ENGROSSED
H. B. 3094
(By Delegates Staton, Mahan, Brown, Webster and Amores)
[Introduced on March 18, 2005; referred to the Committee on the
Judiciary.]
A Bill to repeal §48-14-419 of the code of West Virginia, 1931, as
amended; to repeal §48-16-308 of said code; to repeal §48-18-109
and §48-18-127 of said code; to amend and reenact §48-17-101 of
said code; to amend and reenact §48-18-103, §48-18-108, §48-18-112,
§48-18-113, §48-18-117, §48-18-118, §48-18-119, §48-18-121 of said
code; and to amend and reenact §48-19-102 said code, all relating
to child support and enforcement; modifying the definition of
"substantial change" justifying the modification of a support
order; including education related child care expenses in the child
support calculation; eliminating the twenty-five percent reduction
to the child support adjustment; repealing authority of the West
Virginia Support Enforcement Commission to promulgate rules;
repealing certain duties of the commission; repealing authority of
Bureau of Child Support Enforcement to contract for certain
services; repealing authority of commission to adopt form to identify support payments; increasing the number of members on the
Commission; altering the organization of certain Bureau employees;
removing commission authority to promulgate fee rules; authorizing
the Commissioner of the Bureau of Child Support Enforcement to
cooperate with other states in the enforcement of child support;
moving certain rulemaking authority from the Commission to the
Commissioner; removing commission authority to require certain
bonding requirements of Bureau employees; moving authority from
Commission to the Commissioner relating to collecting child support
from state and federal taxes; revising requirements relating to
withholding child support payments from the Bureau of Employment
Programs; and removing geographic delineations for certain Bureau
attorneys.
Be it enacted by the Legislature of West Virginia:
That §48-14-419 of the code of West Virginia, 1931, as amended
be repealed; that §48-16-308 of said code be repealed; that §48-18-
109 and §48-18-127 of said code be repealed; that §48-11-105 of
said code be amended and reenacted; that §48-13-401, §48-13-403,
§48-13-502 and §48-13-601 of said code be amended and reenacted;
that §48-17-101 of said code be amended and reenacted;
that §48-18-
103, §48-18-108, §48-18-112, §48-18-113, §48-18-117, §48-18-118,
§48-18-119, §48-18-121 of said code be amended and reenacted; and
that §48-19-102 of said code be amended and reenacted, all to read
as follows:
ARTICLE 11. SUPPORT OF CHILDREN.
§48-11-105. Modification of child support order.
(a) The court may modify a child support order, for the
benefit of the child, when a motion is made that alleges a change
in the circumstances of a parent or another proper person or
persons. A motion for modification of a child support order may be
brought by a custodial parent or any other lawful custodian or
guardian of the child, by a parent or other person obligated to pay
child support for the child or by the bureau for child support
enforcement of the Department of Health and Human Resources of this
state.
(b) The provisions of the order may be modified if there is a
substantial change in circumstances. If application of the
guideline would result in a new order that is more than fifteen
percent different, then the circumstances are considered a
substantial change: Provided, That after the first day of January,
two thousand six, if application of the guideline would result in
a new order that is more than fifteen percent different or seventy-
five dollars different, whichever is less, then the circumstances
are considered a substantial change.
(c) An order that modifies the amount of child support to be
paid shall conform to the support guidelines set forth in article
13-101, et seq., of this chapter unless the court disregards the
guidelines or adjusts the award as provided for in section 13-702.
(d) The Supreme Court of Appeals shall make available to the
courts a standard form for a petition for modification of an order for support, which form will allege that the existing order should
be altered or revised because of a loss or change of employment or
other substantial change affecting income or that the amount of
support required to be paid is not within fifteen percent of the
child support guidelines. The clerk of the circuit court and the
secretary-clerk of the family court shall make the forms available
to persons desiring to represent themselves in filing a motion for
modification of the support award.
ARTICLE 13. GUIDELINES FOR CHILD SUPPORT AWARDS.
PART 4. SUPPORT IN BASIC SHARED PARENTING CASES.
§48-13-401. Basic child support obligation in basic shared
parenting.
For basic shared parenting cases, the total child support
obligation consists of the basic child support obligation plus the
child's share of any unreimbursed health care expenses,
work-related child care expenses
related to work and education and
any other extraordinary expenses agreed to by the parents or
ordered by the court less any extraordinary credits agreed to by
the parents or ordered by the court.
§48-13-403. Worksheet for calculating basic child support
obligation in basic shared parenting cases.
After the first day of January, two thousand six,
child
support for basic shared parenting cases shall be calculated using
the following worksheet:
Worksheet A: BASIC SHARED PARENTING
IN THE FAMILY COURT OF __________ COUNTY, WEST VIRGINIA
CASE NO.________
Mother: _____________________ SS No.: ________________ Primary Custodial
parent? ? Yes ? No
Father: ______________________ SS No.: ________________ Primary Custodial
parent? ? Yes ? No
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Children
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SSN
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Date of
Birth
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Children
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SSN
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Date of
Birth
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PART I. CHILD SUPPORT ORDER
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Mother
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Father
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Combin
ed
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1. MONTHLY GROSS INCOME (Exclusive of overtime
compensation)
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$
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$
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a. Minus preexisting child support payment
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-
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-
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b. Minus maintenance paid
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-
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-
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c. Plus overtime compensation, if not excluded,
and not to exceed 50%, pursuant to W. Va. Code
§48-1-228(b)(6)
d. Additional dependents deduction
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+
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+
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2. MONTHLY ADJUSTED GROSS INCOME
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$
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$
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$
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3. PERCENTAGE SHARE OF INCOME
(Each parent's income from line 2 divided by
Combined Income)
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%
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%
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100%
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4. BASIC OBLIGATION
(Use Line 2 combined to find amount from
schedule.)
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$
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5. ADJUSTMENTS (Expenses paid directly by each
parent)
a. Work-Related Child Care Costs Adjusted for
Federal Tax Credit (0.75 x actual work-related
child care costs.) Work and Education Related
Child Care Costs
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$
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$
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b. Extraordinary Medical Expenses (Uninsured
only) and Children's Portion of Health
Insurance Premium Costs.
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$
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$
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c. Extraordinary Expenses (Agreed to by
parents or by order of the court.)
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$
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$
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d. Minus Extraordinary Adjustments (Agreed to
by parents or by order of court.)
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e. Total Adjustments (For each column, add
5a, 5b, and 5c. Subtract Line 5d. Add the
parent's totals together for Combined amount.)
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$
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$
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$
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6. TOTAL SUPPORT OBLIGATION
(Add line 4 and line 5e Combined.)
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$
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7. EACH PARENT'S SHARE OF THE TOTAL CHILD
SUPPORT OBLIGATION (Line 3 x line 6 for each
parent.)
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$
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$
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8. PAYOR PARENT ADJUSTMENT
(Enter payor parent's line 5e.)
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$
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$
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9. RECOMMENDED CHILD SUPPORT ORDER
(Subtract line 8 from line 7 for the payor
parent only. Leave payee parent column blank.)
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$
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$
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PART II. ABILITY TO PAY CALCULATION
(Complete if the payor parent's adjusted monthly gross income is below
$1,550.)
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10. Spendable Income
(0.80 x line 2 for payor parent only.)
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11. Self Support Reserve
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$500
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$500
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12. Income Available for Support
(Line 10 - line 11. If less than $50, then $50)
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13. Adjusted Child Support Order
(Lessor of Line 9 and Line 12.)
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Comments, calculations, or rebuttals to schedule or adjustments if payor
parent directly pays extraordinary expenses.
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PREPARED BY:
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Date:
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PART 6. ADJUSTMENT OF SHARES OF SUPPORT OBLIGATIONS.
§48-13-502. Extended shared parenting worksheet.
A
fter the first day of January, two thousand six,
child support for
extended shared parenting cases shall be calculated using the following
worksheet:
Worksheet B: extended shared parenting
IN THE FAMILY COURT OF ______________ COUNTY, WEST VIRGINIA
CASE NO. ____________
Mother: ___________________________ SS No.: __________
Father: ____________________________ SS No.: __________
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Children
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SSN
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Date of
Birth
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Children
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SSN
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Date of
Birth
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PART I. BASIC OBLIGATION
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Mother
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Father
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Combined
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1. MONTHLY GROSS INCOME (Exclusive of
overtime compensation)
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$
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$
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a. Minus preexisting child support payment
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-
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-
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b. Minus maintenance paid
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-
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-
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c. Plus overtime compensation, if not
excluded, and not to exceed 50%,
pursuant to W. Va. Code §48-1-228(b)(6)
d. Additional dependent deduction
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+
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+
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2. MONTHLY ADJUSTED GROSS INCOME
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$
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$
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$
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3. PERCENTAGE SHARE OF INCOME (Each parent's
income from line 2 divided by Combined
Income)
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%
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%
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100%
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4. BASIC OBLIGATION (Use line 2 Combined to
find amount from Child Support Schedule.)
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$
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PART II. SHARED PARENTING ADJUSTMENT
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5. Shared Parenting Basic Obligation (line 4 x
1.50)
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$
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6. Each Parent's Share (Line 5 x each parent's
line 3)
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$
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$
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7. Overnights with Each Parent (must total
365)
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365
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8. Percentage with Each Parent (Line 7 divided
by 365)
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%
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%
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100%
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9. Amount Retained (Line 6 x line 8 for each
parent)
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$
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$
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10. Each Parent's Obligation (Line 6 - line 9)
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$
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$
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11. AMOUNT TRANSFERRED FOR BASIC OBLIGATION
(Subtract smaller amount on line 10 from
larger amount on line 10. Parent with
larger amount on line 10 owes the other
parent the difference. Enter $0 for other
parent.
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$
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$
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PART III. ADJUSTMENTS FOR ADDITIONAL EXPENSES (Expenses paid directly
by each parent.)
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12a. Work-Related Child Care Costs Adjusted for
Federal Tax Credit (0.75 x actual work-
related child care costs.) Work and
Education Related Child Care Costs
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$
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$
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12b. Extraordinary Medical Expenses (Uninsured
only) and Children's Portion of Health
Insurance Premium Costs.
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$
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$
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12c. Extraordinary Additional Expenses (Agreed
to by parents or by order of the court.)
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$
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$
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12d. Minus Extraordinary Adjustments (Agreed to
by parents or by order of the court.)
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$
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$
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12e. Total Adjustments (For each column, add
11a, 11b, and 11c. Subtract line 11d.
Add the parent's totals together for
Combined amount.)
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$
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$
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$
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13. Each Parent's Share of Additional Expenses
(Line 3 x line 12e Combined.)
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$
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$
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14. Each Parent's Net Share of Additional
Direct Expenses (Each parent's line 13-
line 12e. If negative number, enter $0)
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$
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$
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15. AMOUNT TRANSFERRED FOR ADDITIONAL EXPENSES
(Subtract smaller amount on line 14 from
larger amount on line 14. Parent with
larger amount on line 14 owes the other
parent the difference. Enter $0 for other
parent.)
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$
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$
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PART IV. RECOMMENDED CHILD SUPPORT ORDER
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16. TOTAL AMOUNT TRANSFERRED (Line 11 + line
15)
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$
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$
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17. RECOMMENDED CHILD SUPPORT ORDER (Subtract
smaller amount on line 16 from larger
amount on line 16. Parent with larger
amount on line 16 owes the other parent
the difference.)
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$
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$
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Comments, calculations, or rebuttals to schedule or adjustments
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PREPARED BY:
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Date:
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§48-13-601. Adjustment for child care.
(a) Legislative findings and legislative intent. -- The
Legislature finds that nationally twenty-six percent of all people
live in poverty, while in West Virginia, forty-six percent of all
single mothers live in poverty. The Legislature also finds that
child care subsidies are less available for persons who are
pursuing education and that education increases a person's earning
potential and makes it less likely that a person will live at or
near the poverty level. Therefore, it is the intent of the
Legislature to include work and education related child care
expenses in the child support calculation.
(a) (b) The amount of
the federal tax credit for child care
expenses that can be realized by the custodial parent shall be
approximated by deducting twenty-five percent from work-related
child care costs, except that no such deduction shall be made for
custodial parents with monthly gross incomes below the following
amounts:
(1) One child--$1,150;
(2) Two children--$1,550;
(3) Three children--$1,750;
(4) Four children--$1,950;
(5) Five children--$2,150; and
(6) Six or more children--$2,350.
(b) Work-related child care costs
related to work and education net of any adjustment for the child care tax credit shall
be added to the basic child support obligation and shall be divided
between the parents in proportion to their adjusted gross income.
ARTICLE 17: WEST VIRGINIA SUPPORT ENFORCEMENT COMMISSION
§48-17-101. Creation of Support Enforcement Commission; number of
members.
The West Virginia Support Enforcement Commission, consisting
of eight members, is hereby created in the Department of Health and
Human Resources and may use the administrative support and services
of that department. The Commission is not subject to control,
supervision or direction by the Department of Health and Human
Resources, but is an independent, self-sustaining commission that
shall have the powers and duties specified in this chapter.
The Commission is a part-time commission whose members perform
such duties as specified in this chapter. The ministerial duties of
the Commission shall be administered and carried out by the
Commissioner of the Bureau for Child Support Enforcement, with the
assistance of such staff of the Department of Health and Human
Resources as the Secretary may assign.
Each member of the Commission shall devote the time necessary
to carry out the duties and obligations of the office and the six
seven members appointed by the Governor may pursue and engage in
another business, occupation or gainful employment that is not in
conflict with the duties of the Commission.
While the Commission is self-sustaining and independent, it,
its members, its employees and the Commissioner are subject to
article nine-a of chapter six, chapter six-b, chapter twenty-nine-a
and chapter twenty-nine-b of this code.
ARTICLE 18. BUREAU FOR CHILD SUPPORT ENFORCEMENT
§48-18-103. Organization and employees.
(a) The Commissioner shall organize the work of the Bureau in
such offices or other organizational units as he or she may
determine to be necessary for effective and efficient operation.
(b) The Commissioner shall employ a sufficient number of
employees in the position of Bureau for Child Support Enforcement
attorney so as to provide for the effective and efficient operation
of the Bureau for Child Support Enforcement. The Bureau for Child
Support Enforcement attorneys shall be distributed geographically
as determined by the Commissioner.
(b) (c) The Secretary may transfer employees and resources of
the Department to the Bureau for Child Support Enforcement as may
be necessary to fulfill the duties and responsibilities of the
Bureau under this chapter: Provided, That the Secretary may not
transfer employees of other divisions and agencies within the
Department to the Bureau for Child Support Enforcement without a
prior finding that the office or position held by the employee may
be eliminated and until the office or position is, in fact,
eliminated.
(c) (d) The Commissioner, if he or she deems such action
necessary, may hire legal counsel for the Division, notwithstanding
the provisions of section two, article three, chapter five of this
code or any other code provision to the contrary, or may request
the Attorney General to appoint assistant attorneys general counsel
who shall perform such duties as may be required by the Bureau. The
Attorney General, in pursuance of such request, may select and
appoint assistant attorneys general counsel to serve during the
will and pleasure of the Attorney General, and such assistants
shall be paid out of any funds allocated and appropriated to the
Child Support Enforcement Fund.
(d) (e) The Commissioner may employ such staff or employees as
may be necessary to administer and enforce this chapter.
§48-18-108. Fees.
(a) When the Bureau for Child Support Enforcement provides
child support collection services either to a public assistance
recipient or to a party who does not receive public assistance, the
Bureau for Child Support Enforcement shall, upon written notice to
the obligor, charge a monthly collection fee equivalent to the full
monthly cost of the services, in addition to the amount of child
support which was ordered by the court. The fee shall be deposited
in the Child Support Enforcement Fund. The service fee assessed may
not exceed ten percent of the monthly court-ordered child support
and may not be assessed against any obligor who is current in payment of the monthly court-ordered child support payments:
Provided, That this fee may not be assessed when the obligor is
also a recipient of public assistance.
(b) Except for those persons applying for services provided by
the Bureau for Child Support Enforcement who are applying for or
receiving public assistance from the Division of Human Services or
persons for whom fees are waived pursuant to a legislative rule
promulgated pursuant to this section, all applicants shall pay an
application fee of twenty-five dollars.
(c) Fees imposed by state and federal tax agencies for
collection of overdue support shall be imposed on the person for
whom these services are provided. Upon written notice to the
obligee, the Bureau for Child Support Enforcement shall assess a
fee of twenty-five dollars to any person not receiving public
assistance for each successful federal tax interception. The fee
shall be withheld prior to the assistance for each successful
federal tax interception. The fee shall be withheld prior to the
release of the funds received from each interception and deposited
in the Child Support Enforcement Fund established pursuant to
section 18-107.
(d) In any action brought by the Bureau for Child Support
Enforcement, the court shall order that the obligor shall pay
attorney fees for the services of the attorney representing the
Bureau for Child Support Enforcement in an amount calculated at a rate similar to the rate paid to court-appointed attorneys paid
pursuant to section thirteen-a, article twenty-one, chapter twenty-
nine of this code and all court costs associated with the action:
Provided, That no such award shall be made when the court finds
that the award of attorney's fees would create a substantial
financial hardship on the obligor or when the obligor is a
recipient of public assistance. Further, the Bureau for Child
Support Enforcement may not collect such fees until the obligor is
current in the payment of child support. No court may order the
Bureau for Child Support Enforcement to pay attorney's fees to any
party in any action brought pursuant to this chapter.
(e) This section shall not apply to the extent it is
inconsistent with the requirements of federal law for receiving
funds for the program under Title IV-A and Title IV-D of the Social
Security Act, United States Code, article three, Title 42, Sections
601 to 613 and United States Code, Title 42, Sections 651 to 662.
(f) The commission shall, by legislative rule promulgated
pursuant to chapter twenty-nine-a of this code, describe the
circumstances under which fees charged by the Bureau for Child
Support Enforcement may be modified or waived and such rule shall
provide for the waiver of any fee, in whole or in part, when such
fee would otherwise be required to be paid under the provisions of
this chapter. Further, such rule shall initially be promulgated as
an emergency rule pursuant to section fifteen, article three,
chapter twenty-nine-a of this code.
§48-18-112. Cooperation with other states in the enforcement of
child support.
(a) The Bureau for Child Support Enforcement shall cooperate
with any other state in the following:
(1) In establishing paternity;
(2) In locating an obligor residing temporarily or permanently
in this state, against whom any action is being taken for the
establishment of paternity or the enforcement of child and spousal
support;
(3) In securing compliance by an obligor residing temporarily
or permanently in this state, with an order issued by a court of
competent jurisdiction against such obligor for the support and
maintenance of a child or children or the parent of such child or
children; and
(4) In carrying out other functions necessary to a program of
child and spousal support enforcement.
(b) The Commission Commissioner shall, by legislative rule,
establish procedures necessary to extend the Bureau for Child
Support Enforcements' system of withholding under part 14-401, et
seq. article fourteen of this chapter, so that such system may
include withholding from income derived within this state in cases
where the applicable support orders were issued in other states, in
order to assure that child support owed by obligors in this state
or any other state will be collected without regard to the
residence of the child for whom the support is payable or the
residence of such child's custodial parent.
§48-18-113. Disbursements of amounts collected as support.
(a) Amounts collected as child or spousal support by the
Bureau for Child Support Enforcement shall be distributed within
two business days after receipt from the employer or other source
of periodic income. The amounts collected as child support shall be
distributed by the Bureau for Child Support Enforcement in
accordance with the provisions for distribution set forth in 42
U.S.C. §657. The Commission Commissioner shall promulgate a
legislative rule to establish the appropriate distribution as may
be required by the federal law.
(b) Any payment required to be made under the provisions of
this section to a family shall be made to the resident parent,
legal guardian or caretaker relative having custody of or
responsibility for the child or children.
(c) The commission shall establish bonding requirements for
employees of the Bureau for Child Support Enforcement who receive,
disburse, handle or have access to cash.
(d) (c) The Commissioner shall maintain methods of
administration which are designed to assure that employees of the
Bureau for Child Support Enforcement or any persons employed
pursuant to a contract who are responsible for handling cash
receipts do not participate in accounting or operating functions
which would permit them to conceal in the accounting records the
misuse of cash receipts: Provided
, That the Commissioner may
provide for exceptions to this requirement in the case of sparsely
populated areas in this state where the hiring of unreasonable
additional staff in the local office would otherwise be necessary.
(e) (d) No penalty or fee may be collected by or distributed
to a recipient of Bureau for Child Support Enforcement services
from the State Treasury or from the Child Support Enforcement Fund
when child support is not distributed to the recipient in
accordance with the time frames established herein.
(f) (e) For purposes of this section, "business day" means a
day on which state offices are open for regular business.
§48-18-117. Obtaining support from federal tax refunds.
The Commission Commissioner
shall, by legislative rule
promulgated pursuant to chapter twenty-nine-a of this code, place
in effect procedures necessary for the Bureau for Child Support
Enforcement to obtain payment of past due support from federal tax
refunds from overpayments made to the Secretary of the Treasury of
the United States. The Bureau for Child Support Enforcement shall
take all steps necessary to implement and utilize such procedures.
§48-18-118. Obtaining support from state income tax refunds.
(a) The Tax Commissioner shall establish procedures necessary
for the Bureau for Child Support Enforcement to obtain payment of
past due support from state income tax refunds from overpayment
made to the Tax Commissioner pursuant to the provisions of article
twenty-one, chapter eleven of this code.
(b) The Commission Commissioner
shall, by legislative rule
promulgated pursuant to chapter twenty-nine-a of this code,
establish procedures necessary for the Bureau for Child Support
Enforcement to enforce a support order through a notice to the Tax Commissioner which will cause any refund of state income tax which
would otherwise be payable to an obligor to be reduced by the
amount of overdue support owed by such obligor.
(1) Such legislative rule shall, at a minimum, prescribe:
(A) The time or times at which the Bureau for Child Support
Enforcement shall serve on the obligor or submit to the Tax
Commissioner notices of past due support;
(B) The manner in which such notices shall be served on the
obligor or submitted to the Tax Commissioner;
(C) The necessary information which shall be contained in or
accompany the notices;
(D) The amount of the fee to be paid to the Tax Commissioner
for the full cost of applying the procedure whereby past due
support is obtained from state income tax refunds; and
(E) Circumstances when the Bureau for Child Support
Enforcement may deduct a twenty-five dollar fee from the obligor's
state income tax refund. Such rule This procedure may not require
a deduction from the state income tax refund of an applicant who is
a recipient of assistance from the Bureau for Children and Families
in the form of temporary assistance for needy families.
(2) Withholding from state income tax refunds may not be
pursued unless the Bureau for Child Support Enforcement has
examined the obligor's pattern of payment of support and the
obligee's likelihood of successfully pursuing other enforcement
actions, and has determined that the amount of past due support
which will be owed, at the time the withholding is to be made, will be one hundred dollars or more. In determining whether the amount
of past due support will be one hundred dollars or more, the Bureau
for Child Support Enforcement shall consider the amount of all
unpaid past due support, including that which may have accrued
prior to the time that the Bureau for Child Support Enforcement
first agreed to enforce the support order.
(c) The Commissioner of the Bureau for Child Support
Enforcement shall enter into agreements with the Secretary of the
Treasury and the Tax Commissioner, and other appropriate
governmental agencies, to secure information relating to the social
security number or numbers and the address or addresses of any
obligor, in order to provide notice between such agencies to aid
the Bureau for Child Support Enforcement in requesting state income
tax deductions and to aid the Tax Commissioner in enforcing such
deductions. In each such case, the Tax Commissioner, in processing
the state income tax deduction, shall notify the Bureau for Child
Support Enforcement of the obligor's home address and social
security number or numbers. The Bureau for Child Support
Enforcement shall provide this information to any other state
involved in processing the support order.
(d) For the purposes of this section, "past due support" means
the amount of unpaid past due support owed under the terms of a
support order to or on behalf of a child, or to or on behalf of a
minor child and the parent with whom the child is living,
regardless of whether the amount has been reduced to a judgment or
not.
(e) The Bureau for Child Support Enforcement may, under the
provisions of this section, enforce the collection of past due
support on behalf of a child who has reached the age of majority.
(f) The legislative rule promulgated by the commission
pursuant to the provisions of this section and pursuant to chapter
twenty-nine-a of this code, procedure shall, at a minimum, provide
that prior to notifying the Tax Commissioner of past due support,
a notice to the obligor as prescribed under subsection (a) of this
section shall:
(1) Notify the obligor that a withholding will be made from
any refund otherwise payable to such obligor;
(2) Instruct the obligor of the steps which may be taken to
contest the determination of the Bureau for Child Support
Enforcement that past due support is owed or the amount of the past
due support; and
(3) Provide information with respect to the procedures to be
followed, in the case of a joint return, to protect the share of
the refund which may be payable to another person.
(g) If the Bureau for Child Support Enforcement is notified by
the Tax Commissioner that the refund from which withholding is
proposed to be made is based upon a joint return, and if the past
due support which is involved has not been assigned to the
Department of Health and Human Resources, the Bureau for Child
Support Enforcement may delay distribution of the amount withheld
until such time as the Tax Commissioner notifies the Bureau for
Child Support Enforcement that the other person filing the joint return has received his or her proper share of the refund, but such
delay shall not exceed six months.
(h) In any case in which an amount is withheld by the Tax
Commissioner under the provisions of this section and paid to the
Bureau for Child Support Enforcement, if the Bureau for Child
Support Enforcement subsequently determines that the amount
certified as past due was in excess of the amount actually owed at
the time the amount withheld is to be distributed, the agency shall
pay the excess amount withheld to the obligor thought to have owed
the past due support or, in the case of amounts withheld on the
basis of a joint return, jointly to the parties filing such the
return.
(i) The amounts received by the Bureau for Child Support
Enforcement shall be distributed in accordance with the provisions
for distribution set forth in 42 U.S.C. §657. The commission shall
promulgate a legislative rule to establish the appropriate
distribution as may be required by the federal law.
§48-18-119. Obtaining support from unemployment compensation
benefits.
(a) The Commissioner shall determine on a periodic basis
whether individuals receiving unemployment compensation owe child
support obligations which are being enforced or have been requested
to be enforced by the Bureau for Child Support Enforcement. If an
individual is receiving such compensation and owes any such child
support obligation which is not being met, the Bureau for Child Support Enforcement shall enter into an agreement with such
individual to have specified amounts withheld otherwise payable to
such individual, and shall submit a copy of such agreement to the
Bureau of employment programs. In the absence of such agreement,
the Bureau for Child Support Enforcement shall bring legal process
to require the withholding of amounts from such compensation.
(b) The Secretary shall enter into a written agreement with
the Bureau of Employment Programs for the purpose of withholding
unemployment compensation from individuals with unmet support
obligations being enforced by the Bureau for Child Support
Enforcement. The Bureau for Child Support Enforcement shall agree
only to a withholding program that it expects to be cost effective,
and, as to reimbursement, shall agree only to reimburse the Bureau
of employment programs for its actual, incremental costs of
providing services to the Bureau for Child Support Enforcement.
(c) The commission shall promulgate a procedural rule for
selecting cases to pursue through the withholding of unemployment
compensation for support purposes. This rule shall be designed to
ensure maximum case selection and minimal discretion in the
selection process.
(d) The commissioner shall, not less than annually, provide a
receipt to an individual who requests a receipt for the support
paid through the withholding of unemployment compensation, if
receipts are not provided through other means.
(e) The Commissioner shall, through direct contact with the
Bureau of Employment Programs, process cases through the Bureau of Employment Programs in this state, and shall process cases through
support enforcement agencies in other states. The Commissioner
shall receive all amounts withheld by the Bureau of Employment
Programs in this state, forwarding any amounts withheld on behalf
of support enforcement agencies in other states to those agencies.
(f) At least one time per year, the commission shall review
and document program operations, including case selection criteria
established under subsection (c) of this section, and the costs of
the withholding process versus the amounts collected and, as
necessary, modify procedures and renegotiate the services provided
by the Bureau of employment programs to improve program and cost
effectiveness.
(g) (b) For the purposes of this section:
(1) "Legal process" means a writ, order, summons or other
similar process in the nature of garnishment which is issued by a
court of competent jurisdiction or by an authorized official
pursuant to an order to such court or pursuant to state or local
law.
(2) "Unemployment compensation" means any compensation under
state unemployment compensation law (including amounts payable in
accordance with agreements under any federal unemployment
compensation law). It includes extended benefits, unemployment
compensation for federal employees, unemployment compensation for
ex-servicemen, trade readjustment allowances, disaster unemployment
assistance, and payments under the Federal Redwood National Park
Expansion Act.
§48-18-121. Providing information to consumer reporting agencies;
requesting consumer credit reports for child support
purposes.
(a) For purposes of this section, the term "consumer reporting
agency" means any person who, for monetary fees, dues, or on a
cooperative nonprofit basis, regularly engages, in whole or in
part, in the practice of assembling or evaluating consumer credit
information or other information on consumers for the purpose of
furnishing consumer reports to third parties.
(b) The Commission Commissioner
shall propose and adopt a
procedural rule in accordance with the provisions of sections four
and eight, article three, chapter twenty-nine-a of this code,
establishing establish procedures whereby information regarding the
amount of overdue support owed by an obligor will be reported
periodically by the Bureau for Child Support Enforcement to any
consumer reporting agency, after a request by the consumer
reporting agency that it be provided with the periodic reports.
(1) The procedural rule adopted by the commission procedures
shall provide that any information with respect to an obligor shall
be made available only after notice has been sent to the obligor of
the proposed action, and such obligor has been given a reasonable
opportunity to contest the accuracy of the information.
(2) The procedural rule adopted procedures shall afford the
obligor with procedural due process prior to making information
available with respect to the obligor.
(c) The information made available to a consumer reporting
agency regarding overdue support may only be made available to an
entity that has furnished evidence satisfactory to the Bureau that
the entity is a consumer reporting agency as defined in subsection
(a) of this section.
(d) The Bureau for Child Support Enforcement may impose a fee
for furnishing such information, not to exceed the actual cost
thereof.
(e) The Commissioner of the Bureau for Child Support
Enforcement, or her or his designee, may request a consumer
reporting agency to prepare and furnish to the Bureau for Child
Support Enforcement a consumer report for purposes relating to
child support, by certifying to the consumer reporting agency that:
(1) The consumer report is needed for the purpose of
establishing an individual's capacity to make child support
payments or determining the appropriate level of such payments in
order to set an initial or modified child support award;
(2) The paternity of the child of the individual has been
established or acknowledged by the individual in accordance with
state law;
(3) The individual whose report is being requested has been
given at least ten days' prior notice of such the request by
certified mail to his or her last known address that such report is
being requested; and
(4) The consumer report will be kept confidential, will be
used solely for a purpose described in subdivision (1) of this subsection and will not be used in connection with any other civil,
administrative or criminal proceeding or for any other purpose.
ARTICLE 19. BUREAU FOR CHILD SUPPORT ENFORCEMENT ATTORNEY
§48-19-102. Appointment of Bureau for Child Support Enforcement
attorneys
(a) The Bureau for Child Support Enforcement shall employ
twenty-one employees in the position of Bureau for Child Support
Enforcement attorney, and the offices of the Bureau for Child
Support Enforcement attorneys shall be distributed geographically
so as to provide an office for each of the following areas of the
state:
(1) The counties of Brooke, Hancock and Ohio;
(2) The counties of Marshall, Tyler and Wetzel;
(3) The counties of Pleasants, Ritchie, Wirt and Wood;
(4) The counties of Calhoun, Jackson and Roane;
(5) The counties of Mason and Putnam;
(6) The county of Cabell;
(7) The counties of McDowell and Wyoming;
(8) The counties of Logan and Mingo;
(9) The county of Kanawha;
(10) The county of Raleigh;
(11) The counties of Mercer, Monroe and Summers;
(12) The counties of Fayette and Nicholas;
(13) The counties of Greenbrier and Pocahontas;
(14) The counties of Braxton, Clay, Gilmer and Webster;
(15) The counties of Doddridge, Harrison, Lewis and Upshur;
(16) The counties of Marion and Taylor;
(17) The counties of Monongalia and Preston;
(18) The counties of Barbour, Randolph and Tucker;
(19) The counties of Grant, Hampshire, Hardy, Mineral and
Pendleton;
(20) The counties of Berkeley, Jefferson and Morgan; and
(21) The counties of Boone, Lincoln and Wayne.
(b) (a) Each Bureau for Child Support Enforcement attorney
shall be appointed by the Commissioner of the Bureau for Child
Support Enforcement. The Bureau for Child Support Enforcement
attorneys shall be duly qualified attorneys licensed to practice in
the courts of this state. Bureau for Child Support Enforcement
attorneys shall be exempted from the appointments in the indigent
cases which would otherwise be required pursuant to article twenty-
one, chapter twenty-nine of this code.
(c) (b) Nothing contained herein shall prohibit the
Commissioner from temporarily assigning, from time to time as
caseload may dictate, a Bureau for Child Support Enforcement
attorney from one
geographical area to another geographical area.
(d) (c) The Bureau for Child Support Enforcement attorney is
an employee of the Bureau for Child Support Enforcement.
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