H. B. 2402
(By Delegates Webb and Faircloth)
[Introduced February 21, 2001; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section three, article three, chapter
forty-eight-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to removing
jurisdiction of the child advocate to collect or otherwise
seek to enforce the payment of alimony from one party to
another.
Be it enacted by the Legislature of West Virginia:
That section three, article three, chapter forty-eight-a of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
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
involving a
claim for child support 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 temporary assistance for needy
families, 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 the mother, alleged father or the primary caretaker
of a child born out of wedlock, regardless of whether the mother,
alleged father or the primary caretaker is an applicant or
recipient of temporary assistance for needy families, shall
undertake to establish the paternity of such child.
(e) The children's advocate shall undertake to secure child
support for any individual who is receiving temporary assistance
for needy families when such individual has assigned to the
division of human services any rights to child 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 temporary assistance for
needy families, shall undertake to secure child 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
child 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
child support.
(f) The children's advocate shall pursue the enforcement of
child 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 child 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 child 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 child 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.
(i) Notwithstanding any other provision of law to the
contrary, the children's advocate may not seek to collect any alimony from an individual on behalf of another individual. Nor
may the child advocate seek to enforce any existing order for
alimony against an individual on behalf of another individual.
NOTE: The purpose of this bill is to remove authority resting
with the child advocate to collect or otherwise seek to enforce the
payment of alimony from one party to another.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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