ENGROSSED
Senate Bill No. 639
(By Senators Kessler, Mitchell, Oliverio, Redd, Deem, Wooton,
Ball, Dawson, Dittmar, Fanning, Hunter, McCabe, Minard, Ross and
McKenzie)
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[Originating in the Committee on the Judiciary;
reported February 21, 2000.]
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A BILL to repeal sections seventeen, article two, chapter forty-
eight of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact section four,
article three, chapter nine of said code; to amend and reenact
section twelve, article five, chapter sixteen of said code; to
amend and reenact sections fifteen-a and fifteen-b, article
two, chapter forty-eight of said code; to amend and reenact
section six, article two-a of said chapter; to amend and
reenact section three, article one, chapter forty-eight-a of
said code; to amend and reenact section thirty-three, article
one-a of said chapter; to amend and reenact section eleven,
article one-b of said chapter; to amend and reenact sections twenty-four, twenty-four-a, twenty-eight, thirty-three-a and
forty-one, article two of said chapter; to amend and reenact
section three, article three of said chapter; to amend and
reenact sections two and three, article five of said chapter;
to further amend said article by adding thereto a new section,
designated section ten; to amend and reenact section four,
article five-a of said chapter; and to amend and reenact
sections one, three, four and six, article six of said
chapter, all relating to the establishment and enforcement of
support obligations generally; providing for the assignment of
support and maintenance to the department of health and human
resources; providing for the registration of births and
acknowledgment of paternity; establishing procedure for
rescission of acknowledgment of paternity; authorizing income
withholding for purposes of medical support enforcement;
establishing liens against personal and real property for
child support arrearages pursuant to a protective order;
authorizing payment plan for interest on child support
arrearages in certain instances; defining "arrearages" and
"past due support"; authorizing income withholding for
overpayment of child support and establishing limitations
thereon; providing for the disbursement of support; permitting redirection of support upon custodial parent's certificate;
providing for the distribution of state income tax
interceptions; requiring payment to financial institutions for
data matching services; precluding need for court order for
release of certain information to the division; authorizing
division to provide additional services for purposes of
establishing paternity; making certain technical revisions;
authorizing judgment liens against property owned by
nonresidents; authorizing the division to institute income
withholding without necessity of additional legal proceedings;
reducing percentages of disposable income which may be
withheld from obligors; establishing effective date;
establishing administrative enforcement of child support;
clarifying terminology for purposes of paternity
establishment; establishing right of father to request blood
test; limiting reimbursement support under certain conditions;
and clarifying procedure for challenging a voluntary paternity
acknowledgment.
Be it enacted by the Legislature of West Virginia:
That section seventeen, article two, chapter forty-eight of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed; that section four, article three, chapter nine of said code be amended and reenacted; that section twelve,
article five, chapter sixteen of said code 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 six, article two-a of said chapter be amended and
reenacted; that section three, article one, chapter forty-eight-a
of said code be amended and reenacted; that section thirty-three,
article one-a of said chapter be amended and reenacted; that
section eleven, article one-b of said chapter be amended and
reenacted; that sections twenty-four, twenty-four-a, twenty-eight,
thirty-three-a and forty-one, article two of said chapter be
amended and reenacted; that section three, article three of said
chapter be amended and reenacted; that sections two and three,
article five of said chapter be amended and reenacted; that said
article be further amended by adding thereto a new section,
designated section ten; that section four, article five-a of said
chapter be amended and reenacted; and that sections one, three,
four and six, article six of said chapter be amended and reenacted,
all to read as follows:
CHAPTER 9. HUMAN SERVICES.
ARTICLE 3. APPLICATION FOR AND GRANTING OF ASSISTANCE.
§9-3-4. Assignment of support obligations.
Any recipient of financial assistance under the program of
state and federal assistance established by Title IV of the federal
Social Security Act of 1965, as amended, or any successor act
thereto, shall, upon receipt of as a condition of receiving such
assistance, assign to the department of health and human resources
be deemed to have assigned to the West Virginia department of
welfare all rights, title and interest such recipient the family
member may have (on behalf of the family member or of any other
person for whom the family member has applied for or is receiving
such assistance) to the receipt of support and maintenance moneys
from any other person, responsible for the support and maintenance
of any member of the benefit group. not exceeding the total amount
of assistance provided to the family, which accrue (or have
accrued) before the date the family ceases to receive assistance
under the program. The assignment, on and after the date the
family ceases to receive assistance under the program, does not
apply with respect to any support (other than support collected
pursuant to 42 U.S.C. §664) which accrued before the family
received such assistance and which the state has not collected by
the date the family ceases to receive assistance under the program.
Persons responsible for support and maintenance shall include
all persons who under the laws of the state of West Virginia owe obligations of support or maintenance to a child or to the
caretaker of a child. The assignment contemplated herein shall
include all amounts of support and maintenance which shall be
accrued to the recipient of assistance and was not received prior
to the recipient's receipt of assistance, and all amounts of
support and maintenance which shall accrue during recipient's
receipt of eligibility assistance: Provided, That subject to
applicable federal and state laws, the department of welfare shall
be entitled to retain only so much of the support and maintenance
as is necessary to reimburse the public assistance actually paid.
the assignment may not exceed the total amount of assistance
provided to the family.
Each applicant for assistance subject to the assignment
established herein shall (during the application process) be
informed in writing of the nature of the assignment.
Any payment of federal and state assistance made to or for the
benefit of any child or children or the caretaker of a child or
children creates a debt due and owing to the department of welfare
health and human resources by the person or persons who are
responsible for the support and maintenance of such child, children
or caretaker in an amount equal to the amount of assistance money paid: Provided however, That the debt shall be limited by the
amount established in any court order or final decree of divorce if
the amount in such order or decree is less than the amount of
assistance paid.
The assignment hereunder shall subrogate the department of
welfare health and human resources to the rights of the child,
children or caretaker to the prosecution or maintenance of any
action or procedure existing under law providing a remedy whereby
the department of welfare health and human resources may be
reimbursed for moneys expended on behalf of the child, children or
caretaker. The department of welfare health and human resources
shall further be subrogated to the debt created by any order or
decree awarding support and maintenance to or for the benefit of
any child, children or caretaker included within the assignment
hereunder and shall be empowered to receive such money judgments
and endorse any check, draft, note or other negotiable document in
payment thereof.
The debt created under this section shall not be incurred by
nor at any time be collected from a responsible person who is a
recipient of federal and state assistance moneys for the benefit of
any child for the period such person or persons remain in such
state.
The assignment created hereunder shall be released upon
closure of the assistance case and the termination of assistance
payments except for such support and maintenance obligations
accrued and owing at the time of closure which shall be necessary
to reimburse the department for any balance of assistance payments
made.
The department of welfare health and human resources may, at
the election of the recipient, continue to receive support and
maintenance moneys on behalf of the recipient following closure of
the assistance case and shall distribute such moneys to the
caretaker, child or children. The department of welfare health and
human resources shall notify in writing all appropriate persons of
the terms of the release of assignment hereunder.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 5. VITAL STATISTICS.
§16-5-12. Birth registration generally; acknowledgment of
paternity.
(a) A certificate of birth for each live birth which occurs in
this state shall be filed with the local registrar of the district
in which the birth occurs within seven days after such birth and
shall be registered by such registrar if it has been completed and
filed in accordance with this section. When a birth occurs in a moving conveyance, a birth certificate shall be filed in the
district in which the child is first removed from the conveyance.
When a birth occurs in a district other than where the mother
resides, a birth certificate shall be filed in the district in
which the child is born and in the district in which the mother
resides.
(b) When a birth occurs in an institution, the person in
charge of the institution or his designated representative shall
obtain the personal data, prepare the certificate, secure the
signatures required for the certificate and file it with the local
registrar. The physician in attendance shall certify to the facts
of birth and provide the medical information required for the
certificate within five days after the birth.
(c) When a birth occurs outside an institution, the
certificate shall be prepared and filed by one of the following in
the indicated order of priority:
(1) The physician in attendance at or immediately after the
birth, or in the absence of such a person;
(2) Any other person in attendance at or immediately after the
birth, or in the absence of such a person; or
(3) The father, the mother, or, in the absence of the father
and the inability of the mother, the person in charge of the premises where the birth occurred.
(d) Either of the parents of the child shall sign the
certificate of live birth to attest to the accuracy of the personal
data entered thereon, in time to permit its filing within the seven
days prescribed above.
(e) In order that each county may have a complete record of
the births occurring in said county, the local registrar shall
transmit each month to the county clerk of his or her county the
copies of the certificates of all births occurring in said county,
from which copies the clerk shall compile a record of such births
and shall enter the same in a systematic and orderly way in a well-
bound register of births, which said register shall be a public
record: Provided, That such copies and register shall not state
that any child was either legitimate or illegitimate. The form of
said register of births shall be prescribed by the state registrar
of vital statistics.
(f) On and after the first day of November, one thousand nine
hundred ninety, in addition to the personal data furnished for the
certificate of birth issued for a live birth in accordance with the
provisions of this section, a person whose name is to appear on
such certificate of birth as a parent shall contemporaneously
furnish to the person preparing and filing the certificate of birth the social security account number (or numbers, if the parent has
more than one such number) issued to the parent. A record of the
social security number or numbers shall be filed with the local
registrar of the district in which the birth occurs within seven
days after such birth, and the local registrar shall transmit such
number or numbers to the state registrar of vital statistics in the
same manner as other personal data is transmitted to the state
registrar.
(d)(g) If the mother was married either at the time of
conception or birth, the name of the husband shall be entered on
the certificate as the father of the child unless paternity has
been determined otherwise by a court of competent jurisdiction
pursuant to the provisions of article six, chapter forty-eight-a of
this code, in which case the name of the father as determined by
the court shall be entered.
(e)(h) If the mother was not married either at the time of
conception or birth, the name of the father shall not be entered on
the certificate of birth without the written consent of the mother
and of the person to be named as the father unless a determination
of paternity has been made by a court of competent jurisdiction
pursuant to the provisions of article six, chapter forty-eight-a of
this code, in which case the name of the father as determined by the court shall be entered.
(f) Either of the parents of the child shall sign the
certificate of live birth to attest to the accuracy of the personal
data entered thereon, in time to permit its filing within the seven
days prescribed above.
(g) In order that each county may have a complete record of
the births occurring in said county, the local registrar shall
transmit each month to the county clerk of his county the copies of
the certificates of all births occurring in said county, from which
copies the clerk shall compile a record of such births and shall
enter the same in a systematic and orderly way in a well-bound
register of births, which said register shall be a public record:
Provided, That such copies and register shall not state that any
child was either legitimate or illegitimate. The form of said
register of births shall be prescribed by the state registrar of
vital statistics.
(h) On and after the first day of November, one thousand nine
hundred ninety, in addition to the personal data furnished for the
certificate of birth issued for a live birth in accordance with the
provisions of this section, a person whose name is to appear on
such certificate of birth as a parent shall contemporaneously
furnish to the person preparing and filing the certificate of birth the social security account number (or numbers, if the parent has
more than one such number) issued to the parent. A record of the
social security number or numbers shall be filed with the local
registrar of the district in which the birth occurs within seven
days after such birth, and the local registrar shall transmit such
number or numbers to the state registrar of vital statistics in the
same manner as other personal data is transmitted to the state
registrar.
(i) A written, notarized acknowledgment of both the man and
the woman that the man is the father of a named child legally
establishes the man as the father of the child for all purposes,
and child support may be established pursuant to the provisions of
chapter forty-eight-a of this code.
(1) The written acknowledgment shall include filing
instructions, the parties' social security number and addresses and
a statement, given orally and in writing, of the alternatives to,
the legal consequences of, and the rights and obligations of
acknowledging paternity, including, but not limited to, the duty to
support a child. If either of the parents is a minor, the
statement shall include an explanation of any rights that may be
afforded due to the minority status.
(2) The failure or refusal to include all information required by subdivision (1) of this subsection shall not affect the validity
of the written acknowledgment, in the absence of a finding by a
court of competent jurisdiction that the acknowledgment was
obtained by fraud, duress or material mistake of fact, as provided
in subdivision (4) of this subsection.
(3) The original written acknowledgment should be filed with
the state registrar of vital statistics. Upon receipt of any
acknowledgment executed pursuant to this section, the registrar
shall forward the copy of the acknowledgment to the child support
enforcement division and the parents, if the address of the parents
is known to the registrar. If a birth certificate for the child
has been previously issued which is incorrect or incomplete, a new
birth certificate shall be issued.
(4) An acknowledgment executed under the provisions of this
subsection may be rescinded as follows:
(A) The parent wishing to rescind the acknowledgment shall
file with the clerk of the circuit court of the county in which the
child resides a verified complaint stating the name of the child,
the name of the other parent, the date of the birth of the child,
the date of the signing of the affidavit, and a statement that he
or she wishes to rescind the acknowledgment of the paternity. If
the complaint is filed more than sixty days from the date of execution or the date of an administrative or judicial proceeding
relating to the child in which the signatory is a party, the
complaint shall include specific allegations concerning the
elements of fraud, duress or material mistake of fact.
(B) The complaint shall be served upon the other parent as
provided in rule 4 of the West Virginia rules of civil procedure.
(C) The family law master shall hold a hearing within sixty
days of the service of process upon the other parent. If the
complaint was filed within sixty days of the date the
acknowledgment of paternity was executed, the court shall order the
acknowledgment to be rescinded without any requirement of a showing
of fraud, duress, or material mistake of fact. If the complaint
was filed more than sixty days from the date of execution or the
date of an administrative or judicial proceeding relating to the
child in which the signatory is a party, the court may only set
aside the acknowledgment upon a finding, by clear and convincing
evidence, that the acknowledgment was executed under circumstances
of fraud, duress or material mistake of fact. The circuit clerk
shall forward a copy of any order entered pursuant to this
proceeding to the state registrar of vital statistics by certified
mail.
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 a 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, multiemployer 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 article one-b, 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, multiemployer
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, multiemployer 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,
multiemployer 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 (k) 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;
or
(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 multiemployer 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) Where an obligated parent changes employment, and the new
employer provides the obligated parent's health care coverage, the
child support enforcement division shall transfer to the new
employer notice of the obligated parent's duty to provide health
care coverage. Unless contested by the obligated parent in writing
and in accordance with section eight, article five, chapter forty-
eight-a of this code, the notice shall operate to enroll the child
in the new employer's health care plan.
(k) 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.
(l) 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.
(m) 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 by the child support
enforcement division during any period in which the obligated
parent failed to provide the required coverage, and directing that
such judgment be collected through income withholding;
(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 initiate an income
withholding against 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.
(n) 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 for
both current support and for any arrearages 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 temporary assistance for needy
families 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 bi-
weekly 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 one, article two,
chapter forty-eight-a of this code West Virginia support
enforcement commission 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.
ARTICLE 2A. PREVENTION AND TREATMENT OF DOMESTIC AND FAMILY
VIOLENCE.
§48-2A-6. Protective orders.
(a) At the conclusion of the hearing, if the petitioner has
proven the allegations of domestic or family violence, or that he
or she reported or witnessed domestic or family violence against
another and has, as a result, been abused, threatened, harassed or
has been the subject of other actions to attempt to intimidate him
or her, by a preponderance of the evidence, the court shall issue
a protective order directing the respondent to refrain from
abusing, harassing, stalking, threatening or otherwise intimidating
the petitioner, the person who reported or witnessed family or
domestic violence or the minor children, or engaging in other
conduct that would place the petitioner, the person who reported or witnessed family or domestic violence or the minor children in
reasonable fear of bodily injury. Where the respondent is present
at the hearing and elects not to contest the allegations of
domestic or family violence or does not contest the relief sought,
the petitioner is not required to adduce evidence and prove the
allegations of domestic or family violence and the court may
directly address the issues of the relief requested.
(b) Where the petitioner is the victim of domestic or family
violence, the terms of a protective order may include:
(1) Granting possession to the petitioner of the residence or
household jointly resided in at the time the abuse occurred;
(2) Awarding temporary custody of or establishing temporary
visitation rights with regard to minor children named in the order;
(3) Establishing terms of temporary visitation with regard to
the minor children named in the order including, but not limited
to, requiring third party supervision of visitations if necessary
to protect the petitioner and/or the minor children;
(4) Ordering the noncustodial parent to pay to the caretaker
parent a sum for temporary support and maintenance of the
petitioner and children, if any;
(5) Ordering the respondent to pay to the petitioner a sum for
temporary support and maintenance of the petitioner, where appropriate;
(6) Ordering the respondent to refrain from entering the
school, business or place of employment of the petitioner or
household or family members for the purpose of violating the
protective order;
(7) Ordering the respondent to participate in an intervention
program for perpetrators;
(8) Ordering the respondent to refrain from contacting,
telephoning, communicating, harassing or verbally abusing the
petitioner.
(9) Providing for either party to obtain personal property or
other items from a location, including granting temporary
possession of motor vehicles owned by either or both of the
parties, and providing for the safety of the parties while this
occurs, including ordering a law-enforcement officer to accompany
one or both of the parties.
(10) Prohibiting the respondent from using or possessing a
firearm or other weapon, notwithstanding the fact that the
respondent has a valid license to possess such firearm or other
weapon;
(11) Informing the respondent that possession of a firearm
while subject to a protective order is a violation of federal law.
(12) Ordering the respondent to reimburse the petitioner or
other person for any expenses incurred as a result of the domestic
or family violence, including, but not limited to, medical
expenses, transportation and shelter; and
(13) Ordering the petitioner and respondent to refrain from
transferring, conveying, alienating, encumbering, or otherwise
dealing with property which could otherwise be subject to the
jurisdiction of the court or another court in an action for divorce
or support, partition or in any other action affecting their
interests in property.
(c) Where the petitioner or other person to be protected
reported or was a witness to the family or domestic violence, the
terms of a protective order may include:
(1) Ordering the respondent to refrain from abusing,
contacting, telephoning, communicating, harassing, verbally abusing
or otherwise intimidating the petitioner or other person to be
protected; and
(2) Ordering the respondent to refrain from entering the
school, business or place of employment of the petitioner or other
person to be protected, for the purpose of violating the protective
order.
(d) Except as otherwise provided by subsection (d), section three-a of this article, a protective order issued by a magistrate,
family law master or circuit judge pursuant to this article or
subdivision (13), subsection (a), article two of this chapter, is
effective for either ninety days or one hundred eighty days, in the
discretion of the court. If the court enters an order for a period
of ninety days, upon receipt of a written request from the
petitioner prior to the expiration of the ninety day period, the
court shall extend its order for an additional ninety-day period.
(e) To be effective, a written request to extend an order from
ninety days to one hundred eighty days must be submitted to the
court prior to the expiration of the original ninety-day period.
A notice of the extension shall be sent by the clerk of the court
to the respondent by first class mail, addressed to the last known
address of the respondent as indicated by the court's case filings.
The extension of time is effective upon mailing of the notice.
(f) The court may amend the terms of a protective order at any
time upon subsequent petition filed by either party. The
protective order shall be in full force and effect in every county
of this state and shall so state.
(g) No order under entered pursuant to this article shall may
in any manner affect title to any real property, except as provided
in section four, article five, chapter forty-eight-a of this code for past due child support. The personal property of any person
ordered to pay child support pursuant to the provisions of this
article is subject to a lien for past due child support as provided
in section two, article five, chapter forty-eight-a of this code.
(h) Certified copies of any order or extension notice made
under the provisions of this section shall be issued to the
petitioner, the respondent and any law-enforcement agency having
jurisdiction to enforce the order, including the city police, the
county sheriff's office or local office of the West Virginia state
police within twenty-four hours of the entry of the order.
(i) Mutual protective orders are prohibited unless both
parties have filed a petition under section four of this article
and have proven the allegations of domestic or family violence by
a preponderance of the evidence. This shall not prevent other
persons, including the respondent, from filing a separate petition.
The court may consolidate two or more petitions if he or she
determines that consolidation will further the interest of justice
and judicial economy. The court shall enter a separate order for
each petition filed.
(j) Any protective order issued pursuant to this article shall
contain on its face the following statement, printed in bold-faced
type or in capital letters:
"VIOLATION OF THIS ORDER MAY BE PUNISHED BY CONFINEMENT IN A
REGIONAL OR COUNTY JAIL FOR AS LONG AS ONE YEAR AND BY A FINE OF AS
MUCH AS TWO THOUSAND DOLLARS".
(k) Any person against whom a protective order is issued after
a full hearing pursuant to this section shall be assessed a fee of
twenty-five dollars. Such fee shall be paid to the family court
fund established pursuant to section twenty-three, article four,
chapter forty-eight-a of this code.
(l) The supreme court of appeals shall promulgate a procedural
rule to establish time-keeping requirements for magistrates,
magistrate court clerks, and magistrate assistants so as to assure
the maximum funding of incentive payments, grants and other funding
sources available to the state for the processing of cases filed
for the establishment of temporary orders of child support pursuant
to the provisions of this section.
CHAPTER 48A. ENFORCEMENT OF FAMILY OBLIGATIONS.
ARTICLE 1. GENERAL PROVISIONS.
§48A-1-3. Calculation of interest.
(a) If an obligation to pay interest arises under this
chapter, the rate of interest is that specified in section
thirty-one, article six, chapter fifty-six of this code. Interest
shall accrue only upon the outstanding principal of such obligation. On and after the ninth day of June, one thousand nine
hundred ninety-five, this section shall be construed to permit the
accumulation of simple interest, and may not be construed to permit
the compounding of interest. Interest which accrued on unpaid
installments accruing before the ninth day of June, one thousand
nine hundred ninety-five, may not be modified by any court,
irrespective of whether such installment accrued simple or compound
interest: Provided, That unpaid installments upon which interest
was compounded before the effective date of this section shall
accrue only simple interest thereon on and after the ninth day of
June, one thousand nine hundred ninety-five.
(b) Except as otherwise provided in this subsection,
prejudgment interest shall not be awarded in a domestic relations
action. The circuit court may only award prejudgment interest in
a domestic relations action against a party if the court finds, in
writing, that the party engaged in conduct that would violate
subsection (b), rule eleven of the West Virginia rules of civil
procedure. If prejudgment interest is awarded, the court shall
calculate prejudgment interest from the date the offending
representation was presented to the court.
(c) Upon written agreement by both parties, an obligor may
petition the court to enter an order conditionally suspending the collection of all or part of the interest that has accrued on past
due child support prior to the date of the agreement: Provided,
That said agreement shall also establish a reasonable payment plan
which is calculated to fully discharge all arrearages within
twenty-four months. Upon successful completion of the payment
plan, the court shall enter an order which permanently relieves the
obligor of the obligation to pay the accrued interest. If the
obligor fails to comply with the terms of the written agreement,
then the court shall enter an order which reinstates the accrued
interest. Any proceeding commenced pursuant to the provisions of
this subsection may only be filed after the first day of July, two
thousand and before the thirtieth day of June, two thousand one.
ARTICLE 1A. DEFINITIONS.
§48A-1A-33. Arrearages and past due support.
"Arrearages" or "past due support" means the total of any
matured, unpaid installments of child support required to be paid
by an order entered or modified by a court of competent
jurisdiction, or by the order of a magistrate court of this state,
and shall stand, by operation of law, as a decretal judgment
against the obligor owing such support. The amount of unpaid
support shall bear interest from the date it accrued, at a rate of
ten dollars upon one hundred dollars per annum, and proportionately for a greater or lesser sum, or for a longer or shorter time.
Except as provided in rule 19 of rules of practice and procedure
for family law and as provided in subsection (c), section three,
article one of this chapter, a child support order may not be
retroactively modified so as to cancel or alter accrued
installments of support.
ARTICLE 1B. GUIDELINES FOR CHILD SUPPORT AWARDS.
§48A-1B-11. Modification.
(a) The provisions of a child support order may be modified if
there is a substantial change of circumstances. For purposes of
this section, if application of the guideline would result in a new
order that is more than fifteen percent different, then the
circumstances are considered to be a substantial change.
(b) An expedited process for modification of a child support
order may be utilized if either parent experiences a substantial
change of circumstances resulting in a decrease in income due to
loss of employment or other involuntary cause or an increase in
income due to promotion, change in employment, reemployment, or
other such change in employment status. The party seeking the
recalculation of support and modification of the support order
shall file a description of the decrease or increase in income and
an explanation of the cause of the decrease or increase on a standardized form to be provided by the secretary-clerk or other
employee of the family court. The standardized form shall be
verified by the filing party. Any available documentary evidence
shall be filed with the standardized form. Based upon the filing
and information available in the case record, the amount of support
shall be tentatively recalculated. The secretary-clerk shall cause
a notice of the filing, a copy of the standardized form, and the
support calculations to be served upon the other party and upon the
local office of the child support enforcement division for the
county in which the circuit court is located in the same manner as
original process under rule 4(d) of the rules of civil procedure.
The notice shall fix a date fourteen days from the date of mailing,
and inform the party that unless the recalculation is contested and
a hearing request is made on or before the date fixed, the proposed
modification will be made effective. If the filing is contested,
the proposed modification shall be set for hearing; otherwise, the
family law master shall prepare a recommended default order for
entry by the circuit judge. Either party may move to set aside a
default entered by the circuit clerk or a judgment by default
entered by the clerk or the court, pursuant to the provisions of
rule 55 or rule 60(b) of the rules of civil procedure. If an
obligor uses the provisions of this section to expeditiously reduce his or her child support obligation, the order that effected the
reduction shall also require the obligor to notify the obligee of
reemployment, new employment or other such change in employment
status that results in an increase in income. If an obligee uses
the provisions of this section to expeditiously increase his or her
child support obligation, the order that effected the increase
shall also require the obligee to notify the obligor of
reemployment, new employment or other such change in employment
status that results in an increase in income of the obligee.
(c) The supreme court of appeals shall develop the
standardized form required by subsection (b) of this section.
(d) In any proceeding where a petition to modify child support
is granted which results in a reduction of child support owed so
that the obligor has overpaid child support, the court shall grant
a decretal judgment to the obligor for the amount of the
overpayment. The court shall inquire as to whether a support
arrearage was owed by the obligor for support due prior to the
filing of the petition for modification. If an arrearage exists,
the court shall order an offset of the overpayment against the
child support arrearages. If no prior arrearage exists or if the
arrearage is not sufficient to offset the overpayment, then the
court may direct the child support enforcement division to collect the overpayment through income withholding, if the person has, in
the court's opinion, sufficient income other than the child support
received. The income withholding shall be in all respects as
provided for in section three, article five of this chapter, except
that in no circumstances may the amount withheld exceed thirty-five
percent of the disposable earnings for the period, regardless of
the length of time that the overpayment has been owed.
ARTICLE 2. WEST VIRGINIA SUPPORT ENFORCEMENT COMMISSION; CHILD
SUPPORT ENFORCEMENT DIVISION; ESTABLISHMENT AND ORGANIZATION.
§48A-2-24. Disbursements of amounts collected as support.
(a) Amounts collected as child or spousal support by the child
support enforcement division shall be distributed within two
business days after receipt from the employer or other source of
periodic income. The amounts collected as child support shall be
distributed by the child support enforcement division in accordance
with the provisions for distribution set forth in 42 U.S.C. §657.
The commission shall promulgate a legislative rule to establish the
appropriate distribution as may be required by the federal law.
Such amounts shall, except as otherwise provided under the
provisions of subsection (c) of this section, be distributed as
follows:
(1) Any amounts which are collected periodically 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 that period (with
appropriate reimbursement of the federal government to the extent
of its participation in the financing);
(2) Amounts as are in excess of amounts required to reimburse
the department of health and human resources under subdivision (1)
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
(3) Amounts that are in excess of amounts required to be
distributed under subdivisions (1) and (2) 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 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 (3),
subsection (a) of this section with respect to excess amounts
described in said subsection.
(c) 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:
(1) 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);
(2) 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;
(3) 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 (1) and (2) of this subsection, 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 or temporary assistance for
needy families which were made with respect to the child (and with
respect to which past collections have not previously been
retained);
(b) Any payment required to be made under the provisions of
this section to a family shall be made to the resident parent,
legal guardian or caretaker relative having custody of or
responsibility for the child or children.
(d) (c) The commission shall establish bonding requirements
for employees of the child support enforcement division who
receive, disburse, handle or have access to cash.
(e) (d) 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 contract
who are responsible for handling cash receipts do not participate in accounting or operating functions which would permit them to
conceal in the accounting records the misuse of cash receipts:
Provided, That the 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.
(f) (e) 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.
(g) (f) For purposes of this section, "business day" means a
day on which state offices are open for regular business.
§48A-2-24a. Amounts collected as support to be disbursed to person
having custody; procedure for redirecting disbursement of
payments where physical custody transferred to a person other
than the custodial parent.
(a) Any payment required to be made under the provisions of
section twenty-four of this article 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.
(b) Where physical custody of the child has been transferred from the custodial parent to another person, the child support
enforcement division may redirect disbursement of support payments
to such other person, on behalf of the child, in the following
circumstances:
(1) Where the noncustodial parent has physical custody of the
child, excluding visitation, upon filing with the child support
enforcement division:
(A) An affidavit attesting that the noncustodial parent has
obtained physical custody of the child, describing the
circumstances under which the transfer of physical custody took
place, and stating that he or she anticipates that his or her
physical custody of the child will continue for the foreseeable
future; and
(B) Documentary proof that the noncustodial parent has
instituted proceedings in the circuit court for a modification of
legal custody or a certified copy of the custodial parent's death
certificate.
(2) Where a person other than the custodial or noncustodial
parent has physical custody of the child, excluding visitation,
filing with the child support enforcement division:
(A) An affidavit attesting that the person has obtained
physical custody of the child, describing the circumstances under which the transfer of physical custody took place, and stating that
he or she anticipates that his or her physical custody of the child
will continue for the foreseeable future; and
(B) Documentary proof that the person claiming physical
custody is currently the person responsible for the child by
producing at least one of the following:
(i) School records demonstrating that school authorities
consider the person claiming physical custody the adult responsible
for the child;
(ii) Medical records demonstrating that the person claiming
physical custody is empowered to make medical decisions on behalf
of the child;
(iii) Documents from another public assistance agency showing
that the person claiming physical custody is currently receiving
other public assistance on behalf of the child;
(iv) A notarized statement from the custodial parent attesting
to the fact that he or she has transferred physical custody to the
person;
(v) A verifiable order of a court of competent jurisdiction
transferring physical or legal custody to the person;
(vi) Documentation that the person claiming physical custody
has filed a petition in circuit court to be appointed the child's guardian;
(vii) Documentation that the child, if over the age of
fourteen, has instituted proceedings in circuit court to have the
person claiming physical custody nominated as his or her guardian;
or
(viii) Any other official documents of a federal, state or
local agency or governing body demonstrating that the person
currently has physical custody of the child and has taken action
indicating that he or she anticipates such physical custody to
continue in the foreseeable future.
(c) The child support enforcement division shall mail, by
first class mail, a copy of the affidavit and supporting
documentary evidence required under subsection (b) of this section,
to the circuit court which issued the support order being enforced
by child support enforcement division and to the parties to the
order, at their last known addresses, together with a written
notice stating that any party has ten days to object to the
redirection of support payments by filing an affidavit and evidence
showing that the person seeking redirection of the payments does
not have physical custody of the child. If no objection is
received by the child support enforcement division by the end of
the ten-day period, the division may order payments redirected to the person claiming physical custody for the benefit of the child.
If a responsive affidavit and supporting evidence is filed within
the ten-day period and, in the opinion of the child support
enforcement division, either disproves the claim of the person
seeking redirection of support payments or raises a genuine issue
of fact as to whether the person has actual physical custody of the
child, the child support enforcement division shall continue to
forward support payments to the custodial parent. Any person who
disagrees with the determination of the child support enforcement
division may petition the circuit court for modification of the
child support order.
(d) Any person who files a false affidavit pursuant to this
section shall be guilty of false swearing and, upon conviction
thereof, shall be punished as provided by law for such offense.
§48A-2-28. 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 temporary
assistance for needy families.
(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 a judgment or
not.
(e) The child support enforcement division may, under the
provisions of this section, enforce the collection of past due
support on behalf of a child who has reached the age of majority.
(f) The legislative rule promulgated by the commission
pursuant to the provisions of this section and pursuant to chapter
twenty-nine-a of this code, 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 The amounts received by the child
support enforcement division shall be distributed in accordance
with the provisions for distribution set forth in 42 U.S.C. §657.
The commission shall promulgate a legislative rule to establish the
appropriate distribution as may be required by the federal law.
§48A-2-33a. Liability for financial institutions providing
financial records to the child support enforcement division;
agreements for data match system; encumbrance or surrender of assets.
(a) Notwithstanding any other provision of this code, a
financial institution shall not be liable under the law of this
state to any person for:
(1) Disclosing any financial record of an individual to the
child support enforcement division in response to a subpoena issued
by the division pursuant to section thirty-three of this article;
(2) Disclosing any financial record of an individual to the
child support enforcement division pursuant to the terms of an
agreement with such financial institution pursuant to subsection
(f) of this section;
(3) Encumbering or surrendering assets held by such financial
institution in response to a notice of lien or levy issued by the
child support enforcement division as provided in subsection (g) of
this section; or
(4) For any other action taken in good faith to comply with
the requirements of this section.
(b) The child support enforcement division, after obtaining a
financial record of an individual from a financial institution, may
disclose such financial record only for the purpose of, and to the
extent necessary in, establishing, modifying or enforcing a child
support obligation of such individual.
(c) The civil liability of a person who knowingly, or by
reason of negligence, discloses a financial record of an individual
in violation of subsection (b) of this section is governed by the
provisions of federal law as set forth in 42 U.S.C. §669A.
(d) For purposes of this section, the term "financial
institution" means:
(1) Any bank or savings association;
(2) A person who is an institution-affiliated party, as that
term is defined in the Federal Deposit Insurance Act, 12 U.S.C.
§1813(u);
(3) Any federal credit union or state-chartered credit union,
including an institution-affiliated party of a credit union; and
(4) Any benefit association, insurance company, safe deposit
company, money-market mutual fund, or similar entity authorized to
do business in this state.
(e) For purposes of this section, the term "financial record"
means an original of, a copy of, or information known to have been
derived from, any record held by a financial institution pertaining
to a customer's relationship with the financial institution.
(f) Notwithstanding any provision of this code to the
contrary, the child support enforcement division shall enter into
agreements with financial institutions doing business in the state to develop and operate, in coordination with such financial
institutions, a data match system, using automated data exchanges,
to the maximum extent feasible, in which each financial institution
is required to provide for each calendar quarter the name, record
address, social security number or other taxpayer identification
number, and other identifying information for each obligor, as
defined in section twenty-three, article one-a of this chapter, who
maintains an account at such institution and who owes past due
support. The child support enforcement division will identify to
the financial institution an obligor who owes past due support by
his or her name and social security number or other taxpayer
identification number. The child support enforcement division,
upon written request and proof of actual costs incurred, may shall
pay a reasonable fee to a financial institution for conducting the
data match matching services not to exceed the actual costs
incurred by such financial institution or one hundred dollars per
institution per quarter, whichever is less.
(g) The financial institution, in response to a notice of a
lien or levy, shall encumber or surrender, as the case may be,
assets held by such institution on behalf of any noncustodial
parent who is subject to a lien for child support.
§48A-2-41. Access to information.
(a) All state, county and municipal agencies offices and
employers, including profit, non-profit and governmental employers,
receiving a request for information and assistance from the child
support enforcement division or any out-of-state agency
administering a program under Title IV-D of the Social Security
Act, shall cooperate with the division or with the out-of-state
agency in the location of parents who have abandoned and deserted
children and shall provide the division or the out-of-state agency
with all available pertinent information concerning the location,
income and property of those parents.
(b) Notwithstanding any other provision of law to the
contrary, any entity conducting business in this state or
incorporated under the laws of this state shall, upon certification
by the division or any out-of-state agency administering a program
under Title IV-D of the Social Security Act that the information is
needed to locate a parent for the purpose of collecting or
distributing child support, provide the division or the out-of-
state agency with the following information about the parent: Full
name, social security number, date of birth, home address, wages
and number of dependents listed for income tax purposes: Provided,
That no entity may provide any information obtained in the course
of providing legal services, medical treatment or medical services.
(c) (1) The child support enforcement division shall have
access, subject to safeguards on privacy and information security,
and to the nonliability of entities that afford such access under
this subdivision, to information contained in the following
records, including automated access, in the case of records
maintained in automated data bases:
(A) Records of other state and local government agencies
including, but not limited to:
(i) Vital statistics, including records of marriage, birth and
divorce;
(ii) State and local tax and revenue records, including
information on residence address, employer, income and assets;
(iii) Records concerning real and titled personal property;
(iv) Records of occupational and professional licenses, and
records concerning the ownership and control of corporations,
partnerships, and other business entities;
(v) Employment security records;
(vi) Records of agencies administering public assistance
programs;
(vii) Records of the division of motor vehicles; and
(viii) Corrections records.
(B) Certain records held by private entities with respect to individuals who owe or are owed support or certain individuals
against, or with respect to, whom a support obligation is sought,
consisting of:
(i) The names and addresses of such individuals and the names
and addresses of the employers of such individuals, as appearing in
the customer records of public utilities and cable television
companies, pursuant to an administrative subpoena authorized by
section thirty-three, article two of this chapter; and
(ii) Information, including information on assets and
liabilities, on such individuals held by financial institutions.
(2) Out-of-state agencies administering programs under Title
IV-D of the Social Security Act shall, without the need for any
court order, have the authority to access records in this state by
making a request through the child support enforcement division.
(d) All federal and state agencies conducting activities under
Title IV-D of the Social Security Act shall have access to any
system used by this state to locate an individual for purposes
relating to motor vehicles or law enforcement.
(e) Out-of-state agencies administering programs under Title
IV-D of the Social Security Act shall have the authority and right
to access and use, for the purpose of establishing or enforcing a
support order, the state law enforcement and motor vehicle data bases.
(f) The child support enforcement division and out-of-state
agencies administering programs under Title IV-D of the Social
Security Act shall have the authority and right to access and use,
for the purpose of establishing or enforcing a support order,
interstate networks that state law-enforcement agencies and motor
vehicle agencies subscribe to or participate in, such as the
national law-enforcement telecommunications system (NLETS) and the
American association of motor vehicle administrators (AAMVA)
networks.
(g) No state, county or municipal agency or licensing board
required to release information pursuant to the provisions of this
section to the child support enforcement division or to any out-of-
state agency administering programs under Title IV-D of the Social
Security Act may require the child support enforcement division or
any out-of-state agency to obtain a court order prior to the
release of the information.
(h) Any information received pursuant to the provisions of
this section is subject to the confidentiality provisions set forth
in section forty, article two of this chapter.
ARTICLE 3. CHILDREN'S ADVOCATE.
§48A-3-3. Duties of the children's advocate.
Subject to the control and supervision of the director:
(a) The children's advocate shall supervise and direct the
secretarial, clerical and other employees in his or her office in
the performance of their duties as such performance affects the
delivery of legal services. The children's advocate will provide
appropriate instruction and supervision to employees of his or her
office who are nonlawyers, concerning matters of legal ethics and
matters of law, in accordance with applicable state and federal
statutes, rules and regulations.
(b) In accordance with the requirements of rule 5.4(c) of the
rules of professional conduct as promulgated and adopted by the
supreme court of appeals, the children's advocate shall not permit
a nonlawyer who is employed by the department of health and human
resources in a supervisory position over the children's advocate to
direct or regulate the advocate's professional judgment in
rendering legal services to recipients of services in accordance
with the provisions of this chapter; nor shall any nonlawyer
employee of the department attempt to direct or regulate the
advocate's professional judgment.
(c) The children's advocate shall make available to the public
an informational pamphlet, designed in consultation with the
director. The informational pamphlet shall explain the procedures of the court and the children's advocate; the duties of the
children's advocate; the rights and responsibilities of the
parties; and the availability of human services in the community.
The informational pamphlet shall be provided as soon as possible
after the filing of a complaint or other initiating pleading. Upon
request, a party to a domestic relations proceeding shall receive
an oral explanation of the informational pamphlet from the office
of the children's advocate.
(d) The children's advocate shall act to establish the
paternity of every child born out of wedlock for whom paternity has
not been established, when such child's primary caretaker is an
applicant for or recipient of aid to families with dependent
children temporary assistance for needy families, and when such
primary caretaker has assigned to the division of human services
any rights to support for the child which might be forthcoming from
the putative father: Provided, That if the children's advocate is
informed by the secretary of the department of health and human
resources or his or her authorized employee that it has been
determined that it is against the best interest of the child to
establish paternity, the children's advocate shall decline to so
act. The children's advocate, upon the request of any the mother,
alleged father or the primary caretaker of a child born out of wedlock, regardless of whether such the mother, alleged father or
the primary caretaker is an applicant or recipient of aid to
families with dependent children temporary assistance for needy
families, shall undertake to establish the paternity of such child.
(e) The children's advocate shall undertake to secure support
for any individual who is receiving aid to families with dependent
children temporary assistance for needy families when such
individual has assigned to the division of human services any
rights to support from any other person such individual may have:
Provided, That if the children's advocate is informed by the
secretary of the department of health and human resources or his or
her authorized employee that it has been determined that it is
against the best interests of a child to secure support on the
child's behalf, the children's advocate shall decline to so act.
The children's advocate, upon the request of any individual,
regardless of whether such individual is an applicant or recipient
of aid to families with dependent children, temporary assistance
for needy families, shall undertake to secure support for the
individual. If circumstances require, the children's advocate
shall utilize the provisions of chapter forty-eight-b of this code
and any other reciprocal arrangements which may be adopted with
other states for the establishment and enforcement of support obligations, and if such arrangements and other means have proven
ineffective, the children's advocate may utilize the federal courts
to obtain and enforce court orders for support.
(f) The children's advocate shall pursue the enforcement of
support orders through the withholding from income of amounts
payable as support:
(1) Without the necessity of an application from the obligee
in the case of a support obligation owed to an obligee to whom
services are already being provided under the provisions of this
chapter; and
(2) On the basis of an application for services in the case of
any other support obligation arising from a support order entered
by a court of competent jurisdiction.
(g) The children's advocate may decline to commence an action
to obtain an order of support under the provisions of section one,
article five of this chapter if an action for divorce, annulment or
separate maintenance is pending, or the filing of such action is
imminent, and such action will determine the issue of support for
the child: Provided, That such action shall be deemed to be
imminent if it is proposed by the obligee to be commenced within
the twenty-eight days next following a decision by the children's
advocate that an action should properly be brought to obtain an order for support.
(h) If the child advocate office, through the children's
advocate, shall undertake paternity determination services, child
support collection or support collection services for a spouse or
former spouse upon the written request of an individual who is not
an applicant or recipient of assistance from the division of human
services, the office may impose an application fee for furnishing
such services. Such application fee shall be in a reasonable
amount, not to exceed twenty-five dollars, as determined by the
director: Provided, That the director may fix such amount at a
higher or lower rate which is uniform for this state and all other
states if the secretary of the federal department of health and
human services determines that a uniform rate is appropriate for
any fiscal year to reflect increases or decreases in administrative
costs. Any cost in excess of the application fee so imposed may be
collected from the obligor who owes the child or spousal support
obligation involved.
ARTICLE 5. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS AND
VISITATION.
§48A-5-2. Arrearages; liens on personal property; enforcement
through writ of execution, suggestion or suggestee execution.
(a) The total of any matured, unpaid installments of child support required to be paid by an order entered or modified by a
court of competent jurisdiction, or by the order of a magistrate
court of this state, shall stand, by operation of law, as a
decretal judgment against the obligor owing such support. The
amount of unpaid support shall bear interest from the date it
accrued, at a rate of ten dollars upon one hundred dollars per
annum, and proportionately for a greater or lesser sum, or for a
longer or shorter time. A child support order shall not be
retroactively modified so as to cancel or alter accrued
installments of support. When an obligor is in arrears in the
payment of support which is required to be paid by the terms of
such an order for support of a child, an obligee or the child
support enforcement division may file an abstract of the order
giving rise to the support obligation and an "Affidavit of Accrued
Support", setting forth the particulars of such arrearage and
requesting a writ of execution, suggestion or suggestee execution.
The filing of the abstract and affidavit shall give rise, by
operation of law, to a lien against personal property of an obligor
who resides within this state or who owns property within this
state for overdue support.
(b) If the duty of support is based upon an order from another
jurisdiction, the obligee shall first register the order in accordance with the provisions of chapter forty-eight-b of this
code: Provided, That nothing in this subsection shall prevent the
child support enforcement division from enforcing foreign orders
for support without registration of the order in accordance with
the provisions of section five hundred seven, article five, chapter
forty-eight-b of this code.
(c) The affidavit may be filed with the clerk of the circuit
court in the county wherein the obligee or the obligor resides, or
where the obligor's source of income is located.
(d) The affidavit may be filed when a payment required by such
order has been delinquent, in whole or in part, for a period of
fourteen days.
(e) The affidavit shall:
(1) Identify the obligee and obligor by name and address, and
shall list the obligor's social security number or numbers, if
known;
(2) Name the court which entered the support order and set
forth the date of such entry;
(3) State the total amount of accrued support which has not
been paid by the obligor;
(4) List the date or dates when support payments should have
been paid but were not, and the amount of each such delinquent payment; and
(5) If known, the name and address of the obligor's source of
income.
(f) Upon receipt of the affidavit, the clerk shall issue a
writ of execution, suggestion or suggestee execution, and shall
mail a copy of the affidavit and a notice of the filing of the
affidavit to the obligor, at his last known address. If the child
support enforcement division is not acting on behalf of the obligee
in filing the affidavit, the clerk shall forward a copy of the
affidavit and the notice of the filing to the child support
enforcement division.
(g) The notice provided for in subsection (f) of this section
shall inform the obligor that if he or she desires to contest the
affidavit on the grounds that the amount claimed to be in arrears
is incorrect or that a writ of execution, suggestion or suggestee
execution is not proper because of mistakes of fact, he or she
must, within fourteen days of the date of the notice: (1) Inform
the child support enforcement division in writing of the reasons
why the affidavit is contested and request a meeting with the child
support enforcement division; or (2) where a court of this state
has jurisdiction over the parties, obtain a date for a hearing
before the circuit court or the family law master and mail written notice of such hearing to the obligee and to the child support
enforcement division on a form prescribed by the administrative
office of the supreme court of appeals and made available through
the office of the clerk of the circuit court.
(h) Upon being informed by an obligor that he or she desires
to contest the affidavit, the child support enforcement division
shall inform the circuit court of such fact, and the circuit court
shall require the obligor to give security, post a bond, or give
some other guarantee to secure payment of overdue support.
(i) The clerk of the circuit court shall make available form
affidavits for use under the provisions of this section. Such form
affidavits shall be provided to the clerk by the child support
enforcement division. The notice of the filing of an affidavit
shall be in a form prescribed by the child support enforcement
division.
(j) Writs of execution, suggestions or suggestee executions
issued pursuant to the provisions of this section shall have
priority over any other legal process under the laws of this state
against the same income, except for withholding from income of
amounts payable as support in accordance with the provisions of
section three of this article, and shall be effective despite
notwithstanding any exemption that might otherwise be applicable to the same income.
(k) Notwithstanding any other provision of this code to the
contrary, the amount to be withheld from the disposable earnings of
an obligor pursuant to a suggestee execution in accordance with the
provisions of this section shall be the same amount which could
properly be withheld in the case of a withholding order under the
provisions of subsection (e), section three of this article.
(l) Any person who files a false affidavit shall be guilty of
false swearing and, upon conviction thereof, shall be punished as
provided by law for such offense.
(m) The provisions of this section apply to support orders
issued by an out-of-state court or tribunal, as defined in section
one hundred one, article one, chapter forty-eight-b of this code,
of any other state.
(n) The provisions of this section do not apply to income
withholding, as provided in section three of this article.
§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 the child
support enforcement division in accordance with the provisions of
section 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 said sections, notwithstanding
the fact that such support order does not in fact provide for such
an order of withholding. A withholding may be instituted under
this section for any arrearage without the necessity of additional
judicial or legal action.
(b) When immediate income withholding is not required due to
the findings required by subsection (c), 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 withholding is required by either subsection (a) or
(b) of this section, the child support enforcement division shall send by first class mail or electronic means to the obligor notice
that withholding has commenced. The notice shall inform the obligor
of the following:
(1) The amount owed;
(2) That a withholding from the obligor's income of amounts
payable as support has commenced;
(3) That the amount withheld will be equal to the amount
required under the terms of the current support order, plus amounts
for any outstanding arrearage;
(4) The definition of "gross income" as defined in section
nineteen, article one-a of this chapter;
(5) That the withholding will apply to the obligor's present
source of income, and to any future source of income and,
therefore, no other notice of withholding will be sent to the
obligor. A copy of any new or modified withholding notice will be
sent to the obligor at approximately the same time the original is
sent to the source of income;
(6) 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;
(7) That payment of the arrearage after the date of the notice
is not a bar to such withholding;
(8) That the obligor may contest the withholding by written
request to the child support enforcement division when the obligor
if the obligor has information showing an error in the current or
overdue support amount or a mistake as to the identity of the
obligor;
(9) 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;
(10) 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 withholding, but may be raised
by the filing of a separate petition in circuit court;
(11) That if the obligor contests desires to contest the
withholding, in writing, a meeting with the child support
enforcement division will be held at an arranged time and place for
the purpose of attempting to settle the contested issues;
(12) That if the meeting with the child support enforcement
division fails to resolve the contested issues, the obligor may
petition the circuit court for a resolution. The petition to
contest withholding shall be filed by the obligor within fifteen
days of notice; and
(12)(13) That while the withholding is being contested through
either the child support enforcement division or the court, the
income withholding may not be stayed.
(d) Withholding shall occur and the notice to withhold shall
be sent to the source of income when the support order provides for
immediate income withholding, or if immediate income withholding is
not so provided, when the support payments are in arrears in the
amount specified in subsection (b) of this section. 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 for both
current support and for any arrearages which are due. 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 Prior to the first day of January, two thousand one,
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 Prior to the first day of January, two thousand one,
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) Beginning the first day of January, two thousand one, 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
forty 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 fifty percent of the obligor's
disposable earnings for that week.
(5) Beginning the first day of January, two thousand one, when
a part 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
forty-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 fifty-five percent of the
obligor's disposable earnings for that week.
(6) In addition to the percentage limitations set forth in
subdivisions (2) and (3) of this subsection, it shall be a further
limitation that when the current month's obligation plus arrearages
are being withheld from salaries or wages in no case shall the
total amounts withheld for the current month's obligation plus
arrearage exceed the amounts withheld for the current obligation by
an amount greater than twenty-five percent of the current monthly
support obligation.
(5)(7) 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)(8) The child support enforcement division has the
authority to prorate the current support obligation in accordance
with the pay cycle of the source of income. This prorated current
support obligation shall be known as the "adjusted support
obligation". The current support obligation or the adjusted
support obligation is the amount, if unpaid, on which interest will
be charged.
(7)(9) 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 and no source of income may require additional information or documentation. 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 to the child support enforcement
division, along with such identifying information as may be
required by the 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 or until
the source of income notifies the child support enforcement
division of a termination of the obligor's employment in accordance with the provisions of subsection (l) of this section;
(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
payments 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 or until
the source of income notifies the child support enforcement
division of a termination of the obligor's employment in accordance
with the provisions of subsection (l) of this section.
(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
child support enforcement division 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 for amounts
payable as support, the employer may combine all withheld payments
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-5-10. High-Volume automated administrative enforcement of
child support in interstate cases.
(a) As used in this chapter:
(1) "High-volume automated administrative enforcement" in
interstate cases shall mean at the request of another state, the
identification by a state, through automated data matches with
financial institutions and other entities where assets may be
found, of assets owned by persons who owe child support in other
states, and the seizure of such assets by the state, through levy
or other appropriate processes.
(2) "Assisting state" shall mean a state which matches the
requesting state's delinquent obligors against the databases of
financial institutions and other entities within its own state
boundaries where assets may be found, and, if appropriate, seizes
assets on behalf of the requesting state.
(3) "Requesting state" shall mean a state transmitting a
request for administrative enforcement to another state.
(4) "State" shall mean a state of the United States, or the
District of Columbia, Puerto Rico, the United States Virgin
Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term "state" shall also
include Indian tribes and a foreign jurisdiction that has enacted
a law or established procedures for issuance and enforcement of
support which are substantially similar to the procedures under
this chapter or under the uniform reciprocal enforcement of support
act, the revised uniform reciprocal enforcement of support act, or
the uniform interstate family support act.
(b) The child support enforcement division shall use automated
administrative enforcement to the same extent as used for
intrastate cases in response to a request made by another state to
enforce support orders, and shall promptly report the results of
such enforcement procedures to the requesting state.
(c) The child support enforcement division may, by electronic
or other means, transmit to, or receive from, another state a
request for assistance in enforcing support orders through
automated administrative enforcement. Such request shall include:
(1) Information as will enable the assisting state to compare
the information about the cases to the information in the databases
of the state;
(2) All supporting documentation necessary under the laws of
this state to support an attachment of the asset or assets, should
such assets be located; and
(3) Said transmittal shall constitute a certification by the
requesting state;
(A) Of the amount of past-due support owed; and
(B) That the requesting state has complied with all procedural
due process requirements applicable to each case.
(d) A requesting state may transmit to an assisting state
either:
(1) A request to locate and seize assets; or
(2) A request to seize an asset already identified by the
requesting state.
ARTICLE 5A. ENFORCEMENT OF SUPPORT ORDER THROUGH ACTION AGAINST
LICENSE.
§48A-5A-4. Hearing on denial, nonrenewal, suspension or restriction
of license.
(a) The court shall order a licensing authority to deny,
refuse to renew, suspend or restrict a license if it finds that:
(1) All appropriate enforcement methods have been exhausted or
are not available;
(2) The person is the holder of a license or has an
application pending for a license;
(3) The requisite amount of child support or medical support
arrearage exists or health insurance for the child has not been provided as ordered, or the person has failed to comply with a
subpoena or warrant relating to a paternity or child support
proceeding.
(4) No motion to modify the child support order, filed prior
to the date that the notice was sent by the child support
enforcement division, is pending before the court; and
(5) There is no equitable reason, such as involuntary
unemployment, disability, or compliance with a court-ordered plan
for the periodic payment of the child support arrearage amount, for
the person's noncompliance with the child support order.
(b) If the court is satisfied that the conditions described in
subsection (a) of this section exist, it shall first consider
suspending or restricting a driver's license prior to professional
license. If the person fails to appear at the hearing after being
properly served with notice, the court shall order the suspension
of all licenses held by the person.
(c) If the court finds that a license suspension will result
in a significant hardship to the person, to the person's legal
dependents under eighteen years of age living in the person's
household, to the person's employees, or to persons, businesses or
entities to whom the person provides goods or services, the court
may allow the person to pay a percentage of the past-due child support amount as an initial payment, and establish a payment
schedule to satisfy the remainder of the arrearage within one year,
and require that the person comply with any current child support
obligation. If the person agrees to this arrangement, no
suspension or restriction of any licenses shall be ordered.
Compliance with the payment agreement shall be monitored by the
child support enforcement division.
(d) If a person has good cause for not complying with the
payment agreement within the time permitted, the person shall
immediately file a motion with the court and the child support
enforcement division requesting an extension of the payment plan.
The court may extend the payment plan if it is satisfied that the
person has made a good faith effort to comply with the plan and is
unable to satisfy the full amount of past-due support within the
time permitted due to circumstances beyond the person's control.
If the person fails to comply with the court-ordered payment
schedule, the court shall, upon receipt of a certification of
noncompliance from the child support enforcement division, and
without further hearing, order the immediate suspension or
restriction of all licenses held by the person.
(e) For purposes of this section, the term "application" means
a request to have a license issued, a request for renewal of an existing license or a request to change the status of an existing
license.
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 the
child and of the putative father of the child. The parties to a
paternity proceeding are not entitled to a trial by jury.
(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) The married woman lived separate and apart from her
husband preceding the birth of the child;
(B) The 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 the child;
(5) The guardian or committee of the child;
(6) The next friend of the child when the child is a minor;
(7) By the 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 who believes he is 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 the 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 may have
been 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) Prior to the commencement of an action for the
establishment of paternity, the child support enforcement division
may order the mother, her child and the man to submit to genetic
tests to aid in proving or disproving paternity. The division may
order the tests upon the request of a party, supported by a sworn
statement, of any person entitled to petition the court for a
determination of paternity as provided in section one of this
article. If the request is made by a party alleging paternity, the
statement shall set forth facts establishing a reasonable
possibility or requisite sexual contact between the parties. If
the request is made by a party denying paternity, the statement may
set forth facts establishing a reasonable possibility of the
nonexistence of sexual contact between the parties or other facts
supporting a denial of paternity. If genetic testing is not
performed pursuant to an order of the child support enforcement
division, the court may, on its own motion, or shall upon the motion of any party, order such tests. A request or motion may be
made upon ten days' written notice to the mother and alleged
father, without the necessity of filing a complaint. When the
tests are ordered, the court or the division 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 an expert qualified as an examiner of genetic markers
shall analyze, interpret and report on the results to the court or
to the division of child support enforcement. The results shall be
considered 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, if a complaint has been
filed, 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, 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 a party desires to challenge the results of the blood
or tissue tests or the expert's analysis of inherited
characteristics, he or she shall file a written protest with the
family law master or circuit court or with the division of child
support enforcement, if appropriate, within thirty days of the
filing of such test results, and serve a copy of such protest upon
the other party. The written protest shall be filed at least
thirty days prior to any hearing involving the test results. The
court or the child support enforcement division, 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 the order, at the expense of the party requesting
additional testing. Costs shall be paid in advance of the 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 the results are admissible evidence which is clear and
convincing evidence of paternity. The admission of the evidence creates a presumption that the man tested is the father.
(b) Documentation of the chain of custody of the blood or
tissue specimens is competent evidence to establish the 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 the tests shall be paid by the parties in
proportions and at times determined by the court.
(c) Except as provided in subsection (d) of this section, 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 blood test 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.
(d) When a blood test is ordered by the child support
enforcement division, the division shall initially bear all costs
subject to recoupment from the alleged father if paternity is
established.
§48A-6-4. Establishment of paternity and duty of support.
(a) 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 hearing on the merits, the court shall find,
by clear and convincing evidence that the man is the father of the
child, the court shall, subject to the provisions of subsection (c)
of this section, order support in accordance with the provisions of
this section article one-b of this chapter and the payment of
incurred expenses as provided in subsection (e) of this section.
(b) Upon motion by a party, the court shall issue a temporary
order for child support pending a judicial determination of
parentage if there is clear and convincing evidence of paternity on
the basis of genetic tests or other scientifically recognized
evidence.
(c) Reimbursement support ordered pursuant to this section
shall be limited to a period not to exceed twenty-four months prior
to the service of notice of the commencement of paternity or support establishment, unless the court finds, by clear and
convincing evidence:
(1) That the defendant had actual knowledge that he was
believed to be the father of the child;
(2) That the defendant deliberately concealed his whereabouts
or deliberately evaded attempts to serve process upon him; or
(3) That the defendant deliberately misrepresented relevant
information which would have enabled the plaintiff to proceed with
this cause of action.
If the court finds by clear and convincing evidence that the
circumstances in subsection (1), (2) or (3) exist, then the court
shall order reimbursement support to the date of birth of the
child, subject to the equitable defense of laches.
(c)(d) 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
acknowledgment or through administrative or judicial process.
(d)(e) Bills for pregnancy, childbirth, and genetic testing
are admissible as and constitute prima facie evidence of medical
expenses incurred. Evidence so admitted shall constitute prima
facie evidence of amounts incurred for such services or for testing
on behalf of the child.
(f) The twenty-four month limitation on reimbursement support
does not apply to the award of medical expenses incurred.
(g) For purposes of this section, "reimbursement support"
means that amount of money awarded as child support for a period of
time prior to the entry of the order which establishes the support
obligation.
§48A-6-6. Establishing paternity by acknowledgment of natural
father.
A written, notarized acknowledgment by both the man and woman
that the man is the father of the named child executed pursuant to
the provisions of article twelve, section five, chapter sixteen of
this code legally establishes the man as the father of the child
for all purposes and child support may be established under in
accordance with the provisions of article one-b of this chapter.
(b) The written acknowledgment shall include:
(1) Filing instructions;
(2) The parties' social security numbers and addresses; and
(3) A statement, given orally and in writing, of the
alternatives to, the legal consequences of, and the rights and
obligations of acknowledging paternity, including, but not limited
to, the duty to support a child. If either of the parents is a
minor, the statement shall include an explanation of any rights that may be afforded due to the minority status.
(c) Failure or refusal to include all information required by
subsection (b) of this section shall not affect the validity of the
written acknowledgment, in the absence of a finding by a court of
competent jurisdiction that the acknowledgment was obtained by
fraud, duress or material mistake of fact, as provided in
subsection (d) of this section.
(d) An acknowledgment executed under the provisions of this
section may be rescinded within the earlier of sixty days from the
date of execution or the date of an administrative or judicial
proceeding relating to the child in which the signatory is a party.
After the sixty-day period has expired, the acknowledgment may
thereafter be challenged only on the basis of fraud, duress or
material mistake of fact, upon a finding of clear and convincing
evidence by a court of competent jurisdiction. The legal
responsibilities, including child support obligations, of a
signatory to the acknowledgment may not be suspended during any
challenge, except for good cause shown.
(e) The original written acknowledgment should be filed with
the state registrar of vital statistics. Upon receipt of any
acknowledgment executed pursuant to this section, the registrar
shall forward the copy of the acknowledgment to the child support enforcement division and the parents, if the address of the parents
is known to the registrar. If a birth certificate for the child
has been previously issued which is incorrect or incomplete, a new
birth certificate shall be issued.