursuant to this chapter
or a law substantially similar to this chapter.
(c) If a child support order of this state is modified by a
tribunal of another state pursuant to this chapter or a law
substantially similar to this chapter, a tribunal of this state
loses its continuing, exclusive jurisdiction with regard to prospective enforcement of the order issued in this state, and
may only: (1) Enforce the order that was modified as to amounts
accruing before the modification; (2) enforce nonmodifiable
aspects of that order; and (3) provide other appropriate relief
for violations of that order which occurred before the effective
date of the modification.
(d) A tribunal of this state shall recognize the continuing,
exclusive jurisdiction of a tribunal of another state which has
issued a child support order pursuant to a law substantially
similar to this chapter.
(e) A temporary support order issued ex parte or pending
resolution of a jurisdictional conflict does not create
continuing, exclusive jurisdiction in the issuing tribunal.
(f) A tribunal of this state issuing a support order
consistent with the law of this state has continuing, exclusive
jurisdiction over a spousal support order throughout the
existence of the support obligation. A tribunal of this state
may not modify a spousal support order issued by a tribunal of
another state having continuing, exclusive jurisdiction over that
order under the law of that state.
§48B-2-206. Enforcement and modification of support order by
tribunal having continuing jurisdiction.
(a) A tribunal of this state may serve as an initiating
tribunal to request a tribunal of another state to enforce or
modify a support order issued in that state.
(b) A tribunal of this state having continuing, exclusive jurisdiction over a support order may act as a responding
tribunal to enforce or modify the order. If a party subject to
the continuing, exclusive jurisdiction of the tribunal no longer
resides in the issuing state, in subsequent proceedings the
tribunal may apply section three hundred sixteen (Special Rules
of Evidence and Procedure) to receive evidence from another state
and section three hundred eighteen (Assistance with Discovery) to
obtain discovery through a tribunal of another state.
(c) A tribunal of this state which lacks continuing,
exclusive jurisdiction over a spousal support order may not serve
as a responding tribunal to modify a spousal support order of
another state.
PART 3. RECONCILIATION OF MULTIPLE ORDERS.
§48B-2-207. Recognition of controlling child support order.
(a) If a proceeding is brought under this chapter and only
one tribunal has issued a child support order, the order of that
tribunal is controlling and must be recognized.
(b) If a proceeding is brought under this chapter, and two
or more child support orders have been issued by tribunals of
this state or another state with regard to the same obligor and
child, a tribunal of this state shall apply the following rules
in determining which order to recognize for purposes of
continuing, exclusive jurisdiction:
(1) If only one of the tribunals would have continuing,
exclusive jurisdiction under this chapter, the order of that
tribunal is controlling and must be recognized.
(2) If more than one of the tribunals would have continuing,
exclusive jurisdiction under this chapter, an order issued by a
tribunal in the current home state of the child must be
recognized, but if an order has not been issued in the current
home state of the child, the order most recently issued is
controlling and must be recognized.
(3) If none of the tribunals would have continuing,
exclusive jurisdiction under this chapter, the tribunal of this
state having jurisdiction over the parties must issue a child
support order, which is controlling and must be recognized.
(c) If two or more child support orders have been issued for
the same obligor and child and if the obligor or the individual
obligee resides in this state, a party may request a tribunal of
this state to determine which order controls and must be
recognized under subsection (b). The request must be accompanied
by a certified copy of every support order in effect. Every
party whose rights may be affected by a determination of the
controlling order must be given notice of the request for that
determination.
(d) The tribunal that issued the order that must be
recognized as controlling under subsection (a), (b) or (c) is the
tribunal that has continuing, exclusive jurisdiction in
accordance with section two hundred five.
(e) A tribunal of this state which determines by order the
identity of the controlling child support order under subsections
(b) (1) or (b) (2) or which issued a new controlling child support order under subsection (b) (3) shall include in that
order the basis upon which the tribunal made its determination.
(f) Within thirty days after issuance of the order
determining the identity of the controlling order, the party
obtaining that order shall file a certified copy of it with each
tribunal that had issued or registered an earlier order of child
support. Failure of the party obtaining the order to file a
certified copy as required subjects that party to appropriate
sanctions by a tribunal in which the issue of failure to file
arises, but that failure has no effect on the validity or
enforceability of the controlling order.
§48B-2-208. Multiple child support orders for two or more
obligees.
In responding to multiple registrations or petitions for
enforcement of two or more child support orders in effect at the
same time with regard to the same obligor and different
individual obligees, at least one of which was issued by a
tribunal of another state, a tribunal of this state shall enforce
those orders in the same manner as if the multiple orders had
been issued by a tribunal of this state.
§48B-2-209. Credit for payments.
Amounts collected and credited for a particular period
pursuant to a support order issued by a tribunal of another state
must be credited against the amounts accruing or accrued for the
same period under a support order issued by the tribunal of this
state.
ARTICLE 3. CIVIL PROVISIONS OF GENERAL APPLICATION.
§48B-3-301. Proceedings under chapter.
(a) Except as otherwise provided in this chapter, this
article applies to all proceedings under this chapter.
(b) This chapter provides for the following proceedings: (1)
Establishment of an order for spousal support or child support
pursuant to article four; (2) enforcement of a support order and
income-withholding order of another state without registration
pursuant to article five; (3) registration of an order for
spousal support or child support of another state for enforcement
pursuant to article six; (4) modification of an order for child
support or spousal support issued by a tribunal of this state
pursuant to article two, part 2; (5) registration of an order for
child support of another state for modification pursuant to
article six; (6) determination of parentage pursuant to article
seven; and (7) assertion of jurisdiction over nonresidents
pursuant to article two, Part 1.
(c) An individual petitioner or a support enforcement agency
may commence a proceeding authorized under this chapter by filing
a petition in an initiating tribunal for forwarding to a
responding tribunal or by filing a petition or a comparable
pleading directly in a tribunal of another state which has or can
obtain personal jurisdiction over the respondent.
§48B-3-302. Action by minor parent.
A minor parent, or a guardian or other legal representative
of a minor parent, may maintain a proceeding on behalf of or for the benefit of the minor's child.
§48B-3-303. Application of law of state.
Except as otherwise provided by this chapter, a responding
tribunal of this state: (1) Shall apply the procedural and
substantive law, including the rules on choice of law, generally
applicable to similar proceedings originating in this state and
may exercise all powers and provide all remedies available in
those proceedings; and (2) shall determine the duty of support
and the amount payable in accordance with the law and support
guidelines of this state.
§48B-3-304. Duties of initiating tribunal.
(a) Upon the filing of a petition authorized by this
chapter, an initiating tribunal of this state shall forward three
copies of the petition and its accompanying documents: (1) To the
responding tribunal or appropriate support enforcement agency in
the responding state; or (2) if the identity of the responding
tribunal is unknown, to the state information agency of the
responding state with a request that they be forwarded to the
appropriate tribunal and that receipt be acknowledged.
(b) If a responding state has not enacted this chapter or a
law or procedure substantially similar to this chapter, a
tribunal of this state may issue a certificate or other document
and make findings required by the law of the responding state.
If the responding state is a foreign jurisdiction, the tribunal
may specify the amount of support sought and provide other
documents necessary to satisfy the requirements of the responding state.
§48B-3-305. Duties and powers of responding tribunal.
(a) When a responding tribunal of this state receives a
petition or comparable pleading from an initiating tribunal or
directly pursuant to subsection (c), section three hundred one
(proceedings under this chapter), the clerk of the court shall
cause the petition or pleading to be filed and notify the
petitioner where and when it was filed.
(b) A responding tribunal of this state, to the extent
otherwise authorized by law, may do one or more of the following:
(1) Issue or enforce a support order, modify a child support
order or render a judgment to determine parentage; (2) order an
obligor to comply with a support order, specifying the amount and
the manner of compliance; (3) order income withholding; (4)
determine the amount of any arrearages and specify a method of
payment; (5) enforce orders by civil or criminal contempt, or
both; (6) set aside property for satisfaction of the support
order; (7) place liens and order execution on the obligor's
property; (8) order an obligor to keep the tribunal informed of
the obligor's current residential address, telephone number,
employer, address of employment and telephone number at the place
of employment; (9) issue a capias for an obligor who has failed
after proper notice to appear at a hearing ordered by the
tribunal and enter the capias in any local and state computer
systems for criminal warrants; (10) order the obligor to seek
appropriate employment by specified methods; (11) award reasonable attorney's fees and other fees and costs; and (12)
grant any other available remedy.
(c) A responding tribunal of this state shall include in a
support order issued under this chapter, or in the documents
accompanying the order, the calculations on which the support
order is based.
(d) A responding tribunal of this state may not condition
the payment of a support order issued under this chapter upon
compliance by a party with provisions for visitation.
(e) If a responding tribunal of this state issues an order
under this chapter, the tribunal shall send a copy of the order
to the petitioner and the respondent and to the initiating
tribunal, if any.
§48B-3-306. Inappropriate tribunal.
If a petition or comparable pleading is received by an
inappropriate tribunal of this state, the clerk of the court
shall forward the pleading and accompanying documents to an
appropriate tribunal in this state or another state and notify
the petitioner where and when the pleading was sent.
§48B-3-307. Duties of support enforcement agency.
(a) A support enforcement agency of this state, upon
request, shall provide services to a petitioner in a proceeding
under this chapter.
(b) A support enforcement agency that is providing services
to the petitioner as appropriate shall: (1) Take all steps
necessary to enable an appropriate tribunal in this state or another state to obtain jurisdiction over the respondent; (2)
request an appropriate tribunal to set a date, time, and place
for a hearing; (3) make a reasonable effort to obtain all
relevant information, including information as to income and
property of the parties; (4) within two days, exclusive of
Saturdays, Sundays and legal holidays, after receipt of a written
notice from an initiating, responding, or registering tribunal,
send a copy of the notice to the petitioner; (5) within two days,
exclusive of Saturdays, Sundays and legal holidays, after receipt
of a written communication from the respondent or the
respondent's attorney, send a copy of the communication to the
petitioner; and (6) notify the petitioner if jurisdiction over
the respondent cannot be obtained.
(c) This chapter does not create or negate a relationship of
attorney and client or other fiduciary relationship between a
support enforcement agency or the attorney for the agency and the
individual being assisted by the agency.
§48B-3-308. Duty of West Virginia support enforcement
commission.
If the West Virginia support enforcement commission
determines that the support enforcement agency is neglecting or
refusing to provide services to an individual, the commission may
order the agency to perform its duties under this chapter or may
provide those services directly to the individual.
§48B-3-309. Private counsel.
An individual may employ private counsel to represent the individual in proceedings authorized by this chapter.
§48B-3-310. Duties of state information agency.
(a) The child support enforcement division is the state
information agency under this chapter.
(b) The state information agency shall: (1) Compile and
maintain a current list, including addresses, of the tribunals in
this state which have jurisdiction under this chapter and any
support enforcement agencies in this state and transmit a copy to
the state information agency of every other state; (2) maintain
a register of tribunals and support enforcement agencies received
from other states; (3) forward to the appropriate tribunal in the
place in this state in which the individual obligee or the
obligor resides, or in which the obligor's property is believed
to be located, all documents concerning a proceeding under this
chapter received from an initiating tribunal or the state
information agency of the initiating state; and (4) obtain
information concerning the location of the obligor and the
obligor's property within this state not exempt from execution,
by such means as postal verification and federal or state locator
services, examination of telephone directories, requests for the
obligor's address from employers, and examination of governmental
records, including, to the extent not prohibited by other law,
those relating to real property, vital statistics, law
enforcement, taxation, motor vehicles, driver's licenses and
social security.
§48B-3-311. Pleadings and accompanying documents.
(a) A petitioner seeking to establish or modify a support
order or to determine parentage in a proceeding under this
chapter must verify the petition. Unless otherwise ordered under
section three hundred twelve (Nondisclosure of Information in
Exceptional Circumstances), the petition or accompanying
documents must provide, so far as known, the name, residential
address and social security numbers of the obligor and the
obligee, and the name, sex, residential address, social security
number and date of birth of each child for whom support is
sought. The petition must be accompanied by a certified copy of
any support order in effect. The petition may include any other
information that may assist in locating or identifying the
respondent.
(b) The petition must specify the relief sought. The
petition and accompanying documents must conform substantially
with the requirements imposed by the forms mandated by federal
law for use in cases filed by a support enforcement agency.
§48B-3-312. Nondisclosure of information in exceptional
circumstances.
Upon a finding, which may be made ex parte, that the health,
safety or liberty of a party or child would be unreasonably put
at risk by the disclosure of identifying information, or if an
existing order so provides, a tribunal shall order that the
address of the child or party or other identifying information
not be disclosed in a pleading or other document filed in a
proceeding under this chapter.
§48B-3-313. Costs and fees.
(a) The petitioner may not be required to pay a filing fee
or other costs.
(b) If an obligee prevails, a responding tribunal may assess
against an obligor filing fees, reasonable attorney's fees, other
costs and necessary travel and other reasonable expenses incurred
by the obligee and the obligee's witnesses. The tribunal may not
assess fees, costs or expenses against the obligee or the support
enforcement agency of either the initiating or the responding
state, except as provided by other law. Attorney's fees may be
taxed as costs, and may be ordered paid directly to the attorney,
who may enforce the order in the attorney's own name. Payment of
support owed to the obligee has priority over fees, costs and
expenses.
(c) The tribunal shall order the payment of costs and
reasonable attorney's fees if it determines that a hearing was
requested primarily for delay. In a proceeding under article six
(Enforcement and Modification of Support Order After
Registration), a hearing is presumed to have been requested
primarily for delay if a registered support order is confirmed or
enforced without change.
§48B-3-314. Limited immunity of petitioner.
(a) Participation by a petitioner in a proceeding before a
responding tribunal, whether in person, by private attorney, or
through services provided by the support enforcement agency, does
not confer personal jurisdiction over the petitioner in another proceeding.
(b) A petitioner is not amenable to service of civil process
while physically present in this state to participate in a
proceeding under this chapter.
(c) The immunity granted by this section does not extend to
civil litigation based on acts unrelated to a proceeding under
this chapter committed by a party while present in this state to
participate in the proceeding.
§48B-3-315. Nonparentage as defense.
A party whose parentage of a child has been previously
determined by or pursuant to law may not plead nonparentage as a
defense to a proceeding under this chapter.
§48B-3-316. Special rules of evidence and procedure.
(a) The physical presence of the petitioner in a responding
tribunal of this state is not required for the establishment,
enforcement or modification of a support order or the rendition
of a judgment determining parentage.
(b) A verified petition, affidavit, document substantially
complying with federally mandated forms and a document
incorporated by reference in any of them, not excluded under the
hearsay rule if given in person, is admissible in evidence if
given under oath by a party or witness residing in another state.
(c) A copy of the record of child support payments certified
as a true copy of the original by the custodian of the record may
be forwarded to a responding tribunal. The copy is evidence of
facts asserted in it, and is admissible to show whether payments were made.
(d) Copies of bills for testing for parentage, and for
prenatal and postnatal health care of the mother and child,
furnished to the adverse party at least ten days before trial,
are admissible in evidence to prove the amount of the charges
billed and that the charges were reasonable, necessary and
customary.
(e) Documentary evidence transmitted from another state to
a tribunal of this state by telephone, telecopier or other means
that do not provide an original writing may not be excluded from
evidence on an objection based on the means of transmission.
(f) In a proceeding under this chapter, a tribunal of this
state may permit a party or witness residing in another state to
be deposed or to testify by telephone, audiovisual means or other
electronic means at a designated tribunal or other location in
that state. A tribunal of this state shall cooperate with
tribunals of other states in designating an appropriate location
for the deposition or testimony. The supreme court of appeals
shall promulgate new rules or amend the rules of practice and
procedure for family law to establish procedures pertaining to
the exercise of cross examination in those instances involving
the receipt of testimony by means other than direct or personal
testimony.
(g) If a party called to testify at a civil hearing refuses
to answer on the ground that the testimony may be self- incriminating, the trier of fact may draw an adverse inference from the refusal.
(h) A privilege against disclosure of communications between
spouses does not apply in a proceeding under this chapter.
(i) The defense of immunity based on the relationship of
husband and wife or parent and child does not apply in a
proceeding under this chapter.
§48B-3-317. Communications between tribunals.
A tribunal of this state may communicate with a tribunal of
another state in writing, or by telephone or other means, to
obtain information concerning the laws of that state, the legal
effect of a judgment, decree, or order of that tribunal and the
status of a proceeding in the other state. A tribunal of this
state may furnish similar information by similar means to a
tribunal of another state.
§48B-3-318. Assistance with discovery.
A tribunal of this state may: (1) Request a tribunal of
another state to assist in obtaining discovery; and (2) upon
request, compel a person over whom it has jurisdiction to respond
to a discovery order issued by a tribunal of another state.
§48B-3-319. Receipt and disbursement of payments.
A support enforcement agency or tribunal of this state shall
disburse promptly any amounts received pursuant to a support
order, as directed by the order. The agency or tribunal shall
furnish to a requesting party or tribunal of another state a
certified statement by the custodian of the record of the amounts
and dates of all payments received.
ARTICLE 4. ESTABLISHMENT OF SUPPORT ORDER.
§48B-4-401. Petition to establish support order.
(a) If a support order entitled to recognition under this
chapter has not been issued, a responding tribunal of this state
may issue a support order if: (1) The individual seeking the
order resides in another state; or (2) the support enforcement
agency seeking the order is located in another state.
(b) The tribunal may issue a temporary child support order
if: (1) The respondent has signed a verified statement
acknowledging parentage; (2) the respondent has been determined
by or pursuant to law to be the parent; or (3) there is other
clear and convincing evidence that the respondent is the child's
parent.
(c) Upon finding, after notice and opportunity to be heard,
that an obligor owes a duty of support, the tribunal shall issue
a support order directed to the obligor and may issue other
orders pursuant to section three hundred five (Duties and Powers
of Responding Tribunal).
ARTICLE 5. DIRECT ENFORCEMENT OF ORDER OF ANOTHER STATE WITHOUT
REGISTRATION.
§48B-5-501. Employer's receipt of income-withholding order of
another state.
An income-withholding order issued in another state may be
sent to the person or entity defined as the obligor's employer
under section sixteen, article one-a, chapter forty-eight-a of
this code without first filing a petition or comparable pleading or registering the order with a tribunal of this state.
§48B-5-502. Employer's compliance with income-withholding order
of another state.
(a) Upon receipt of the order, the obligor's employer shall
immediately provide a copy of the order to the obligor.
(b) The employer shall treat an income-withholding order
issued in another state which appears regular on its face as if
it had been issued by a tribunal of this state.
(c) Except as provided by subsection (d) and section five
hundred three, the employer shall withhold and distribute the
funds as directed in the withholding order by complying with the
terms of the order, as applicable, that specify:
(1) The duration and the amount of periodic payments of
current child support, stated as a sum certain;
(2) The person or agency designated to receive payments and
the address to which the payments are to be forwarded;
(3) Medical support, whether in the form of periodic cash
payment, stated as a sum certain, or ordering the obligor to
provide health insurance coverage for the child under a policy
available through the obligor's employment;
(4) The amount of periodic payments of fees and costs for a
support enforcement agency, the issuing tribunal, and the
obligee's attorney, stated as sums certain; and
(5) The amount of periodic payments of arrears and interest
on arrears, stated as sums certain.
(d) The employer shall comply with the law of the state of the obligor's principal place of employment for withholding from
income with respect to:
(1) The employer's fee for processing an income withholding
order;
(2) The maximum amount permitted to be withheld from the
obligor's income;
(3) The time periods within which the employer must
implement the withholding order and forward the child support
payment.
§48B-5-503. Compliance with multiple income withholding orders.
If the obligor's employer receives multiple orders to
withhold support from the earnings of the same obligor, the
employer shall be deemed to have satisfied the terms of the
multiple orders if the law of the state of the obligor's
principal place of employment to establish the priorities for
withholding and allocating income withheld for multiple child
support obligees is complied with.
§48B-5-504. Immunity from civil liability.
An employer who complies with an income-withholding order
issued in another state in accordance with this article is not
subject to civil liability to any individual or agency with
regard to the employer's withholding child support from the
obligor's income.
§48B-5-505. Penalties for noncompliance.
An employer who willfully fails to comply with an income- withholding order issued by another state and received for enforcement is subject to the same penalties that may be imposed
for noncompliance with an order issued by a tribunal of this
state.
§48B-5-506. Contest by obligor.
(a) An obligor may contest the validity or enforcement of an
income-withholding order issued in another state and received
directly by an employer in this state in the same manner as if
the order had been issued by a tribunal of this state. Section
six hundred four (Choice of Law) applies to the contest.
(b) The obligor shall give notice of the contest to:
(1) A support enforcement agency providing services to the
obligee;
(2) Each employer which has directly received an income- withholding order; and
(3) The person or agency designated to receive payments in
the income-withholding order; or if no person or agency is
designated, to the obligee.
§48B-5-507. Administrative enforcement of orders.
(a) A party seeking to enforce a support order or an income- withholding order, or both, issued by a tribunal of another state
may send the documents required for registering the order to a
support enforcement agency of this state.
(b) Upon receipt of the documents, the support enforcement
agency, without initially seeking to register the order, shall
consider and, if appropriate, use any administrative procedure
authorized by the law of this state to enforce a support order or an income-withholding order, or both. If the obligor does not
contest administrative enforcement, the order need not be
registered. If the obligor contests the validity or
administrative enforcement of the order, the support enforcement
agency shall register the order pursuant to this chapter.
ARTICLE 6. ENFORCEMENT AND MODIFICATION OF SUPPORT ORDER AFTER
REGISTRATION.
PART 1. REGISTRATION AND ENFORCEMENT OF SUPPORT ORDER.
§48B-6-601. Registration of order for enforcement.
A support order or an income-withholding order issued by a
tribunal of another state may be registered in this state for
enforcement.
§48B-6-602. Procedure to register order for enforcement.
(a) A support order or income-withholding order of another
state may be registered in this state by sending the following
documents and information to the state information agency who
shall forward the order to the appropriate tribunal: (1) A letter
of transmittal to the tribunal requesting registration and
enforcement; (2) two copies, including one certified copy, of all
orders to be registered, including any modification of an order;
(3) a sworn statement by the party seeking registration or a
certified statement by the custodian of the records showing the
amount of any arrearage; (4) the name of the obligor and, if
known: (i) The obligor's address and social security number; (ii)
the name and address of the obligor's employer and any other
source of income of the obligor; and (iii) a description and the location of property of the obligor in this state not exempt from
execution; and (5) the name and address of the obligee and, if
applicable, the agency or person to whom support payments are to
be remitted.
(b) On receipt of a request for registration, the clerk of
the court shall cause the order to be filed as a foreign
judgment, together with one copy of the documents and
information, regardless of their form.
(c) A petition or comparable pleading seeking a remedy that
must be affirmatively sought under other law of this state may be
filed at the same time as the request for registration or later.
The pleading must specify the grounds for the remedy sought.
§48B-6-603. Effect of registration for enforcement.
(a) A support order or income-withholding order issued in
another state is registered when the order is filed in the
registering tribunal of this state.
(b) A registered order issued in another state is
enforceable in the same manner and is subject to the same
procedures as an order issued by a tribunal of this state.
(c) Except as otherwise provided in this article, a tribunal
of this state shall recognize and enforce, but may not modify, a
registered order if the issuing tribunal had jurisdiction.
§48B-6-604. Choice of law.
(a) The law of the issuing state governs the nature, extent,
amount, and duration of current payments and other obligations of
support and the payment of arrearages under the order.
(b) In a proceeding for arrearages, the statute of
limitation under the laws of this state or of the issuing state,
whichever is longer, applies.
PART 2. CONTEST OF VALIDITY OR ENFORCEMENT.
§48B-6-605. Notice of registration of order.
(a) When a support order or income-withholding order issued
in another state is registered, the clerk of the court shall
notify the nonregistering party. The notice must be accompanied
by a copy of the registered order and the documents and relevant
information accompanying the order.
(b) The notice must inform the nonregistering party: (1)
That a registered order is enforceable as of the date of
registration in the same manner as an order issued by a tribunal
of this state; (2) that a hearing to contest the validity or
enforcement of the registered order must be requested within
twenty days after notice; (3) that failure to contest the
validity or enforcement of the registered order in a timely
manner will result in confirmation of the order and enforcement
of the order and the alleged arrearages and precludes further
contest of that order with respect to any matter that could have
been asserted; and (4) of the amount of any alleged arrearages.
(c) Upon registration of an income-withholding order for
enforcement, the registering tribunal shall notify the obligor's
employer pursuant to article five, chapter forty-eight-a of this
code.
§48B-6-606. Procedure to contest validity or enforcement of registered order.
(a) A nonregistering party seeking to contest the validity
or enforcement of a registered order in this state shall request
a hearing within twenty days after the date of mailing or
personal service of notice of the registration. The
nonregistering party may seek to vacate the registration, to
assert any defense to an allegation of noncompliance with the
registered order, or to contest the remedies being sought or the
amount of any alleged arrearages pursuant to section six hundred
seven (Contest of Registration or Enforcement).
(b) If the nonregistering party fails to contest the
validity or enforcement of the registered order in a timely
manner, the order is confirmed by operation of law.
(c) If a nonregistering party requests a hearing to contest
the validity or enforcement of the registered order, the
registering tribunal shall schedule the matter for hearing and
give notice to the parties of the date, time and place of the
hearing.
§48B-6-607. Contest of registration or enforcement.
(a) A party contesting the validity or enforcement of a
registered order or seeking to vacate the registration has the
burden of proving one or more of the following defenses: (1) The
issuing tribunal lacked personal jurisdiction over the contesting
party; (2) the order was obtained by fraud; (3) the order has
been vacated, suspended or modified by a later order; (4) the
issuing tribunal has stayed the order pending appeal; (5) there is a defense under the law of this state to the remedy sought;
(6) full or partial payment has been made; or (7) the statute of
limitation under section six hundred four (Choice of Law)
precludes enforcement of some or all of the arrearages.
(b) If a party presents evidence establishing a full or
partial defense under subsection (a), a tribunal may stay
enforcement of the registered order, continue the proceeding to
permit production of additional relevant evidence, and issue
other appropriate orders. An uncontested portion of the
registered order may be enforced by all remedies available under
the law of this state.
(c) If the contesting party does not establish a defense
under subsection (a) to the validity or enforcement of the order,
the registering tribunal shall issue an order confirming the
order.
§48B-6-608. Confirmed order.
Confirmation of a registered order, whether by operation of
law or after notice and hearing, precludes further contest of the
order with respect to any matter that could have been asserted at
the time of registration.
PART 3. REGISTRATION AND MODIFICATION OF CHILD SUPPORT ORDER.
§48B-6-609. Procedure to register child support order of another
state for modification.
A party or support enforcement agency seeking to modify, or
to modify and enforce, a child support order issued in another
state shall register that order in this state in the same manner provided in Part 1 if the order has not been registered. A
petition for modification may be filed at the same time as a
request for registration, or later. The pleading must specify
the grounds for modification.
§48B-6-610. Effect of registration for modification.
A tribunal of this state may enforce a child support order
of another state registered for purposes of modification, in the
same manner as if the order had been issued by a tribunal of this
state, but the registered order may be modified only if the
requirements of section six hundred eleven (Modification of Child
Support Order of Another State) have been met.
§48B-6-611. Modification of child support order of another
state.
(a) After a child support order issued in another state has
been registered in this state, the responding tribunal of this
state may modify that order only if section six hundred thirteen
does not apply and after notice and hearing it finds that: (1)
The following requirements are met: (i) The child, the individual
obligee, and the obligor do not reside in the issuing state; (ii)
a petitioner who is a nonresident of this state seeks
modification; and (iii) the respondent is subject to the personal
jurisdiction of the tribunal of this state; or (2) the child or
a party who is an individual, is subject to the personal
jurisdiction of the tribunal of this state and all of the
parties who are individuals have filed written consents in the
issuing tribunal for a tribunal of this state to modify the support order and assume continuing, exclusive jurisdiction over
the order. However, if the issuing state is a foreign
jurisdiction that has not enacted a law or established procedures
substantially similar to the procedures under this chapter, the
consent otherwise required of an individual residing in this
state is not required for the tribunal to assume jurisdiction to
modify the child support order.
(b) Modification of a registered child support order is
subject to the same requirements, procedures, and defenses that
apply to the modification of an order issued by a tribunal of
this state and the order may be enforced and satisfied in the
same manner.
(c) A tribunal of this state may not modify any aspect of a
child support order that may not be modified under the law of the
issuing state. If two or more tribunals have issued child
support orders for the same obligor and child, the order that
controls and must be so recognized under section two hundred
seven establishes the aspects of the support order which are
nonmodifiable.
(d) On issuance of an order modifying a child support order
issued in another state, a tribunal of this state becomes the
tribunal of continuing, exclusive jurisdiction.
§48B-6-612. Recognition of order modified in another state.
A tribunal of this state shall recognize a modification of
its earlier child support order by a tribunal of another state
which assumed jurisdiction pursuant to this chapter or a law substantially similar to this chapter and, upon request, except
as otherwise provided in this chapter, shall: (1) Enforce the
order that was modified only as to amounts accruing before the
modification; (2) enforce only nonmodifiable aspects of that
order; (3) provide other appropriate relief only for violations
of that order which occurred before the effective date of the
modification; and (4) recognize the modifying order of the other
state, upon registration, for the purpose of enforcement.
§48B-6-613. Jurisdiction to modify support order of another
state when individual parties reside in this state.
(a) If all of the individual parties reside in this state
and the child does not reside in the issuing state, a tribunal of
this state has jurisdiction to enforce and to modify the issuing
state's child support order in a proceeding to register that
order.
(b) A tribunal of this state exercising jurisdiction as
provided in this section shall apply the provisions of articles
one and two and this article to the enforcement or modification
proceeding. Articles three through five, and articles seven and
eight do not apply and the tribunal shall apply the procedural
and substantive law of this state.
§48B-6-614. Notice to issuing tribunal of modification.
Within thirty days after issuance of a modified child
support order, the party obtaining the modification shall file a
certified copy of the order with the issuing tribunal which had
continuing, exclusive jurisdiction over the earlier order, and in each tribunal in which the party knows that earlier order has
been registered. Failure of the party obtaining the order to
file a certified copy as required subjects that party to
appropriate sanctions by a tribunal in which the issue of failure
to file arises, but that failure has no effect on the validity or
enforceability of the modified order of the new tribunal of
continuing, exclusive jurisdiction.
ARTICLE 7. DETERMINATION OF PARENTAGE.
§48B-7-701. Proceeding to determine parentage.
(a) A tribunal of this state may serve as an initiating or
responding tribunal in a proceeding brought under this chapter or
a law substantially similar to this chapter, the uniform
reciprocal enforcement of support act, or the revised uniform
reciprocal enforcement of support act to determine that the
petitioner is a parent of a particular child or to determine that
a respondent is a parent of that child.
(b) In a proceeding to determine parentage, a responding
tribunal of this state shall apply article six, chapter forty- eight-a of this code and the rules of this state on choice of
law.
ARTICLE 8. INTERSTATE RENDITION.
§48B-8-801. Grounds for rendition.
(a) For purposes of this article, "governor" includes an
individual performing the functions of governor or the executive
authority of a state covered by this chapter.
(b) The governor of this state may: (1) Demand that the governor of another state surrender an individual found in the
other state who is charged criminally in this state with having
failed to provide for the support of an obligee; or (2) on the
demand by the governor of another state, surrender an individual
found in this state who is charged criminally in the other state
with having failed to provide for the support of an obligee.
(c) A provision for extradition of individuals not
inconsistent with this chapter applies to the demand even if the
individual whose surrender is demanded was not in the demanding
state when the crime was allegedly committed and has not fled
therefrom.
§48B-8-802. Conditions of rendition.
(a) Before making demand that the governor of another state
surrender an individual charged criminally in this state with
having failed to provide for the support of an obligee, the
governor of this state may require a prosecutor of this state to
demonstrate that at least sixty days previously the obligee had
initiated proceedings for support pursuant to this chapter or
that the proceeding would be of no avail.
(b) If, under this chapter or a law substantially similar to
this chapter, the uniform reciprocal enforcement of support act,
or the revised uniform reciprocal enforcement of support act, the
governor of another state makes a demand that the governor of
this state surrender an individual charged criminally in that
state with having failed to provide for the support of a child or
other individual to whom a duty of support is owed, the governor may require a prosecutor to investigate the demand and report
whether a proceeding for support has been initiated or would be
effective. If it appears that a proceeding would be effective
but has not been initiated, the governor may delay honoring the
demand for a reasonable time to permit the initiation of a
proceeding.
(c) If a proceeding for support has been initiated and the
individual whose rendition is demanded prevails, the governor may
decline to honor the demand. If the petitioner prevails and the
individual whose rendition is demanded is subject to a support
order, the governor may decline to honor the demand if the
individual is complying with the support order.
ARTICLE 9. MISCELLANEOUS PROVISIONS.
§48B-9-901. Uniformity of application and construction.
This chapter shall be applied and construed to effectuate
its general purpose to make uniform the law with respect to the
subject of this chapter among states enacting it.
§48B-9-902. Short title.
This chapter may be cited as the "Uniform Interstate Family
Support Act."
§48B-9-903. Effective date.
The provisions of this chapter take effect on the first day
of January, one thousand nine hundred ninety-eight.