H. B. 2831
(By Delegate Webb)
[Introduced March 28, 1997; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section thirty-six, article two,
chapter forty-eight-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to amend
and reenact section three, article three of said chapter,
all relating to child support enforcement; and requiring
services to be available to the noncustodial parent.
Be it enacted by the Legislature of West Virginia:
That section thirty-six, article two, chapter forty-eight-a
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; and that
section three, article three of said chapter be amended and
reenacted, all to read as follows:
ARTICLE 2. WEST VIRGINIA SUPPORT ENFORCEMENT COMMISSION; CHILD
SUPPORT ENFORCEMENT DIVISION; ESTABLISHMENT AND ORGANIZATION.
§48A-2-35. 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.
(h) The noncustodial parent shall be given equal access to the
legal services provided by the child support enforcement division
as are provided to the custodial parent.
ARTICLE 3. CHILDREN'S ADVOCATE.
§48A-3-3. Duties of the children's advocate.
Subject to the control and supervision of the director:
(a) The children's advocate shall supervise and direct the
secretarial, clerical and other employees in his or her office in
the performance of their duties as such the performance affects
the delivery of legal services. The children's advocate will
provide appropriate instruction and supervision to employees of
his or her office who are nonlawyers, concerning matters of legal
ethics and matters of law, in accordance with applicable state
and federal statutes, rules and regulations.
(b) In accordance with the requirements of rule 5.4(c) of the rules of professional conduct as promulgated and adopted by the
supreme court of appeals, the children's advocate shall may not
permit a nonlawyer who is employed by the department of health
and human resources in a supervisory position over the children's
advocate to direct or regulate the advocate's professional
judgment in rendering legal services to recipients of services in
accordance with the provisions of this chapter; nor shall any
nonlawyer employee of the department attempt to direct or
regulate the advocate's professional judgment.
(c) The children's advocate shall make available to the public
an informational pamphlet, designed in consultation with the
director. The informational pamphlet shall explain the
procedures of the court and the children's advocate; the duties
of the children's advocate; the rights and responsibilities of
the parties; and the availability of human services in the
community. The informational pamphlet shall be provided as soon
as possible after the filing of a complaint or other initiating
pleading. Upon request, a party to a domestic relations
proceeding shall receive an oral explanation of the informational
pamphlet from the office of the children's advocate.
(d) The children's advocate shall act to establish the
paternity of every child born out of wedlock for whom paternity
has not been established, when such the child's primary caretaker is an applicant for or recipient of aid to families with
dependent children, and when such the primary caretaker has
assigned to the division of human services any rights to support
for the child which might be forthcoming from the putative
father: Provided, That if the children's advocate is informed by
the secretary of the department of health and human resources or
his or her authorized employee that it has been determined that
it is against the best interest of the child to establish
paternity, the children's advocate shall decline to so act. The
children's advocate, upon the request of any primary caretaker of
a child born out of wedlock, regardless of whether such the
primary caretaker is an applicant or recipient of aid to families
with dependent children, shall undertake to establish the
paternity of such the child.
(e) The children's advocate shall undertake to secure support
for any individual who is receiving aid to families with
dependent children when such the individual has assigned to the
division of human services any rights to support from any other
person such the individual may have: Provided, That if the
children's advocate is informed by the secretary of the
department of health and human resources or his or her authorized
employee that it has been determined that it is against the best
interests of a child to secure support on the child's behalf, the children's advocate shall decline to so act. The children's
advocate, upon the request of any individual, regardless of
whether such the individual is an applicant or recipient of aid
to families with dependent children, shall undertake to secure
support for the individual. If circumstances require, the
children's advocate shall utilize the provisions of article seven
of this chapter and any other reciprocal arrangements which may
be adopted with other states for the establishment and
enforcement of support obligations, and if such the arrangements
and other means have proven ineffective, the children's advocate
may utilize the federal courts to obtain and enforce court orders
for support.
(f) The children's advocate shall pursue the enforcement of
support orders through the withholding from income of amounts
payable as support:
(1) Without the necessity of an application from the obligee
in the case of a support obligation owed to an obligee to whom
services are already being provided under the provisions of this
chapter; and
(2) On the basis of an application for services in the case of
any other support obligation arising from a support order entered
by a court of competent jurisdiction.
(g) The children's advocate may decline to commence an action to obtain an order of support under the provisions of section
one, article five of this chapter if an action for divorce,
annulment or separate maintenance is pending, or the filing of
such the action is imminent, and such the action will determine
the issue of support for the child: Provided, That such the
action shall be deemed considered to be imminent if it is
proposed by the obligee to be commenced within the twenty-eight
days next following a decision by the children's advocate that an
action should properly be brought to obtain an order for support.
(h) If the child advocate office, through the children's
advocate, shall undertake paternity determination services, child
support collection or support collection services for a spouse or
former spouse upon the written request of an individual who is
not an applicant or recipient of assistance from the division of
human services, the office may impose an application fee for
furnishing such the services. Such The application fee shall be
in a reasonable amount, not to exceed twenty-five dollars, as
determined by the director: Provided, That the director may fix
such the amount at a higher or lower rate which is uniform for
this state and all other states if the secretary of the federal
department of health and human services determines that a uniform
rate is appropriate for any fiscal year to reflect increases or
decreases in administrative costs. Any cost in excess of the application fee so imposed may be collected from the obligor who
owes the child or spousal support obligation involved.
(i) The noncustodial parent shall be given equal access to the
legal services provided by the child support enforcement division
as are provided to the custodial parent. To this end, the
children's advocate shall prepare forms and make them available
to both the custodial and noncustodial parents for use before
the family law master. The forms should enable the noncustodial
parent to petition the family law master or circuit court for
modification of orders.
NOTE: The purpose of this bill is to require the Child
Advocate Office to provide legal services to the noncustodial
parent to the same degree legal services are rendered to the
custodial parent.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that
would be added.