ENGROSSED
Senate Bill No. 567
(By Senators Wooton, Wiedebusch, Anderson, Bowman,
Buckalew, Dittmar, Grubb, Miller, Ross, Scott, Wagner,
White and Yoder)
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[Originating in the Committee on the Judiciary;
reported February 28, 1995.]
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A BILL to repeal sections three-a, four, six, nine, ten,
article three, chapter forty-eight-a of the code of West
Virginia, one thousand nine hundred thirty-one, as
amended; to repeal sections three-a, seven and seven-a,
article five of said chapter; to amend and reenact section
five, article ten, chapter four of said code; to amend and
reenact section one, article two, chapter five-f of said
code; to amend and reenact section five-d, article ten,
chapter eleven of said code; to amend and reenact section
three, article two-e, chapter sixteen of said code; to
amend and reenact section eighteen-b, article five of said
chapter; to amend and reenact section two, article five-b
of said chapter; to further amend said article by adding thereto a new section, designated section thirteen; to
amend and reenact section two, article twenty one, chapter
twenty-nine of said code; to amend and reenact section
twenty seven-a, article twenty-two of said chapter; to
amend and reenact sections fifteen-a and fifteen-b,
article two, chapter forty-eight of said code; to amend
and reenact section three, article one, chapter
forty-eight-a of said code; to amend and reenact sections,
one, two, four, five, six, seven, eight, nine, ten,
eleven, twelve, thirteen, fourteen, fifteen, sixteen,
seventeen, eighteen, nineteen, twenty-one, twenty-two,
twenty-four and twenty-six; article two of said chapter;
to further amend said article by adding thereto three new
sections, designated sections nine-a, twenty-seven and
twenty-eight; to amend and reenact article three of said
chapter by adding thereto a new section, designated
section eleven; to amend and reenact section twenty-two,
article four of said chapter; to amend and reenact
sections one and three, article five of said chapter; to
amend and reenact sections one, three, four, five and six,
article six of said chapter; to amend and reenact sections
twelve and thirty-six, article seven of said chapter; and to amend and reenact section one, article two, chapter
fifty-nine of said code, all relating generally to child
support; the enforcement of child support and the creating
of a child support enforcement division to collect and
enforce child support orders; requiring that a hospital
and a birthing center comply with requirements regarding
distribution of information upon the birth of a child;
requiring that the child support enforcement division
provide certain forms and information for distribution to
the hospital; definitions; setting forth the legislative
purpose and policy of the child support enforcement
agency; establishing a child support enforcement
commission, secretary and director; abolishing the child
advocate office; permitting the governor to locate the
child support enforcement division within the department
of health and human resources, tax and revenue or
administration by executive order; setting forth the
duties of the child support enforcement division, the
commission and the department of human resources and
director of the child support enforcement division; fees
for services provided by the child support enforcement
division; attorney fees; the child support enforcement fund; administration of the fund; accounts; expenditures
from the fund; powers and duties of the child support
enforcement division; abolishing children's advocate
program; guidelines for child support awards; the
commission to promulgate rules relating to guidelines;
development of cooperative agreements with public and
private entities for the provision of child support
enforcement services; cooperation with other states in the
enforcement of support obligations; obtaining support from
state income tax refunds; providing statements of
accounts; providing information to consumer reporting
agencies and establishing rules regarding the provision of
information to credit reporting agencies; employment and
income reporting; method of reporting a change of
employment status; administrative subpoenas for
information relating to employment; investigations of
support orders to determine whether or not modification is
mandated; budget of the family law master system to
require agreement with the child support enforcement
division; actions to obtain support orders to be brought
by child support enforcement division; withholding form
income amounts payable as support; identification of payments as support; establishment of paternity by the
child support enforcement division; medical testing for
paternity and default judgments regarding paternity; full
faith and credit to paternity establishment from other
states; representation of parties in paternity action;
elimination of right to counsel for fathers in paternity
actions; and form and procedure for written
acknowledgement of paternity.
Be it enacted by the Legislature of West Virginia:
That sections three-a, four, six, nine, ten, article
three, chapter forty-eight-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be repealed; and
that sections three-a, seven and seven-a, article five of said
chapter be repealed; that section five, article ten, chapter
four of said code be amended and reenacted; that section one,
article two, chapter five-f of said code be amended and
reenacted; that section five-d, article ten, chapter eleven of
said code be amended and reenacted; that section three, article
two-e, chapter sixteen of said code be amended and reenacted;
that section eighteen-b, article five of said chapter be
amended and reenacted; that section two, article five-b of said
chapter be amended and reenacted; that said article be further amended by adding thereto a new section, designated section
thirteen; that section two, article twenty one, chapter twenty-
nine of said code be amended and reenacted; that section
twenty-seven-a, article twenty-two of said chapter be amended
and reenacted; that sections fifteen-a and fifteen-b, article
two, chapter forty-eight of said code be amended and reenacted;
that section three, article one, chapter forty-eight-a of said
code be amended and reenacted; that sections, one, two, four,
five, six, seven, eight, nine, ten, eleven, twelve, thirteen,
fourteen, fifteen, sixteen, seventeen, eighteen, nineteen,
twenty-one, twenty-two, twenty-four and twenty-six, article two
of said chapter be amended and reenacted; that said article be
further amended by adding thereto three new sections,
designated sections nine-a, twenty-seven and twenty eight; that
article three of said chapter be amended and reenacted by
adding thereto a new section, designated section eleven; that
section twenty-two, article four of said chapter be amended and
reenacted; that sections one and three, article five of said
chapter be amended and reenacted; that sections one, three,
four, five and six, article six of said chapter be amended and
reenacted; that sections twelve and thirty six, article seven
of said chapter be amended and reenacted; and that section one, article two, chapter fifty-nine of said code be amended and
reenacted, all to read as follows:
CHAPTER 4. THE LEGISLATURE.
ARTICLE 10. THE WEST VIRGINIA SUNSET LAW.
§4-10-5. Termination of agencies or boards following
preliminary performance reviews.
The following agencies or boards shall be terminated on
the date indicated, but no agency or board shall be terminated
under this section unless a preliminary performance review has
been conducted upon such agency or board:
(1) On the first day of July, one thousand nine hundred
ninety-four: Farm management commission; state structural
barriers compliance board; share in your future commission.
(2) On the first day of July, one thousand nine hundred
ninety-five: Emergency medical services advisory council;
commission on charitable organizations; information system
advisory commission; West Virginia labor-management council;
board of social work examiners; the rural health initiative
advisory panel; the marketing and development divisions of the
department of agriculture; real estate commission; juvenile
facilities review panel; office of water resources; center for
professional development; board of architects; state building commission; family law masters system; public employees
insurance agency; public employees insurance agency finance
board; division of rehabilitation services.
(3) On the first day of July, one thousand nine hundred
ninety-six: U.S. geological survey program and whitewater
commission within the division of natural resources; state
geological and economic survey; workers' compensation;
unemployment compensation; office of judges of workers'
compensation; board of investments.
(4) On the first day of July, one thousand nine hundred
ninety-seven: The driver's licensing advisory board; West
Virginia health care cost review authority; governor's cabinet
on children and families; oil and gas conservation commission;
child support enforcement division; West Virginia contractors'
licensing board.
(5) On the first day of July, one thousand nine hundred
ninety-eight: State lottery commission; the following
divisions or programs of the department of agriculture: Meat
inspection program and soil conservation committee; women's
commission; state board of risk and insurance management; board
of examiners of land surveyors; commission on uniform state
laws; council of finance and administration; forest management review commission; West Virginia's membership in the interstate
commission on the Potomac River basin; legislative oversight
commission on education accountability; board of examiners in
counseling; board of examiners in speech pathology and
audiology.
(6) On the first day of July, one thousand nine hundred
ninety-nine: Board of banking and financial institutions;
capitol building commission; tree fruit industry
self-improvement assessment program; public service commission.
(7) On the first day of July, two thousand: Family
protection services board; environmental quality board; West
Virginia's membership in the Ohio river valley water sanitation
commission; ethics commission; oil and gas inspectors'
examining board; veterans' council; West Virginia's membership
in the southern regional education board.
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE
BRANCH OF STATE GOVERNMENT.
ARTICLE 2. REORGANIZATION OF THE EXECUTIVE BRANCH OF STATE
GOVERNMENT.
§5F-2-1. Transfer and incorporation of agencies and boards;
funds.
(a) The following agencies and boards, including all of
the allied, advisory, affiliated or related entities and funds associated with any such agency or board, are hereby
transferred to and incorporated in and shall be administered as
a part of the department of administration:
(1) Building commission provided for in article six,
chapter five of this code;
(2) Public employees insurance agency and public employees
insurance agency advisory board provided for in article
sixteen, chapter five of this code;
(3) Council of finance and administration provided for in
article one, chapter five-a of this code;
(4) Employee suggestion award board provided for in
article one-a, chapter five-a of this code;
(5) Governor's mansion advisory committee provided for in
article five, chapter five-a of this code;
(6) Commission on uniform state laws provided for in
article one-a, chapter twenty-nine of this code;
(7) Education and state employees grievance board provided
for in article twenty-nine, chapter eighteen of this code and
article six-a, chapter twenty-nine of this code;
(8) Board of risk and insurance management provided for in
article twelve, chapter twenty-nine of this code;
(9) Boundary commission provided for in article twenty-three, chapter twenty-nine of this code;
(10) Public defender services provided for in article
twenty-one, chapter twenty-nine of this code;
(11) Division of personnel provided for in article six,
chapter twenty-nine of this code;
(12) The West Virginia ethics commission provided for in
article two, chapter six-b of this code;
(13) Consolidated public retirement board provided for in
article ten-d, chapter five of this code; and
(14) The child support enforcement division designated in
chapter forty-eight-a of this code if so ordered by executive
order.
(b) The department of commerce, labor and environmental
resources and the office of secretary of the department of
commerce, labor and environmental resources are hereby
abolished. For purposes of administrative support and liaison
with the office of the governor, the following agencies and
boards, including all allied, advisory and affiliated entities
shall be grouped under three bureaus as follows:
(1) Bureau of commerce:
(A) Division of labor provided for in article one, chapter
twenty-one of this code, which shall include:
(i) Occupational safety and health review commission
provided for in article three-a, chapter twenty-one of this
code;
(ii) Board of manufactured housing construction and safety
provided for in article nine, chapter twenty-one of this code;
(B) Office of miners' health, safety and training provided
for in article one, chapter twenty-two-a of this code. The
following boards are transferred to the office of miners'
health, safety and training for purposes of administrative
support and liaison with the office of the governor:
(i) Board of coal mine health and safety and coal mine
safety and technical review committee provided for in article
six, chapter twenty-two-a of this code;
(ii) Board of miner training, education and certification
provided for in article seven, chapter twenty-two-a of this
code; and
(iii) Mine inspectors' examining board provided for in
article nine, chapter twenty-two-a of this code;
(C) The West Virginia development office provided for in
article two, chapter five-b of this code, which shall include:
(i) Enterprise zone authority provided for in article two-
b, chapter five-b of this code; and
(ii) Economic development authority provided for in
article fifteen, chapter thirty-one of this code;
(D) Division of tourism, which shall consist of those
functions related to the promotion of the state's tourism
provided for in article one, chapter five-b of this code;
(E) Division of natural resources and natural resources
commission provided for in article one, chapter twenty of this
code. The Blennerhassett historical state park provided for in
article eight, chapter twenty-nine of this code shall be under
the division of natural resources;
(F) Division of forestry provided for in article one-a,
chapter nineteen of this code;
(G) Geological and economic survey provided for in article
two, chapter twenty-nine of this code;
(H) Water development authority and board provided for in
article one, chapter twenty-two-c of this code;
(2) Bureau of employment programs provided for in article
one, chapter twenty-one-a of this code.
(3) Bureau of environment:
(A) Air quality board provided for in article five,
chapter twenty-two of this code;
(B) Solid waste management board provided for in article three, chapter twenty-two of this code;
(C) Environmental quality board, or its successor board,
provided for in article three, chapter twenty-two-b of this
code;
(D) Division of environmental protection provided for in
article one, chapter twenty-two of this code;
(E) Surface mine board of review provided for in article
four, chapter twenty-two-b of this code;
(F) Oil and gas inspectors' examining board provided for
in article seven, chapter twenty-two-c of this code;
(G) Shallow gas well review board provided for in article
eight, chapter twenty-two-c of this code;
(H) Oil and gas conservation commission provided for in
article nine, chapter twenty-two-c of this code.
(c) The following agencies and boards, including all of
the allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby
transferred to and incorporated in and shall be administered as
a part of the department of education and the arts:
(1) Library commission provided for in article one,
chapter ten of this code;
(2) Educational broadcasting authority provided for in article five, chapter ten of this code;
(3) University of West Virginia board of trustees provided
for in article two, chapter eighteen-b of this code;
(4) Board of directors of the state college system
provided for in article three, chapter eighteen-b of this code;
(5) Joint commission for vocational-technical-occupational
education provided for in article three-a, chapter eighteen-b
of this code;
(6) Division of culture and history provided for in
article one, chapter twenty-nine of this code; and
(7) Division of rehabilitation services provided for in
section two, article ten-a, chapter eighteen of this code.
(d) The following agencies and boards, including all of
the allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby
transferred to and incorporated in and shall be administered as
a part of the department of health and human resources:
(1) Human rights commission provided for in article
eleven, chapter five of this code;
(2) Division of human services provided for in article
two, chapter nine of this code;
(3) Division of health provided for in article one, chapter sixteen of this code;
(4) Office of emergency medical services and advisory
council thereto provided for in article four-c, chapter sixteen
of this code;
(5) Health care cost review authority provided for in
article twenty-nine-b, chapter sixteen of this code;
(6) Commission on aging provided for in article fourteen,
chapter twenty-nine of this code;
(7) Commission on mental retardation provided for in
article fifteen, chapter twenty-nine of this code;
(8) Women's commission provided for in article twenty,
chapter twenty-nine of this code; and
(9) The child support enforcement division designated in
chapter forty-eight-a of this code, unless otherwise ordered by
executive order.
(e) The following agencies and boards, including all of
the allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby
transferred to and incorporated in and shall be administered as
a part of the department of military affairs and public safety:
(1) Adjutant general's department provided for in article
one-a, chapter fifteen of this code;
(2) Armory board provided for in article six, chapter
fifteen of this code;
(3) Military awards board provided for in article one-g,
chapter fifteen of this code;
(4) Division of public safety provided for in article two,
chapter fifteen of this code;
(5) Office of emergency services and disaster recovery
board provided for in article five, chapter fifteen of this
code and emergency response commission provided for in article
five-a of said chapter;
(6) Sheriffs' bureau provided for in article eight,
chapter fifteen of this code;
(7) Division of corrections provided for in chapter
twenty-five of this code;
(8) Fire commission provided for in article three, chapter
twenty-nine of this code;
(9) Regional jail and correctional facility authority
provided for in article twenty, chapter thirty-one of this
code;
(10) Board of probation and parole provided for in article
twelve, chapter sixty-two of this code; and
(11) Division of veterans' affairs and veterans' council provided for in article one, chapter nine-a of this code.
(f) The following agencies and boards, including all of
the allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby
transferred to and incorporated in and shall be administered as
a part of the department of tax and revenue:
(1) Tax division provided for in article one, chapter
eleven of this code;
(2) Appraisal control and review commission provided for
in article one-a, chapter eleven of this code;
(3) Racing commission provided for in article twenty-
three, chapter nineteen of this code;
(4) Lottery commission and position of lottery director
provided for in article twenty-two, chapter twenty-nine of this
code;
(5) Agency of insurance commissioner provided for in
article two, chapter thirty-three of this code;
(6) Office of alcohol beverage control commissioner
provided for in article sixteen, chapter eleven of this code
and article two, chapter sixty of this code;
(7) Division of professional and occupational licenses
which may be hereafter created by the Legislature;
(8) Board of banking and financial institutions provided
for in article three, chapter thirty-one-a of this code;
(9) Lending and credit rate board provided for in chapter
forty-seven-a of this code;
(10) Division of banking provided for in article two,
chapter thirty-one-a of this code; and
(11) The child support enforcement division as designated
in chapter forty-eight-a of this code, if so ordered by
executive order.
(g) The following agencies and boards, including all of
the allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby
transferred to and incorporated in and shall be administered as
a part of the department of transportation:
(1) Road commission provided for in article two, chapter
seventeen of this code;
(2) Division of highways provided for in article two-a,
chapter seventeen of this code;
(3) Parkways, economic development and tourism authority
provided for in article sixteen-a, chapter seventeen of this
code;
(4) Division of motor vehicles provided for in article two, chapter seventeen-a of this code;
(5) Driver's licensing advisory board provided for in
article two, chapter seventeen-b of this code;
(6) Aeronautics commission provided for in article two-a,
chapter twenty-nine of this code;
(7) State rail authority provided for in article eighteen,
chapter twenty-nine of this code; and
(8) Port authority provided for in article sixteen-b,
chapter seventeen of this code.
(h) The following agencies and boards, including all of
the allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby
transferred to and incorporated in and shall be administered as
a part of the West Virginia housing development fund:
(1) The municipal bond commission.
(i) Except for such powers, authority and duties as have
been delegated to the secretaries of the departments by the
provisions of section two of this article, the existence of the
position of administrator and of the agency and the powers,
authority and duties of each administrator and agency shall not
be affected by the enactment of this chapter.
(j) Except for such powers, authority and duties as have been delegated to the secretaries of the departments by the
provisions of section two of this article, the existence,
powers, authority and duties of boards and the membership,
terms and qualifications of members of such boards shall not be
affected by the enactment of this chapter and all boards which
are appellate bodies or were otherwise established to be
independent decision makers shall not have their appellate or
independent decision-making status affected by the enactment of
this chapter.
(k) Any department previously transferred to and
incorporated in a department created in section two, article
one of this chapter by prior enactment of this section in
chapter three, acts of the Legislature, first extraordinary
session, one thousand nine hundred eighty-nine, and subsequent
amendments thereto, shall henceforth be read, construed and
understood to mean a division of the appropriate department so
created. Wherever elsewhere in this code, in any act, in
general or other law, in any rule or regulation, or in any
ordinance, resolution or order, reference is made to any
department transferred to and incorporated in a department
created in section two, article one of this chapter, such
reference shall henceforth be read, construed and understood to mean a division of the appropriate department so created, and
any such reference elsewhere to a division of a department so
transferred and incorporated shall henceforth be read,
construed and understood to mean a section of the appropriate
division of the department so created.
(l) When an agency, board or commission is transferred
under a bureau or agency other than a department headed by a
secretary pursuant to this section, that transfer shall be
construed to be solely for purposes of administrative support
and liaison with the office of the governor, a department
secretary or a bureau. The bureaus created by the Legislature
upon the abolishment of the department of commerce, labor and
environmental resources in the year one thousand nine hundred
ninety-four shall be headed by a commissioner or other
statutory officer of an agency within that bureau. Nothing in
this section shall be construed to extend the powers of
department secretaries under section two of this article to any
person other than a department secretary and nothing herein
shall be construed to limit or abridge the statutory powers and
duties of statutory commissioners or officers pursuant to this
code. Upon the abolishment of the office of secretary of the
department of commerce, labor and environmental resources, the governor may appoint a statutory officer serving functions
formerly within that department to a position which was filled
by the secretary ex officio.
CHAPTER 11. TAXATION.
ARTICLE 10. PROCEDURE AND ADMINISTRATION.
§11-10-5d. Confidentiality and disclosure of returns and
return information.
(a) General rule. -- Except when required in an official
investigation by the tax commissioner into the amount of tax
due under any article administered under this article or in any
proceeding in which the tax commissioner is a party before a
court of competent jurisdiction to collect or ascertain the
amount of such tax and except as provided in subsections (d)
through (n) of this section, it shall be unlawful for any
officer or employee of this state to divulge or make known in
any manner the tax return, or any part thereof, of any person
or disclose information concerning the personal affairs of any
individual or the business of any single firm or corporation,
or disclose the amount of income, or any particulars set forth
or disclosed in any report, declaration or return required to
be filed with the tax commissioner by any article of this
chapter imposing any tax administered under this article or by any rule or regulation of the tax commissioner issued
thereunder, or disclosed in any audit or investigation
conducted under this article.
(b) Definitions. -- For purposes of this section:
(1) Background file document. -- The term "background file
document",with respect to a written determination, includes the
request for that written determination, any written material
submitted in support of the request and any communication
(written or otherwise) between the state tax department and any
person outside the state tax department in connection with the
written determination received before issuance of the written
determination.
(2) Disclosure. -- The term "disclosure" means the making
known to any person in any manner whatsoever a return or return
information.
(3) Inspection. -- The terms "inspection" and "inspected"
mean any examination of a return or return information.
(4) Return. -- The term "return" means any tax or
information return or report, declaration of estimated tax,
claim or petition for refund or credit or petition for
reassessment that is required by, or provided for, or permitted
under the provisions of this article (or any article of this chapter administered under this article) which is filed with
the tax commissioner by, on behalf of, or with respect to any
person, and any amendment or supplement thereto, including
supporting schedules, attachments or lists which are
supplemental to, or part of, the return so filed.
(5) Return information. -- The term "return information"
means:
(A) A taxpayer's identity; the nature, source or amount of
his income, payments, receipts, deductions, exemptions,
credits, assets, liabilities, net worth, tax liability, tax
withheld, deficiencies, overassessments or tax payments,
whether the taxpayer's return was, is being or will be examined
or subject to other investigation or processing, or any other
data received by, recorded by, prepared by, furnished to or
collected by the tax commissioner with respect to a return or
with respect to the determination of the existence, or possible
existence, of liability (or the amount thereof) or by any
person under the provisions of this article (or any article of
this chapter administered under this article) for any tax,
additions to tax, penalty, interest, fine, forfeiture or other
imposition or offense; and
(B) Any part of any written determination or any background file document relating to such written
determination. "Return information" does not include, however,
data in a form which cannot be associated with, or otherwise
identify, directly or indirectly, a particular taxpayer.
Nothing in the preceding sentence, or in any other provision of
this code, shall be construed to require the disclosure of
standards used or to be used for the selection of returns for
examination or data used or to be used for determining such
standards.
(6) Tax administration. -- The term "tax administration"
means:
(A) The administration, management, conduct, direction and
supervision of the execution and application of the tax laws or
related statutes of this state and the development and
formulation of state tax policy relating to existing or
proposed state tax laws, and related statutes of this state;
and
(B) Includes assessment, collection, enforcement,
litigation, publication and statistical gathering functions
under the laws of this state.
(7) Taxpayer identity. -- The term "taxpayer identity"
means the name of a person with respect to whom a return is filed, his mailing address, his taxpayer identifying number or
a combination thereof.
(8) Taxpayer return information. -- The term "taxpayer
return information" means return information as defined in
subdivision (5) of this subsection which is filed with, or
furnished to, the tax commissioner by or on behalf of the
taxpayer to whom such return information relates.
(9) Written determination. -- The term "written
determination" means a ruling, determination letter, technical
advice memorandum or letter or administrative decision issued
by the tax commissioner.
(c) Criminal penalty. -- Any officer or employee (or
former officer or employee) of this state who violates this
section shall be guilty of a misdemeanor, and, upon conviction
thereof, shall be fined not more than one thousand dollars or
imprisoned for not more than one year, or both, together with
costs of prosecution.
(d) Disclosure to designee of taxpayer. -- Any person
protected by the provisions of this article may, in writing,
waive the secrecy provisions of this section for such purpose
and such period as he shall therein state. The tax
commissioner may, subject to such requirements and conditions as he may prescribe, thereupon release to designated recipients
such taxpayer's return or other particulars filed under the
provisions of the tax articles administered under the
provisions of this article, but only to the extent necessary to
comply with a request for information or assistance made by the
taxpayer to such other person. However, return information
shall not be disclosed to such person or persons if the tax
commissioner determines that such disclosure would seriously
impair administration of this state's tax laws.
(e) Disclosure of returns and return information for use
in criminal investigations.
(1) In general. -- Except as provided in subdivision (3)
of this subsection, any return or return information with
respect to any specified taxable period or periods shall,
pursuant to and upon the grant of an ex parte order by a
federal district court judge, federal magistrate or circuit
court judge of this state, under subdivision (2) of this
subsection, be open (but only to the extent necessary as
provided in such order) to inspection by, or disclosure to,
officers and employees of any federal agency, or of any agency
of this state, who personally and directly engaged in:
(A) Preparation for any judicial or administrative proceeding pertaining to the enforcement of a specifically
designated state or federal criminal statute to which this
state, the United States or such agency is or may be a party;
(B) Any investigation which may result in such a
proceeding; or
(C) Any state or federal grand jury proceeding pertaining
to enforcement of such a criminal statute to which this state,
the United States or such agency is or may be a party.
Such inspection or disclosure shall be solely for the use
of such officers and employees in such preparation,
investigation, or grand jury proceeding.
(2) Application of order. -- Any United States attorney,
any special prosecutor appointed under Section 593 of Title 28,
United States Code, or any attorney in charge of a United
States justice department criminal division organized crime
strike force established pursuant to Section 510 of Title 28,
United States Code, may authorize an application to a circuit
court judge or magistrate, as appropriate, for the order
referred to in subdivision (1) of this subsection. Any
prosecuting attorney of this state may authorize an application
to a circuit court judge of this state for the order referred
to in subdivision (1) of this subsection. Upon such application, such judge or magistrate may grant such order if
he determines on the basis of the facts submitted by the
applicant that:
(A) There is reasonable cause to believe, based upon
information believed to be reliable, that a specific criminal
act has been committed;
(B) There is reasonable cause to believe that the return
or return information is or may be relevant to a matter
relating to the commission of such act; and
(C) The return or return information is sought exclusively
for use in a state or federal criminal investigation or
proceeding concerning such act, and the information sought to
be disclosed cannot reasonably be obtained, under the
circumstances, from another source.
(3) The tax commissioner shall not disclose any return or
return information under subdivision (1) of this subsection if
he determines and certifies to the court that such disclosure
would identify a confidential informant or seriously impair a
civil or criminal tax investigation.
(f) Disclosure to person having a material interest. --
The tax commissioner may, pursuant to legislative regulations
promulgated by him, and upon such terms as he may require, disclose a return or return information to a person having a
material interest therein: Provided, That such disclosure
shall only be made if the tax commissioner determines, in his
discretion, that such disclosure would not seriously impair
administration of this state's tax laws.
(g) Statistical use. -- This section shall not be
construed to prohibit the publication or release of statistics
so classified as to prevent the identification of particular
returns and the items thereof.
(h) Disclosure of amount of outstanding lien. -- If notice
of lien has been recorded pursuant to section twelve of this
article, the amount of the outstanding obligation secured by
such lien may be disclosed to any person who furnishes written
evidence satisfactory to the tax commissioner that such person
has a right in the property subject to such lien or intends to
obtain a right in such property.
(i) Reciprocal exchange. -- The tax commissioner may,
pursuant to written agreement, permit the proper officer of the
United States, or the District of Columbia or any other state,
or any political subdivision of this state, or his authorized
representative, who is charged by law with responsibility for
administration of a similar tax, to inspect reports, declarations or returns filed with the tax commissioner or may
furnish to such officer or representative a copy of any such
document, provided such other jurisdiction grants substantially
similar privileges to the tax commissioner or to the attorney
general of this state. Such disclosure shall be only for the
purpose of, and only to the extent necessary in, the
administration of tax laws: Provided, That such information
shall not be disclosed to the extent that the tax commissioner
determines that such disclosure would identify a confidential
informant or seriously impair any civil or criminal tax
investigation.
(j) Inspection of business and occupation tax returns by
municipalities. -- The tax commissioner shall, upon the written
request of the mayor of any West Virginia municipality having
a business and occupation tax or privilege tax, allow the duly
authorized agent of such municipality to inspect and make
copies of the state business and occupation tax return filed by
taxpayers of such municipality. Such inspection or copying
shall only be for the purposes of securing information for
municipal tax purposes and shall only be allowed if such
municipality allows the tax commissioner the right to inspect
or make copies of the municipal business and occupation tax returns of such municipality.
(k) Release of administrative decisions. -- The tax
commissioner shall release to the public his administrative
decisions, or a summary thereof: Provided, That unless the
taxpayer appeals the administrative decision to circuit court
or waives in writing his rights to confidentiality, any
identifying characteristics or facts about the taxpayer shall
be omitted or modified to such an extent so as to not disclose
the name or identity of the taxpayer.
(l) Release of taxpayer information. --
(1) If the tax commissioner believes that enforcement of
the tax laws administered under this article will be
facilitated and enhanced thereby, he shall disclose, upon
request, the names and address of persons:
(A) Who have a current business registration certificate.
(B) Who are licensed employment agencies.
(C) Who are licensed collection agencies.
(D) Who are licensed to sell drug paraphernalia.
(E) Who are distributors of gasoline or special fuel.
(F) Who are contractors.
(G) Who are transient vendors.
(H) Who are authorized by law to issue a sales or use tax exemption certificate.
(I) Who are required by law to collect sales or use taxes.
(J) Who are foreign vendors authorized to collect use tax.
(K) Whose business registration certificate has been
suspended or canceled or not renewed by the tax commissioner.
(L) Against whom a tax lien has been recorded under
section twelve of this article (including any particulars
stated in the recorded lien).
(M) Against whom criminal warrants have been issued for a
criminal violation of this state's tax laws.
(N) Who have been convicted of a criminal violation of
this state's tax laws.
(m) Disclosure of return information to child support
enforcement division. --
(1) State return information. -- The tax commissioner may,
upon written request, disclose to the child support enforcement
division created by article two, chapter forty-eight-a of this
code:
(A) Available return information from the master files of
the tax department relating to the social security account
number, address, filing status, amounts and nature of income
and the number of dependents reported on any return filed by, or with respect to, any individual with respect to whom child
support obligations are sought to be enforced; and
(B) Available state return information reflected on any
state return filed by, or with respect to any individual
described in paragraph (A) of this subdivision, relating to the
amount of such individual's gross income, but only if such
information is not reasonably available from any other source.
(2) Restrictions on disclosure. -- The tax commissioner
shall disclose return information under subdivision (1) of this
subsection only for purposes of, and to the extent necessary
in, collecting child support obligations from, and locating
individuals owing such obligations.
(n) Disclosure of names and addresses for purposes of jury
selection.
The tax commissioner shall, at the written request of a
circuit court or the chief judge thereof, provide to the
circuit court within thirty calendar days a list of the names
and addresses of individuals residing in the county or counties
comprising the circuit who have filed a state personal income
tax return for the preceding tax year. The list provided shall
set forth names and addresses only. The request shall be
limited to counties within the jurisdiction of the requesting court.
The court, upon receiving the list or lists, shall direct
the jury commission of the appropriate county to merge the
names and addresses with other lists used in compiling a master
list of residents of the county from which prospective jurors
are to be chosen. Immediately after the master list is
compiled, the jury commission shall cause the list provided by
the tax commissioner and all copies thereof to be destroyed and
shall certify to the circuit court and to the tax commissioner
that the lists have been destroyed.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 2E. BIRTHING CENTERS.
§16-2E-3. State director of health to establish rules and
regulations; legislative findings; emergency filing.
The director of health shall promulgate rules and
regulations not in conflict with any provision of this article,
as it finds necessary in order to ensure adequate care and
accommodations for consumers of birthing centers. In
promulgating such regulations the director shall be limited to
simple, necessary provisions which shall not have the effect of
hampering the development and licensure of birthing centers.
Such regulations shall not address acceptable site characteristics such as the number of minutes of travel time
between a birthing center and a hospital, or physical
environment, such as acceptable levels of temperature of any
refrigerator found in a birthing center, or clinical equipment,
such as the number and kind of clocks which a birthing center
must have on the premises. Such regulations shall require that
all birthing centers submit satisfactory evidence that the
center has implemented the paternity program created pursuant
to section thirteen of this article along with any application
for licensure.
The Legislature hereby finds and declares that it is in
the public interest to encourage the development of birthing
centers for the purpose of providing an alternative method of
birth and therefore, in order to provide for the licensing of
such birthing centers to prevent substantial harm to the public
interest because of preexisting delay, within sixty days of
passage of this act, the director of health shall proceed to
promulgate such rules and regulations under the provisions of
section fifteen, article three, chapter twenty-nine-a of this
code.
ARTICLE 5. VITAL STATISTICS.
§16-5-18b. Limitation on use of social security numbers.
(a) A social security account number obtained in
accordance with the provisions of this article with respect to
the filing of: (1) A certificate of birth; (2) an application
for a delayed registration of birth; (3) a judicial order
establishing a record of birth; (4) an adoption order or
decree; or (5) a certificate of paternity shall not be
transmitted to a clerk of the county commission. Such social
security account number shall not appear upon the public record
of the register of births or upon any certificate of birth
registration issued by the state registrar, local registrar,
county clerk or other issuing authority, if any. Such social
security account numbers shall be made available by the state
registrar to the child support enforcement division created by
article forty-eight-a upon the request of the division, to be
used solely in connection with the enforcement of child support
orders.
(b) A parent who desires not to furnish a social security
account number as required by the provisions of this article or
article six, chapter forty-eight-a of this code shall file with
the person responsible for obtaining personal data from the
parent, a request that he or she not be required to furnish
such number. The request shall be made on a form prescribed by the state registrar of vital statistics or in a substantially
similar instrument and shall set forth the reasons that the
parent declines or is unable to furnish such number. Supplies
of a form for the request shall be made available to hospitals,
circuit clerks and other persons responsible for obtaining
personal data from parents, and shall be provided to any parent
who states that he or she desires not to be required to furnish
such number. A request, when received, shall be transmitted in
the same manner as a record of a social security account
number. The board of health shall promulgate legislative rules
in accordance with the provisions of chapter twenty-nine-a of
this code which shall establish the procedural means and
substantive criteria by which the state registrar may determine
whether there exists good cause for not requiring the
furnishing of such number. In proposing the promulgation of
such rules, the board of health shall give due consideration to
related regulations prescribed by the secretary of health and
human services of the United States.
ARTICLE 5B. HOSPITALS AND SIMILAR INSTITUTIONS.
§16-5B-2. Hospitals and institutions to obtain license;
qualifications of applicant.
No person, partnership, association, corporation or any local governmental unit or any division, department, board or
agency thereof may continue to operate an existing ambulatory
health care facility, ambulatory surgical facility, hospital or
extended care facility operated in connection with a hospital,
or open an ambulatory health care facility, ambulatory surgical
facility, a hospital or extended care facility operated in
connection with a hospital, unless such operation shall have
been approved and regularly licensed by the state as
hereinafter provided. Licenses shall be issued for a
particular number by type of beds and/or type of services. Any
change in the number by type of bed and/or type of services
shall require the issuance of a new license.
Before a license shall be issued under this article, the
person applying, if an individual, shall submit evidence
satisfactory to the state department of health that he is not
less than eighteen years of age, of reputable and responsible
character and otherwise qualified. In the event the applicant
is an association, corporation or governmental unit, like
evidence shall be submitted as to the members thereof and the
persons in charge.
Every applicant shall, in addition, submit satisfactory
evidence of his ability to comply with the minimum standards and with all rules and regulations lawfully promulgated. Every
applicant shall further submit satisfactory evidence that he
has implemented the paternity program created pursuant to
section thirteen of this article.
§16-5B-13. Hospital-based paternity program.
(a) Every public and private hospital licensed pursuant to
section two of this article and every birthing center licensed
pursuant to section two, article two-e of this chapter, that
provides obstetrical services in West Virginia shall
participate in the hospital-based paternity program.
(b) The child support enforcement division as described in
section two, article two, chapter forty-eight-a of this code
shall provide all public and private hospitals and all birthing
centers providing obstetric services in this state with:
(1) Information regarding the establishment of paternity;
(2) An affidavit of paternity fulfilling the requirements
of section six, article six, chapter forty-eight-a of this
code; and
(3) The telephone contact number for the child support
enforcement division that a parent may call for further
information regarding the establishment of paternity.
(c) Prior to the discharge from any facility included in this section of any mother who has given birth to a live
infant, the administrator, or his or her assignee, shall insure
that the following materials are provided to any unmarried
woman and any person holding himself out to be the natural
father of the child:
(1) Information regarding the establishment of paternity;
(2) An affidavit of paternity fulfilling the requirements
of section six, article six, chapter forty-eight-a of this
code; and
(3) The telephone contact number for the child support
enforcement division that a parent may call for further
information regarding the establishment of paternity.
(d) The child support enforcement division shall notify
the state department of health of any failure of any hospital
or birthing center to conform with the requirements of this
section.
(e) Any hospital or birthing center described in this
article should provide the information detailed in subsection
(c) of this section at any time when such facility is providing
obstetrical services.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 21. PUBLIC DEFENDER SERVICES.
§29-21-2. Definitions.
As used in this article, the following words and phrases
are hereby defined:
(1) "Eligible client": Any person who meets the
requirements established by this article to receive publicly
funded legal representation in an eligible proceeding as
defined herein;
(2) "Eligible proceeding": Criminal charges which may
result in incarceration, juvenile proceedings, proceedings to
revoke parole or probation if the revocation may result in
incarceration, contempt of court, child abuse and neglect
proceedings which may result in a termination of parental
rights, mental hygiene commitment proceedings, extradition
proceedings, proceedings brought in aid of an eligible
proceeding and appeals from or post conviction challenges to
the final judgment in an eligible proceeding. Legal
representation provided pursuant to the provisions of this
article is limited to the court system of the state of West
Virginia, but does not include representation in municipal
courts unless the accused is at risk of incarceration;
(3) "Legal representation": The provision of any legal
services or legal assistance consistent with the purposes and provisions of this article;
(4) "Private practice of law": The provision of legal
representation by a public defender or assistant public
defender to a client who is not entitled to receive legal
representation under the provisions of this article, but does
not include, among other activities, teaching;
(5) "Public defender": The staff attorney employed on a
full-time basis by a public defender corporation who, in
addition to providing direct representation to eligible
clients, has administrative responsibility for the operation of
the public defender corporation. The public defender may be a
part-time employee if the board of directors of the public
defender corporation finds efficient operation of the
corporation does not require a full-time attorney and the
executive director approves such part-time employment;
(6) "Assistant public defender": A staff attorney
providing direct representation to eligible clients whose
salary and status as a full-time or part-time employee are
fixed by the board of directors of the public defender
corporation;
(7) "Public defender corporation": A corporation created
under section eight of this article for the sole purpose of providing legal representation to eligible clients; and
(8) "Public defender office": An office operated by a
public defender corporation to provide legal representation
under the provisions of this article.
ARTICLE 22. STATE LOTTERY ACT.
§29-22-27a. Payment of prizes to the child support enforcement
division.
(a) Upon notification by the child support enforcement
division created by article two, chapter forty-eight-a of this
code that a person entitled to a prize or any winning ticket is
delinquent in the payment of child support or spousal support,
the director shall forward to said child support enforcement
division such portion of any prize distributed directly from
the state lottery office and that is available to pay all or
any portion of the delinquent support payment.
(b) The director shall enter into a written agreement with
the child support enforcement division for the purpose of
establishing a procedure for the collection of prizes as set
forth in subsection (a) of this section which shall include a
method by which the child support enforcement division may
receive the names of lottery winners as expeditiously as
possible.
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 2. DIVORCE, ANNULMENT AND SEPARATE MAINTENANCE.
§48-2-15a. Medical support enforcement.
(a) For the purposes of this section:
(1) "Custodian for the children" means a parent, legal
guardian, committee or other third party appointed by court
order as custodian of child or children for whom child support
is ordered.
(2) "Obligated parent" means a natural or adoptive parent
who is required by agreement or order to pay for insurance
coverage and medical care, or some portion thereof, for his or
her child.
(3) "Insurance coverage" means coverage for medical,
dental, including orthodontic, optical, psychological,
psychiatric or other health care service.
(4) "Child" means a child to whom a duty of child support
is owed.
(5) "Medical care" means medical, dental, optical,
psychological, psychiatric or other health care service for
children in need of child support.
(6) "Insurer" means any company, health maintenance
organization, self-funded group, multiple employer welfare arrangement, hospital or medical services corporation, trust,
group health plan, as defined in 29 U.S.C. §1167, Section
607(1) of the Employee Retirement Income Security Act of 1974
or other entity which provides insurance coverage or offers a
service benefit plan.
(b) In every action to establish or modify an order which
requires the payment of child support, the court shall
ascertain the ability of each parent to provide medical care
for the children of the parties. In any temporary or final
order establishing an award of child support or any temporary
or final order modifying a prior order establishing an award of
child support, the court shall order one or more of the
following:
(1) The court shall order either parent or both parents to
provide insurance coverage for a child, if such insurance
coverage is available to that parent on a group basis through
an employer or through an employee's union. If similar
insurance coverage is available to both parents, the court
shall order the child to be insured under the insurance
coverage which provides more comprehensive benefits. If such
insurance coverage is not available at the time of the entry of
the order, the order shall require that if such coverage thereafter becomes available to either party, that party shall
promptly notify the other party of the availability of
insurance coverage for the child.
(2) If the court finds that insurance coverage is not
available to either parent on a group basis through an
employer, multi-employer trust or employees' union, or that the
group insurer is not accessible to the parties, the court may
order either parent or both parents to obtain insurance
coverage which is otherwise available at a reasonable cost.
(3) Based upon the respective ability of the parents to
pay, the court may order either parent or both parents to be
liable for reasonable and necessary medical care for a child.
The court shall specify the proportion of the medical care for
which each party shall be responsible.
(4) If insurance coverage is available, the court shall
also determine the amount of the annual deductible on insurance
coverage which is attributable to the children and designate
the proportion of the deductible which each party shall pay.
(5) The order shall require the obligor to continue to
provide the child support enforcement division created by
article two, chapter forty-eight-a of this code with
information as to his or her employer's name and address and information as to the availability of employer-related
insurance programs providing medical care coverage so long as
the child continues to be eligible to receive support.
(c) The cost of insurance coverage shall be considered by
the court in applying the child support guidelines provided for
in section eight, article two, chapter forty-eight-a of this
code.
(d) Within thirty days after the entry of an order
requiring the obligated parent to provide insurance coverage
for the children, that parent shall submit to the custodian for
the child written proof that the insurance has been obtained or
that an application for insurance has been made. Such proof of
insurance coverage shall consist of, at a minimum:
(1) The name of the insurer;
(2) The policy number;
(3) An insurance card;
(4) The address to which all claims should be mailed;
(5) A description of any restrictions on usage, such as
prior approval for hospital admission, and the manner in which
to obtain such approval;
(6) A description of all deductibles; and
(7) Five copies of claim forms.
(e) The custodian for the child shall send the insurer or
the obligated parent's employer the children's address and
notice that the custodian will be submitting claims on behalf
of the children. Upon receipt of such notice, or an order for
insurance coverage under this section, the obligated parent's
employer, multi-employer trust or union shall, upon the request
of the custodian for the child, release information on the
coverage for the children, including the name of the insurer.
(f) A copy of the court order for insurance coverage shall
not be provided to the obligated parent's employer or union or
the insurer unless ordered by the court, or unless:
(1) The obligated parent, within thirty days of receiving
effective notice of the court order, fails to provide to the
custodian for the child written proof that the insurance has
been obtained or that an application for insurance has been
made;
(2) The custodian for the child serves written notice by
mail at the obligated parent's last known address of intention
to enforce the order requiring insurance coverage for the
child; and
(3) The obligated parent fails within fifteen days after
the mailing of the notice to provide written proof to the custodian for the child that the child has insurance coverage.
(g) (1) Upon service of the order requiring insurance
coverage for the children, the employer, multi-employer trust
or union shall enroll the child as a beneficiary in the group
insurance plan and withhold any required premium from the
obligated parent's income or wages.
(2) If more than one plan is offered by the employer,
multi-employer trust or union, the child shall be enrolled in
the same plan as the obligated parent at a reasonable cost.
(3) Insurance coverage for the child which is ordered
pursuant to the provisions of this section shall not be
terminated except as provided in subsection (j) of this
section.
(h) Where a parent is required by a court or
administrative order to provide health coverage, which is
available through an employer doing business in this state, the
employer is required:
(1) To permit the parent to enroll under family coverage
any child who is otherwise eligible for coverage without regard
to any enrollment season restrictions;
(2) If the parent is enrolled but fails to make
application to obtain coverage of the child, to enroll the child under family coverage upon application by the child's
other parent, by the state agency administering the medicaid
program or by the child support enforcement division;
(3) Not to disenroll or eliminate coverage of any such
child unless the employer is provided satisfactory written
evidence that:
(A) The court or administrative order is no longer in
effect;
(B) The child is or will be enrolled in comparable
coverage which will take effect no later than the effective
date of disenrollment; or
(C) The employer has eliminated family health coverage for
all of its employees;
(4) To withhold from the employee's compensation the
employee's share, if any, of premiums for health coverage and
to pay this amount to the insurer: Provided, That the amount
so withheld may not exceed the maximum amount permitted to be
withheld under 15 U.S.C. §1673, Section 303(b) of the Consumer
Credit Protection Act.
(i) (1) The signature of the custodian for the child shall
constitute a valid authorization to the insurer for the
purposes of processing an insurance payment to the provider of medical care for the child.
(2) No insurer, employer or multi-employer trust in this
state may refuse to honor a claim for a covered service when
the custodian for the child or the obligated parent submits
proof of payment for medical bills for the child.
(3) The insurer shall reimburse the custodian for the
child or the obligated parent who submits copies of medical
bills for the child with proof of payment.
(4) All insurers in this state shall comply with the
provisions of section sixteen, article fifteen, chapter thirty-
three of this code and section eleven, article sixteen of said
chapter and shall provide insurance coverage for the child of
a covered employee notwithstanding the amount of support
otherwise ordered by the court and regardless of the fact that
the child may not be living in the home of the covered
employee.
(j) When an order for insurance coverage for a child
pursuant to this section is in effect and the obligated
parent's employment is terminated, or the insurance coverage
for the child is denied, modified or terminated, the insurer
shall in addition to complying with the requirements of article
sixteen-a, chapter thirty-three of this code, within ten days after the notice of change in coverage is sent to the covered
employee, notify the custodian for the child and provide an
explanation of any conversion privileges available from the
insurer.
(k) A child of an obligated parent shall remain eligible
for insurance coverage until the child is emancipated or until
the insurer under the terms of the applicable insurance policy
terminates said child from coverage, whichever is later in
time, or until further order of the court.
(l) If the obligated parent fails to comply with the
order to provide insurance coverage for the child, the court
shall:
(1) Hold the obligated parent in contempt for failing or
refusing to provide the insurance coverage or for failing or
refusing to provide the information required in subsection (d)
of this section;
(2) Enter an order for a sum certain against the obligated
parent for the cost of medical care for the child and any
insurance premiums paid or provided for the child during any
period in which the obligated parent failed to provide the
required coverage; and
(3) In the alternative, other enforcement remedies available under sections two and three, article five, chapter
forty-eight-a of this code, or otherwise available under law,
may be used to recover from the obligated parent the cost of
medical care or insurance coverage for the child.
(4) In addition to other remedies available under law, the
child support enforcement division may garnish the wages,
salary or other employment income of, and withhold amounts from
state tax refunds to any person who:
(A) Is required by court or administrative order to
provide coverage of the cost of health services to a child
eligible for medical assistance under medicaid; and
(B) Has received payment from a third party for the costs
of such services but has not used the payments to reimburse
either the other parent or guardian of the child or the
provider of the services, to the extent necessary to reimburse
the state medicaid agency for its costs: Provided, That claims
for current and past due child support shall take priority over
these claims.
(m) Proof of failure to maintain court ordered insurance
coverage for the child constitutes a showing of substantial
change in circumstances or increased need pursuant to section
fifteen of this article, and provides a basis for modification of the child support order.
§48-2-15b. Withholding from income.
(a) Every order entered or modified under the provisions
of this article, not described in subsection (d) of this
section, which requires the payment of child support or spousal
support shall include a provision for automatic withholding
from income of the obligor, in order to facilitate income
withholding as a means of collecting support.
(b) Every such order as described in subsection (a) of
this section shall contain language authorizing income
withholding to commence without further court action, as
follows:
(1) The order shall provide that income withholding will
begin immediately, without regard to whether there is an
arrearage: (A) When a child for whom support is ordered is
included or becomes included in a grant of assistance from the
division of human services or a similar agency of a sister
state for aid to families with dependent children benefits,
medical assistance only benefits or foster care benefits; or
(B) when the support obligee has applied for services from the
child support enforcement division created pursuant to article
two, chapter forty-eight-a of this code, or the support enforcement agency of another state or is otherwise receiving
services from the child support enforcement division as
provided for in said chapter. In any case where one of the
parties demonstrates, and the court finds, that there is good
cause not to require immediate income withholding, or in any
case where there is filed with the court a written agreement
between the parties which provides for an alternative
arrangement, such order shall not provide for income
withholding to begin immediately.
(2) The order shall also provide that income withholding
will begin immediately upon the occurrence of any of the
following:
(A) When the payments which the obligor has failed to make
under the order are at least equal to the support payable for
one month, if the order requires support to be paid in monthly
installments;
(B) When the payments which the obligor has failed to make
under the order are at least equal to the support payable for
four weeks, if the order requires support to be paid in weekly
or biweekly installments;
(C) When the obligor requests the child support
enforcement division to commence income withholding; or
(D) When the obligee requests that such withholding begin,
if the request is approved by the court in accordance with
procedures and standards established by rules and regulations
promulgated by the commission pursuant to this section and to
chapter twenty-nine-a of this code.
(c) On and after the first day of January, one thousand
nine hundred ninety-four, the wages of an obligor shall be
subject to withholding, regardless of whether child support
payments are in arrears, on the date the order for child
support is entered: Provided, That where one of the parties
demonstrates, and the court finds, that there is good cause not
to require immediate income withholding, or in any case where
there is filed with the court a written agreement between the
parties which provides for an alternative arrangement, such
order shall not provide for income withholding to begin
immediately.
(d) The supreme court of appeals shall make available to
the circuit courts standard language to be included in all such
orders, so as to conform such orders to the applicable
requirements of state and federal law regarding the withholding
from income of amounts payable as support.
(e) Every support order entered by a circuit court of this state prior to the effective date of this section shall be
considered to provide for an order of income withholding, by
operation of law, which complies with the provisions of this
section, notwithstanding the fact that such support order does
not in fact provide for such order of withholding.
(f) The court shall consider the best interests of the
child in determining whether "good cause" exists under this
section. The court may also consider the obligor's payment
record in determining whether "good cause" has been
demonstrated.
(g) The commission as defined in section three, article
one, chapter forty-eight-a of this code shall promulgate
legislative rules pursuant to chapter twenty-nine-a of this
code further defining the duties of the child support
enforcement division and the employer in wage withholding.
CHAPTER 48A. ENFORCEMENT OF FAMILY OBLIGATIONS.
ARTICLE 1. GENERAL PROVISIONS.
§48A-1-3. Definitions.
As used in this chapter:
(1) "Automatic data processing and retrieval system" means
a computerized data processing system designed to do the
following:
(A) To control, account for and monitor all of the factors
in the support enforcement collection and paternity
determination process, including, but not limited to:
(i) Identifiable correlation factors (such as social
security numbers, names, dates of birth, home addresses and
mailing addresses of any individual with respect to whom
support obligations are sought to be established or enforced
and with respect to any person to whom such support obligations
are owing) to assure sufficient compatibility among the systems
of different jurisdictions to permit periodic screening to
determine whether such individual is paying or is obligated to
pay support in more than one jurisdiction;
(ii) Checking of records of such individuals on a periodic
basis with federal, interstate, intrastate and local agencies;
(iii) Maintaining the data necessary to meet applicable
federal reporting requirements on a timely basis; and
(iv) Delinquency and enforcement activities;
(B) To control, account for and monitor the collection and
distribution of support payments (both interstate and
intrastate) the determination, collection and distribution of
incentive payments (both interstate and intrastate), and the
maintenance of accounts receivable on all amounts owed, collected and distributed;
(C) To control, account for and monitor the costs of all
services rendered, either directly or by exchanging information
with state agencies responsible for maintaining financial
management and expenditure information;
(D) To provide access to the records of the department of
health and human resources or aid to families with dependent
children in order to determine if a collection of a support
payment causes a change affecting eligibility for or the amount
of aid under such program;
(E) To provide for security against unauthorized access
to, or use of, the data in such system;
(F) To facilitate the development and improvement of the
income withholding and other procedures designed to improve the
effectiveness of support enforcement through the monitoring of
support payments, the maintenance of accurate records regarding
the payment of support and the prompt provision of notice to
appropriate officials with respect to any arrearage in support
payments which may occur; and
(G) To provide management information on all cases from
initial referral or application through collection and
enforcement.
(2) "Chief judge" means the following:
(A) The circuit judge in a judicial circuit having only
one circuit judge; or
(B) The chief judge of the circuit court in a judicial
circuit having two or more circuit judges.
(3) "Child advocate office" and "child support enforcement
division" mean the agency created under the provisions of
article two of this chapter, or any public or private entity or
agency contracting to provide a service. The "child advocate
office" or "child support enforcement division" is that agency
intended by the Legislature to be the single and separate
organizational unit of state government administering programs
of child and spousal support enforcement and meeting the
staffing and organizational requirements of the secretary of
the federal department of health and human services.
(4) "Children's advocate" or "advocate" means any public
or private agency, entity or person providing child support
enforcement services required by this chapter. The term
includes those persons or agencies or entities providing
services under the direction of or pursuant to a cooperative
agreement with the child support enforcement division as
provided for in section nine, article two of this chapter and in any such cooperative agreement.
(5) "Court" means a circuit court of this state, unless
the context in which such term is used clearly indicates that
reference to some other court is intended.
(6) "Court of competent jurisdiction" means a circuit
court within this state or a court or administrative agency of
another state having jurisdiction and due legal authority to
deal with the subject matter of the establishment and
enforcement of support obligations. Whenever in this chapter
reference is made to an order of a court of competent
jurisdiction, or similar wording, such language shall be
interpreted so as to include orders of an administrative agency
entered in a state where enforceable orders may by law be
properly made and entered by such administrative agency.
(7) "Custodial parent" or "custodial parent of a child"
means a parent who has been granted custody of a child by a
court of competent jurisdiction. "Noncustodial parent" means
a parent of a child with respect to whom custody has been
adjudicated with the result that such parent has not been
granted custody of the child.
(8) "Director" means any person appointed pursuant to
section four, article two of this chapter, who directs all child support establishment and enforcement services for the
child support enforcement division.
(9) "Domestic relations matter" means any circuit court
proceeding involving child custody, child visitation, child
support or alimony.
(10) "Earnings" means compensation paid or payable for
personal services, whether denominated as wages, salary,
commission, bonus or otherwise, and includes periodic payments
pursuant to a pension or retirement program. "Disposable
earnings" means that part of the earnings of any individual
remaining after the deduction from those earnings of any
amounts required by law to be withheld.
(11) "Employer" means any individual, sole proprietorship,
partnership, association, public or private corporation, the
United States or any federal agency, this state or any
political subdivision of this state, any other state or a
political subdivision of another state and any other legal
entity which hires and pays an individual for his services.
(12) "Guardian of the property of a child" means a person
lawfully invested with the power, and charged with the duty, of
managing and controlling the estate of a child.
(13) "Income" includes, but is not limited to, the following:
(A) Commissions, earnings, salaries, wages and other
income due or to be due in the future to an obligor from his
employer and successor employers;
(B) Any payment due or to be due in the future to an
obligor from a profit-sharing plan, a pension plan, an
insurance contract, an annuity, social security, unemployment
compensation, supplemental employment benefits, workers'
compensation benefits, state lottery winnings and prizes and
overtime pay;
(C) Any amount of money which is owing to the obligor as
a debt from an individual, partnership, association, public or
private corporation, the United States or any federal agency,
this state or any political subdivision of this state, any
other state or a political subdivision of another state or any
other legal entity which is indebted to the obligor.
(14) "Individual entitled to support enforcement services
under the provisions of this chapter and the provisions of
Title IV-D of the federal Social Security Act" means:
(A) An individual who has applied for or is receiving
services from the child support enforcement division and who is
the custodial parent of a child, or the primary caretaker of a child, or the guardian of the property of a child when:
(i) Such child has a parent and child relationship with an
obligor who is not such custodial parent, primary caretaker or
guardian; and
(ii) The obligor with whom the child has a parent and
child relationship is not meeting an obligation to support the
child, or has not met such obligation in the past; or
(B) An individual who has applied for or is receiving
services from the child support enforcement division and who is
an adult or an emancipated minor whose spouse or former spouse
has been ordered by a court of competent jurisdiction to pay
spousal support to the individual, whether such support is
denominated alimony or separate maintenance, or is identified
by some other terminology, thus establishing a support
obligation with respect to such spouse, when the obligor
required to pay such spousal support is not meeting the
obligation, or has not met such obligation in the past; or
(C) Any individual who is an obligee in a support order,
entered by a court of competent jurisdiction after the thirty-
first day of December, one thousand nine hundred ninety-three.
(15) "Master" or "family law master" means a person
appointed to such position under the provisions of section one, article four of this chapter.
(16) "Obligee" means:
(A) 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;
(B) 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
(C) An individual seeking a judgment determining parentage
of the individual's child.
(17) "Obligor" means an individual or the estate of a
decedent:
(A) Who owes or is alleged to owe a duty of support;
(B) Who is alleged, but has not been adjudicated, to be a
parent of a child; or
(C) Who is liable under a support order.
(18) "Office of the children's advocate" means the agency
created in section two, article two of this chapter or any
public or private entity or agency contracting with the child
support enforcement division to provide these services pursuant
to section nine, article two of this chapter.
(19) "Primary caretaker of a child" means a parent or
other person having actual physical custody of a child without
a court order granting such custody and who has been primarily
responsible for exercising parental rights and responsibilities
with regard to such child.
(20) "Secretary" means the secretary of the department in
which the child support enforcement division is located
pursuant to an executive order issued according to section two,
article two of this chapter. When no such order has been
issued, "secretary" means the secretary of the department of
health and human resources.
(21) "Source of income" means an employer or successor
employer or any other person who owes or will owe income to an
obligor.
(22) "Support" means the payment of money including
interest:
(A) For a child or spouse, ordered by a court of competent
jurisdiction, whether the payment is ordered in an emergency,
temporary, permanent or modified order, decree or judgment of
such court and 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;
(B) To third parties on behalf of a child or spouse,
including, but not limited to, payments to medical, dental or
educational providers, payments to insurers for health and
hospitalization insurance, payments of residential rent or
mortgage payments, payments on an automobile or payments for
day care; and/or
(C) For a mother, ordered by a court of competent
jurisdiction, for the necessary expenses incurred by or for the
mother in connection with her confinement or of other expenses
in connection with the pregnancy of the mother.
(23) "Support order" means any order of a court of
competent jurisdiction for the payment of support, whether or
not for a sum certain.
ARTICLE 2. WEST VIRGINIA CHILD SUPPORT ENFORCEMENT AGENCY.
§48A-2-1 Legislative findings, purpose and intent.
(a) The Legislature of this state finds that:
(1) The failure of parents to support their children
imposes great hardship on the intended recipients of that
support and upon the state of West Virginia who then often must
provide the support for those children;
(2) The fiscal condition of this state and the budgeting restrictions limit the amount of resources which may be
expended in the establishment and enforcement of child support
orders;
(3) Individuals who have been, are, or will be eligible
for services for the establishment and enforcement of child
support orders suffer due to the loss of the support when such
orders are not established or enforced;
(4) The task of resolving issues dealing with the
financial condition and structure of the agency charged with
child support enforcement rests solely with this Legislature;
(5) The child advocate office which has been the sole
support enforcement agency for many years suffers from severe
organizational and performance problems which can only be
remedied by modification of the existing statutory scheme for
child support enforcement;
(6) The existing administration of the laws regarding the
establishment and enforcement of child support is not
sufficient to ensure that all children are adequately supported
by their parents; and
(7) The failure of the existing structure of the child
support enforcement agency threatens the health and welfare of
the children of this state which may only be remedied by immediate legislative and executive action to reform the
agency.
(b) This article shall be liberally construed and applied
to promote the following purposes:
(1) To establish a comprehensive and effective child
support enforcement program through expedited processes for
obtaining and enforcing support orders;
(2) To assist establish and enforce child support orders
involving children in the state of West Virginia, regardless of
whether or not they may be recipients of public assistance; and
(3) To restructure the agency charged with the enforcement
of child support orders to better serve the citizens of this
state within the limitations imposed by budgetary restrictions.
§48A-2-2. Establishment of child support enforcement
commission; responsibility of the commission; child
support enforcement; executive order to transfer child
support enforcement division.
(a) Effective the first day of July, one thousand nine
hundred ninety-five, there is hereby established the child
support enforcement commission.
(1) This commission shall consist of nine members who
shall be the secretary of the department of tax and revenue, the director of the child support enforcement division, the
secretary of administration, a representative of the judiciary
appointed by the West Virginia judicial association, the
secretary of the department of health and human resources, an
attorney who is a member in good standing of the West Virginia
state bar who shall be designated by the governor, a lay person
who is an obligee as defined in this chapter, a lay person who
is an obligor as defined in this chapter and a lay person who
is an employer who routinely withholds child support payments
from wages of employees. The lay persons shall be appointed by
the governor.
(2) Any member appointed to the commission by the governor
shall serve on the commission for a person of five years, with
each term ending on the same day of the same month of the year
as did the term which it succeeds. When a vacancy occurs as a
result of death, resignation or removal in the membership of
the commission, it shall be filled by appointment within thirty
days of the vacancy for the unexpired portion of the term in
the same manner as the original appointment.
(3) Each member of the commission shall take and subscribe
to the oath or affirmation required pursuant to section five,
article IV of the constitution of West Virginia. Any member appointed to the commission by the governor may be removed by
the governor for substantial neglect of duty or gross
misconduct in office after written notice and opportunity for
reply.
(4) The commission shall meet within thirty days of the
initial appointments to the commission at a time and place to
be determined by the governor, who shall designate a member to
preside at that meeting until a chairperson is elected. At its
first meeting, the commission shall elect a chairperson.
Within ninety days after its first meeting, the commission
shall adopt rules for its procedures.
(5) Members of the commission appointed to the commission
by the governor shall receive one hundred dollars for each day
actually devoted to the business of the commission and, in
addition thereto, shall be reimbursed for expenses actually and
necessarily incurred in the performance of their official
duties as such members.
(6) Meetings of the commission shall be upon the call of
the chairperson and shall be conducted by the personal
attendance of the commission members and no meeting may be
conducted by telephonic or other electronic conferencing, nor
shall any member be allowed to vote by proxy: Provided, That telephone conferencing and voting may be held for the purpose
of approving or rejecting any proposed administrative,
legislative or emergency rule or for voting on issues involving
the administrative functions of the commission. Meetings held
by telephone conferencing shall require notice to members in
the same manner as meetings to be personally attended. Members
may not be compensated for meetings other than those personally
attended.
(b) Until modified by executive order as described in this
section, the department of health and human resources shall be
the single state agency within the state that is designated the
child support enforcement division pursuant to Title IV, Part
D of the Social Security Act and hereinafter in this chapter
shall be refereed to as the child support enforcement division.
(c) The secretary shall establish a division of child
support enforcement which shall be provided, subject to
appropriation, with such resources as may be necessary to
implement the provisions of this chapter. In order to
accomplish child support enforcement, the secretary may employ
personnel, develop automated system and enter into cooperative
agreements consistent with the provisions of this chapter.
However, the secretary may not reallocate employees assigned to other divisions or agencies within the division to the child
support enforcement division without finding that such
positions may be eliminated in the other agency or department
and further permanently eliminating such position. Nothing in
this chapter shall be construed to limit the authority of the
secretary to delegate to the child support enforcement division
any child support enforcement duty assigned to him or her under
provisions of law.
(d) The governor may, by executive order, transfer to the
department of tax and revenue or the department of
administration, all or any part of the functions of the child
support enforcement division. The authority to make transfers
as provided for in this subsection shall expire on the first
day of December, one thousand nine hundred and ninety-five.
§48-2-4. Director; appointment; qualifications; oath of
office; director not to hold other office or engage in
political activity.
(a) There shall be a director of the child support
enforcement division who shall be appointed by the secretary.
The salary of the director shall be set by the secretary and
be paid with funds from the child support enforcement fund.
The director shall be allowed and paid necessary expenses incident to the performance of his or her official duties.
(b) The director shall be selected with special reference
and consideration given to his or her training, experience,
capacity and interest in or relating to the child support
enforcement programs administered by the child support
enforcement division.
(c) Before entering upon the duties of his or her office,
the director shall take and subscribe to the oath of office
prescribed by section five, article IV of the constitution of
West Virginia and shall execute a corporate surety bond in the
sum of fifteen thousand dollars for the faithful performance of
his or her duties. The bond shall be in the form prescribed by
the attorney general and approved by the governor and both the
certificate of the oath and the bond shall be filed with the
secretary of state. Premiums upon the bond shall be paid out
of the funds of the child support enforcement division.
(d) The director may not be a candidate for, or hold, any
other public office or public employment under the federal
government, or the government of this state or any of its
political subdivisions, or be a member or officer of any
political party committee, or serve as an election official, or
engage in any political activity, other than to vote, in behalf of, or in opposition to, any candidate, or political party in
an election. Any violation by the director of the provisions
of this paragraph shall be cause for removal from office.
§48A-2-5. Fees.
(a) When the child support enforcement division provides
child support collection services either to a public assistance
recipient or to a party who does not receive public assistance,
the child support enforcement division 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 to 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 those persons applying for services provided by
the child support enforcement division who are applying for or
receiving public assistance from the department of health and
human resources 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 child support enforcement division 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 six of this article.
(d) In any action brought by the child support enforcement
division, the family law master shall order that the obligor
shall pay attorney fees for the services of the child support
enforcement division attorney 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 family law master or circuit judge finds that the award of attorneys fees would create a substantial financial hardship on
the obligor or when the obligor is a recipient of public
assistance. Further, the child support enforcement division
may not collect such fees until the obligor is current in the
payment of child support. No court may order the child support
enforcement division to pay attorney's fees to any party in any
action brought pursuant to this chapter or chapter forty-eight
of this code.
(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 child support
enforcement division 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.
§48A-2-6. Creation of child support enforcement fund; purpose;
funding; disbursements.
(a) There is hereby created in the state treasury a
separate special revenue account, which shall be an interest
bearing account, to be known as the "child support enforcement
fund". The special revenue account shall consist of all child
support payments made from or on behalf of individual obligors
paid to the state of West Virginia, all fees charged and
collected by the child support enforcement division for its
services, all incentive payments made by the federal government
for child support activities, all amounts appropriated by the
Legislature for activities of the child support enforcement
division, and all interest or other earnings from moneys in
the fund. All agencies or entities receiving federal matching
funds for services of the child support enforcement division
shall enter into an agreement with the secretary whereby all
federal matching funds paid to and received by that agency or
entity for the activities by the child support enforcement
division shall be paid into the child support enforcement fund.
Said agreement shall provide for advance payments into the fund
by such agencies, from available federal funds, pursuant to Title IV-D of the Social Security Act and in accordance with
federal regulations. No expenses incurred under this section
shall be a charge against the general funds of the state.
(b) Moneys in the special revenue account shall be
appropriated to the department and used exclusively, in
accordance with appropriations by the Legislature, to pay
costs, fees and expenses incurred, or to be incurred for the
following purpose: the provision of child support services
authorized pursuant to Title VI, Part D of the Social Security
Act and any further duty as set forth in this article,
including, but not limited to, the duties assigned in section
seven to the commission.
(c) Any balance remaining in the special revenue account
at the end of any state fiscal year shall not revert to the
general revenue fund but shall remain in the special revenue
account and shall be used solely in a manner consistent with
this section: Provided, That over the three succeeding fiscal
years after the effective date of this section, any
appropriation made to the special revenue account from general
revenue shall be repaid to the general revenue fund from moneys
available in the special revenue account.
(d) Disbursements from the special revenue account shall be authorized by the secretary.
(e) Notwithstanding the provisions contained in subsection
(a) of this section, when the child support enforcement
division enters into a cooperative agreement for the collection
and disbursement of child support, the amounts collected may be
deposited directly into an account maintained by the person,
agency, or entity when: (1) No individual deposit may be
maintained in the account more than three days; (2) no amount
may be deposited in the account which is not properly
identified in such a manner to insure payment to the obligee;
(3) such person, agency or entity maintains individual,
itemized records on all amounts collected and disbursed; (4)
such person, agency, or entity provides individual, itemized
records on all amounts collected and disbursed to the director
according to a schedule established by the director and
included in the cooperative agreement; and (5) the person,
agency or entity adheres to such other conditions as may be
incorporated into the cooperative agreement.
§48A-2-7. Powers and duties of the secretary; child
supportenforcement division; commissio
n; director.
(a) The secretary shall:
(1) Exercise all powers vested in him and perform all duties required by this article or by chapter nine of this
code;
(2) Exercise such other powers as may be consistent with
this article which are appropriate in the discharge of his
duties;
(3) Employ such persons and purchase such equipment,
within the appropriations that are made to the child support
enforcement fund, as are necessary to insure that provisions of
this article, and any rule or regulation promulgated pursuant
to this article, are fully implemented; and
(4) If the child support enforcement division is
transferred to the department of tax and revenue by executive
order issued pursuant to section two of this article, the
secretary may exercise any power available to the secretary, or
to the tax commissioner, in order to accomplish the purposes of
this chapter, including, but not limited to the powers
associated with gaining access to all information gained and
maintained by the department in the collection of taxes.
(b) The child support enforcement division shall:
(1) Enforce child support obligations owed by a parent to
his or her child or children;
(2) Coordinate a statewide program to enforce and establish child support obligations;
(3) Coordinate a statewide program to collect and disburse
child support;
(4) Establish and maintain a central registry of records
on absent parents as required by this article;
(5) Locate parents who owe a duty to pay child support;
(6) Determine the ability of an absent parent to pay child
support;
(7) Cooperate with other states in establishing and
enforcing child support obligations;
(8) Initiate legal actions to implement any provision of
this chapter;
(9) Request agencies of the state and its political
subdivisions to search their records to help locate absent
parents;
(10) Establish paternity for minors whose parental
parentage has not been acknowledge by the father or otherwise
established by law; and
(11) Provide any other services or responsibilities that
are required by Title IV, Part D of the Social Security Act or
this code.
(c) The commission shall:
(1) Monitor the child support enforcement system of this
state and shall from time to time advise the child support
enforcement division and other agencies of the state of West
Virginia regarding the establishment end enforcement of child
support orders;
(2) Promulgate all emergency and legislative rules
pursuant to chapter twenty-nine-a of this code as are required
by this chapter: Provided, That all rules which are in effect
at the time of the implementation of this section shall
continue in full force and effect until the commission
promulgates a rule regarding the same subject matter. At such
time the rule promulgated under prior enactments of this
article shall be superseded by the rule promulgated by the
commission;
(3) Promulgate legislative rules pursuant to chapter
twenty-nine-a of this code relating to the structure of the
child support enforcement division, including, but not limited
to, the designation of administrative and legal tasks and the
location of offices for such agency throughout the state. This
rule shall constitute an emergency rule within the meaning of
section fifteen, article three, chapter twenty-nine-a of this
code;
(4) Adopt standards for staffing, recordkeeping,
reporting, intergovernmental cooperation, training, physical
structures and time frames for case processing;
(5) Approve any state plan created by the director prior
to its submission;
(6) Inspect, or cause the inspection, of cases managed by
the child support enforcement division on a periodic basis;
(7) Develop a written comprehensive manual containing all
procedures for the processing of child support cases;
(8) Cooperate with judicial organizations and the private
bar to provide training to persons involved in the
establishment and enforcement of child support orders; and
(9) Promulgate such further legislative rules pursuant to
chapter twenty-nine-a of this code which may aid the child
support enforcement division in the establishment and
enforcement of child support orders. In addition to the
specific designation of such rules that constitute emergency
rules within the meaning of section fifteen, article three,
chapter twenty-nine-a of this code, the commission may
promulgate other rules as emergency rules when such rule is
necessary to insure that the state is awarded federal funds for
the actions described in the rule or when the promulgation of such rule is necessary to prevent substantial harm to the
public interest by insuring that child support is timely
collected and disbursed.
(d) The director shall:
(1) Provide assistance to the commission, upon receipt of
a request for such assistance, in the execution of any duty
assigned to such commission;
(2) Enter into cooperative agreements as set forth in
section nine of this article; and
(3) Perform any further duty set forth in this chapter, in
any emergency or legislative rule promulgated pursuant to this
chapter and pursuant to chapter twenty-nine-a of this code, and
in any provision incorporated in the child support enforcement
manual.
(e) The department of health and human resources shall:
(1) Notify the child support enforcement division when the
department proposes to terminate or provide public assistance
payable to any obligee;
(2) Receive support payments made on behalf of a former or
current recipient to the extent permitted by Title IV-D, Part
D of the Social Security Act; and
(3) Accept the assignment of the right, title or interest of child support and forward the assignment to the child
support enforcement division.
§48A-2-8. Guidelines for child support awards.
(a) The commission shall, by legislative rule promulgated
pursuant to chapter twenty-nine-a of this code, establish
guidelines for child support award amounts so as to ensure
greater uniformity by those persons who make child support
recommendations and enter child support orders and to increase
predictability for parents, children and other persons who are
directly affected by child support orders. There shall be a
rebuttable presumption, in any proceeding before a family law
master or circuit court judge for the award of child support,
that the amount of the award which would result from the
application of such guidelines is the correct amount of child
support to be awarded. A written finding or specific finding
on the record that the application of the guidelines would be
unjust or inappropriate in a particular case shall be
sufficient to rebut the presumption in that case. The
guidelines shall not be followed:
(1) When the child support award proposed to be made
pursuant to the guidelines has been disclosed to the parties
and each party has made a knowing and intelligent waiver of said amount, and the support obligors have entered into an
agreement which provides for the custody and support of the
child or children of the parties; or
(2) When the child support award proposed to be made
pursuant to the guidelines would be contrary to the best
interests of the child or children, or contrary to the best
interests of the parties.
(b) The Legislature, by the enactment of this article,
recognizes that children have a right to share in their natural
parents' level of living. Accordingly, guidelines promulgated
under the provisions of this section shall not be based upon
any schedule of minimum costs for rearing children based upon
subsistence level amounts set forth by various agencies of
government. The Legislature recognizes that expenditures in
families are not made in accordance with subsistence level
standards, but are rather made in proportion to household
income, and as parental incomes increase or decrease, the
actual dollar expenditures for children also increase or
decrease correspondingly. In order to ensure that children
properly share in their parents' resources, regardless of
family structure, the guidelines shall be structured so as to
provide that after a consideration of respective parental incomes, that child support will be related, to the extent
practicable, to the level of living which such children would
enjoy if they were living in a household with both parents
present.
(c) The guidelines promulgated under the provisions of
this section shall take into consideration the financial
contributions of both parents. The Legislature recognizes that
expenditures in households are made in aggregate form and that
total family income is pooled to determine the level at which
the family can live. The guidelines shall provide for
examining the financial contributions of both parents in
relationship to total income, so as to establish and equitably
apportion the child support obligation. Under the guidelines,
the child support obligation of each parent will vary
proportionately according to their individual incomes.
(d) The guidelines shall be structured so as to take into
consideration any preexisting support orders which impose
additional duties of support upon an obligor outside of the
instant case and shall provide direction in cases involving
split or shared custody.
(e) The guidelines shall have application to cases of
divorce, paternity, actions for support and modifications thereof.
(f) Guidelines promulgated shall recognize that the child
support obligation of a parent whose employment income
consists, in part, of compensation for overtime hours worked.
The guidelines shall provide for a child support order which
includes a consideration of such overtime compensation,
balancing the interest of children to share in the resources of
such parent with the interest of the parent in not being
penalized for accepting overtime work. Any formula which is
used to compute anticipated overtime compensation shall allow
for the irregular nature of such compensation.
(g) In determining the child support obligation of a
parent whose employment income consists of compensation for
seasonal employment, the guidelines shall provide for
discretionary use of alternative payment schedules which may
vary the periodic amounts required to be paid.
(h) The guidelines promulgated shall provide that in
determining the child support obligation of a parent whose
support obligation extends to the children of more than one
family, the guidelines shall be structured so as to equitably
provide for all children to whom the obligor owes a duty of
support.
(i) The guidelines shall incorporate standards for the
computation of child support payments for persons when the
parent's combined monthly net income is less than six hundred
dollars or more than ten thousand dollars. The guidelines
shall further identify under what circumstances third party
payments may be ordered by the court in a child support order.
(j) In promulgating the legislative rule provided for
under the provisions of this section, the commission shall be
directed by the following legislative findings:
(1) That amounts to be fixed as child support should not
include awards for alimony, notwithstanding the fact that any
amount fixed as child support may impact upon the living
conditions of custodial parents;
(2) That parental expenditures on children represent a
relatively constant percentage of family consumption as family
consumption increases, so that as family income increases, the
family's level of consumption increases, and the children
should share in and benefit from this increase;
(3) That parental expenditures on children represent a
declining proportion of family income as the gross income of
the family increases, so that while total dollar outlays for
children have a positive relationship to the family's gross income, the proportion of gross family income allotted for the
children has a negative relationship to gross income;
(4) That expenditures on children vary according to the
number of children in the family, and as the number of children
in the family increases, the expenditures for the children as
a group increase and the expenditures on each individual child
decrease; so that due to increasing economies of scale and the
increased sharing of resources among family members, spending
will not increase in direct proportion to the number of
children; and
(5) That as children grow older, expenditures on children
increase, particularly during the teenage years.
(k) The commission shall review the guidelines at least
once every four years to ensure that their application results
in the determination of appropriate child support awards. Such
four-year period shall begin on the first day of July, one
thousand nine hundred ninety-nine.
48A-2-9. Cooperative agreements.
(a) The director may enter into cooperative agreements
with a person or private or public agency or agencies to
provide services to establish paternity, establish liability
for support, collect support, enforce a court order to pay support and all other services mandated by state and federal
law to be provided by the child support enforcement division.
These agreements may provide for the entire range of services
including service of process, service of subpoenas, locate
services, legal services and financial services.
(b) Any cooperative agreement made pursuant to this
section shall, at a minimum:
(1) Provide for the employment of personnel necessary to
perform the services;
(2) Provide that any federal collection incentive that is
payable shall be payable to the fund established pursuant to
section six of this article;
(3) Delegate responsibility that is consistent with the
rules promulgated pursuant to this article;
(4) Include any and all provisions required by state or
federal law and specifically include terms regarding
cancellation and renewal of the contract;
(5) Provide for the assessment of any penalty for the
failure to fully or timely provide services included in the
agreement; and
(6) Establish reasonable administrative and fiscal
requirements for providing and continuing services and reimbursement.
(c) Prior to entering into such agreement, the director
shall provide all proposals to the members of the commission
who may review and comment on those proposals.
(d) The director shall enter into such agreement only when
the director finds that based upon the information provided to
the director and upon the comments made by members of the
commission, that the provider of services is capable of
carrying out the responsibilities of the agreement.
(e) All cooperative agreements entered into pursuant to
this section shall meet all requirements for such agreements as
detailed in article three, chapter five-a of this code:
Provided, That when the commission, after reviewing any
contract, finds that the cooperative agreements meets all
requirements as set forth in this section and further that the
child support enforcement division should enter into such
contract, the cooperative agreement shall not be subject to the
requirements as detailed in article three, chapter five-a of
this code.
(f) Any agreement entered into pursuant to this section
may include a provision relating to the loan of equipment in
the possession of the child support enforcement division.
§48A-2-9a. Attorneys representing state.
(a) Attorneys employed by the child support enforcement
division may represent this state or another state in an action
brought under the authority of federal law of this chapter.
(b) An attorney employed by the child support enforcement
division or employed by a person or agency or entity pursuant
to a cooperative agreement with the child support enforcement
division as detailed in section nine of this article,
represents the interest of the state and not the interest of
any other party. The provision of services by an attorney
under this chapter does not create an attorney-client
relationship between the attorney and any other party. The
child support enforcement division shall, at the time an
application for child support services is made, inform the
applicant that any attorney who provides services for the child
support enforcement division is the attorney for the State of
West Virginia and that the attorney providing those services
does not provide legal representation to the applicant.
(c) An attorney employed by the child support enforcement
division or pursuant to a cooperative agreement with the child
support enforcement division, may not be appointed or act as a
guardian ad litem or attorney ad litem for a child or another party.
§48A-2-10. Establishment of parent locator service.
(a) The child support enforcement division shall establish
a parent locator service to locate obligors, utilizing all
sources of information and available records and the parent
locator service in the federal department of health and human
services. Any person, agency or entity providing services to
the child support enforcement division pursuant to a
cooperative agreement shall have access to such service when
the cooperative agreement includes a provision to insure that
the confidentiality of such information is maintained.
(b) Upon entering into an agreement with the secretary of
the federal department of health and human services for the use
of that department's parent locator service, the child support
enforcement division shall accept and transmit to the secretary
of the department of health and human services requests for
information to be furnished by such federal parent locator
service to authorized persons. The child support enforcement
division shall charge a reasonable fee sufficient to cover the
costs to the state and to the federal department of health and
human services incurred by reason of such requests, and shall
transfer to that department from time to time, so much of the fees collected as are attributable to the costs incurred by
that department.
§48A-2-11. Cooperation with other states in the enforcement
of child support.
(a) The child support enforcement division 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 shall, by legislative rule, establish
procedures necessary to extend the child support enforcement
divisions's system of withholding under section three, article
five 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.
§48A-2-12. Disbursements of amounts collected as support.
(a) Amounts collected as child or spousal support by the
child support enforcement division shall be distributed within
ten days of receipt, except as otherwise specifically provided
in this chapter. Such amounts shall, except as otherwise
provided under the provisions of subsection (c) of this
section, be distributed as follows:
(1) The first fifty dollars of such amounts as are
collected periodically which represent monthly support payments
shall be paid to the obligee without affecting the eligibility
of such person's family for assistance from the department of
health and human resources or decreasing any amount otherwise
payable as assistance to such family during such month;
(2) Such amounts as are collected periodically which are
in excess of any amount paid to the family under subdivision
(1) of this subsection and which represent monthly support payments shall be paid by the child support enforcement
division to the appropriate administrative unit of the
department of health and human resources to reimburse it for
assistance payments to the family during such period (with
appropriate reimbursement of the federal government to the
extent of its participation in the financing);
(3) Such amounts as are in excess of amounts required to
reimburse the department of health and human resources under
subdivision (2) of this subsection and are not in excess of the
amount required to be paid during such period to the family by
a court order shall be paid to the obligee; and
(4) Such amounts as are in excess of amounts required to
be distributed under subdivisions (1), (2) and (3) of this
subsection shall be: (A) Paid by the child support enforcement
division to the appropriate administrative unit of the
department of health and human resources (with appropriate
reimbursement of the federal government to the extent of its
participation in the financing) as reimbursement for any past
assistance payments made to the family for which the department
has not been reimbursed; or (B) if no assistance payments have
been made by the department which have not been repaid, such
amounts shall be paid to the obligee.
(b) (1) Whenever a family for whom support payments have
been collected and distributed under the provisions of this
chapter ceases to receive assistance from the department of
health and human resources, the child support enforcement
division shall provide notice to the family of their rights
with regard to a continuation of services. Unless notified by
the family that services are no longer desired, the child
support enforcement division shall continue to collect amounts
of support payments which represent monthly support payments
from the obligor and pay any amount so collected, which
represents monthly support payments, to the family (without
requiring any formal reapplication and without the imposition
of any application fee) on the same basis as in the case of
other obligees who are not receiving assistance from the
department of health and human resources.
(2) So much of any amounts of support so collected as are
in excess of the payments required to be made in subdivision
(1) of this subsection shall be paid, first, to the obligee
until all past due support owed to the family by the obligor
has been paid. After all arrearages owing to the family have
been paid, any amounts of support collected which are in excess
of the required support payments shall be distributed in the manner provided by paragraphs (A) and (B), subdivision (4),
subsection (a) of this section with respect to excess amounts
described in subsection (a) of this section.
(c) (1) Notwithstanding the preceding provisions of this
section, amounts collected by the child support enforcement
division as child support for months in any period on behalf of
a child for whom the department of health and human resources
is making foster care maintenance payments shall:
(A) Be paid by the child support enforcement division to
the appropriate administrative unit of the department of health
and human resources to the extent necessary to reimburse the
department for foster care maintenance payments made with
respect to the child during such period (with appropriate
reimbursement of the federal government to the extent of its
participation in financing);
(B) Be paid to the appropriate administrative unit of the
department of health and human resources to the extent that the
amounts collected exceed the foster care maintenance payments
made with respect to the child during such period but do not
exceed the amounts required by a court order to be paid as
support on behalf of the child during such period; and the
department of health and human resources may use the payments in the manner it determines will serve the best interests of
the child, including setting such payments aside for the
child's future needs or making all or a part thereof available
to the person responsible for meeting the child's day-to-day
needs; and
(C) Be paid to the appropriate administrative unit of the
department of health and human resources if any portion of the
amounts collected remains after making the payments required
under paragraphs (A) and (B) of this subdivision, to the extent
that such portion is necessary to reimburse the department of
health and human resources (with appropriate reimbursement to
the federal government to the extent of its participation in
the financing), for any past foster care maintenance payments,
or payments of aid to families with dependent children which
were made with respect to the child (and with respect to which
past collections have not previously been retained);
(2) Any balance of the amounts required to be paid under
the provisions of subdivision (1) of this section shall be paid
to the appropriate administrative unit of the department of
health and human resources, for use by the department in
accordance with paragraph (B) of this subsection.
(d) 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.
(e) The commission shall establish bonding requirements
for employees of child support enforcement division who
receive, disburse, handle or have access to cash.
(f) The director shall maintain methods of administration
which are designed to assure that employees of the child
support enforcement division or any persons employed pursuant
to a cooperative agreement 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
director 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.
(g) No penalty or fee may be collected by or distributed
to a recipient of child support enforcement division 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.
§48A-2-13. Payment of support to the child support enforcement
division.
All support payments owed to an obligee who is an
applicant for or recipient of the services of the child support
enforcement division shall be paid to the child support
enforcement division and shall be deposited in the child
support enforcement fund, unless such provision is modified
pursuant to a cooperative agreement entered into pursuant to
section nine of this article. Any other obligee owed a duty of
support under the terms of a support order entered by a court
of competent jurisdiction may request that the support payments
be made to the child support enforcement division. In such
case, the child support enforcement division shall proceed to
receive and disburse such support payments to or on behalf of
the obligee as provided by law.
§48A-2-14. Authorization for data processing and retrieval
system.
In accordance with an initial and annually updated advance
data processing planning document approved by the secretary of
the federal department of health and human services, the child
support enforcement division may establish an automatic data
processing and retrieval system designed effectively and efficiently to assist the director in carrying out the
provisions of this chapter.
§48A-2-15. Obtaining support from federal tax refunds.
The commission shall, by legislative rule promulgated
pursuant to chapter twenty-nine-a of this code, place in effect
procedures necessary for the child support enforcement division
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 child support enforcement division shall
take all steps necessary to implement and utilize such
procedures.
§48A-2-16. Obtaining support from state income tax refunds.
(a) The tax commissioner shall establish procedures
necessary for the child support enforcement division 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 shall, by legislative rule promulgated
pursuant to chapter twenty-nine-a of this code, establish
procedures necessary for the child support enforcement division
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 child support
enforcement division 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 child support enforcement
division may deduct a twenty-five dollar fee from the obligor's
state income tax refund. Such rule may not require that an
applicant who is a recipient of assistance from the department
of human services in the form of aid to families with dependent
children.
(2) Withholding from state income tax refunds may not be
pursued unless the child support enforcement division 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 child support enforcement division shall consider
the amount of all unpaid past due support, including that which
may have accrued prior to the time that the child support
enforcement division first agreed to enforce the support order.
(c) The director of the child support enforcement division
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
child support enforcement division 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
child support enforcement division of the obligor's home
address and social security number or numbers. The child support enforcement division 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
judgment or not.
(e) The child support enforcement division, 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, 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 child support enforcement division 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 child support enforcement division 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 human services, the child support enforcement
division may delay distribution of the amount withheld until
such time as the tax commissioner notifies the child support
enforcement division 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 child support enforcement division, if the child support
enforcement division 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 return.
(i) The commission shall, by legislative rule promulgated
pursuant to chapter twenty-nine-a, structure the time and
method by which all amounts received by the child support
enforcement division, as payments of past due support from
state income tax refunds, are distributed. In a case where an
obligee is an applicant for the services of the child support
enforcement division, but is not a current recipient of
assistance from the department of human services in the form of
aid to families with dependent children, such method of
distribution shall give priority to the obligee and the family
of the obligee by paying such amounts to the obligee first
rather than using them first to reimburse the department of
human services.
§48A-2-17. Obtaining support from unemployment compensation
benefits.
(a) The director 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 child support enforcement division. If an individual is receiving such compensation and
owes any such child support obligation which is not being met,
the child support enforcement division 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 child support enforcement
division 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 child support
enforcement division. The child support enforcement division
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 child support
enforcement division.
(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 insure maximum case selection and minimal
discretion in the selection process.
(d) The director 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 secretary 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
director 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) 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.
§48A-2-18. Statements of account.
Upon request, the child support enforcement division shall
provide annual statements of their account to each obligor and
obligee without charge. Additional statements of account shall
be provided at a fee of five dollars, unless such fee is waived
pursuant to a rule promulgated by the commission pursuant to
section five of this article. Statements provided under this
subsection are in addition to statements provided for judicial
hearings.
§48A-2-19. Providing information to consumer reporting
agencies.
(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 shall propose and adopt a procedural
rule in accordance with the provisions of sections four and
eight, article three, chapter twenty-nine of this code,
establishing procedures whereby information regarding the
amount of overdue support owed by an obligor residing in this
state will be made available by the child support enforcement
division to any consumer reporting agency, upon the request of
such consumer reporting agency.
(c) (1) When the amount of any overdue support is equal to
or less than the amount of arrearage which would cause the
mailing of a notice as provided for in subsection (b), section
three, article five of this chapter, information regarding such
amount may not be made available;
(2) When the amount of any overdue support exceeds the
amount of arrearage which would cause the mailing of a notice
as provided for in subsection (b), section three, article five
of this chapter, information regarding such amount shall be
made available.
(d) The procedural rule proposed and adopted shall provide
that any information with respect to an obligor shall be made
available only after notice has been sent to such obligor of
the proposed action, and such obligor has been given a
reasonable opportunity to contest the accuracy of such
information.
(e) The procedural rule proposed and adopted shall afford
the obligor with procedural due process prior to making
information available with respect to the obligor.
(f) The information made available to the requesting
consumer reporting agency regarding overdue support may be in
the same form as information submitted to the secretary of the
treasury of the United States in accordance with the provisions
of section fifteen of this article.
(g) The child support enforcement division may impose a
fee for furnishing such information, not to exceed the actual
cost thereof.
§48A-2-21. Establishment of central registry.
The child support enforcement division shall establish and
maintain a central registry of child support orders. All
orders in cases when any party receives any service provided by
the child support enforcement division shall be included in the
registry. Any other support order shall be included upon the
request of any party. The child support enforcement division,
upon receipt of any information regarding a new hire provided
pursuant to section three, article five of this chapter shall
compare information received to determine if the new hire's
income is subject to wage withholding and notify the employer
pursuant to that section.
§48A-2-22. Subpoenas.
In order to obtain financial and medical insurance
information pursuant to the establishment, enforcement and
modification provisions set forth in chapter forty-eight or
forty-eight-a of this code, the child support enforcement
division may serve, by certified mail or personal service, an
administrative subpoena on any person, corporation,
partnership, financial institution, labor union or state
agency, for an appearance or for production of financial or
medical insurance information. In case of disobedience to the subpoena, may invoke the aid of any circuit court in requiring
the child support enforcement division appearance or production
of records and financial documents.
§48A-2-24. Employment and income reporting.
(a) Except as provided in subsections (b) and (c) of this
section, all employers doing business in the state of West
Virginia shall report to the child support enforcement
division:
(1) The hiring of any person who resides or works in this
state to whom the employer anticipates paying earnings; and
(2) The rehiring or return to work of any employee who
resides or works in this state.
(b) Employers are not required to report the hiring,
rehiring or return to work of any person who:
(1) Is employed for less than one month's duration; or
(2) Is employed sporadically so that the employee will be
paid for less than three hundred fifty hours during a
continuous six-month period; or
(3) Has gross earnings of less than three hundred dollars
per month.
(c) The commission may establish additional exemptions to
reduce unnecessary or burdensome reporting through promulgation of a legislative rule pursuant to chapter twenty-nine-a of this
code.
(d) Employers shall report by mailing to the child support
enforcement division a copy of the employee's W-4 form.
However, an employer may transmit such information through
another means if approved in writing by the child support
enforcement division prior to the transmittal.
(e) Employers shall submit a report within seven days of
the date of the hiring, rehiring or return to work of the
employee. The report shall include the employee's name,
address, social security number and date of birth and the
employer's name and address, any different address of the
payroll office and the employer's federal tax identification
number.
(f) An employer of an obligor shall provide to the child
support enforcement division, upon its written request,
information regarding the obligor's employment, wages or
salary, medical insurance and location of employment.
(g) Any employer who fails to report in accordance with
the provisions of this section shall be guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not
less than five hundred dollars nor more than one thousand dollars.
(h) Employers required to report under this section may
assess each employee so reported one dollar for the
administrative costs of reporting.
§48A
-2-26. Investigations of support orders; notice and hearing
upon modifications; petition for change.
(a) Every three years after the entry of a final judgment
containing a child support order has been entered in a domestic
relations matter, the child support enforcement division shall,
examine the records and conduct any investigation considered
necessary to determine whether the child support amount should
be increased or decreased in view of a temporary or permanent
change in physical custody of the child which the court has not
ordered, increased need of the child or changed financial
conditions.
(b) Upon the written request by an obligee or obligor, the
child support enforcement division shall examine the record and
conduct any investigation considered necessary to determine
whether the child support amount should be increased or
decreased in view of a temporary or permanent change in
physical custody of the child which the court has not ordered,
increased need of the child or other financial conditions.
(c) Notwithstanding the requirements imposed by this
section, the child support enforcement division is not required
to review the matter when:
(1) The child is being supported, in whole or in part, by
assistance payments from the division of human services, the
child support enforcement division has determined that such a
review would not be in the best interests of the child and
neither parent has requested a review; or
(2) Neither parent has requested a review.
(d) The child support enforcement division shall notify
both parents of their right to request a review of a child
support order, and shall give each parent at least thirty days'
notice before commencing any review, and shall further notify
each parent, upon completion of a review, of the results of the
review, whether of a proposal to petition to seek modification
or of a proposal that there should be no change.
(e) When the result of the review is a proposal to
petition to seek modification, then each parent shall be given
thirty days' notice of the hearing on the petition, the notice
to be directed to the last known address of each party by first
class mail.
When the result of the review is a proposal that there be no change, then any parent disagreeing with that proposal may,
within thirty days of the notice of the results of the review,
file with the court a petition for modification setting forth
in full the grounds therefor.
(f) The child support enforcement division shall petition
the court for modification of the amount of a child support
order if modification is determined to be necessary under
subsection (a) of this section. A written report and
recommendation shall accompany the petition.
(g) As used in this section, "changed financial
conditions" means increases or decreases in the resources
available to either party from any source. Changed financial
conditions includes, but is not limited to, the application for
or receipt of any form of public assistance payments,
unemployment compensation and workers' compensation.
§48A-2-27. Adoption of form to identify payments.
The commission shall recommend to the secretary a form for
the purpose of identification of child support payments which
shall include, at a minimum, any amount of child support
obligation paid under an income withholding order, the name and
address of the payee, and the availability of health insurance.
The form may include other information needed to ensure the proper credit and distribution of such payments. The secretary
shall adopt any revised form no later than the first day of
July, one thousand nine hundred ninety-six, which shall include
all information listed herein. Following the adoption of such
form, the commission shall promulgate such legislative rules
pursuant to chapter twenty-nine-a as may be necessary to ensure
that all information provided on the form is correct. This
rule shall constitute an emergency rule within the meaning of
section fifteen, article three, chapter twenty-nine-a of this
code.
48A-2-28. Billing for fees and costs.
(a) When any filing, copying or other service is provided
to the child support enforcement division, the state or county
official or the clerk of any court providing such fee for a
charge, shall bill the child support enforcement division
monthly.
(b) When any filing, copying or other service is provided
to a person, agency or entity who is providing services for the
child support enforcement division pursuant to a cooperative
agreement, the state or county official or the clerk of any
court providing such fee for a charge, shall bill the entity,
agency, person or child support enforcement division monthly, in accord with the terms of the cooperative agreement. The
child support enforcement division shall provide the relevant
terms of such agreement to those officials upon implementation
of any agreement.
(c) A state or county official and the clerk of any court
who charges a deposit, library fee, filing fee for filing and
copying documents or their service, if the filing, copying or
services is for the child support enforcement division or for
a person, entity or agency providing services pursuant to a
cooperative agreement as described in section nine of this
article, shall bill the child support enforcement division
monthly or the person, entity or agency providing such services
monthly, in accord with the terms of any cooperative agreement.
ARTICLE 3. CHILDREN'S ADVOCATE.
§48A-3-11. Repeal of article.
All procedures and requirements established in the
previous enactment of sections one, two, three, seven and eight
of this article shall continue in effect until the promulgation
of an emergency rule by the commission regarding the duties of
child support enforcement division, their salary and their
location throughout the state. Upon promulgation of this rule
and the filing of such rule with the secretary of state in accord with section fifteen, article three, chapter twenty-
nine-a of this code, this article and any rule promulgated
pursuant to those sections of this article shall be repealed.
ARTICLE 4. PROCEEDING BEFORE A MASTER.
§48A-4-22. Budget of the family law master system.
The budget for the payment of the salaries and benefits of
the family law masters and clerical and secretarial assistants
shall be included in the appropriation for the supreme court of
appeals. The family law master administration fund is hereby
created and shall be a special account in the state treasury.
The fund shall operate as a special fund administered by the
state auditor which shall be appropriated by line item by the
Legislature for payment of administrative expenses of the
family law master system. All agencies or entities receiving
federal matching funds for the services of family law masters
and their staff, including, but not limited to, the director of
the child support enforcement division and the secretary of the
department of health and human resources, shall enter into an
agreement with the administrative office of the supreme court
of appeals whereby all federal matching funds paid to and
received by said agencies or entities for the activities by
family law masters and staff of the program shall be paid into the family law master administration fund. Said agreement
shall provide for advance payments into the fund by such
agencies, from available federal funds pursuant to Title IV-D
of the Social Security Act and in accordance with federal
regulations.
ARTICLE 5. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS
AND VISITATION.
§48A-5-1. Action to obtain an order for support of minor
child.
(a) An action may be brought in circuit court to obtain an
order for the support of a minor child when:
(1) Such child has a parent and child relationship with an
obligor;
(2) Such obligor is not the primary caretaker or guardian
of the child;
(3) The obligor is not meeting an obligation to support
the child;
(4) An enforceable order for the support of the child by
the obligor has not been entered by a court of competent
jurisdiction; and
(5) There is no pending action for divorce, separate
maintenance or annulment in which the obligation of support owing from the obligor to the child is at issue.
(b) An action may be brought under the provisions of
subsection (a) of this section by:
(1) A custodial parent of a child, when the divorce order
or other order which granted custody did not make provision for
the support of the child by the obligor;
(2) A primary caretaker of a child;
(3) A guardian of the property of a child or the committee
for a child; or
(4) The child support enforcement division, on behalf of
the state, when the department of health and human resources is
providing assistance on behalf of the child in the form of aid
to families with dependent children, and an assignment of any
right to support has been assigned to the department or any
other case wherein a party has applied for child support
enforcement services from the child support enforcement
division.
(c) An action under the provisions of this section may be
brought in the county where the obligee, the obligor or the
child resides.
(d) When an action for child support is brought under the
provisions of this section by an obligee against his or her spouse, such obligee may also seek spousal support from the
obligor, unless such support has been previously waived by
agreement or otherwise.
(e) Every order of support heretofore or hereafter
entered or modified under the provisions of this section shall
include a provision for the income withholding in accordance
with the provisions of section fifteen-a or fifteen-b, article
two, chapter forty-eight of this code.
(f) At any time after the entry of an order for support,
the court may, upon the verified petition of an obligee or the
obligor, revise or alter such order, and make a new order, as
the altered circumstances or needs of a child, an obligee, or
the obligor may render necessary to meet the ends of justice.
§48A-5-3. Withholding from income of amounts payable as
support.
(a) The withholding from an obligor's income of amounts
payable as spousal or child support shall be enforced by child
support enforcement division in accordance with the provisions
of sections fifteen-a or fifteen-b, article two, chapter
forty-eight of this code. Every support order heretofore or
hereafter entered by a circuit court or a magistrate of this
state and every support order entered by a court of competent jurisdiction of another state shall be considered to provide
for an order of income withholding in accordance with the
provisions of section fifteen-a or fifteen-b, article two,
chapter forty-eight of this code, notwithstanding the fact that
such support order does not in fact provide for such an order
of withholding.
(b) When immediate income withholding is not required due
to the findings required by subsection (c), article two,
section fifteen-b, article two, chapter forty-eight of this
code, the child support enforcement division shall mail a
notice to the obligor pursuant to this section when the support
payments required by the order are in arrears in an amount
equal to:
(1) One month's support, if the order requires support to
be paid in monthly installments;
(2) Four weeks' support, if the order requires support to
be paid in weekly or biweekly installments; or
(3) Two biweekly installments, if biweekly payments are
provided.
(c) When notice required by subsection (b) of this section
is appropriate, the child support enforcement division shall
determine the time for a meeting between the obligor and the child support enforcement division and the time for a hearing
before the family law master, and shall then set forth in such
notice the times and places at which the meeting and hearing
will be held if withholding is contested. The meeting and
hearing may be scheduled on the same date, but in no case shall
the meeting with the child support enforcement division be
scheduled less than fifteen days after the date the notice is
mailed nor shall the hearing before the master be scheduled
more than twenty-one days after the date the notice is mailed.
The child support enforcement division shall send such notice
by first class mail to the delinquent obligor. The notice
shall inform the delinquent obligor of the following:
(1) The amount owed;
(2) That it is proposed that there be withholding from the
obligor's income of amounts payable as support, and that if
withholding is uncontested, or is contested but determined
appropriate, the amount withheld will be equal to the amount
required under the terms of the current support order, plus
amounts for any outstanding arrearage;
(3) The definition of "income" as defined in section
three, article one of this chapter;
(4) That the withholding will apply to the obligor's present source of income and to any future source of income;
(5) That any action by the obligor to purposefully
minimize his or her income will result in the enforcement of
support being based upon potential and not just actual
earnings;
(6) That payment of the arrearage after the date of the
notice is not a bar to such withholding;
(7) That if the obligor fails to appear at the meeting,
withholding will automatically occur as described in the
notice;
(8) That a mistake of fact exists only when there is an
error in the amount of current or overdue support claimed in
the notice, or there is a mistake as to the identity of the
obligor;
(9) That matters such as lack of visitation,
inappropriateness of the support award, or changed financial
circumstances of the obligee or the obligor will not be
considered at any hearing held pursuant to the notice, but may
be raised by the filing of a separate petition;
(10) That if the obligor contests the withholding, in
writing, a meeting with the child support enforcement division
will be held at a time and place set forth in the notice, for the purpose of attempting to settle any issues which are
contested, and that a hearing before the family law master
cannot be held until after the meeting with the child support
enforcement division occurs;
(11) That if the meeting with the child support
enforcement division fails to resolve the issues being
contested, a hearing before the family law master shall be held
at a time and place set forth in the notice, and that following
such hearing, the master will make a recommended order to the
circuit court;
(12) That a master's recommended order as to withholding
will become effective when it is confirmed and entered by the
circuit court, and that if the obligor disagrees with the
master's recommended order, he or she will be given the
opportunity to make objections known to the circuit court; and
(13) That if, while the withholding is being contested, it
is determined that the obligor is in arrears in an amount equal
to or greater than one month's support obligation, but the
amount of the arrearage is disputed, then income withholding
for the current payment of support will be instituted, and may
not be stayed pending a final determination as to the amount of
arrearage due.
(d) Withholding shall occur when the support order
provides for immediate income withholding, or if immediate
income withholding is not so provided, and the withholding is
contested, then after entry of the master's recommended order
by the circuit court. When withholding is ordered or otherwise
required, the source of income shall withhold so much of the
obligor's income as is necessary to comply with the order
authorizing such withholding, up to the maximum amount
permitted under applicable law. Such withholding, unless
otherwise terminated under the provisions of this section,
shall apply to any subsequent source of income or any
subsequent period of time during which income is received by
the obligor.
(e) Notwithstanding any other provision of this code to
the contrary which provides for a limitation upon the amount
which may be withheld from earnings through legal process, the
amount of an obligor's aggregate disposable earnings for any
given workweek which may be withheld as support payments is to
be determined in accordance with the provisions of this
subsection, as follows:
(1) After ascertaining the status of the payment record of
the obligor under the terms of the support order, the payment record shall be examined to determine whether any arrearage is
due for amounts which should have been paid prior to a twelve-
week period which ends with the workweek for which withholding
is sought to be enforced.
(2) When none of the withholding is for amounts which came
due prior to such twelve-week period, then:
(A) When the obligor is supporting another spouse or
dependent child other than the spouse or child for whom the
proposed withholding is being sought, the amount withheld may
not exceed fifty percent of the obligor's disposable earnings
for that week; and
(B) When the obligor is not supporting another spouse or
dependent child as described in paragraph (A) of this
subdivision, the amount withheld may not exceed sixty percent
of the obligor's disposable earnings for that week.
(3) When a part of the withholding is for amounts which
came due prior to such twelve-week period, then:
(A) Where the obligor is supporting another spouse or
dependent child other than the spouse or child for whom the
proposed withholding is being sought, the amount withheld may
not exceed fifty-five percent of the obligor's disposable
earnings for that week; and
(B) Where the obligor is not supporting another spouse or
dependent child as described in paragraph (A) of this
subdivision, the amount withheld may not exceed sixty-five
percent of the obligor's disposable earnings for that week.
(4) In addition to the percentage limitations set forth in
subdivisions (2) and (3) of this subsection, it shall be a
further limitation that when current payments plus arrearages
are being withheld from salaries or wages in no case shall the
total amounts withheld for current payments plus arrearage
exceed the amounts withheld for current payments by an amount
greater than ten percent of the obligor's disposable income.
(5) The provisions of this subsection shall apply directly
to the withholding of disposable earnings of an obligor
regardless of whether the obligor is paid on a weekly,
biweekly, monthly or other basis.
(6) When an obligor acts so as to purposefully minimize
his or her income and to thereby circumvent the provisions of
this section which provide for withholding from income of
amounts payable as support, the amount to be withheld as
support payments may be based upon the obligor's potential
earnings rather than his or her actual earnings, and such
obligor may not rely upon the percentage limitations set forth in this subsection which limit the amount to be withheld from
disposable earnings.
(f) The source of income of any obligor who is subject to
withholding, upon being given notice of withholding, shall
withhold from such obligor's income the amount specified by the
notice and pay such amount to the child support enforcement
division for distribution. The notice given to the source of
income shall contain only such information as may be necessary
for the source of income to comply with the withholding order.
Such notice to the source of income shall include, at a
minimum, the following:
(1) The amount to be withheld from the obligor's
disposable earnings, and a statement that the amount to be
withheld for support and other purposes, including the fee
specified under subdivision (3) of this subsection, may not be
in excess of the maximum amounts permitted under Section 303(b)
of the federal consumer credit protection act or limitations
imposed under the provisions of this code;
(2) That the source of income shall send the amount to be
withheld from the obligor's income along with such identifying
information as may be required by the child support enforcement
division to the child support enforcement division the same day that the obligor is paid;
(3) That, in addition to the amount withheld under the
provisions of subdivision (1) of this subsection, the source of
income may deduct a fee, not to exceed one dollar, for
administrative costs incurred by the source of income, for each
withholding;
(4) That withholding is binding on the source of income
until further notice by the child support enforcement
division;
(5) That the source of income is subject to a fine for
discharging an obligor from employment, refusing to employ, or
taking disciplinary action against any obligor because of the
withholding;
(6) That when the source of income fails to withhold
income in accordance with the provisions of the notice, the
source of income is liable for the accumulated amount the
source of income should have withheld from the obligor's
income;
(7) That the withholding under the provisions of this
section shall have priority over any other legal process under
the laws of this state against the same income, and shall be
effective despite any exemption that might otherwise be applicable to the same income;
(8) That when an employer has more than one employee who
is an obligor who is subject to wage withholding from income
under the provisions of this code, the employer may combine all
withheld payment to the child support enforcement division when
the employer properly identifies each payment with the
information listed in this section. A source of income is
liable to an obligee, including the state of West Virginia or
the department of health and human resources where appropriate,
for any amount which the source of income fails to identify
with the information required by this section and is therefore
not received by the obligee;
(9) That the source of income shall implement withholding
no later than the first pay period or first date for payment of
income that occurs after fourteen days following the date the
notice to the source of income was mailed; and
(10) That the source of income shall notify the child
support enforcement division promptly when the obligor
terminates his or her employment or otherwise ceases receiving
income from the source of income, and shall provide the
obligor's last known address and the name and address of the
obligor's new source of income, if known.
(g) The commission shall, by administrative rule,
establish procedures for promptly refunding to obligors amounts
which have been improperly withheld under the provisions of
this section.
(h) After implementation in accordance with the provisions
of subsection (k) of this section, a source of income shall
send the amount to be withheld from the obligor's income to the
child support enforcement division and shall notify the child
support enforcement division of the date of withholding, the
same date that the obligor is paid.
(i) In addition to any amounts payable as support withheld
from the obligor's income, the source of income may deduct a
fee, not to exceed one dollar, for administrative costs
incurred by the source of income, for each withholding.
(j) Withholding of amounts payable as support under the
provisions of this section is binding on the source of income
until further notice by the child support enforcement
division.
(k) Every source of income who receives a notice of
withholding under the provisions of this section shall
implement withholding no later than the first pay period or
first date for the payment of income which occurs after fourteen days following the date the notice to the source of
income was mailed.
(l) A source of income who employs or otherwise pays
income to an obligor who is subject to withholding under the
provisions of this section shall notify the child support
enforcement division promptly when the obligor terminates
employment or otherwise ceases receiving income from the source
of income, and shall provide the office with the obligor's
last known address and the name and address of the obligor's
new source of income, if known.
(m) When an employer has more than one employee who is an
obligor who is subject to wage withholding from income under
the provisions of this code, the employer may combine all
withheld payment to the child support enforcement division when
the employer properly identifies each payment with the
information listed in this section. A source of income is
liable to an obligee, including the state of West Virginia or
the department of health and human resources where appropriate,
for any amount which the source of income fails to identify in
accordance with this section and is therefore not received by
the obligee.
(n) A source of income is liable to an obligee, including the state of West Virginia or the department of health and
human resources where appropriate, for any amount which the
source of income fails to withhold from income due an obligor
following receipt by such source of income of proper notice
under subsection (f) of this section: Provided, That a source
of income shall not be required to vary the normal pay and
disbursement cycles in order to comply with the provisions of
this section.
(o) Any source of income who knowingly and willfully
conceals the fact that the source of income is paying income to
an obligor, with the intent to avoid withholding from the
obligor's income of amounts payable as support, is guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not
more than one hundred dollars.
(p) When the child support enforcement division makes a
written request to a source of income to provide information as
to whether the source of income has paid income to a specific
obligor, within the preceding sixty-day period, the source of
income shall, within fourteen days thereafter, respond to such
request, itemizing all such income, if any, paid to the obligor
during such sixty-day period. A source of income shall not be
liable, civilly or criminally, for providing such information in good faith.
(q) Support collection under the provisions of this
section shall have priority over any other legal process under
the laws of this state against the same income, and shall be
effective despite any exemption that might otherwise be
applicable to the same income.
(r) Any source of income who discharges from employment,
refuses to employ, or takes disciplinary action against any
obligor subject to income withholding required by this section
because of the existence of such withholding and the
obligations or additional obligations which it imposes on the
source of income, shall be guilty of a misdemeanor, and, upon
conviction thereof, shall be fined not less than five hundred
dollars nor more than one thousand dollars.
§48A-5-8. Procedures before the child support enforcement
division.
(a) In any case arising under the provisions of this
article wherein a notice is served upon a person requiring him
or her to notify the child support enforcement division if the
person is contesting action proposed to be taken against him:
(1) If the person so notified does not submit written
reasons for contesting the action within the time set to contest the proposed action, and does not request a meeting
with the child support enforcement division, then the child
support enforcement division shall proceed with the proposed
action; or
(2) If the person so notified does submit written reasons
for contesting the action within the time set to contest the
proposed action, and requests a meeting with the child support
enforcement division, then the child support enforcement
division shall schedule a meeting at the earliest practicable
time with the person and attempt to resolve the matter
informally.
(b) If the matter cannot be resolved informally, the child
support enforcement division shall make a determination as to
whether the proposed action is proper and should actually
occur.
(c) The determination of the child support enforcement
division shall be made within forty-five days from the date of
the notice which first apprised the person of the proposed
action. Upon making the determination, the child support
enforcement division shall inform the parties as to whether or
not the proposed action will occur, and, if it is to occur, of
the date on which it is to begin, and in the case of withholding from income, shall furnish the obligor with the
information contained in any notice given to an employer under
the provisions of subsection (h), section three of this article
with respect to such withholding.
ARTICLE 6. ESTABLISHMENT OF PATERNITY.
§48A-6-1. Paternity proceedings.
(a) A civil action to establish the paternity of a child
and to obtain an order of support for the child may be
instituted, by verified complaint, in the circuit court of the
county where the child resides: Provided, That if such venue
creates a hardship for the parties, or either of them, or if
judicial economy requires, the court may transfer the action to
the county where either of the parties resides.
(b) A "paternity proceeding" is a summary proceeding,
equitable in nature and within the domestic relations
jurisdiction of the courts, wherein a circuit court upon the
petition of the state or another proper party may intervene to
determine and protect the respective personal rights of a child
for whom paternity has not been lawfully established, of the
mother of such child and of the putative father of such child.
(c) The sufficiency of the statement of the material
allegations in the complaint set forth as grounds for relief and the grant or denial of the relief prayed for in a
particular case shall rest in the sound discretion of the
court, to be exercised by the court according to the
circumstances and exigencies of the case, having due regard for
precedent and the provisions of the statutory law of this
state.
(d) A decree or order made and entered by a court in a
paternity proceeding shall include a determination of the
filial relationship, if any, which exists between a child and
his or her putative father, and, if such relationship is
established, shall resolve dependent claims arising from family
rights and obligations attendant to such filial relationship.
(e) A paternity proceeding may be brought by any of the
following persons:
(1) An unmarried woman with physical or legal custody of
a child to whom she gave birth;
(2) A married woman with physical or legal custody of a
child to whom she gave birth, if the complaint alleges that:
(A) Such married woman lived separate and apart from her
husband preceding the birth of the child;
(B) Such married woman did not cohabit with her husband at
any time during such separation and that such separation has continued without interruption; and
(C) The defendant, rather than her husband, is the father
of the child;
(3) The state of West Virginia, including the child
support enforcement division defined in article two of this
chapter;
(4) Any person who is not the mother of the child, but who
has physical or legal custody of such child;
(5) The guardian or committee of such child;
(6) The next friend of such child when the child is a
minor;
(7) By such child in his own right at any time after the
child's eighteenth birthday but prior to the child's twenty-
first birthday; or
(8) A man purporting to be the father of a child born out
of wedlock, when there has been no prior judicial determination
of paternity.
(f) Blood or tissue samples taken pursuant to the
provisions of this article may be ordered to be taken in such
locations as may be convenient for the parties so long as the
integrity of the chain of custody of such samples can be
preserved.
(g) A person who has sexual intercourse in this state
submits to the jurisdiction of the courts of this state for a
proceeding brought under this article with respect to a child
who was conceived by that act of intercourse. Service of
process may be perfected according to the rules of civil
procedure.
(h) When the person against whom the proceeding is brought
has failed to plead or otherwise defend the action after proper
service has been obtained, judgment by default shall be issued
by the court as provided by the rules of civil procedure.
§48A-6-3. Medical testing procedures to aid in the
determination of paternity.
(a) The court may, on its own motion, or shall upon the
motion of any party, order the mother, her child and the man to
submit to blood tests or tissue tests to aid the court in
proving or disproving paternity. Such motion may be made, upon
ten days' written notice to the mother and alleged father,
without the necessity of filing a complaint. When such tests
are ordered, the court shall direct that the inherited
characteristics, including, but not limited to, blood types be
determined by appropriate testing procedures at a hospital,
independent medical institution or independent medical laboratory duly licensed under the laws of this state, or any
other state, and shall appoint an expert qualified as an
examiner of genetic markers to analyze and interpret the
results and to report to the court. The court shall consider
the results as follows:
(1) Blood or tissue test results which exclude the man as
the father of the child are admissible and shall be clear and
convincing evidence of nonpaternity and the court shall, upon
considering such evidence, dismiss the action.
(2) Blood or tissue test results which show a statistical
probability of paternity of less than ninety-eight percent are
admissible and shall be weighed along with other evidence of
the defendant's paternity.
(3) Undisputed blood or tissue test results which show a
statistical probability of paternity of more than ninety-eight
percent shall, when filed with the court, legally establish the
man as the father of the child for all purposes and child
support may be established pursuant to the provisions of this
chapter.
(4) When the defendant desires to challenge the results of
the blood or tissue tests or the expert's analysis of inherited
characteristics, he shall file a written protest with the family law master or circuit court within thirty days of the
filing of such test results and serve a copy of such protest
upon the other party. The family lawmaster shall, consider any
protest filed in rendering a decision in such matter, only
when the protest is filed at least ten days prior to any
hearing involving the test results. The court, upon reasonable
request of a party, shall order that additional tests be made
by the same laboratory or another laboratory within thirty days
of the entry of such order, at the expense of the party
requesting additional testing. When the results of the blood
or tissue tests or the expert's analysis which show a
statistical probability of paternity of more than ninety-eight
percent are confirmed by the additional testing, then such
results are admissible evidence which is clear and convincing
evidence of paternity. The admission of such evidence creates
a presumption that the defendant is the father.
(b) Documentation of the chain of custody of the blood or
tissue specimens is competent evidence to establish such chain
of custody. A verified expert's report shall be admitted at
trial unless a challenge to the testing procedures or a
challenge to the results of test analysis has been made before
trial. The costs and expenses of making such tests shall be paid by the parties in proportions and at times determined by
the court.
(c) When a blood test is ordered pursuant to this
section, the moving party shall initially bear all costs
associated with the blood test unless that party is determined
by the court to be financially unable to pay those costs. This
determination shall be made following the filing of an
affidavit pursuant to section one, article two, chapter fifty-
nine of this code. When the court finds that the moving party
is unable to bear that cost, the cost shall be borne by the
state of West Virginia. Following the finding that a person is
the father based on the results of a bloodtest ordered pursuant
to this section, the court shall order that the father be
ordered to reimburse the moving party for the costs of the
blood tests unless the court determines, based upon the factors
set forth in this section, that the father is financially
unable to pay those costs.
§48A-6-4. Establishment of paternity and duty of support.
When the defendant, by verified responsive pleading,
admits that the man is the father of the child and owes a duty
of support, or if after a trial on the merits, the court shall
find, by clear and convincing evidence that the man is the father of the child, the court shall order support in
accordance with the provisions of this chapter.
The court shall give full faith and credit to a
determination of paternity made by any other state, based on
the laws of that state, whether established through voluntary
acknowledgement or through administrative or judicial process.
§48A-6-5. Representation of parties.
Notwithstanding any provision to the contrary, no parent
in any proceeding brought pursuant to this article may be
appointed counsel according to section two, article twenty-one,
chapter twenty-nine of this code or otherwise receive legal
services provided solely by the state in such action. The
child support enforcement division providing representation to
the state of West Virginia in any action shall solely represent
the state of West Virginia and does not provide any
representation to any party.
§48A-6-6. Establishing paternity by acknowledgment of natural
father.
(a) A written, notarized, acknowledgment by both the man
and woman that the man is the father of the named child legally
establishes the man as the father of the child for all purposes
and child support may be established under the provisions of this chapter. A cosigner who is the parent or legal guardian
of any child under the age of eighteen shall sign any
acknowledgement signed by that child. The acknowledgement of
paternity is irrevocable from the time of execution, unless a
court of competent jurisdiction finds that such acknowledgement
was obtained by fraud or duress.
(b) The written acknowledgement should include:
(1) Filing instructions;
(2) The parents' social security numbers and addresses;
and
(3) A statement regarding the rights and obligations of
acknowledging paternity, including but not limited to the duty
to support a child.
(c) The original written acknowledgement should be filed
with the state registrar of vital statistics. Upon receipt of
any acknowledgement executed pursuant to this section, the
registrar shall forward the copy of the acknowledgement to the
child support enforcement division.
ARTICLE 7. REVISED UNIFORM RECIPROCAL ENFORCEMENT OF SUPPORT
ACT.
§48A-7-12. Child support enforcement division to represent the
state.
When this state is acting as an initiating state, any
attorney employed by the child support enforcement division or
agency or entity pursuant to a cooperative agreement with the
division as detailed in section nine, article two of this
chapter, represents the interest of the state and not the
interest of any other party. The provision of services by an
attorney under this chapter does not create an attorney-client
relationship between the attorney and any other party. The
child support enforcement division shall, at the time an
application for child support services is made, inform the
applicant that any attorney who provides services for the child
support enforcement division is the attorney for the state of
West Virginia and that the attorney providing those services
does not provide legal representation to the applicant.
§48A-7-36. Children's advocate to represent state.
When this state is acting either as a rendering or a
registering state, any attorney employed by the child support
enforcement division or agency or entity pursuant to a
cooperative agreement with the division as detailed in section
nine of article two of this chapter, represents the interest of
the state and not the interest of any other party. The
provision of services by an attorney under this chapter does not create an attorney-client relationship between the attorney
and any other party.
CHAPTER 59. FEES, ALLOWANCES AND COSTS; NEWSPAPERS;
LEGAL ADVERTISEMENTS.
ARTICLE 2. COSTS GENERALLY.
§59-2-1. Suits by persons financially unable to pay.
(a) A natural person who is financially unable to pay the
fees or costs attendant to the commencement, prosecution or
defense of any civil action or proceeding, or an appeal
therein, is permitted to proceed without prepayment in any
court of this state, after filing with the court an affidavit
that he or she is financially unable to pay the fees or costs
or give security therefor.
(1) The clerk of the court and all other officers of the
court shall issue and serve all process and perform all duties
in such cases.
(2) Judgment may be rendered for costs at the conclusion
of the action, where otherwise authorized by law, and be
taxable against a losing party who has not been determined to
be financially unable to pay.
(3) Upon the filing of an affidavit in accordance with
this subsection, seeking an appeal in a civil case from a circuit court to the supreme court of appeals, the supreme
court of appeals may direct payment by the administrative
office of the supreme court of appeals of the expenses of
duplicating the record on appeal after it is transmitted by the
clerk of the circuit court. The transcript of proceedings
before the circuit court, if the petition for appeal is to be
filed with the transcript, shall be provided by the court
reporter without cost: Provided, That actual expenses of the
court reporter for supplies used in preparing the transcript
may be paid when authorized by the director of the
administrative office of the supreme court of appeals.
(b) The supreme court of appeals or the chief justice
thereof shall establish and periodically review and update
financial guidelines for determining the eligibility of civil
litigants to proceed in forma pauperis.
(c) The supreme court of appeals shall adopt a financial
affidavit form for use by persons seeking a waiver of fees,
costs or security pursuant to the provisions of this section.
Copies of the form shall be available to the public in the
offices of the clerk of any court of this state. The affidavit
shall state the nature of the action, defense or appeal and the
affiant's belief that he or she is entitled to redress. The form shall elicit information from the affiant which will
enable the court in which it is filed to consider the following
factors in determining whether the affiant is financially
unable to pay fees, costs or security:
(1) Current income prospects, taking into account seasonal
variations in income;
(2) Liquid assets, assets which may provide collateral to
obtain funds and other assets which may be liquidated to
provide funds to pay fees, costs or security;
(3) Fixed debts and obligations, including federal, state
and local taxes and medical expenses;
(4) Child care, transportation and other expenses
necessary for employment;
(5) Age or physical infirmity of resident family members;
(6) Whether the person has paid or will pay counsel fees,
or whether counsel will be provided by a private attorney on a
contingent fee basis, an attorney pro bono, a legal services
attorney, or some other attorney at no cost or a reduced cost
to the affiant; and
(7) The consequences for the individual if a waiver of
fees, costs or security is denied.
(d) When the information set forth in the affidavit or the evidence submitted in the action reveals that the person filing
the affidavit is financially able to pay the fees and costs,
the court or the family law master may order the person to pay
the fees and costs in the action.
(e) No other party in any proceeding may initiate an
inquiry by motion or other pleading or participate in any
proceeding relevant to the issues raised pursuant to this
section.
(f) The making of an affidavit subject to inquiry under
this section does not in any event give rise to criminal
remedies against the affiant nor occasion any civil action
against the affiant except for the recovery of costs as in any
other case where costs may be recovered and the recovery of the
value of services, if any, provided pursuant to this section.
A person who has made an affidavit knowing the contents thereof
to be false may be prosecuted for false swearing as provided by
law.