ENROLLED
Senate Bill No. 567
(By Senators Wooton, Wiedebusch, Anderson, Bowman,
Buckalew, Dittmar, Grubb, Miller, Ross, Scott, Wagner,
White and Yoder)
____________
[Passed March 11, 1995; in effect ninety days from passage.]
_____________
AN ACT to repeal sections three-a, four, six, nine and ten, article
three, chapter forty-eight-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to repeal
sections three-a, seven and seven-a, article five of said
chapter; to amend and reenact section one, article two,
chapter five-f of said code; to amend and reenact section
five-d, article ten, chapter eleven of said code; to amend and
reenact section three, article two-e, chapter sixteen of said
code; to amend and reenact section eighteen-b, article five of
said chapter; to amend and reenact section two, article five-b
of said chapter; to further amend said article by adding
thereto a new section, designated section thirteen; to amend
and reenact section two, article twenty-one, chapter twenty-nine of said code; to amend and reenact section twenty-seven-
a, article twenty-two of said chapter; to amend and reenact
sections fifteen-a and fifteen-b, article two, chapter
forty-eight of said code; to further amend said article by
adding thereto a new section, designated section thirty-seven;
to amend and reenact section three, article one, chapter
forty-eight-a of said code; to further amend said article by
adding thereto a new section, designated section three-a; to
amend and reenact article two of said chapter; to amend
article three of said chapter by adding thereto a new section,
designated section eleven; to amend and reenact section
twenty-two, article four of said chapter; to amend and reenact
sections one, three and eight, article five of said chapter;
to amend and reenact sections one, three, four, five and six,
article six of said chapter; to amend and reenact sections
twelve and thirty-six, article seven of said chapter; and to
amend and reenact section one, article two, chapter fifty-nine
of said code, all relating generally to reorganizing the
functions and offices of administrative agencies responsible
for obtaining and enforcing support orders and establishing
paternity; providing for the transfer and incorporation of
agencies and boards and changing references from the child advocate office to the child support enforcement division;
providing for the confidentiality and disclosure of tax
returns and return information and changing references from
the child advocate office to the child support enforcement
division; authorizing the promulgation of legislative rules
ensuring adequate care and accommodations for consumers of
birthing centers and requiring birthing centers to implement
a program for establishment of paternity; limiting the use of
social security numbers by the division of vital statistics;
requiring hospitals and institutions to implement a program
for establishment of paternity as a condition of licensure;
requiring public and private hospitals and birthing centers to
establish a hospital-based paternity program; defining certain
terms related to public defender services and removing a
requirement that public defender services be provided in
paternity actions; providing for the payment of prizes under
the state lottery act to be made to the child support
enforcement division; providing for medical support
enforcement and changing references from the child advocate
office to the child support enforcement division; providing
for the withholding from income of amounts due as support and
changing references from the child advocate office to the child support enforcement division; providing for the
calculation of interest on support obligations arising from
domestic relations actions; defining certain terms related to
the enforcement of family obligations; providing for the
calculation of interest on support obligations arising from
actions to establish and enforce support orders; establishing
the West Virginia support enforcement commission; prescribing
the membership of the commission and qualifications and
eligibility for membership; describing terms of office and
conditions of membership; requiring members to subscribe to an
oath of office; providing for a commission chairman; providing
for compensation and expenses of commission members;
prescribing meeting requirements; authorizing the governor to
remove commission members for cause; prescribing the general
duties of the commission; describing the general powers of the
commission; requiring certain rule making by the commission;
establishing the child support enforcement division within the
department of health and human resources; providing for the
appointment of a director of the division; providing for
organization of the division and its employees; fixing
supervisory responsibilities within the division; prescribing
the general powers and duties of the division; requiring the promulgation of legislative rules establishing guidelines for
child support awards; creating a "child support enforcement
fund" in the state treasury; prescribing certain fees to be
assessed in actions related to establishing and enforcing
support orders; requiring certain provisions to be included in
contracts for providing services to the division; providing
that attorneys employed by the division or providing services
to the division under contract represent the state or the
division; requiring establishment of a parent locator service;
requiring cooperation with other states in the enforcement of
support obligations; providing for the disbursement of amounts
collected as support; requiring support payments to be made to
the division; authorizing the establishment of a data
processing and retrieval system by the division; establishing
procedures for obtaining support from federal tax refunds,
state income tax refunds, and unemployment compensation
benefits; requiring the division to provide obligees and
obligors with statements of account; establishing a central
registry of child support orders; authorizing the division to
issue administrative subpoenas; requiring periodic
investigation and review of support orders; providing for a
form to identify child support payments; providing for billing of fees and costs; assenting to the purpose of federal laws;
requiring the publicizing of the availability of support
enforcement services; providing for the confidentiality of
records of the division; prescribing when access may be had to
information of the division; authorizing the governor, by
executive order to transfer the division and the commission to
the department of tax and revenue or the department of
administration; providing for the repeal of article three,
chapter forty-eight-a by operation of law upon the
promulgation by the commission of emergency legislative rules;
providing for the budget of the family law master system;
prescribing actions which may be brought to obtain an order of
support; providing for the withholding from income of amounts
payable as support; providing for procedures before a family
law master if a person contests action proposed to be taken
against him; prescribing a civil action to establish
paternity; providing for medical testing procedures to aid in
the determination of paternity and allocating the costs of
such tests; providing for the establishment of paternity and
the duty to support; providing for the representation of the
parties in a paternity action; providing for the establishment
of paternity through an acknowledgement by the natural father; providing that in interstate support proceedings, attorneys
employed by the division and contract attorneys represent the
division or the state; and providing for the waiver of payment
of fees and costs by persons financially unable to pay.
Be it enacted by the Legislature of West Virginia:
That sections three-a, four, six, nine and ten, article three,
chapter forty-eight-a of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be repealed; that sections
three-a, seven and seven-a, article five of said chapter be
repealed; that section one, article two, chapter five-f of said
code be amended and reenacted; that section five-d, article ten,
chapter eleven of said code be amended and reenacted; that section
three, article two-e, chapter sixteen of said code be amended and
reenacted; that section eighteen-b, article five of said chapter be
amended and reenacted; that section two, article five-b of said
chapter be amended and reenacted; that said article be further
amended by adding thereto a new section, designated section
thirteen; that section two, article twenty-one, chapter twenty-nine
of said code be amended and reenacted; that section twenty-seven-a,
article twenty-two of said chapter be amended and reenacted; that
sections fifteen-a and fifteen-b, article two, chapter forty-eight
of said code be amended and reenacted; that said article be further amended by adding thereto a new section, designated section thirty-
seven; that section three, article one, chapter forty-eight-a of
said code be amended and reenacted; that said article be further
amended by adding thereto a new section, designated section three-
a; that article two of said chapter be amended and reenacted; that
article three of said chapter be amended by adding thereto a new
section, designated section eleven; that section twenty-two,
article four of said chapter be amended and reenacted; that
sections one, three and eight, article five of said chapter be
amended and reenacted; that sections one, three, four, five and
six, article six of said chapter be amended and reenacted; that
sections twelve and thirty-six, article seven of said chapter be
amended and reenacted; and that section one, article two, chapter
fifty-nine of said code be amended and reenacted, all to read as
follows:
CHAPTER 4. THE LEGISLATURE.
ARTICLE 10. THE WEST VIRGINIA SUNSET LAW.
§4-10-5. Termination of agencies or boards following preliminary
performance reviews.
The following agencies or boards shall be terminated on the
date indicated, but no agency or board shall be terminated under
this section unless a preliminary performance review has been conducted upon such agency or board:
(1) On the first day of July, one thousand nine hundred
ninety-four: Farm management commission; state structural barriers
compliance board; share in your future commission.
(2) On the first day of July, one thousand nine hundred
ninety-five: Emergency medical services advisory council;
commission on charitable organizations; information system advisory
commission; West Virginia labor-management council; board of social
work examiners; the rural health initiative advisory panel; the
marketing and development divisions of the department of
agriculture; real estate commission; juvenile facilities review
panel; office of water resources; center for professional
development; board of architects; state building commission; family
law masters system; public employees insurance agency; public
employees insurance agency finance board; division of
rehabilitation services.
(3) On the first day of July, one thousand nine hundred
ninety-six: U.S. geological survey program and whitewater
commission within the division of natural resources; state
geological and economic survey; workers' compensation; unemployment
compensation; office of judges of workers' compensation; board of
investments.
(4) On the first day of July, one thousand nine hundred
ninety-seven: The driver's licensing advisory board; West Virginia
health care cost review authority; governor's cabinet on children
and families; oil and gas conservation commission; child support
enforcement division; West Virginia contractors' licensing board.
(5) On the first day of July, one thousand nine hundred
ninety-eight: State lottery commission; the following divisions or
programs of the department of agriculture: Meat inspection program
and soil conservation committee; women's commission; state board
of risk and insurance management; board of examiners of land
surveyors; commission on uniform state laws; council of finance and
administration; forest management review commission; West
Virginia's membership in the interstate commission on the Potomac
river basin; legislative oversight commission on education
accountability; board of examiners in counseling; board of
examiners in speech pathology and audiology.
(6) On the first day of July, one thousand nine hundred
ninety-nine: Board of banking and financial institutions; capitol
building commission; tree fruit industry self-improvement
assessment program; public service commission.
(7) On the first day of July, two thousand: Family protection
services board; environmental quality board; West Virginia's membership in the Ohio river valley water sanitation commission;
ethics commission; oil and gas inspectors' examining board;
veterans' council; West Virginia's membership in the southern
regional education board.
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE
BRANCH OF STATE GOVERNMENT.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-1. Transfer and incorporation of agencies and boards; funds.
(a) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby transferred to
and incorporated in and shall be administered as a part of the
department of administration:
(1) Building commission provided for in article six, chapter
five of this code;
(2) Public employees insurance agency and public employees
insurance agency advisory board provided for in article sixteen,
chapter five of this code;
(3) Council of finance and administration provided for in
article one, chapter five-a of this code;
(4) Employee suggestion award board provided for in article
one-a, chapter five-a of this code;
(5) Governor's mansion advisory committee provided for in
article five, chapter five-a of this code;
(6) Commission on uniform state laws provided for in article
one-a, chapter twenty-nine of this code;
(7) Education and state employees grievance board provided for
in article twenty-nine, chapter eighteen of this code and article
six-a, chapter twenty-nine of this code;
(8) Board of risk and insurance management provided for in
article twelve, chapter twenty-nine of this code;
(9) Boundary commission provided for in article twenty-three,
chapter twenty-nine of this code;
(10) Public defender services provided for in article twenty-
one, chapter twenty-nine of this code;
(11) Division of personnel provided for in article six,
chapter twenty-nine of this code;
(12) The West Virginia ethics commission provided for in
article two, chapter six-b of this code;
(13) Consolidated public retirement board provided for in
article ten-d, chapter five of this code; and
(14) The child support enforcement division designated in
chapter forty-eight-a of this code.
(b) The department of commerce, labor and environmental resources and the office of secretary of the department of
commerce, labor and environmental resources are hereby abolished.
For purposes of administrative support and liaison with the office
of the governor, the following agencies and boards, including all
allied, advisory and affiliated entities shall be grouped under
three bureaus as follows:
(1) Bureau of commerce:
(A) Division of labor provided for in article one, chapter
twenty-one of this code, which shall include:
(i) Occupational safety and health review commission provided
for in article three-a, chapter twenty-one of this code; and
(ii) Board of manufactured housing construction and safety
provided for in article nine, chapter twenty-one of this code;
(B) Office of miners' health, safety and training provided for
in article one, chapter twenty-two-a of this code. The following
boards are transferred to the office of miners' health, safety and
training for purposes of administrative support and liaison with
the office of the governor:
(i) Board of coal mine health and safety and coal mine safety
and technical review committee provided for in article six, chapter
twenty-two-a of this code;
(ii) Board of miner training, education and certification provided for in article seven, chapter twenty-two-a of this code;
and
(iii) Mine inspectors' examining board provided for in article
nine, chapter twenty-two-a of this code;
(C) The West Virginia development office provided for in
article two, chapter five-b of this code, which shall include:
(i) Enterprise zone authority provided for in article two-b,
chapter five-b of this code; and
(ii) Economic development authority provided for in article
fifteen, chapter thirty-one of this code;
(D) Division of natural resources and natural resources
commission provided for in article one, chapter twenty of this
code. The Blennerhassett historical state park provided for in
article eight, chapter twenty-nine of this code shall be under the
division of natural resources;
(E) Division of forestry provided for in article one-a,
chapter nineteen of this code;
(F) Geological and economic survey provided for in article
two, chapter twenty-nine of this code;
(G) Water development authority and board provided for in
article one, chapter twenty-two-c of this code;
(2) Bureau of employment programs provided for in article one, chapter twenty-one-a of this code.
(3) Bureau of environment:
(A) Air quality board provided for in article five, chapter
twenty-two of this code;
(B) Solid waste management board provided for in article
three, chapter twenty-two of this code;
(C) Environmental quality board, or its successor board,
provided for in article three, chapter twenty-two-b of this code;
(D) Division of environmental protection provided for in
article one, chapter twenty-two of this code;
(E) Surface mine board of review provided for in article four,
chapter twenty-two-b of this code;
(F) Oil and gas inspectors' examining board provided for in
article seven, chapter twenty-two-c of this code;
(G) Shallow gas well review board provided for in article
eight, chapter twenty-two-c of this code; and
(H) Oil and gas conservation commission provided for in
article nine, chapter twenty-two-c of this code.
(c) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby transferred to
and incorporated in and shall be administered as a part of the department of education and the arts:
(1) Library commission provided for in article one, chapter
ten of this code;
(2) Educational broadcasting authority provided for in article
five, chapter ten of this code;
(3) University of West Virginia board of trustees provided for
in article two, chapter eighteen-b of this code;
(4) Board of directors of the state college system provided
for in article three, chapter eighteen-b of this code;
(5) Joint commission for vocational-technical-occupational
education provided for in article three-a, chapter eighteen-b of
this code;
(6) Division of culture and history provided for in article
one, chapter twenty-nine of this code; and
(7) Division of rehabilitation services provided for in
section two, article ten-a, chapter eighteen of this code.
(d) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby transferred to
and incorporated in and shall be administered as a part of the
department of health and human resources:
(1) Human rights commission provided for in article eleven, chapter five of this code;
(2) Division of human services provided for in article two,
chapter nine of this code;
(3) Division of health provided for in article one, chapter
sixteen of this code;
(4) Office of emergency medical services and advisory council
thereto provided for in article four-c, chapter sixteen of this
code;
(5) Health care cost review authority provided for in article
twenty-nine-b, chapter sixteen of this code;
(6) Commission on aging provided for in article fourteen,
chapter twenty-nine of this code;
(7) Commission on mental retardation provided for in article
fifteen, chapter twenty-nine of this code;
(8) Women's commission provided for in article twenty, chapter
twenty-nine of this code; and
(9) The child support enforcement division designated in
chapter forty-eight-a of this code.
(e) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby transferred to
and incorporated in and shall be administered as a part of the department of military affairs and public safety:
(1) Adjutant general's department provided for in article one-
a, chapter fifteen of this code;
(2) Armory board provided for in article six, chapter fifteen
of this code;
(3) Military awards board provided for in article one-g,
chapter fifteen of this code;
(4) Division of public safety provided for in article two,
chapter fifteen of this code;
(5) Office of emergency services and disaster recovery board
provided for in article five, chapter fifteen of this code and
emergency response commission provided for in article five-a of
said chapter;
(6) Sheriffs' bureau provided for in article eight, chapter
fifteen of this code;
(7) Division of corrections provided for in chapter twenty-
five of this code;
(8) Fire commission provided for in article three, chapter
twenty-nine of this code;
(9) Regional jail and correctional facility authority provided
for in article twenty, chapter thirty-one of this code;
(10) Board of probation and parole provided for in article twelve, chapter sixty-two of this code; and
(11) Division of veterans' affairs and veterans' council
provided for in article one, chapter nine-a of this code.
(f) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby transferred to
and incorporated in and shall be administered as a part of the
department of tax and revenue:
(1) Tax division provided for in article one, chapter eleven
of this code;
(2) Appraisal control and review commission provided for in
article one-a, chapter eleven of this code;
(3) Racing commission provided for in article twenty-three,
chapter nineteen of this code;
(4) Lottery commission and position of lottery director
provided for in article twenty-two, chapter twenty-nine of this
code;
(5) Agency of insurance commissioner provided for in article
two, chapter thirty-three of this code;
(6) Office of alcohol beverage control commissioner provided
for in article sixteen, chapter eleven of this code and article
two, chapter sixty of this code;
(7) Division of professional and occupational licenses which
may be hereafter created by the Legislature;
(8) Board of banking and financial institutions provided for
in article three, chapter thirty-one-a of this code;
(9) Lending and credit rate board provided for in chapter
forty-seven-a of this code;
(10) Division of banking provided for in article two, chapter
thirty-one-a of this code; and
(11) The child support enforcement division as designated in
chapter forty-eight-a of this code.
(g) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby transferred to
and incorporated in and shall be administered as a part of the
department of transportation:
(1) Road commission provided for in article two, chapter
seventeen of this code;
(2) Division of highways provided for in article two-a,
chapter seventeen of this code;
(3) Parkways, economic development and tourism authority
provided for in article sixteen-a, chapter seventeen of this code;
(4) Division of motor vehicles provided for in article two, chapter seventeen-a of this code;
(5) Driver's licensing advisory board provided for in article
two, chapter seventeen-b of this code;
(6) Aeronautics commission provided for in article two-a,
chapter twenty-nine of this code;
(7) State rail authority provided for in article eighteen,
chapter twenty-nine of this code; and
(8) Port authority provided for in article sixteen-b, chapter
seventeen of this code.
(h) Except for such powers, authority and duties as have been
delegated to the secretaries of the departments by the provisions
of section two of this article, the existence of the position of
administrator and of the agency and the powers, authority and
duties of each administrator and agency shall not be affected by
the enactment of this chapter.
(i) Except for such powers, authority and duties as have been
delegated to the secretaries of the departments by the provisions
of section two of this article, the existence, powers, authority
and duties of boards and the membership, terms and qualifications
of members of such boards shall not be affected by the enactment of
this chapter and all boards which are appellate bodies or were
otherwise established to be independent decisionmakers shall not have their appellate or independent decision-making status affected
by the enactment of this chapter.
(j) Any department previously transferred to and incorporated
in a department created in section two, article one of this chapter
by prior enactment of this section in chapter three, acts of the
Legislature, first extraordinary session, one thousand nine hundred
eighty-nine, and subsequent amendments thereto, shall henceforth be
read, construed and understood to mean a division of the
appropriate department so created. Wherever elsewhere in this
code, in any act, in general or other law, in any rule or
regulation, or in any ordinance, resolution or order, reference is
made to any department transferred to and incorporated in a
department created in section two, article one of this chapter,
such reference shall henceforth be read, construed and understood
to mean a division of the appropriate department so created, and
any such reference elsewhere to a division of a department so
transferred and incorporated shall henceforth be read, construed
and understood to mean a section of the appropriate division of the
department so created.
(k) When an agency, board or commission is transferred under
a bureau or agency other than a department headed by a secretary
pursuant to this section, that transfer shall be construed to be solely for purposes of administrative support and liaison with the
office of the governor, a department secretary or a bureau. The
bureaus created by the Legislature upon the abolishment of the
department of commerce, labor and environmental resources in the
year one thousand nine hundred ninety-four shall be headed by a
commissioner or other statutory officer of an agency within that
bureau. Nothing in this section shall be construed to extend the
powers of department secretaries under section two of this article
to any person other than a department secretary and nothing herein
shall be construed to limit or abridge the statutory powers and
duties of statutory commissioners or officers pursuant to this
code. Upon the abolishment of the office of secretary of the
department of commerce, labor and environmental resources, the
governor may appoint a statutory officer serving functions formerly
within that department to a position which was filled by the
secretary ex officio.
CHAPTER 11. TAXATION.
ARTICLE 10. PROCEDURE AND ADMINISTRATION.
§11-10-5d. Confidentiality and disclosure of returns and return
information.
(a)
General rule. -- Except when required in an official
investigation by the tax commissioner into the amount of tax due under any article administered under this article or in any
proceeding in which the tax commissioner is a party before a court
of competent jurisdiction to collect or ascertain the amount of
such tax and except as provided in subsections (d) through (n) of
this section, it shall be unlawful for any officer or employee of
this state to divulge or make known in any manner the tax return,
or any part thereof, of any person or disclose information
concerning the personal affairs of any individual or the business
of any single firm or corporation, or disclose the amount of
income, or any particulars set forth or disclosed in any report,
declaration or return required to be filed with the tax
commissioner by any article of this chapter imposing any tax
administered under this article or by any rule or regulation of the
tax commissioner issued thereunder, or disclosed in any audit or
investigation conducted under this article.
(b)
Definitions. -- For purposes of this section:
(1)
Background file document. -- The term "background file
document", with respect to a written determination, includes the
request for that written determination, any written material
submitted in support of the request and any communication (written
or otherwise) between the state tax department and any person
outside the state tax department in connection with the written determination received before issuance of the written
determination.
(2)
Disclosure. -- The term "disclosure" means the making
known to any person in any manner whatsoever a return or return
information.
(3)
Inspection. -- The terms "inspection" and "inspected" mean
any examination of a return or return information.
(4)
Return. -- The term "return" means any tax or information
return or report, declaration of estimated tax, claim or petition
for refund or credit or petition for reassessment that is required
by, or provided for, or permitted under the provisions of this
article (or any article of this chapter administered under this
article) which is filed with the tax commissioner by, on behalf of,
or with respect to any person, and any amendment or supplement
thereto, including supporting schedules, attachments or lists which
are supplemental to, or part of, the return so filed.
(5)
Return information. -- The term "return information"
means:
(A) A taxpayer's identity; the nature, source or amount of his
income, payments, receipts, deductions, exemptions, credits,
assets, liabilities, net worth, tax liability, tax withheld,
deficiencies, overassessments or tax payments, whether the taxpayer's return was, is being, or will be examined or subject to
other investigation or processing, or any other data received by,
recorded by, prepared by, furnished to or collected by the tax
commissioner with respect to a return or with respect to the
determination of the existence, or possible existence, of liability
(or the amount thereof) or by any person under the provisions of
this article (or any article of this chapter administered under
this article) for any tax, additions to tax, penalty, interest,
fine, forfeiture or other imposition or offense; and
(B) Any part of any written determination or any background
file document relating to such written determination. "Return
information" does not include, however, data in a form which cannot
be associated with, or otherwise identify, directly or indirectly,
a particular taxpayer. Nothing in the preceding sentence, or in
any other provision of this code, shall be construed to require the
disclosure of standards used or to be used for the selection of
returns for examination or data used or to be used for determining
such standards.
(6)
Tax administration. -- The term "tax administration"
means:
(A) The administration, management, conduct, direction and
supervision of the execution and application of the tax laws or related statutes of this state and the development and formulation
of state tax policy relating to existing or proposed state tax
laws, and related statutes of this state; and
(B) Includes assessment, collection, enforcement, litigation,
publication and statistical gathering functions under the laws of
this state.
(7)
Taxpayer identity. -- The term "taxpayer identity" means
the name of a person with respect to whom a return is filed, his
mailing address, his taxpayer identifying number or a combination
thereof.
(8)
Taxpayer return information. -- The term "taxpayer return
information" means return information as defined in subdivision (5)
of this subsection which is filed with, or furnished to, the tax
commissioner by or on behalf of the taxpayer to whom such return
information relates.
(9)
Written determination. -- The term "written determination"
means a ruling, determination letter, technical advice memorandum
or letter or administrative decision issued by the tax
commissioner.
(c)
Criminal penalty. -- Any officer or employee (or former
officer or employee) of this state who violates this section shall
be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one thousand dollars or imprisoned for not more
than one year, or both, together with costs of prosecution.
(d)
Disclosure to designee of taxpayer. -- Any person
protected by the provisions of this article may, in writing, waive
the secrecy provisions of this section for such purpose and such
period as he shall therein state. The tax commissioner may,
subject to such requirements and conditions as he may prescribe,
thereupon release to designated recipients such taxpayer's return
or other particulars filed under the provisions of the tax articles
administered under the provisions of this article, but only to the
extent necessary to comply with a request for information or
assistance made by the taxpayer to such other person. However,
return information shall not be disclosed to such person or persons
if the tax commissioner determines that such disclosure would
seriously impair administration of this state's tax laws.
(e)
Disclosure of returns and return information for use in
criminal investigations. --
(1)
In general. -- Except as provided in subdivision (3) of
this subsection, any return or return information with respect to
any specified taxable period or periods shall, pursuant to and upon
the grant of an ex parte order by a federal district court judge,
federal magistrate or circuit court judge of this state, under subdivision (2) of this subsection, be open (but only to the extent
necessary as provided in such order) to inspection by, or
disclosure to, officers and employees of any federal agency, or of
any agency of this state, who personally and directly engaged in:
(A) Preparation for any judicial or administrative proceeding
pertaining to the enforcement of a specifically designated state or
federal criminal statute to which this state, the United States or
such agency is or may be a party;
(B) Any investigation which may result in such a proceeding;
or
(C) Any state or federal grand jury proceeding pertaining to
enforcement of such a criminal statute to which this state, the
United States or such agency is or may be a party.
Such inspection or disclosure shall be solely for the use of
such officers and employees in such preparation, investigation, or
grand jury proceeding.
(2)
Application of order. -- Any United States attorney, any
special prosecutor appointed under Section 593 of Title 28, United
States Code, or any attorney in charge of a United States justice
department criminal division organized crime strike force
established pursuant to Section 510 of Title 28, United States
Code, may authorize an application to a circuit court judge or magistrate, as appropriate, for the order referred to in
subdivision (1) of this subsection. Any prosecuting attorney of
this state may authorize an application to a circuit court judge of
this state for the order referred to in subdivision (1) of this
subsection. Upon such application, such judge or magistrate may
grant such order if he determines on the basis of the facts
submitted by the applicant that:
(A) There is reasonable cause to believe, based upon
information believed to be reliable, that a specific criminal act
has been committed;
(B) There is reasonable cause to believe that the return or
return information is or may be relevant to a matter relating to
the commission of such act; and
(C) The return or return information is sought exclusively for
use in a state or federal criminal investigation or proceeding
concerning such act, and the information sought to be disclosed
cannot reasonably be obtained, under the circumstances, from
another source.
(3) The tax commissioner shall not disclose any return or
return information under subdivision (1) of this subsection if he
determines and certifies to the court that such disclosure would
identify a confidential informant or seriously impair a civil or criminal tax investigation.
(f)
Disclosure to person having a material interest. -- The
tax commissioner may, pursuant to legislative regulations
promulgated by him, and upon such terms as he may require, disclose
a return or return information to a person having a material
interest therein:
Provided, That such disclosure shall only be
made if the tax commissioner determines, in his discretion, that
such disclosure would not seriously impair administration of this
state's tax laws.
(g)
Statistical use. -- This section shall not be construed to
prohibit the publication or release of statistics so classified as
to prevent the identification of particular returns and the items
thereof.
(h)
Disclosure of amount of outstanding lien. -- If notice of
lien has been recorded pursuant to section twelve of this article,
the amount of the outstanding obligation secured by such lien may
be disclosed to any person who furnishes written evidence
satisfactory to the tax commissioner that such person has a right
in the property subject to such lien or intends to obtain a right
in such property.
(i)
Reciprocal exchange. -- The tax commissioner may, pursuant
to written agreement, permit the proper officer of the United States, or the District of Columbia or any other state, or any
political subdivision of this state, or his authorized
representative, who is charged by law with responsibility for
administration of a similar tax, to inspect reports, declarations
or returns filed with the tax commissioner or may furnish to such
officer or representative a copy of any such document, provided
such other jurisdiction grants substantially similar privileges to
the tax commissioner or to the attorney general of this state.
Such disclosure shall be only for the purpose of, and only to the
extent necessary in, the administration of tax laws:
Provided,
That such information shall not be disclosed to the extent that the
tax commissioner determines that such disclosure would identify a
confidential informant or seriously impair any civil or criminal
tax investigation.
(j)
Inspection of business and occupation tax returns by
municipalities. -- The tax commissioner shall, upon the written
request of the mayor of any West Virginia municipality having a
business and occupation tax or privilege tax, allow the duly
authorized agent of such municipality to inspect and make copies of
the state business and occupation tax return filed by taxpayers of
such municipality. Such inspection or copying shall only be for
the purposes of securing information for municipal tax purposes and shall only be allowed if such municipality allows the tax
commissioner the right to inspect or make copies of the municipal
business and occupation tax returns of such municipality.
(k)
Release of administrative decisions. -- The tax
commissioner shall release to the public his administrative
decisions, or a summary thereof:
Provided, That unless the
taxpayer appeals the administrative decision to circuit court or
waives in writing his rights to confidentiality, any identifying
characteristics or facts about the taxpayer shall be omitted or
modified to such an extent so as to not disclose the name or
identity of the taxpayer.
(l)
Release of taxpayer information. --
(1) If the tax commissioner believes that enforcement of the
tax laws administered under this article will be facilitated and
enhanced thereby, he shall disclose, upon request, the names and
address of persons:
(A) Who have a current business registration certificate.
(B) Who are licensed employment agencies.
(C) Who are licensed collection agencies.
(D) Who are licensed to sell drug paraphernalia.
(E) Who are distributors of gasoline or special fuel.
(F) Who are contractors.
(G) Who are transient vendors.
(H) Who are authorized by law to issue a sales or use tax
exemption certificate.
(I) Who are required by law to collect sales or use taxes.
(J) Who are foreign vendors authorized to collect use tax.
(K) Whose business registration certificate has been suspended
or canceled or not renewed by the tax commissioner.
(L) Against whom a tax lien has been recorded under section
twelve of this article (including any particulars stated in the
recorded lien).
(M) Against whom criminal warrants have been issued for a
criminal violation of this state's tax laws.
(N) Who have been convicted of a criminal violation of this
state's tax laws.
(m)
Disclosure of return information to child support
enforcement division. --
(1)
State return information. -- The tax commissioner may,
upon written request, disclose to the child support enforcement
division created by article two, chapter forty-eight-a of this
code:
(A) Available return information from the master files of the
tax department relating to the social security account number, address, filing status, amounts and nature of income and the number
of dependents reported on any return filed by, or with respect to,
any individual with respect to whom child support obligations are
sought to be enforced; and
(B) Available state return information reflected on any state
return filed by, or with respect to any individual described in
paragraph (A) of this subdivision, relating to the amount of such
individual's gross income, but only if such information is not
reasonably available from any other source.
(2)
Restrictions on disclosure. -- The tax commissioner shall
disclose return information under subdivision (1) of this
subsection only for purposes of, and to the extent necessary in,
collecting child support obligations from, and locating individuals
owing such obligations.
(n)
Disclosure of names and addresses for purposes of jury
selection. --
The tax commissioner shall, at the written request of a
circuit court or the chief judge thereof, provide to the circuit
court within thirty calendar days a list of the names and addresses
of individuals residing in the county or counties comprising the
circuit who have filed a state personal income tax return for the
preceding tax year. The list provided shall set forth names and addresses only. The request shall be limited to counties within
the jurisdiction of the requesting court.
The court, upon receiving the list or lists, shall direct the
jury commission of the appropriate county to merge the names and
addresses with other lists used in compiling a master list of
residents of the county from which prospective jurors are to be
chosen. Immediately after the master list is compiled, the jury
commission shall cause the list provided by the tax commissioner
and all copies thereof to be destroyed and shall certify to the
circuit court and to the tax commissioner that the lists have been
destroyed.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 2E. BIRTHING CENTERS.
§16-2E-3. State director of health to establish rules and
regulations; legislative findings; emergency filing.
The director of health shall promulgate rules and regulations
not in conflict with any provision of this article, as it finds
necessary in order to ensure adequate care and accommodations for
consumers of birthing centers. In promulgating such regulations
the director shall be limited to simple, necessary provisions which
shall not have the effect of hampering the development and
licensure of birthing centers. Such regulations shall not address acceptable site characteristics such as the number of minutes of
travel time between a birthing center and a hospital, or physical
environment, such as acceptable levels of temperature of any
refrigerator found in a birthing center, or clinical equipment,
such as the number and kind of clocks which a birthing center must
have on the premises. Such regulations shall require that all
birthing centers submit satisfactory evidence that the center has
implemented the paternity program created pursuant to section
thirteen of this article along with any application for licensure.
The Legislature hereby finds and declares that it is in the
public interest to encourage the development of birthing centers
for the purpose of providing an alternative method of birth and
therefore, in order to provide for the licensing of such birthing
centers to prevent substantial harm to the public interest because
of preexisting delay, within sixty days of passage of this article,
the director of health shall proceed to promulgate such rules and
regulations under the provisions of section fifteen, article three,
chapter twenty-nine-a of this code.
ARTICLE 5. VITAL STATISTICS.
§16-5-18b. Limitation on use of social security numbers.
(a) A social security account number obtained in accordance
with the provisions of this article with respect to the filing of: (1) A certificate of birth; (2) an application for a delayed
registration of birth; (3) a judicial order establishing a record
of birth; (4) an adoption order or decree; or (5) a certificate of
paternity shall not be transmitted to a clerk of the county
commission. Such social security account number shall not appear
upon the public record of the register of births or upon any
certificate of birth registration issued by the state registrar,
local registrar, county clerk or other issuing authority, if any.
Such social security account numbers shall be made available by the
state registrar to the child support enforcement division created
by article forty-eight-a upon the request of the division, to be
used solely in connection with the enforcement of child support
orders.
(b) A parent who desires not to furnish a social security
account number as required by the provisions of this article or
article six, chapter forty-eight-a of this code shall file with the
person responsible for obtaining personal data from the parent, a
request that he or she not be required to furnish such number. The
request shall be made on a form prescribed by the state registrar
of vital statistics or in a substantially similar instrument and
shall set forth the reasons that the parent declines or is unable
to furnish such number. Supplies of a form for the request shall be made available to hospitals, circuit clerks and other persons
responsible for obtaining personal data from parents, and shall be
provided to any parent who states that he or she desires not to be
required to furnish such number. A request, when received, shall
be transmitted in the same manner as a record of a social security
account number. The board of health shall promulgate legislative
rules in accordance with the provisions of chapter twenty-nine-a of
this code which shall establish the procedural means and
substantive criteria by which the state registrar may determine
whether there exists good cause for not requiring the furnishing of
such number. In proposing the promulgation of such rules, the
board of health shall give due consideration to related regulations
prescribed by the secretary of health and human services of the
United States.
ARTICLE 5B. HOSPITALS AND SIMILAR INSTITUTIONS.
§16-5B-2. Hospitals and institutions to obtain license;
qualifications of applicant.
No person, partnership, association, corporation or any local
governmental unit or any division, department, board or agency
thereof may continue to operate an existing ambulatory health care
facility, ambulatory surgical facility, hospital or extended care
facility operated in connection with a hospital, or open an ambulatory health care facility, ambulatory surgical facility, a
hospital or extended care facility operated in connection with a
hospital, unless such operation shall have been approved and
regularly licensed by the state as hereinafter provided. Licenses
shall be issued for a particular number by type of beds and/or type
of services. Any change in the number by type of bed and/or type
of services shall require the issuance of a new license.
Before a license shall be issued under this article, the
person applying, if an individual, shall submit evidence
satisfactory to the state department of health that he is not less
than eighteen years of age, of reputable and responsible character
and otherwise qualified. In the event the applicant is an
association, corporation or governmental unit, like evidence shall
be submitted as to the members thereof and the persons in charge.
Every applicant shall, in addition, submit satisfactory
evidence of his ability to comply with the minimum standards and
with all rules and regulations lawfully promulgated. Every
applicant shall further submit satisfactory evidence that he has
implemented the paternity program created pursuant to section
thirteen of this article.
§16-5B-13. Hospital-based paternity program.
(a) Every public and private hospital licensed pursuant to section two of this article and every birthing center licensed
pursuant to section two, article two-e of this chapter, that
provides obstetrical services in West Virginia shall participate in
the hospital-based paternity program.
(b) The child support enforcement division as described in
section twelve, article two, chapter forty-eight-a of this code
shall provide all public and private hospitals and all birthing
centers providing obstetric services in this state with:
(1) Information regarding the establishment of paternity;
(2) An affidavit of paternity fulfilling the requirements of
section six, article six, chapter forty-eight-a of this code; and
(3) The telephone contact number for the child support
enforcement division that a parent may call for further information
regarding the establishment of paternity.
(c) Prior to the discharge from any facility included in this
section of any mother who has given birth to a live infant, the
administrator, or his or her assignee, shall ensure that the
following materials are provided to any unmarried woman and any
person holding himself out to be the natural father of the child:
(1) Information regarding the establishment of paternity;
(2) An affidavit of paternity fulfilling the requirements of
section six, article six, chapter forty-eight-a of this code; and
(3) The telephone contact number for the child support
enforcement division that a parent may call for further information
regarding the establishment of paternity.
(d) The child support enforcement division shall notify the
state department of health of any failure of any hospital or
birthing center to conform with the requirements of this section.
(e) Any hospital or birthing center described in this article
should provide the information detailed in subsection (c) of this
section at any time when such facility is providing obstetrical
services.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 21. PUBLIC DEFENDER SERVICES.
§29-21-2. Definitions.
As used in this article, the following words and phrases are
hereby defined:
(1) "Eligible client": Any person who meets the requirements
established by this article to receive publicly funded legal
representation in an eligible proceeding as defined herein;
(2) "Eligible proceeding": Criminal charges which may result
in incarceration, juvenile proceedings, proceedings to revoke
parole or probation if the revocation may result in incarceration,
contempt of court, child abuse and neglect proceedings which may result in a termination of parental rights, mental hygiene
commitment proceedings, extradition proceedings, proceedings
brought in aid of an eligible proceeding and appeals from or post
conviction challenges to the final judgment in an eligible
proceeding. Legal representation provided pursuant to the
provisions of this article is limited to the court system of the
state of West Virginia, but does not include representation in
municipal courts unless the accused is at risk of incarceration;
(3) "Legal representation": The provision of any legal
services or legal assistance consistent with the purposes and
provisions of this article;
(4) "Private practice of law": The provision of legal
representation by a public defender or assistant public defender to
a client who is not entitled to receive legal representation under
the provisions of this article, but does not include, among other
activities, teaching;
(5) "Public defender": The staff attorney employed on a full-
time basis by a public defender corporation who, in addition to
providing direct representation to eligible clients, has
administrative responsibility for the operation of the public
defender corporation. The public defender may be a part-time
employee if the board of directors of the public defender corporation finds efficient operation of the corporation does not
require a full-time attorney and the executive director approves
such part-time employment;
(6) "Assistant public defender": A staff attorney providing
direct representation to eligible clients whose salary and status
as a full-time or part-time employee are fixed by the board of
directors of the public defender corporation;
(7) "Public defender corporation": A corporation created
under section eight of this article for the sole purpose of
providing legal representation to eligible clients; and
(8) "Public defender office": An office operated by a public
defender corporation to provide legal representation under the
provisions of this article.
ARTICLE 22. STATE LOTTERY ACT.
§29-22-27a. Payment of prizes to the child support enforcement
division.
(a) Upon notification by the child support enforcement
division created by article two, chapter forty-eight-a of this code
that a person entitled to a prize or any winning ticket is
delinquent in the payment of child support or spousal support, the
director shall forward to said child support enforcement division
such portion of any prize distributed directly from the state lottery office and that is available to pay all or any portion of
the delinquent support payment.
(b) The director shall enter into a written agreement with the
child support enforcement division for the purpose of establishing
a procedure for the collection of prizes as set forth in subsection
(a) of this section which shall include a method by which the child
support enforcement division may receive the names of lottery
winners as expeditiously as possible.
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 2. DIVORCE, ANNULMENT AND SEPARATE MAINTENANCE.
§48-2-15a. Medical support enforcement.
(a) For the purposes of this section:
(1) "Custodian for the children" means a parent, legal
guardian, committee or other third party appointed by court order
as custodian of child or children for whom child support is
ordered.
(2) "Obligated parent" means a natural or adoptive parent who
is required by agreement or order to pay for insurance coverage and
medical care, or some portion thereof, for his or her child.
(3) "Insurance coverage" means coverage for medical, dental,
including orthodontic, optical, psychological, psychiatric or other
health care service.
(4) "Child" means a child to whom a duty of child support is
owed.
(5) "Medical care" means medical, dental, optical,
psychological, psychiatric or other health care service for
children in need of child support.
(6) "Insurer" means any company, health maintenance
organization, self-funded group, multiple employer welfare
arrangement, hospital or medical services corporation, trust, group
health plan, as defined in 29 U.S.C. §1167, Section 607(1) of the
Employee Retirement Income Security Act of 1974 or other entity
which provides insurance coverage or offers a service benefit plan.
(b) In every action to establish or modify an order which
requires the payment of child support, the court shall ascertain
the ability of each parent to provide medical care for the children
of the parties. In any temporary or final order establishing an
award of child support or any temporary or final order modifying a
prior order establishing an award of child support, the court shall
order one or more of the following:
(1) The court shall order either parent or both parents to
provide insurance coverage for a child, if such insurance coverage
is available to that parent on a group basis through an employer or
through an employee's union. If similar insurance coverage is available to both parents, the court shall order the child to be
insured under the insurance coverage which provides more
comprehensive benefits. If such insurance coverage is not available
at the time of the entry of the order, the order shall require that
if such coverage thereafter becomes available to either party, that
party shall promptly notify the other party of the availability of
insurance coverage for the child.
(2) If the court finds that insurance coverage is not
available to either parent on a group basis through an employer,
multi-employer trust or employees' union, or that the group insurer
is not accessible to the parties, the court may order either parent
or both parents to obtain insurance coverage which is otherwise
available at a reasonable cost.
(3) Based upon the respective ability of the parents to pay,
the court may order either parent or both parents to be liable for
reasonable and necessary medical care for a child. The court shall
specify the proportion of the medical care for which each party
shall be responsible.
(4) If insurance coverage is available, the court shall also
determine the amount of the annual deductible on insurance coverage
which is attributable to the children and designate the proportion
of the deductible which each party shall pay.
(5) The order shall require the obligor to continue to provide
the child support enforcement division created by article two,
chapter forty-eight-a of this code with information as to his or
her employer's name and address and information as to the
availability of employer-related insurance programs providing
medical care coverage so long as the child continues to be eligible
to receive support.
(c) The cost of insurance coverage shall be considered by the
court in applying the child support guidelines provided for in
section seventeen, article two, chapter forty-eight-a of this code.
(d) Within thirty days after the entry of an order requiring
the obligated parent to provide insurance coverage for the
children, that parent shall submit to the custodian for the child
written proof that the insurance has been obtained or that an
application for insurance has been made. Such proof of insurance
coverage shall consist of, at a minimum:
(1) The name of the insurer;
(2) The policy number;
(3) An insurance card;
(4) The address to which all claims should be mailed;
(5) A description of any restrictions on usage, such as prior
approval for hospital admission, and the manner in which to obtain such approval;
(6) A description of all deductibles; and
(7) Five copies of claim forms.
(e) The custodian for the child shall send the insurer or the
obligated parent's employer the children's address and notice that
the custodian will be submitting claims on behalf of the children.
Upon receipt of such notice, or an order for insurance coverage
under this section, the obligated parent's employer, multi-employer
trust or union shall, upon the request of the custodian for the
child, release information on the coverage for the children,
including the name of the insurer.
(f) A copy of the court order for insurance coverage shall not
be provided to the obligated parent's employer or union or the
insurer unless ordered by the court, or unless:
(1) The obligated parent, within thirty days of receiving
effective notice of the court order, fails to provide to the
custodian for the child written proof that the insurance has been
obtained or that an application for insurance has been made;
(2) The custodian for the child serves written notice by mail
at the obligated parent's last known address of intention to
enforce the order requiring insurance coverage for the child; and
(3) The obligated parent fails within fifteen days after the mailing of the notice to provide written proof to the custodian for
the child that the child has insurance coverage.
(g) (1) Upon service of the order requiring insurance coverage
for the children, the employer, multi-employer trust or union shall
enroll the child as a beneficiary in the group insurance plan and
withhold any required premium from the obligated parent's income or
wages.
(2) If more than one plan is offered by the employer, multi-
employer trust or union, the child shall be enrolled in the same
plan as the obligated parent at a reasonable cost.
(3) Insurance coverage for the child which is ordered pursuant
to the provisions of this section shall not be terminated except as
provided in subsection (j) of this section.
(h) Where a parent is required by a court or administrative
order to provide health coverage, which is available through an
employer doing business in this state, the employer is required:
(1) To permit the parent to enroll under family coverage any
child who is otherwise eligible for coverage without regard to any
enrollment season restrictions;
(2) If the parent is enrolled but fails to make application to
obtain coverage of the child, to enroll the child under family
coverage upon application by the child's other parent, by the state agency administering the medicaid program or by the child support
enforcement division;
(3) Not to disenroll or eliminate coverage of any such child
unless the employer is provided satisfactory written evidence that:
(A) The court or administrative order is no longer in effect;
(B) The child is or will be enrolled in comparable coverage
which will take effect no later than the effective date of
disenrollment; or
(C) The employer has eliminated family health coverage for all
of its employees;
(4) To withhold from the employee's compensation the
employee's share, if any, of premiums for health coverage and to
pay this amount to the insurer:
Provided, That the amount so
withheld may not exceed the maximum amount permitted to be withheld
under 15 U.S.C. §1673, Section 303(b) of the Consumer Credit
Protection Act.
(i) (1) The signature of the custodian for the child shall
constitute a valid authorization to the insurer for the purposes of
processing an insurance payment to the provider of medical care for
the child.
(2) No insurer, employer or multi-employer trust in this state
may refuse to honor a claim for a covered service when the custodian for the child or the obligated parent submits proof of
payment for medical bills for the child.
(3) The insurer shall reimburse the custodian for the child or
the obligated parent who submits copies of medical bills for the
child with proof of payment.
(4) All insurers in this state shall comply with the
provisions of section sixteen, article fifteen, chapter thirty-
three of this code and section eleven, article sixteen of said
chapter and shall provide insurance coverage for the child of a
covered employee notwithstanding the amount of support otherwise
ordered by the court and regardless of the fact that the child may
not be living in the home of the covered employee.
(j) When an order for insurance coverage for a child pursuant
to this section is in effect and the obligated parent's employment
is terminated, or the insurance coverage for the child is denied,
modified or terminated, the insurer shall in addition to complying
with the requirements of article sixteen-a, chapter thirty-three of
this code, within ten days after the notice of change in coverage
is sent to the covered employee, notify the custodian for the child
and provide an explanation of any conversion privileges available
from the insurer.
(k) A child of an obligated parent shall remain eligible for insurance coverage until the child is emancipated or until the
insurer under the terms of the applicable insurance policy
terminates said child from coverage, whichever is later in time, or
until further order of the court.
(l) If the obligated parent fails to comply with the order to
provide insurance coverage for the child, the court shall:
(1) Hold the obligated parent in contempt for failing or
refusing to provide the insurance coverage or for failing or
refusing to provide the information required in subsection (d) of
this section;
(2) Enter an order for a sum certain against the obligated
parent for the cost of medical care for the child and any insurance
premiums paid or provided for the child during any period in which
the obligated parent failed to provide the required coverage;
(3) In the alternative, other enforcement remedies available
under sections two and three, article five, chapter forty-eight-a
of this code, or otherwise available under law, may be used to
recover from the obligated parent the cost of medical care or
insurance coverage for the child;
(4) In addition to other remedies available under law, the
child support enforcement division may garnish the wages, salary or
other employment income of, and withhold amounts from state tax refunds to any person who:
(A) Is required by court or administrative order to provide
coverage of the cost of health services to a child eligible for
medical assistance under medicaid; and
(B) Has received payment from a third party for the costs of
such services but has not used the payments to reimburse either the
other parent or guardian of the child or the provider of the
services, to the extent necessary to reimburse the state medicaid
agency for its costs:
Provided, That claims for current and past
due child support shall take priority over these claims.
(m) Proof of failure to maintain court ordered insurance
coverage for the child constitutes a showing of substantial change
in circumstances or increased need pursuant to section fifteen of
this article, and provides a basis for modification of the child
support order.
§48-2-15b. Withholding from income.
(a) Every order entered or modified under the provisions of
this article, not described in subsection (d) of this section,
which requires the payment of child support or spousal support
shall include a provision for automatic withholding from income of
the obligor, in order to facilitate income withholding as a means
of collecting support.
(b) Every such order as described in subsection (a) of this
section shall contain language authorizing income withholding to
commence without further court action, as follows:
(1) The order shall provide that income withholding will begin
immediately, without regard to whether there is an arrearage: (A)
When a child for whom support is ordered is included or becomes
included in a grant of assistance from the division of human
services or a similar agency of a sister state for aid to families
with dependent children benefits, medical assistance only benefits
or foster care benefits; or (B) when the support obligee has
applied for services from the child support enforcement division
created pursuant to article two, chapter forty-eight-a of this
code, or the support enforcement agency of another state or is
otherwise receiving services from the child support enforcement
division as provided for in said chapter. In any case where one of
the parties demonstrates, and the court finds, that there is good
cause not to require immediate income withholding, or in any case
where there is filed with the court a written agreement between the
parties which provides for an alternative arrangement, such order
shall not provide for income withholding to begin immediately.
(2) The order shall also provide that income withholding will
begin immediately upon the occurrence of any of the following:
(A) When the payments which the obligor has failed to make
under the order are at least equal to the support payable for one
month, if the order requires support to be paid in monthly
installments;
(B) When the payments which the obligor has failed to make
under the order are at least equal to the support payable for four
weeks, if the order requires support to be paid in weekly or
biweekly installments;
(C) When the obligor requests the child support enforcement
division to commence income withholding; or
(D) When the obligee requests that such withholding begin, if
the request is approved by the court in accordance with procedures
and standards established by rules and regulations promulgated by
the commission pursuant to this section and to chapter twenty-nine-
a of this code.
(c) On and after the first day of January, one thousand nine
hundred ninety-four, the wages of an obligor shall be subject to
withholding, regardless of whether child support payments are in
arrears, on the date the order for child support is entered:
Provided, That where one of the parties demonstrates, and the court
finds, that there is good cause not to require immediate income
withholding, or in any case where there is filed with the court a written agreement between the parties which provides for an
alternative arrangement, such order shall not provide for income
withholding to begin immediately.
(d) The supreme court of appeals shall make available to the
circuit courts standard language to be included in all such orders,
so as to conform such orders to the applicable requirements of
state and federal law regarding the withholding from income of
amounts payable as support.
(e) Every support order entered by a circuit court of this
state prior to the effective date of this section shall be
considered to provide for an order of income withholding, by
operation of law, which complies with the provisions of this
section, notwithstanding the fact that such support order does not
in fact provide for such order of withholding.
(f) The court shall consider the best interests of the child
in determining whether "good cause" exists under this section. The
court may also consider the obligor's payment record in determining
whether "good cause" has been demonstrated.
(g) The commission as defined in section one, article two,
chapter forty-eight-a of this code shall promulgate legislative
rules pursuant to chapter twenty-nine-a of this code further
defining the duties of the child support enforcement division and the employer in wage withholding.
§48-2-37. Calculation of interest.
If an obligation to pay interest arises under this chapter and
the rate is not specified, the rate is that specified in section
thirty-one, article six, chapter fifty-six of this code. On or
after the effective date of this section, interest shall accrue
only upon the outstanding principal of such obligation. 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 has accrued on unpaid installments
accruing before the effective date of this section 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 effective date of this section.
CHAPTER 48A. ENFORCEMENT OF FAMILY OBLIGATIONS.
ARTICLE 1. GENERAL PROVISIONS.
§48A-1-3. Definitions.
As used in this chapter:
(1) "Automatic data processing and retrieval system" means a
computerized data processing system designed to do the following:
(A) To control, account for and monitor all of the factors in
the support enforcement collection and paternity determination
process, including, but not limited to:
(i) Identifiable correlation factors (such as social security
numbers, names, dates of birth, home addresses and mailing
addresses of any individual with respect to whom support
obligations are sought to be established or enforced and with
respect to any person to whom such support obligations are owing)
to assure sufficient compatibility among the systems of different
jurisdictions to permit periodic screening to determine whether
such individual is paying or is obligated to pay support in more
than one jurisdiction;
(ii) Checking of records of such individuals on a periodic
basis with federal, interstate, intrastate and local agencies;
(iii) Maintaining the data necessary to meet applicable
federal reporting requirements on a timely basis; and
(iv) Delinquency and enforcement activities;
(B) To control, account for and monitor the collection and
distribution of support payments (both interstate and intrastate)
the determination, collection and distribution of incentive
payments (both interstate and intrastate), and the maintenance of
accounts receivable on all amounts owed, collected and distributed;
(C) To control, account for and monitor the costs of all
services rendered, either directly or by exchanging information
with state agencies responsible for maintaining financial
management and expenditure information;
(D) To provide access to the records of the department of
health and human resources or aid to families with dependent
children in order to determine if a collection of a support payment
causes a change affecting eligibility for or the amount of aid
under such program;
(E) To provide for security against unauthorized access to, or
use of, the data in such system;
(F) To facilitate the development and improvement of the
income withholding and other procedures designed to improve the
effectiveness of support enforcement through the monitoring of
support payments, the maintenance of accurate records regarding the
payment of support and the prompt provision of notice to
appropriate officials with respect to any arrearage in support
payments which may occur; and
(G) To provide management information on all cases from
initial referral or application through collection and enforcement.
(2) "Chief judge" means the following:
(A) The circuit judge in a judicial circuit having only one circuit judge; or
(B) The chief judge of the circuit court in a judicial circuit
having two or more circuit judges.
(3) "Child advocate office" and "child support enforcement
division" mean the agency created under the provisions of article
two of this chapter, or any public or private entity or agency
contracting to provide a service. The "child advocate office" or
"child support enforcement division" is that agency intended by the
Legislature to be the single and separate organizational unit of
state government administering programs of child and spousal
support enforcement and meeting the staffing and organizational
requirements of the secretary of the federal department of health
and human services.
(4) "Children's advocate" or "advocate" means any public or
private agency, entity or person providing child support
enforcement services required by this chapter. The term includes
those persons or agencies or entities providing services under the
direction of or pursuant to a contract with the child support
enforcement division as provided for in article two of this chapter
and in any such contract.
(5) "Court" means a circuit court of this state, unless the
context in which such term is used clearly indicates that reference to some other court is intended.
(6) "Court of competent jurisdiction" means a circuit court
within this state or a court or administrative agency of another
state having jurisdiction and due legal authority to deal with the
subject matter of the establishment and enforcement of support
obligations. Whenever in this chapter reference is made to an
order of a court of competent jurisdiction, or similar wording,
such language shall be interpreted so as to include orders of an
administrative agency entered in a state where enforceable orders
may by law be properly made and entered by such administrative
agency.
(7) "Custodial parent" or "custodial parent of a child" means
a parent who has been granted custody of a child by a court of
competent jurisdiction. "Noncustodial parent" means a parent of a
child with respect to whom custody has been adjudicated with the
result that such parent has not been granted custody of the child.
(8) "Director" means any person appointed pursuant to section
thirteen, article two of this chapter, who directs all child
support establishment and enforcement services for the child
support enforcement division.
(9) "Domestic relations matter" means any circuit court
proceeding involving child custody, child visitation, child support or alimony.
(10) "Earnings" means compensation paid or payable for
personal services, whether denominated as wages, salary,
commission, bonus or otherwise, and includes periodic payments
pursuant to a pension or retirement program. "Disposable earnings"
means that part of the earnings of any individual remaining after
the deduction from those earnings of any amounts required by law to
be withheld.
(11) "Employer" means any individual, sole proprietorship,
partnership, association, public or private corporation, the United
States or any federal agency, this state or any political
subdivision of this state, any other state or a political
subdivision of another state and any other legal entity which hires
and pays an individual for his services.
(12) "Guardian of the property of a child" means a person
lawfully invested with the power, and charged with the duty, of
managing and controlling the estate of a child.
(13) "Income" includes, but is not limited to, the following:
(A) Commissions, earnings, salaries, wages and other income
due or to be due in the future to an obligor from his employer and
successor employers;
(B) Any payment due or to be due in the future to an obligor from a profit-sharing plan, a pension plan, an insurance contract,
an annuity, social security, unemployment compensation,
supplemental employment benefits, workers' compensation benefits,
state lottery winnings and prizes and overtime pay;
(C) Any amount of money which is owing to the obligor as a
debt from an individual, partnership, association, public or
private corporation, the United States or any federal agency, this
state or any political subdivision of this state, any other state
or a political subdivision of another state or any other legal
entity which is indebted to the obligor.
(14) "Individual entitled to support enforcement services
under the provisions of this chapter and the provisions of Title
IV-D of the federal Social Security Act" means:
(A) An individual who has applied for or is receiving services
from the child support enforcement division and who is the
custodial parent of a child, or the primary caretaker of a child,
or the guardian of the property of a child when:
(i) Such child has a parent and child relationship with an
obligor who is not such custodial parent, primary caretaker or
guardian; and
(ii) The obligor with whom the child has a parent and child
relationship is not meeting an obligation to support the child, or has not met such obligation in the past; or
(B) An individual who has applied for or is receiving services
from the child support enforcement division and who is an adult or
an emancipated minor whose spouse or former spouse has been ordered
by a court of competent jurisdiction to pay spousal support to the
individual, whether such support is denominated alimony or separate
maintenance, or is identified by some other terminology, thus
establishing a support obligation with respect to such spouse, when
the obligor required to pay such spousal support is not meeting the
obligation, or has not met such obligation in the past; or
(C) Any individual who is an obligee in a support order,
entered by a court of competent jurisdiction after the thirty-first
day of December, one thousand nine hundred ninety-three.
(15) "Master" or "family law master" means a person appointed
to such position under the provisions of section one, article four
of this chapter.
(16) "Obligee" means:
(A) An individual to whom a duty of support is or is alleged
to be owed or in whose favor a support order has been issued or a
judgment determining parentage has been rendered;
(B) A state or political subdivision to which the rights under
a duty of support or support order have been assigned or which has independent claims based on financial assistance provided to an
individual obligee; or
(C) An individual seeking a judgment determining parentage of
the individual's child.
(17) "Obligor" means an individual or the estate of a
decedent:
(A) Who owes or is alleged to owe a duty of support;
(B) Who is alleged, but has not been adjudicated, to be a
parent of a child; or
(C) Who is liable under a support order.
(18) "Office of the children's advocate" or "child support
enforcement division" means the agency created in section twelve,
article two of this chapter or any public or private entity or
agency contracting with the child support enforcement division to
provide these services pursuant to article two of this chapter.
(19) "Primary caretaker of a child" means a parent or other
person having actual physical custody of a child without a court
order granting such custody and who has been primarily responsible
for exercising parental rights and responsibilities with regard to
such child.
(20) "Secretary" means the secretary of the department in
which the child support enforcement division is located according to section forty-two, article two of this chapter.
(21) "Source of income" means an employer or successor
employer or any other person who owes or will owe income to an
obligor.
(22) "Support" means the payment of money including interest:
(A) For a child or spouse, ordered by a court of competent
jurisdiction, whether the payment is ordered in an emergency,
temporary, permanent or modified order, decree or judgment of such
court, and the amount of unpaid support shall bear simple interest
from the date it accrued, at a rate of ten dollars upon one hundred
dollars per annum, and proportionately for a greater or lesser sum,
or for a longer or shorter time;
(B) To third parties on behalf of a child or spouse,
including, but not limited to, payments to medical, dental or
educational providers, payments to insurers for health and
hospitalization insurance, payments of residential rent or mortgage
payments, payments on an automobile or payments for day care;
and/or
(C) For a mother, ordered by a court of competent
jurisdiction, for the necessary expenses incurred by or for the
mother in connection with her confinement or of other expenses in
connection with the pregnancy of the mother.
(23) "Support order" means any order of a court of competent
jurisdiction for the payment of support, whether or not for a sum
certain.
§48A-1-3a. Calculation of interest.
If an obligation to pay interest arises under this chapter and
the rate is not specified, the rate 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 effective date of this section, 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 has accrued on unpaid installments
accruing before the effective date of this section 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 effective date of this section.
ARTICLE 2. WEST VIRGINIA SUPPORT ENFORCEMENT COMMISSION; CHILD
SUPPORT ENFORCEMENT DIVISION; ESTABLISHMENT AND ORGANIZATION.
§48A-2-1. Creation of support enforcement commission; number of
members.
The West Virginia support enforcement commission, consisting
of nine members, is hereby created in the department of health and
human resources and may use the administrative support and services
of that department. The commission is not subject to control,
supervision or direction by the department of health and human
resources, but is an independent, self-sustaining commission that
shall have the powers and duties specified in this chapter and all
other powers necessary and proper to establish policies and
procedures for fully and effectively carrying out the purposes of
administering, regulating, overseeing and enforcing the provisions
of this chapter and chapter forty-eight of this code which relate
to the establishment and enforcement of support obligations.
The commission is a part-time commission whose members make
policy and have such other powers and perform such other duties as
specified in this chapter or set forth in legislative rules
promulgated by the commission. The ministerial duties of the
commission shall be administered and carried out by the director of
the child support enforcement division, with the assistance of such
staff of the department of health and human resources as the
secretary may assign.
Each member of the commission shall devote the time necessary
to carry out the duties and obligations of the office and the six members appointed by the governor may pursue and engage in another
business, occupation or gainful employment that is not in conflict
with the duties of the commission.
While the commission is self-sustaining and independent, it,
its members, its employees and the director are subject to article
nine-a of chapter six, chapter six-b, chapter twenty-nine-a and
chapter twenty-nine-b of this code.
§48A-2-2. Appointment of members of support enforcement
commission; qualifications and eligibility.
(a) Of the nine members of the commission, three shall be
members by virtue of the public offices which they hold, and the
remaining six members are to be appointed by the governor. No more
than five members of the commission may belong to the same
political party:
(1) One member is to be the secretary of the department of
health and human resources;
(2) One member is to be the secretary of the department of
tax and revenue;
(3) One member is to be the secretary of the department of
administration;
(4) One member is to be a lawyer licensed by, and in good
standing with, the West Virginia state bar, with at least five years of professional experience in domestic relations law and the
establishment and enforcement of support obligations;
(5) One member is to be a person experienced as a public
administrator in the supervision and regulation of a governmental
agency;
(6) One member is to be an employer experienced in
withholding support payments from the earnings of obligors;
(7) One member is to be a person selected from a list of
nominees submitted by the West Virginia judicial association:
Provided, That the list of nominees shall not include any person
currently exercising the powers of the judicial department; and
(8) Two members are to be representatives of the public at
large.
(b) Each member of the commission is to be a citizen of the
United States, a resident of the state of West Virginia and at
least twenty-one years of age.
§48A-2-3. Terms of commission members; conditions of membership.
(a) The term of office for each member of the commission who
serves as a member by virtue of the public office held is for a
period concurrent with that person's tenure in the office. The
term of office for each member of the commission appointed by the
governor is four years, except that for an initial period, the terms of office of the initial six commission members appointed by
the governor commence from an initial date of appointment not later
than the first day of July, one thousand nine hundred ninety-five,
and run as follows:
(1) Two members shall be appointed for a term ending on the
thirtieth day of June, one thousand nine hundred ninety-seven;
(2) Two members shall be appointed for terms ending on the
thirtieth day of June, one thousand nine hundred ninety-eight; and
(3) Two members shall be appointed for terms ending on the
thirtieth day of June, one thousand nine hundred ninety-nine.
(b) After the initial appointments made pursuant to the
provisions of subdivisions (1), (2) and (3), subsection (a) of this
section, members appointed by the governor shall thereafter be
appointed or reappointed for terms of office which end on the
thirtieth day of June in the fourth year following the expiration
date of the previous term or terms.
(c) Appointments to fill vacancies on the commission are for
the unexpired term of the member replaced.
(d) At the expiration of a member's term, the member shall
continue to serve until a successor is appointed and qualified.
§48A-2-4. Oath.
Before entering upon the discharge of the duties as commissioner, each commissioner shall take and subscribe to the
oath of office prescribed in section five, article IV of the
constitution of West Virginia.
§48A-2-5. Commission chairman.
In making the initial appointments to the commission, the
governor shall designate a member to serve as chairman for a term
ending on the thirtieth day of June, one thousand nine hundred
ninety-six. The member so designated shall serve in such capacity
until his or her successor as chairman is elected by the commission
as hereinafter provided.
Following the term of the initial chairman, thereafter the
chairman shall be elected by the commission from among its members,
and the member so elected shall: (1) Serve as chairman for a term
of two years and until his or her successor shall have been
elected; or (2) shall serve in such capacity throughout his or her
service as a member of the commission, whichever period is shorter.
In the event that a successor chairman is not elected by the
commission members within ninety calendar days after the expiration
of a chairman's term, a vacancy shall be deemed to exist, and the
governor shall designate a chairman from among the members of the
commission. A member may not serve more than two consecutive terms
as chairman.
§48A-2-6. Compensation of members; reimbursement for expenses.
(a) Each member of the commission shall receive one hundred
dollars for each day or portion thereof spent in the discharge of
his or her official duties.
(b) Each member of the commission shall be reimbursed for all
actual and necessary expenses and disbursements involved in the
execution of official duties.
§48A-2-7. Meeting requirements.
(a) The commission shall meet within the state at least once
per calendar quarter and at such other times as the chairman may
decide. The commission shall also meet upon a call of five or more
members upon seventy-two hours written notice to each member.
(b) Five members of the commission are a quorum for the
transaction of any business and for the performance of any duty.
(c) A majority vote of the members present is required for
any final determination by the commission.
(d) The commission may elect to meet in executive session
after an affirmative vote of a majority of its members present
according to section four, article nine-a, chapter six of this
code.
(e) The commission shall keep a complete and accurate record
of all its meetings according to section five, article nine-a, chapter six of this code.
§48A-2-8. Removal of commission members.
Notwithstanding the provisions of section four, article six,
chapter six of this code, the governor may remove any commission
member for incompetence, misconduct, gross immorality, misfeasance,
malfeasance or nonfeasance in office.
§48A-2-9. General duties of support enforcement commission.
The support enforcement commission shall have general
responsibility for establishing policies and procedures for
obtaining and enforcing support orders and establishing paternity
according to this chapter, as hereinafter provided, including,
without limitation, the responsibility for the following:
(a) To propose for promulgation, according to the provisions
of chapter twenty-nine-a of this code, such legislative rules as in
its judgment may be necessary to fulfill the policies of this
chapter;
(b) To undertake directly, or by contract, legal or policy
research related to obtaining and enforcing support orders and
establishing paternity;
(c) To serve as a clearinghouse for information;
(d) To keep a record of all commission proceedings available
for public inspection;
(e) To file a written annual report to the governor, the
president of the Senate and the speaker of the House of Delegates
on or before the thirtieth day of January of each year, and such
additional reports as the governor or Legislature may request.
§48A-2-10. General powers of support enforcement commission.
In establishing policies and procedures for enforcing the
provisions of this chapter, the commission shall have the following
power and authority:
(1) To establish and maintain procedures under which
expedited processes, administrative or judicial, are in effect for
obtaining and enforcing support orders and establishing paternity
according to this chapter;
(2) To monitor the child support enforcement system of this
state and from time to time to advise the child support enforcement
division and other agencies of the state of West Virginia regarding
the establishment and enforcement of child support orders;
(3) To promulgate all emergency and legislative rules
pursuant to chapter twenty-nine-a of this code as are required by
this chapter:
Provided, That all rules which are in effect at the
time of the implementation of this section shall continue in full
force and effect until the commission promulgates a rule or rules
regarding the same subject matter;
(4) To promulgate legislative rules pursuant to chapter
twenty-nine-a of this code establishing guidelines for child
support awards;
(5) To promulgate legislative rules pursuant to chapter
twenty-nine-a of this code relating to the structure of the child
support enforcement division, including, but not limited to, the
designation of administrative and legal tasks and the location of
offices for the division throughout the state. This rule shall
constitute an emergency rule within the meaning of section fifteen,
article three, chapter twenty-nine-a of this code;
(6) To adopt standards for staffing, recordkeeping,
reporting, intergovernmental cooperation, training, physical
structures and time frames for case processing;
(7) To review the state plan for child and spousal support to
determine its conformance or nonconformance with the provisions of
42 U.S.C. §654, and make recommendations or to promulgate
legislative rules based upon such review;
(8) To cooperate with judicial organizations and the private
bar to provide training to persons involved in the establishment
and enforcement of child support orders;
(9) To study the issues involving retroactive and
reimbursement child support payments which are ordered following the establishment of paternity and to make a recommendation to the
Legislature on or before the first day of December, one thousand
nine hundred ninety-five, regarding any statutory or regulatory
action which should be implemented to ensure that fathers are not
ordered to pay retroactive or reimbursement child support or
medical expenses when such payments would be unconscionable or
inequitable given the totality of the circumstances arising from
the facts of a given case; and
(10) To promulgate such further legislative rules pursuant to
chapter twenty-nine-a of this code which may aid the child support
enforcement division in the establishment and enforcement of child
support orders. In addition to the specific designation of such
rules that constitute emergency rules within the meaning of section
fifteen, article three, chapter twenty-nine-a of this code, the
commission may promulgate other rules as emergency rules when such
rule is necessary to ensure that the state is awarded federal funds
for the actions described in the rule or when the promulgation of
such rule is necessary to prevent substantial harm to the public
interest by ensuring that child support is timely collected and
disbursed.
§48A-2-11. Required rule making.
The commission shall, without limitation on the powers conferred in section ten of this article, include within its
legislative rules the following specific provisions according to
the provisions of this chapter:
(1) Prescribing the methods and forms of proposal that a
prospective contractor shall follow and complete before
consideration of a proposal by the commission, which rules shall
require such plans as shall assure the commission that the proposal
conforms with the requirements of this chapter and all applicable
federal statutes and regulations;
(2) Prescribing standards and guidelines for contractors
providing professional services to ensure the maintenance of the
highest quality of service and professional standards, the
preservation of the attorney-client relationship, and the
protection of the integrity of the adversarial process from any
impairment in furnishing legal representation;
(3) Requiring the division, and any contractors providing
professional services or collection services to the division, to
adopt procedures for the provision of such services which will best
advance the needs and interests of the obligees and dependents who
seek assistance in obtaining and enforcing support orders and
establishing paternity according to this chapter, without regard to
whether such procedures optimize or maximize the profits derived by the contractor or result in the payment of reimbursements or
financial incentives to the division;
(4) Prescribing standards and guidelines for contractors
providing professional services to ensure that appropriate training
and support services are provided to employees of the contractor
who are engaged in activities to obtain and enforce support orders
and establish paternity according to this chapter;
(5) Prescribing minimum procedures for the exercise of
effective control over the internal fiscal affairs of a contractor
providing collection services, including provisions for the
safeguarding of support payments, the recording of receipts and
evidence of nonpayment by obligors, and the maintenance of reliable
records, accounts and reports of transactions, operations and
events, including reports to the commission;
(6) Providing for a minimum uniform standard of accounting
methods, procedures and forms; a uniform code of accounts and
accounting classifications; and other standard operating
procedures, as may be necessary to assure consistency,
comparability and effective disclosure of all financial information
by a contractor providing collection services; and
(7) Requiring periodic financial reports and the form
thereof, including an annual audit prepared by a certified public accountant licensed to do business in this state, attesting to the
financial condition of a contractor providing collection services
and disclosing whether the accounts, records and control procedures
examined are maintained by the contractor as required by this
chapter.
§48A-2-12. Establishment of the child support enforcement
division; cooperation with the division of human services.
(a) Effective the first day of July, one thousand nine hundred
ninety-five, there is hereby established in the department of
health and human resources the child support enforcement division.
The division is under the immediate supervision of the director,
who is responsible for the exercise of the duties and powers
assigned to the division under the provisions of this chapter. The
division is designated as the single and separate organizational
unit within this state to administer the state plan for child and
spousal support according to 42 U.S.C. §654(3).
(b) The division of human services shall cooperate with the
child support enforcement division. At a minimum, such cooperation
shall require that the division of human services:
(1) Notify the child support enforcement division when the
division of human services proposes to terminate or provide public
assistance payable to any obligee;
(2) Receive support payments made on behalf of a former or
current recipient to the extent permitted by Title IV-D, Part D of
the Social Security Act; and
(3) Accept the assignment of the right, title or interest in
support payments and forward a copy of the assignment to the child
support enforcement division.
§48A-2-13. Appointment of director; duties; compensation.
(a) There is hereby created the position of director whose
duties include the ministerial management and administration of the
office of the support enforcement commission. The director shall:
(1) Be appointed by the secretary;
(2) Serve at the will and pleasure of the secretary;
(3) Serve on a full-time basis and shall not engage in any
other profession or occupation, including the holding of a
political office in the state either by election or appointment,
while serving as director;
(4) Be a lawyer licensed by, and in good standing with, the
West Virginia state bar; and
(5) Have responsible administrative experience, possess
management skills, and have knowledge of the law as it relates to
domestic relations and the establishment and enforcement of support
obligations.
Before entering upon the discharge of the duties as
commissioner, the director shall take and subscribe to the oath of
office prescribed in section five, article IV of the constitution
of West Virginia.
(b) The duties of the director shall include the following:
(1) To direct and administer the daily operations of the
commission;
(2) To administer the child support enforcement fund created
pursuant to section eighteen of this article;
(3) To keep the records and papers of the commission,
including a record of each proceeding;
(4) To prepare, issue and submit reports of the commission;
and
(5) To perform any other duty that the commission directs.
(c) All payments to the director as compensation shall be
made from the child support enforcement fund. The director is
entitled to:
(1) A reasonable and competitive compensation package to be
established by the secretary; and
(2) Reimbursement for expenses under the standard state
travel regulations.
§48A-2-14. Organization and employees.
(a) The director shall organize the work of the division in
such offices or other organizational units as he or she may
determine to be necessary for effective and efficient operation.
(b) The secretary may transfer employees and resources of the
department to the child support enforcement division as may be
necessary to fulfill the duties and responsibilities of the
division under this chapter:
Provided, That the secretary may not
transfer employees of other divisions and agencies within the
department to the child support enforcement division without a
prior finding that the office or position held by the employee may
be eliminated and until the office or position is, in fact,
eliminated. On the first day of July, one thousand nine hundred
ninety-five, the secretary shall transfer and allocate to the
division all functions, offices, personnel and equipment of the
child advocate office previously created within the division of
human services by the prior enactment of section one of this
article.
(c) The director, if he or she deems such action necessary,
may hire legal counsel for the division, notwithstanding the
provisions of section two, article three, chapter five of this code
or any other code provision to the contrary, or may request the
attorney general to appoint assistant attorneys general who shall perform such duties as may be required by the division. The
attorney general, in pursuance of such request, may select and
appoint assistant attorneys general, to serve during the will and
pleasure of the attorney general, and such assistants shall be paid
out of any funds allocated and appropriated to the child support
enforcement fund.
(d) The director may employ such staff or employees as may be
necessary to administer and enforce this chapter.
§48A-2-15. Supervisory responsibilities within the child support
enforcement division.
The director shall have control and supervision of the child
support enforcement division and shall be responsible for the work
of each of its organizational units. Each organizational unit
shall be headed by an employee of the division appointed by the
director who shall be responsible to the director for the work of
his or her organizational unit.
§48A-2-16. General duties and powers of the child support
enforcement division.
In carrying out the policies and procedures for enforcing the
provisions of this chapter, the division shall have the following
power and authority:
(1) To undertake directly, or by contract, activities to obtain and enforce support orders and establish paternity;
(2) To undertake directly, or by contract, activities to
establish paternity for minors for whom paternity has not been
acknowledged by the father or otherwise established by law;
(3) To undertake directly, or by contract, activities to
collect and disburse support payments;
(4) To contract for professional services with any person,
firm, partnership, professional corporation, association or other
legal entity to provide representation for the division and the
state in administrative or judicial proceedings brought to obtain
and enforce support orders and establish paternity;
(5) To ensure that activities of a contractor under a
contract for professional services are carried out in a manner
consistent with attorneys' professional responsibilities as
established in the rules of professional conduct as promulgated by
the supreme court of appeals;
(6) To contract for collection services with any person, firm,
partnership, corporation, association or other legal entity to
collect and disburse amounts payable as support;
(7) To ensure the compliance of contractors and their
employees with the provisions of this chapter and legislative rules
promulgated pursuant to this chapter, and to terminate, after notice and hearing, the contractual relationship between the
division and a contractor who fails to comply;
(8) To require a contractor to take appropriate remedial or
disciplinary action against any employee who has violated or caused
the contractor to violate the provisions of this chapter, in
accordance with procedures prescribed in legislative rules
promulgated by the commission;
(9) To locate parents who owe a duty to pay child support;
(10) To cooperate with other agencies of this state and other
states to search their records to help locate absent parents;
(11) To cooperate with other states in establishing and
enforcing support obligations;
(12) If the child support enforcement division is transferred
to the department of tax and revenue pursuant to section forty-two
of this article, the director of the child support enforcement
division may exercise any power available to him or her as
director, or to the tax commissioner, in order to accomplish the
purposes of this chapter, including, but not limited to, the powers
associated with gaining access to all information gained and
maintained by the department of tax and revenue in the collection
of taxes, and any and all powers to levy, through distraint or
seizure by any means, upon all property or rights to property without the need to obtain a separate court order for the
attachment;
(13) To exercise such other powers as may be necessary to
effectuate the provisions of this chapter.
§48A-2-17. Guidelines for child support awards.
(a) The commission shall, by legislative rule promulgated
pursuant to chapter twenty-nine-a of this code, establish
guidelines for child support award amounts so as to ensure greater
uniformity by those persons who make child support recommendations
and enter child support orders and to increase predictability for
parents, children and other persons who are directly affected by
child support orders. There shall be a rebuttable presumption, in
any proceeding before a family law master or circuit court judge
for the award of child support, that the amount of the award which
would result from the application of such guidelines is the correct
amount of child support to be awarded. A written finding or
specific finding on the record that the application of the
guidelines would be unjust or inappropriate in a particular case
shall be sufficient to rebut the presumption in that case. The
guidelines shall not be followed:
(1) When the child support award proposed to be made pursuant
to the guidelines has been disclosed to the parties and each party has made a knowing and intelligent waiver of said amount, and the
support obligors have entered into an agreement which provides for
the custody and support of the child or children of the parties; or
(2) When the child support award proposed to be made pursuant
to the guidelines would be contrary to the best interests of the
child or children, or contrary to the best interests of the
parties.
(b) The Legislature, by the enactment of this article,
recognizes that children have a right to share in their natural
parents' level of living. Accordingly, guidelines promulgated
under the provisions of this section shall not be based upon any
schedule of minimum costs for rearing children based upon
subsistence level amounts set forth by various agencies of
government. The Legislature recognizes that expenditures in
families are not made in accordance with subsistence level
standards, but are rather made in proportion to household income,
and as parental incomes increase or decrease, the actual dollar
expenditures for children also increase or decrease
correspondingly. In order to ensure that children properly share
in their parents' resources, regardless of family structure, the
guidelines shall be structured so as to provide that after a
consideration of respective parental incomes, that child support will be related, to the extent practicable, to the level of living
which such children would enjoy if they were living in a household
with both parents present.
(c) The guidelines promulgated under the provisions of this
section shall take into consideration the financial contributions
of both parents. The Legislature recognizes that expenditures in
households are made in aggregate form and that total family income
is pooled to determine the level at which the family can live. The
guidelines shall provide for examining the financial contributions
of both parents in relationship to total income, so as to establish
and equitably apportion the child support obligation. Under the
guidelines, the child support obligation of each parent will vary
proportionately according to their individual incomes.
(d) The guidelines shall be structured so as to take into
consideration any preexisting support orders which impose
additional duties of support upon an obligor outside of the instant
case and shall provide direction in cases involving split or shared
custody.
(e) The guidelines shall have application to cases of divorce,
paternity, actions for support and modifications thereof.
(f) In determining the child support obligation of a parent
whose employment income consists, in part, of compensation for overtime hours worked, the guidelines shall provide for a child
support order which includes a consideration of such overtime
compensation, balancing the interest of children to share in the
resources of such parent with the interest of the parent in not
being penalized for accepting overtime work. Any formula which is
used to compute anticipated overtime compensation shall allow for
the irregular nature of such compensation.
(g) In determining the child support obligation of a parent
whose employment income consists of compensation for seasonal
employment, the guidelines shall provide for discretionary use of
alternative payment schedules which may vary the periodic amounts
required to be paid.
(h) The guidelines promulgated shall provide that in
determining the child support obligation of a parent whose support
obligation extends to the children of more than one family, the
guidelines shall be structured so as to equitably provide for all
children to whom the obligor owes a duty of support. The
commission, in promulgating guidelines in conformity to this
section, shall formulate a policy regarding whether a remarried
parent's spouse's income affects a support obligation, and a policy
regarding the consideration to be given to the costs of multiple
family child raising obligations, other than the costs for those children for whom the support action was brought. The policy of
the commission shall be declared explicitly in the guidelines, and
if it is the policy of the commission that the amount of support
ordered should be altered because of a consideration of these
factors, then the formula for calculating the alteration under the
guidelines shall be explicitly stated.
(i) The guidelines shall incorporate standards for the
computation of child support payments for persons when the parent's
combined monthly net income is less than six hundred dollars or
more than ten thousand dollars. The guidelines shall provide for
crediting third party payments as child support when such third
party payments are ordered by a court in a child support order.
(j) In promulgating the legislative rule provided for under
the provisions of this section, the commission shall be directed by
the following legislative findings:
(1) That amounts to be fixed as child support should not
include awards for alimony, notwithstanding the fact that any
amount fixed as child support may impact upon the living conditions
of custodial parents;
(2) That parental expenditures on children represent a
relatively constant percentage of family consumption as family
consumption increases, so that as family income increases, the family's level of consumption increases, and the children should
share in and benefit from this increase;
(3) That parental expenditures on children represent a
declining proportion of family income as the gross income of the
family increases, so that while total dollar outlays for children
have a positive relationship to the family's gross income, the
proportion of gross family income allotted for the children has a
negative relationship to gross income;
(4) That expenditures on children vary according to the number
of children in the family, and as the number of children in the
family increases, the expenditures for the children as a group
increase and the expenditures on each individual child decrease; so
that due to increasing economies of scale and the increased sharing
of resources among family members, spending will not increase in
direct proportion to the number of children; and
(5) That as children grow older, expenditures on children
increase, particularly during the teenage years.
(k) Prior to the first day of May, one thousand nine hundred
ninety-six, the commission shall review the guidelines and propose
a legislative rule for promulgation in accordance with the
provisions of article three, chapter twenty-nine of this code to
amend and update the guidelines required by this section. Such proposed rule shall include, but not be limited to, provisions
which specifically address the requirements set forth in
subsections (f), (g) and (h) of this section. In preparing such
legislative rule to be proposed for promulgation, the commission is
directed to study the feasibility and desirability of basing
support guidelines on an income shares formula. Notwithstanding
the provisions of this section to the contrary, the commission may,
in its discretion, propose for promulgation support guidelines
based on an income shares formula. In preparing such legislative
rule to be proposed for promulgation, the commission is directed to
study the feasibility and desirability of limiting the maximum
amount to be paid as child support in cases involving a parent or
parents with high incomes, and to also study the possible
alternative disposition of available income to an educational trust
or other investment through which the child or children hold the
beneficial interest, and the commission may, in its discretion,
propose for promulgation support guidelines which address these
issues.
(l) The commission shall review the guidelines at least once
every four years to ensure that their application results in the
determination of appropriate child support awards. Such four-year
period shall begin on the first day of July, two thousand.
§48A-2-18. Creation of child support enforcement fund; purpose;
funding; disbursements
.
(a) There is hereby created in the state treasury a separate
special revenue account, which shall be an interest bearing
account, to be known as the "child support enforcement fund". The
special revenue account shall consist of all incentive payments
paid by the federal government pursuant to 42 U.S.C §658 as a
percentage of the total amount of support collected directly or by
contract by the child support enforcement division, all amounts
appropriated by the Legislature to maintain and operate the child
support enforcement division according to this chapter, and all
interest or other earnings from moneys in the fund. Any agency or
entity receiving federal matching funds for services of the child
support enforcement division shall enter into an agreement with the
secretary whereby all federal matching funds paid to and received
by that agency or entity for the activities of the child support
enforcement division shall be paid into the child support
enforcement fund. Said agreement shall provide for advance
payments into the fund by such agencies, from available federal
funds, pursuant to Title IV-D of the Social Security Act and in
accordance with federal regulations. No expenses incurred under
this section shall be a charge against the general funds of the state.
(b) Moneys in the special revenue account shall be
appropriated to the department and used exclusively, in accordance
with appropriations by the Legislature, to pay costs, fees and
expenses incurred, or to be incurred for the following purpose:
The provision of child support services authorized pursuant to
Title VI, Part D of the Social Security Act and any further duty as
set forth in this chapter, including, but not limited to, the
duties assigned to the division by virtue of its being designated
as the single and separate organizational unit within this sate to
administer the state plan for child and spousal support according
to section twelve of this article.
(c) Any balance remaining in the special revenue account at
the end of any state fiscal year shall not revert to the general
revenue fund but shall remain in the special revenue account and
shall be used solely in a manner consistent with this section:
Provided, That for the three succeeding fiscal years after the
effective date of this section, any appropriation made to the
special revenue account from general revenue shall be repaid to the
general revenue fund from moneys available in the special revenue
account.
(d) Disbursements from the special revenue account shall be authorized by the director.
§48A-2-19. Fees.
(a) When the child support enforcement division provides child
support collection services either to a public assistance recipient
or to a party who does not receive public assistance, the child
support enforcement division shall, upon written notice to the
obligor, charge a monthly collection fee equivalent to the full
monthly cost of the services, in addition to the amount of child
support which was ordered by the court. The fee shall be deposited
in the child support enforcement fund. The service fee assessed
may not exceed ten percent of the monthly court ordered child
support and may not be assessed against any obligor who is current
in payment of the monthly court ordered child support payments:
Provided, That this fee may not be assessed when the obligor is
also a recipient of public assistance.
(b) Except for those persons applying for services provided by
the child support enforcement division who are applying for or
receiving public assistance from the division of human services or
persons for whom fees are waived pursuant to a legislative rule
promulgated pursuant to this section, all applicants shall pay an
application fee of twenty-five dollars.
(c) Fees imposed by state and federal tax agencies for collection of overdue support shall be imposed on the person for
whom these services are provided. Upon written notice to the
obligee the child support enforcement division shall assess a fee
of twenty-five dollars to any person not receiving public
assistance for each successful federal tax interception. The fee
shall be withheld prior to the assistance for each successful
federal tax interception. The fee shall be withheld prior to the
release of the funds received from each interception and deposited
in the child support enforcement fund established pursuant to
section eighteen of this article.
(d) In any action brought by the child support enforcement
division, the family law master shall order that the obligor shall
pay attorney fees for the services of the attorney representing the
child support enforcement division in an amount calculated at a
rate similar to the rate paid to court appointed attorneys paid
pursuant to section thirteen-a, article twenty-one, chapter twenty-
nine of this code, and all court costs associated with the action:
Provided, That no such award shall be made when the family law
master or circuit judge finds that the award of attorneys fees
would create a substantial financial hardship on the obligor or
when the obligor is a recipient of public assistance. Further, the
child support enforcement division may not collect such fees until the obligor is current in the payment of child support. No court
may order the child support enforcement division to pay attorney's
fees to any party in any action brought pursuant to this chapter or
chapter forty-eight of this code.
(e) This section shall not apply to the extent it is
inconsistent with the requirements of federal law for receiving
funds for the program under Title IV-A and Title IV-D of the Social
Security Act, United States Code, article three, Title 42, Sections
601 to 613 and United States Code, Title 42, Sections 651 to 662.
(f) The commission shall, by legislative rule promulgated
pursuant to chapter twenty-nine-a of this code, describe the
circumstances under which fees charged by the child support
enforcement division may be modified or waived, and such rule shall
provide for the waiver of any fee, in whole or in part, when such
fee would otherwise be required to be paid under the provisions of
this chapter. Further, such rule shall initially be promulgated as
an emergency rule pursuant to section fifteen, article three,
chapter twenty-nine-a of this code.
§48A-2-20. Contracts for services.
(a) Contracts with persons, firms, partnerships,
corporations, associations or other legal entities to provide
services to the child support enforcement division shall, at a minimum:
(1) Provide for the employment and training of personnel
necessary to perform the services;
(2) Provide that any federal incentive payment that is payable
shall be payable to the fund established pursuant to section
eighteen of this article;
(3) Delegate responsibility that is consistent with the rules
promulgated pursuant to this article;
(4) Include any and all provisions required by state or
federal law and specifically include terms regarding cancellation
and renewal of the contract;
(5) Provide for the assessment of penalties for the failure to
fully or timely provide services included in the agreement;
(6) Prohibit the assignment of the contract or the
subcontracting of services to be provided under the contract
without first obtaining the express written approval of the
director;
(7) Provide that the contractor consents to performance
audits of its operations by the performance evaluation and research
division, legislative auditor's office of the West Virginia
Legislature; and
(8) Establish reasonable administrative and fiscal requirements for providing and continuing services and
reimbursement.
(b) Prior to entering into such agreement, the director shall
provide all proposals to the members of the commission who may
review and comment on those proposals.
(c) The director shall enter into such agreement only when the
director finds that based upon the information provided to the
director and upon the comments made by members of the commission,
that the provider of services is capable of carrying out the
responsibilities of the agreement.
(d) All contracts entered into pursuant to this section shall
meet all requirements for such agreements as detailed in article
three, chapter five-a of this code:
Provided, That when the
commission, after reviewing any contract, finds that the contract
meets all requirements as set forth in this section and further
that the child support enforcement division should enter into such
contract, the contract shall not be subject to the requirements as
detailed in article three, chapter five-a of this code.
(e) Any agreement entered into pursuant to this section may
include a provision relating to the loan of equipment in the
possession of the child support enforcement division.
§48A-2-21. Attorneys representing state.
(a) Attorneys employed by the child support enforcement
division may represent this state or another state in an action
brought under the authority of federal law of this chapter.
(b) An attorney employed by the child support enforcement
division or employed by a person or agency or entity pursuant to a
contract with the child support enforcement division represents the
interest of the state or the division and not the interest of any
other party. The child support enforcement division shall, at the
time an application for child support services is made, inform the
applicant that any attorney who provides services for the child
support enforcement division is the attorney for the state of West
Virginia and that the attorney providing those services does not
provide legal representation to the applicant.
(c) An attorney employed by the child support enforcement
division or pursuant to a contract with the child support
enforcement division may not be appointed or act as a guardian ad
litem or attorney ad litem for a child or another party.
§48A-2-22. Establishment of parent locator service.
(a) The child support enforcement division shall establish a
parent locator service to locate obligors, utilizing all sources of
information and available records and the parent locator service in
the federal department of health and human services. Any person, agency or entity providing services to the child support
enforcement division pursuant to a contract shall have access to
such service when the contract includes a provision to ensure that
the confidentiality of such information is maintained.
(b) Upon entering into an agreement with the secretary of the
federal department of health and human services for the use of that
department's parent locator service, the child support enforcement
division shall accept and transmit to the secretary of the
department of health and human services requests for information to
be furnished by such federal parent locator service to authorized
persons. The child support enforcement division shall charge a
reasonable fee sufficient to cover the costs to the state and to
the federal department of health and human services incurred by
reason of such requests, and shall transfer to that department from
time to time, so much of the fees collected as are attributable to
the costs incurred by that department.
§48A-2-23. Cooperation with other states in the enforcement
of
child support.
(a) The child support enforcement division shall cooperate
with any other state in the following:
(1) In establishing paternity;
(2) In locating an obligor residing temporarily or permanently in this state, against whom any action is being taken for the
establishment of paternity or the enforcement of child and spousal
support;
(3) In securing compliance by an obligor residing temporarily
or permanently in this state, with an order issued by a court of
competent jurisdiction against such obligor for the support and
maintenance of a child or children or the parent of such child or
children; and
(4) In carrying out other functions necessary to a program of
child and spousal support enforcement.
(b) The commission shall, by legislative rule, establish
procedures necessary to extend the child support enforcement
divisions' system of withholding under section three, article five
of this chapter so that such system may include withholding from
income derived within this state in cases where the applicable
support orders were issued in other states, in order to assure that
child support owed by obligors in this state or any other state
will be collected without regard to the residence of the child for
whom the support is payable or the residence of such child's
custodial parent.
§48A-2-24. Disbursements of amounts collected as support.
(a) Amounts collected as child or spousal support by the child support enforcement division shall be distributed within ten days
of receipt, except as otherwise specifically provided in this
chapter. Such amounts shall, except as otherwise provided under
the provisions of subsection (c) of this section, be distributed as
follows:
(1) The first fifty dollars of such amounts as are collected
periodically which represent monthly support payments shall be paid
to the obligee without affecting the eligibility of such person's
family for assistance from the department of health and human
resources or decreasing any amount otherwise payable as assistance
to such family during such month;
(2) Such amounts as are collected periodically which are in
excess of any amount paid to the family under subdivision (1) of
this subsection and which represent monthly support payments shall
be paid by the child support enforcement division to the
appropriate administrative unit of the department of health and
human resources to reimburse it for assistance payments to the
family during such period (with appropriate reimbursement of the
federal government to the extent of its participation in the
financing);
(3) Such amounts as are in excess of amounts required to
reimburse the department of health and human resources under subdivision (2) of this subsection and are not in excess of the
amount required to be paid during such period to the family by a
court order shall be paid to the obligee; and
(4) Such amounts as are in excess of amounts required to be
distributed under subdivisions (1), (2) and (3) of this subsection
shall be: (A) Paid by the child support enforcement division to
the appropriate administrative unit of the department of health and
human resources (with appropriate reimbursement of the federal
government to the extent of its participation in the financing) as
reimbursement for any past assistance payments made to the family
for which the department has not been reimbursed; or (B) if no
assistance payments have been made by the department which have not
been repaid, such amounts shall be paid to the obligee.
(b) (1) Whenever a family for whom support payments have been
collected and distributed under the provisions of this chapter
ceases to receive assistance from the department of health and
human resources, the child support enforcement division shall
provide notice to the family of their rights with regard to a
continuation of services. Unless notified by the family that
services are no longer desired, the child support enforcement
division shall continue to collect amounts of support payments
which represent monthly support payments from the obligor and pay any amount so collected, which represents monthly support payments,
to the family (without requiring any formal reapplication and
without the imposition of any application fee) on the same basis as
in the case of other obligees who are not receiving assistance from
the department of health and human resources.
(2) So much of any amounts of support so collected as are in
excess of the payments required to be made in subdivision (1) of
this subsection shall be paid, first, to the obligee until all past
due support owed to the family by the obligor has been paid. After
all arrearages owing to the family have been paid, any amounts of
support collected which are in excess of the required support
payments shall be distributed in the manner provided by paragraphs
(A) and (B), subdivision (4), subsection (a) of this section with
respect to excess amounts described in said subsection.
(c) (1) Notwithstanding the preceding provisions of this
section, amounts collected by the child support enforcement
division as child support for months in any period on behalf of a
child for whom the department of health and human resources is
making foster care maintenance payments shall:
(A) Be paid by the child support enforcement division to the
appropriate administrative unit of the department of health and
human resources to the extent necessary to reimburse the department for foster care maintenance payments made with respect to the child
during such period (with appropriate reimbursement of the federal
government to the extent of its participation in financing);
(B) Be paid to the appropriate administrative unit of the
department of health and human resources to the extent that the
amounts collected exceed the foster care maintenance payments made
with respect to the child during such period but do not exceed the
amounts required by a court order to be paid as support on behalf
of the child during such period; and the department of health and
human resources may use the payments in the manner it determines
will serve the best interests of the child, including setting such
payments aside for the child's future needs or making all or a part
thereof available to the person responsible for meeting the child's
day-to-day needs; and
(C) Be paid to the appropriate administrative unit of the
department of health and human resources if any portion of the
amounts collected remains after making the payments required under
paragraphs (A) and (B) of this subdivision, to the extent that such
portion is necessary to reimburse the department of health and
human resources (with appropriate reimbursement to the federal
government to the extent of its participation in the financing),
for any past foster care maintenance payments, or payments of aid to families with dependent children which were made with respect to
the child (and with respect to which past collections have not
previously been retained);
(2) Any balance of the amounts required to be paid under the
provisions of subdivision (1) of this subsection shall be paid to
the appropriate administrative unit of the department of health and
human resources, for use by the department in accordance with
paragraph (B) of said subdivision.
(d) Any payment required to be made under the provisions of
this section to a family shall be made to the resident parent,
legal guardian or caretaker relative having custody of or
responsibility for the child or children.
(e) The commission shall establish bonding requirements for
employees of the child support enforcement division who receive,
disburse, handle or have access to cash.
(f) The director shall maintain methods of administration
which are designed to assure that employees of the child support
enforcement division or any persons employed pursuant to a 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.
(g) No penalty or fee may be collected by or distributed to a
recipient of child support enforcement division services from the
state treasury or from the child support enforcement fund when
child support is not distributed to the recipient in accordance
with the time frames established herein.
§48A-2-25. Payment of support to the child support enforcement
division.
All support payments owed to an obligee who is an applicant
for or recipient of the services of the child support enforcement
division shall be paid to the child support enforcement division.
Any other obligee owed a duty of support under the terms of a
support order entered by a court of competent jurisdiction may
request that the support payments be made to the child support
enforcement division. In such case, the child support enforcement
division shall proceed to receive and disburse such support
payments to or on behalf of the obligee as provided by law.
§48A-2-26. Authorization for data processing and retrieval
system.
In accordance with an initial and annually updated advance data processing planning document approved by the secretary of the
federal department of health and human services, the child support
enforcement division may establish an automatic data processing and
retrieval system designed effectively and efficiently to assist the
director in carrying out the provisions of this chapter.
§48A-2-27. Obtaining support from federal tax refunds.
The commission shall, by legislative rule promulgated pursuant
to chapter twenty-nine-a of this code, place in effect procedures
necessary for the child support enforcement division to obtain
payment of past due support from federal tax refunds from
overpayments made to the secretary of the treasury of the United
States. The child support enforcement division shall take all steps
necessary to implement and utilize such procedures.
§48A-2-28. 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.
(2) Withholding from state income tax refunds may not be
pursued unless the child support enforcement division has examined the obligor's pattern of payment of support and the obligee's
likelihood of successfully pursuing other enforcement actions, and
has determined that the amount of past due support which will be
owed, at the time the withholding is to be made, will be one
hundred dollars or more. In determining whether the amount of past
due support will be one hundred dollars or more, the child support
enforcement division shall consider the amount of all unpaid past
due support, including that which may have accrued prior to the
time that the child support enforcement division first agreed to
enforce the support order.
(c) The director of the child support enforcement division
shall enter into agreements with the secretary of the treasury and
the tax commissioner, and other appropriate governmental agencies,
to secure information relating to the social security number or
numbers and the address or addresses of any obligor, in order to
provide notice between such agencies to aid the child support
enforcement division in requesting state income tax deductions, and
to aid the tax commissioner in enforcing such deductions. In each
such case, the tax commissioner, in processing the state income tax
deduction, shall notify the child support enforcement division of
the obligor's home address and social security number or numbers.
The child support enforcement division shall provide this information to any other state involved in processing the support
order.
(d) For the purposes of this section, "past due support" means
the amount of unpaid past due support owed under the terms of a
support order to or on behalf of a child, or to or on behalf of a
minor child and the parent with whom the child is living,
regardless of whether the amount has been reduced to judgment or
not.
(e) The child support enforcement division 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.
§48A-2-29. Obtaining support from unemployment compensation
benefits.
(a) The director shall determine on a periodic basis whether
individuals receiving unemployment compensation owe child support
obligations which are being enforced or have been requested to be
enforced by the child support enforcement division. If an
individual is receiving such compensation and owes any such child
support obligation which is not being met, the child support enforcement division shall enter into an agreement with such
individual to have specified amounts withheld otherwise payable to
such individual, and shall submit a copy of such agreement to the
bureau of employment programs. In the absence of such agreement,
the child support enforcement division shall bring legal process to
require the withholding of amounts from such compensation.
(b) The secretary shall enter into a written agreement with
the bureau of employment programs for the purpose of withholding
unemployment compensation from individuals with unmet support
obligations being enforced by the child support enforcement
division. The child support enforcement division shall agree only
to a withholding program that it expects to be cost effective, and,
as to reimbursement, shall agree only to reimburse the bureau of
employment programs for its actual, incremental costs of providing
services to the child support enforcement division.
(c) The commission shall promulgate a procedural rule for
selecting cases to pursue through the withholding of unemployment
compensation for support purposes. This rule shall be designed to
ensure maximum case selection and minimal discretion in the
selection process.
(d) The director shall, not less than annually, provide a
receipt to an individual who requests a receipt for the support paid through the withholding of unemployment compensation, if
receipts are not provided through other means.
(e) The director shall, through direct contact with the bureau
of employment programs, process cases through the bureau of
employment programs in this state, and shall process cases through
support enforcement agencies in other states. The director shall
receive all amounts withheld by the bureau of employment programs
in this state, forwarding any amounts withheld on behalf of support
enforcement agencies in other states to those agencies.
(f) At least one time per year, the commission shall review
and document program operations, including case selection criteria
established under subsection (c) of this section, and the costs of
the withholding process versus the amounts collected and, as
necessary, modify procedures and renegotiate the services provided
by the bureau of employment programs to improve program and cost
effectiveness.
(g) For the purposes of this section:
(1) "Legal process" means a writ, order, summons or other
similar process in the nature of garnishment which is issued by a
court of competent jurisdiction or by an authorized official
pursuant to an order to such court or pursuant to state or local
law.
(2) "Unemployment compensation" means any compensation under
state unemployment compensation law (including amounts payable in
accordance with agreements under any federal unemployment
compensation law). It includes extended benefits, unemployment
compensation for federal employees, unemployment compensation for
ex-servicemen, trade readjustment allowances, disaster unemployment
assistance, and payments under the Federal Redwood National Park
Expansion Act.
§48A-2-30. Statements of account.
The child support enforcement division shall provide annual
statements of their account to each obligor and obligee without
charge. Additional statements of account shall be provided at a
fee of five dollars, unless such fee is waived pursuant to a rule
promulgated by the commission. Statements provided under this
subsection are in addition to statements provided for judicial
hearings. The director shall establish procedures whereby an
obligor or obligee can contest or correct a statement of account.
§48A-2-31. Providing information to consumer reporting
agencies.
(a) For purposes of this section, the term "consumer reporting
agency" means any person who, for monetary fees, dues, or on a
cooperative nonprofit basis, regularly engages, in whole or in
part, in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of
furnishing consumer reports to third parties.
(b) The commission shall propose and adopt a procedural rule
in accordance with the provisions of sections four and eight,
article three, chapter twenty-nine of this code, establishing
procedures whereby information regarding the amount of overdue
support owed by an obligor residing in this state will be made
available by the child support enforcement division to any consumer
reporting agency, upon the request of such consumer reporting
agency.
(c) (1) When the amount of any overdue support is equal to or
less than the amount of arrearage which would cause the mailing of
a notice as provided for in subsection (b), section three, article
five of this chapter, information regarding such amount may not be
made available;
(2) When the amount of any overdue support exceeds the amount
of arrearage which would cause the mailing of a notice as provided
for in subsection (b), section three, article five of this chapter,
information regarding such amount shall be made available.
(d) The procedural rule proposed and adopted shall provide
that any information with respect to an obligor shall be made
available only after notice has been sent to such obligor of the proposed action, and such obligor has been given a reasonable
opportunity to contest the accuracy of such information.
(e) The procedural rule proposed and adopted shall afford the
obligor with procedural due process prior to making information
available with respect to the obligor.
(f) The information made available to the requesting consumer
reporting agency regarding overdue support may be in the same form
as information submitted to the secretary of the treasury of the
United States.
(g) The child support enforcement division may impose a fee
for furnishing such information, not to exceed the actual cost
thereof.
§48A-2-32. Establishment of central registry.
The child support enforcement division shall establish and
maintain a central registry of child support orders. All orders in
cases when any party receives any service provided by the child
support enforcement division shall be included in the registry.
Any other support order shall be included upon the request of any
party. The child support enforcement division, upon receipt of any
information regarding a new hire provided pursuant to section
three, article five of this chapter shall compare information
received to determine if the new hire's income is subject to wage withholding and notify the employer pursuant to that section.
§48A-2-33. Subpoenas.
In order to obtain financial and medical insurance information
pursuant to the establishment, enforcement and modification
provisions set forth in this chapter or chapter forty-eight of this
code, the child support enforcement division may serve, by
certified mail or personal service, an administrative subpoena on
any person, corporation, partnership, financial institution, labor
union or state agency, for an appearance or for production of
financial or medical insurance information. In case of
disobedience to the subpoena, the child support enforcement
division may invoke the aid of any circuit court in requiring the
appearance or production of records and financial documents.
§48A-2-34. Employment and income reporting.
(a) Except as provided in subsections (b) and (c) of this
section, all employers doing business in the state of West Virginia
shall report to the child support enforcement division:
(1) The hiring of any person who resides or works in this
state to whom the employer anticipates paying earnings; and
(2) The rehiring or return to work of any employee who resides
or works in this state.
(b) Employers are not required to report the hiring, rehiring or return to work of any person who:
(1) Is employed for less than one month's duration; or
(2) Is employed sporadically so that the employee will be paid
for less than three hundred fifty hours during a continuous
six-month period; or
(3) Has gross earnings of less than three hundred dollars per
month.
(c) The commission may establish additional exemptions to
reduce unnecessary or burdensome reporting through promulgation of
a legislative rule pursuant to chapter twenty-nine-a of this code.
(d) Employers shall report by mailing to the child support
enforcement division a copy of the employee's W-4 form. However,
an employer may transmit such information through another means if
approved in writing by the child support enforcement division prior
to the transmittal.
(e) Employers shall submit a report within fourteen days of
the date of the hiring, rehiring or return to work of the employee.
The report shall include the employee's name, address, social
security number and date of birth and the employer's name and
address, any different address of the payroll office and the
employer's federal tax identification number.
(f) An employer of an obligor shall provide to the child support enforcement division, upon its written request, information
regarding the obligor's employment, wages or salary, medical
insurance and location of employment.
(g) Any employer who fails to report in accordance with the
provisions of this section shall be guilty of a misdemeanor, and,
upon conviction thereof, shall be fined not less than five hundred
dollars nor more than one thousand dollars.
(h) Employers required to report under this section may assess
each employee so reported one dollar for the administrative costs
of reporting.
§48A-2-35. Investigations of support orders; notice and hearing
upon modifications; petition for change.
(a) Every three years after the entry of a final judgment
containing a child support order has been entered in a domestic
relations matter, the child support enforcement division shall
examine the records and conduct any investigation considered
necessary to determine whether the child support amount should be
increased or decreased in view of a temporary or permanent change
in physical custody of the child which the court has not ordered,
increased need of the child or changed financial conditions.
(b) Upon the written request by an obligee or obligor, the
child support enforcement division shall examine the record and conduct any investigation considered necessary to determine whether
the child support amount should be increased or decreased in view
of a temporary or permanent change in physical custody of the child
which the court has not ordered, increased need of the child or
other financial conditions.
(c) Notwithstanding the requirements imposed by this section,
the child support enforcement division is not required to review
the matter when:
(1) The child is being supported, in whole or in part, by
assistance payments from the division of human services, the child
support enforcement division has determined that such a review
would not be in the best interests of the child and neither parent
has requested a review; or
(2) Neither parent has requested a review.
(d) The child support enforcement division shall notify both
parents of their right to request a review of a child support
order, and shall give each parent at least thirty days' notice
before commencing any review, and shall further notify each parent,
upon completion of a review, of the results of the review, whether
of a proposal to petition to seek modification or of a proposal
that there should be no change.
(e) When the result of the review is a proposal to petition to seek modification, then each parent shall be given thirty days'
notice of the hearing on the petition, the notice to be directed to
the last known address of each party by first class mail.
When the result of the review is a proposal that there be no
change, then any parent disagreeing with that proposal may, within
thirty days of the notice of the results of the review, file with
the court a petition for modification setting forth in full the
grounds therefor.
(f) The child support enforcement division shall petition the
court for modification of the amount of a child support order if
modification is determined to be necessary under subsection (a) of
this section. A written report and recommendation shall accompany
the petition.
(g) As used in this section, "changed financial conditions"
means increases or decreases in the resources available to either
party from any source. Changed financial conditions includes, but
is not limited to, the application for or receipt of any form of
public assistance payments, unemployment compensation and workers'
compensation.
§48A-2-36. Adoption of form to identify payments.
The commission shall recommend to the secretary a form for the
purpose of identification of child support payments which shall include, at a minimum, any amount of child support obligation paid
under an income withholding order, the name and address of the
payee, and the availability of health insurance. The form may
include other information needed to ensure the proper credit and
distribution of such payments. The secretary shall adopt any
revised form no later than the first day of July, one thousand nine
hundred ninety-six, which shall include all information listed
herein. Following the adoption of such form, the commission shall
promulgate such legislative rules pursuant to chapter twenty-nine-a
as may be necessary to ensure that all information provided on the
form is correct. This rule shall constitute an emergency rule
within the meaning of section fifteen, article three, chapter
twenty-nine-a of this code.
§48A-2-37. Billing for fees and costs.
(a) When any filing, copying or other service is provided to
the child support enforcement division, the state or county
official or the clerk of any court providing such fee for a charge,
shall bill the child support enforcement division monthly.
(b) When any filing, copying or other service is provided to
a person, agency or entity who is providing services for the child
support enforcement division pursuant to a contract, the state or
county official or the clerk of any court providing such fee for a charge, shall bill the entity, agency, person or child support
enforcement division monthly, in accord with the terms of the
contract. The child support enforcement division shall provide the
relevant terms of such agreement to those officials upon
implementation of any agreement.
(c) A state or county official and the clerk of any court who
charges a deposit, library fee, filing fee for filing and copying
documents or their service, if the filing, copying or services is
for the child support enforcement division or for a person, entity
or agency providing services pursuant to a contract as described in
this article, shall bill the child support enforcement division
monthly or the person, entity or agency providing such services
monthly, in accord with the terms of any contract.
§48A-2-38. Acceptance of federal purposes; compliance with
federal requirements and standards.
(a) The state assents to the purposes of the federal laws
regarding child support and establishment of paternity and agrees
to accept federal appropriations and other forms of assistance made
under or pursuant thereto, and authorizes the receipt of such
appropriations into the state treasury and the receipt of other
forms of assistance by the child support enforcement division for
expenditure, disbursement and distribution by the division in accordance with the provisions of this chapter and the conditions
imposed by applicable federal laws, rules and regulations.
(b) Insofar as such actions are consistent with the laws of
this state granting authority to the division and the director, the
division shall comply with such requirements and standards as the
secretary of the federal department of health and human services
may have determined, as of the effective date of this section, to
be necessary for the establishment of an effective program for
locating obligors, establishing paternity, obtaining support orders
and collecting support payments.
§48A-2-39. Publicizing child support enforcement services.
The child support enforcement division shall regularly and
frequently publicize, through public service announcements, the
availability of child support enforcement services under the
provisions of this chapter and otherwise, including information as
to any application fees for such services and a toll-free telephone
number and a postal address at which further information may be
obtained.
§48A-2-40. Access to records, confidentiality.
(a) All records in the possession of the child support
enforcement division, including records in the possession of the
division concerning an individual case of child or spousal support, shall be kept confidential and shall not be released except as
provided below:
(1) Records shall be disclosed or withheld as required by
federal law or regulations promulgated thereunder notwithstanding
other provisions of this section.
(2) The phone number, address, employer and other information
regarding the location of the obligor, the obligee and the child
shall only be disclosed: (A) Upon his or her written consent, to
the person whom the consent designates; or (B) notwithstanding
subdivision (3) of this subsection, to the obligee, the obligor,
the child or the caretaker or representative of the child, upon
order of a court if the court finds that the disclosure is for a
bona fide purpose, is not contrary to the best interest of a child
and does not compromise the safety of any party:
Provided, That
the identity and location of the employer may be disclosed on the
letters, notices and pleadings of the division as necessary and
convenient for the determination of support amounts and the
establishment, investigation, modification, enforcement, collection
and distribution of support.
(3) Information and records other than the phone number,
address, employer and information regarding the location of the
obligor, the obligee and the child shall be disclosed to the obligor, the obligee, the child or the caretaker of the child or
his or her duly authorized representative, upon his or her written
request:
Provided, That when the obligor requests records other
than collection and distribution records, financial records
relevant to the determination of the amount of support pursuant to
the guidelines, or records the obligor has supplied, the division
shall mail a notice by first class mail to the last known address
of the obligee notifying him or her of the request. The notice
shall advise the obligee of his or her right to object to the
release of records on the grounds that the records are not relevant
to the determination of the amount of support, or the
establishment, modification, enforcement, collection or
distribution of support. The notice shall also advise the obligee
of his or her right to disclosure of records provided in this
section in order to determine what records the child support
enforcement division may have. In the event of any objection, the
division shall determine whether or not the information shall be
released.
(4) Information in specific cases may be released as is
necessary or to determine the identity, location, employment,
income and assets of an obligor.
(5) Information and records may be disclosed to the department of vital statistics, department of employment security, the
department of workers' compensation, state tax department and the
internal revenue service, or other state or federal agencies or
departments as may be necessary or desirable in obtaining any
address, employment, wage or benefit information for the purpose of
determining the amount of support or establishing, enforcing,
collecting and distributing support.
(b) Any person who willfully violates this section shall be
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not less than one hundred nor more than one thousand dollars,
or confined in jail not more than six months, or both fined and
imprisoned.
§48A-2-41. Access to information.
(a) All state, county and municipal agencies, offices and
employers receiving a request for information and assistance from
the child support enforcement division shall cooperate with the
division in the location of parents who have abandoned and deserted
children and shall provide the division 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 that the information is needed to locate a parent
for the purpose of collecting child support, provide the division
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.
§48A-2-42. Authorization for transfer of functions, offices and
equipment of the support enforcement commission and the child
support enforcement division.
The governor may, by executive order, transfer and reallocate
all of the functions, offices and equipment of the commission and
the child support enforcement division to the department of tax and
revenue or the department of administration, with such transfer and
reallocation to take effect on the first day of December, one
thousand nine hundred ninety-five. The authority to make transfers
and reallocations by executive order as provided for in this
section shall expire on the first day of December, one thousand
nine hundred ninety-five.
ARTICLE 3. CHILDREN'S ADVOCATE.
§48A-3-11. Repeal of article.
All procedures and requirements established in the previous
enactment of sections one, two, three, seven and eight of this
article shall continue in effect until the promulgation of an
emergency rule by the commission regarding the duties of child
support enforcement division, their salary and their location
throughout the state. Upon promulgation of this rule and the
filing of such rule with the secretary of state in accord with
section fifteen, article three, chapter twenty-nine-a of this code,
this article and any rule promulgated pursuant to those sections of
this article shall be repealed.
ARTICLE 4. PROCEEDING BEFORE A MASTER.
§48A-4-22. Budget of the family law master system.
The budget for the payment of the salaries and benefits of the
family law masters and clerical and secretarial assistants shall be
included in the appropriation for the supreme court of appeals.
The family law master administration fund is hereby created and
shall be a special account in the state treasury. The fund shall
operate as a special fund administered by the state auditor which
shall be appropriated by line item by the Legislature for payment
of administrative expenses of the family law master system. All
agencies or entities receiving federal matching funds for the
services of family law masters and their staff, including, but not limited to, the director of the child support enforcement division
and the secretary of the department of health and human resources,
shall enter into an agreement with the administrative office of the
supreme court of appeals whereby all federal matching funds paid to
and received by said agencies or entities for the activities by
family law masters and staff of the program shall be paid into the
family law master administration fund. Said agreement shall
provide for advance payments into the fund by such agencies, from
available federal funds pursuant to Title IV-D of the Social
Security Act and in accordance with federal regulations.
ARTICLE 5. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS AND
VISITATION.
§48A-5-1. Action to obtain an order for support of minor child.
(a) An action may be brought in circuit court to obtain an
order for the support of a minor child when:
(1) Such child has a parent and child relationship with an
obligor;
(2) Such obligor is not the primary caretaker or guardian of
the child;
(3) The obligor is not meeting an obligation to support the
child;
(4) An enforceable order for the support of the child by the obligor has not been entered by a court of competent jurisdiction;
and
(5) There is no pending action for divorce, separate
maintenance or annulment in which the obligation of support owing
from the obligor to the child is at issue.
(b) An action may be brought under the provisions of
subsection (a) of this section by:
(1) A custodial parent of a child, when the divorce order or
other order which granted custody did not make provision for the
support of the child by the obligor;
(2) A primary caretaker of a child;
(3) A guardian of the property of a child or the committee for
a child; or
(4) The child support enforcement division, on behalf of the
state, when the department of health and human resources is
providing assistance on behalf of the child in the form of aid to
families with dependent children, and an assignment of any right to
support has been assigned to the department or any other case
wherein a party has applied for child support enforcement services
from the child support enforcement division.
(c) An action under the provisions of this section may be
brought in the county where the obligee, the obligor or the child resides.
(d) When an action for child support is brought under the
provisions of this section by an obligee against his or her spouse,
such obligee may also seek spousal support from the obligor, unless
such support has been previously waived by agreement or otherwise.
(e) Every order of support heretofore or hereafter entered or
modified under the provisions of this section shall include a
provision for the income withholding in accordance with the
provisions of section fifteen-a or fifteen-b, article two, chapter
forty-eight of this code.
(f) At any time after the entry of an order for support, the
court may, upon the verified petition of an obligee or the obligor,
revise or alter such order, and make a new order, as the altered
circumstances or needs of a child, an obligee, or the obligor may
render necessary to meet the ends of justice.
§48A-5-3. Withholding from income of amounts payable as support.
(a) The withholding from an obligor's income of amounts
payable as spousal or child support shall be enforced by 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.
(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 notice required by subsection (b) of this section is
appropriate, the child support enforcement division shall determine
the time for a meeting between the obligor and the child support
enforcement division and the time for a hearing before the family
law master, and shall then set forth in such notice the times and places at which the meeting and hearing will be held if withholding
is contested. The meeting and hearing may be scheduled on the same
date, but in no case shall the meeting with the child support
enforcement division be scheduled less than fifteen days after the
date the notice is mailed nor shall the hearing before the master
be scheduled more than twenty-one days after the date the notice is
mailed. The child support enforcement division shall send such
notice by first class mail to the delinquent obligor. The notice
shall inform the delinquent obligor of the following:
(1) The amount owed;
(2) That it is proposed that there be withholding from the
obligor's income of amounts payable as support, and that if
withholding is uncontested, or is contested but determined
appropriate, the amount withheld will be equal to the amount
required under the terms of the current support order, plus amounts
for any outstanding arrearage;
(3) The definition of "income" as defined in section three,
article one of this chapter;
(4) That the withholding will apply to the obligor's present
source of income and to any future source of income;
(5) That any action by the obligor to purposefully minimize
his or her income will result in the enforcement of support being based upon potential and not just actual earnings;
(6) That payment of the arrearage after the date of the notice
is not a bar to such withholding;
(7) That if the obligor fails to appear at the meeting,
withholding will automatically occur as described in the notice;
(8) That a mistake of fact exists only when there is an error
in the amount of current or overdue support claimed in the notice,
or there is a mistake as to the identity of the obligor;
(9) That matters such as lack of visitation, inappropriateness
of the support award, or changed financial circumstances of the
obligee or the obligor will not be considered at any hearing held
pursuant to the notice, but may be raised by the filing of a
separate petition;
(10) That if the obligor contests the withholding, in writing,
a meeting with the child support enforcement division will be held
at a time and place set forth in the notice, for the purpose of
attempting to settle any issues which are contested, and that a
hearing before the family law master cannot be held until after the
meeting with the child support enforcement division occurs;
(11) That if the meeting with the child support enforcement
division fails to resolve the issues being contested, a hearing
before the family law master shall be held at a time and place set forth in the notice, and that following such hearing, the master
will make a recommended order to the circuit court;
(12) That a master's recommended order as to withholding will
become effective when it is confirmed and entered by the circuit
court, and that if the obligor disagrees with the master's
recommended order, he or she will be given the opportunity to make
objections known to the circuit court; and
(13) That if, while the withholding is being contested, it is
determined that the obligor is in arrears in an amount equal to or
greater than one month's support obligation, but the amount of the
arrearage is disputed, then income withholding for the current
payment of support will be instituted, and may not be stayed
pending a final determination as to the amount of arrearage due.
(d) Withholding shall occur when the support order provides
for immediate income withholding, or if immediate income
withholding is not so provided, and the withholding is contested,
then after entry of the master's recommended order by the circuit
court. When withholding is ordered or otherwise required, the
source of income shall withhold so much of the obligor's income as
is necessary to comply with the order authorizing such withholding,
up to the maximum amount permitted under applicable law. Such
withholding, unless otherwise terminated under the provisions of this section, shall apply to any subsequent source of income or any
subsequent period of time during which income is received by the
obligor.
(e) Notwithstanding any other provision of this code to the
contrary which provides for a limitation upon the amount which may
be withheld from earnings through legal process, the amount of an
obligor's aggregate disposable earnings for any given workweek
which may be withheld as support payments is to be determined in
accordance with the provisions of this subsection, as follows:
(1) After ascertaining the status of the payment record of the
obligor under the terms of the support order, the payment record
shall be examined to determine whether any arrearage is due for
amounts which should have been paid prior to a twelve-week period
which ends with the workweek for which withholding is sought to be
enforced.
(2) When none of the withholding is for amounts which came due
prior to such twelve-week period, then:
(A) When the obligor is supporting another spouse or dependent
child other than the spouse or child for whom the proposed
withholding is being sought, the amount withheld may not exceed
fifty percent of the obligor's disposable earnings for that week;
and
(B) When the obligor is not supporting another spouse or
dependent child as described in paragraph (A) of this subdivision,
the amount withheld may not exceed sixty percent of the obligor's
disposable earnings for that week.
(3) When a part of the withholding is for amounts which came
due prior to such twelve-week period, then:
(A) Where the obligor is supporting another spouse or
dependent child other than the spouse or child for whom the
proposed withholding is being sought, the amount withheld may not
exceed fifty-five percent of the obligor's disposable earnings for
that week; and
(B) Where the obligor is not supporting another spouse or
dependent child as described in paragraph (A) of this subdivision,
the amount withheld may not exceed sixty-five percent of the
obligor's disposable earnings for that week.
(4) In addition to the percentage limitations set forth in
subdivisions (2) and (3) of this subsection, it shall be a further
limitation that when current payments plus arrearages are being
withheld from salaries or wages in no case shall the total amounts
withheld for current payments plus arrearage exceed the amounts
withheld for current payments by an amount greater than ten percent
of the obligor's disposable income.
(5) The provisions of this subsection shall apply directly to
the withholding of disposable earnings of an obligor regardless of
whether the obligor is paid on a weekly, biweekly, monthly or other
basis.
(6) When an obligor acts so as to purposefully minimize his or
her income and to thereby circumvent the provisions of this section
which provide for withholding from income of amounts payable as
support, the amount to be withheld as support payments may be based
upon the obligor's potential earnings rather than his or her actual
earnings, and such obligor may not rely upon the percentage
limitations set forth in this subsection which limit the amount to
be withheld from disposable earnings.
(f) The source of income of any obligor who is subject to
withholding, upon being given notice of withholding, shall withhold
from such obligor's income the amount specified by the notice and
pay such amount to the child support enforcement division for
distribution. The notice given to the source of income shall
contain only such information as may be necessary for the source of
income to comply with the withholding order. Such notice to the
source of income shall include, at a minimum, the following:
(1) The amount to be withheld from the obligor's disposable
earnings, and a statement that the amount to be withheld for support and other purposes, including the fee specified under
subdivision (3) of this subsection, may not be in excess of the
maximum amounts permitted under Section 303(b) of the federal
Consumer Credit Protection Act or limitations imposed under the
provisions of this code;
(2) That the source of income shall send the amount to be
withheld from the obligor's income along with such identifying
information as may be required by the child support enforcement
division to the child support enforcement division the same day
that the obligor is paid;
(3) That, in addition to the amount withheld under the
provisions of subdivision (1) of this subsection, the source of
income may deduct a fee, not to exceed one dollar, for
administrative costs incurred by the source of income, for each
withholding;
(4) That withholding is binding on the source of income until
further notice by the child support enforcement division 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
payment to the child support enforcement division when the employer
properly identifies each payment with the information listed in
this section. A source of income is liable to an obligee,
including the state of West Virginia or the department of health
and human resources where appropriate, for any amount which the
source of income fails to identify with the information required by
this section and is therefore not received by the obligee;
(9) That the source of income shall implement withholding no later than the first pay period or first date for payment of income
that occurs after fourteen days following the date the notice to
the source of income was mailed; and
(10) That the source of income shall notify the child support
enforcement division promptly when the obligor terminates his or
her employment or otherwise ceases receiving income from the source
of income, and shall provide the obligor's last known address and
the name and address of the obligor's new source of income, if
known.
(g) The commission shall, by administrative rule, establish
procedures for promptly refunding to obligors amounts which have
been improperly withheld under the provisions of this section.
(h) After implementation in accordance with the provisions of
subsection (k) of this section, a source of income shall send the
amount to be withheld from the obligor's income to the child
support enforcement division and shall notify the child support
enforcement division of the date of withholding, the same date that
the obligor is paid.
(i) In addition to any amounts payable as support withheld
from the obligor's income, the source of income may deduct a fee,
not to exceed one dollar, for administrative costs incurred by the
source of income, for each withholding.
(j) Withholding of amounts payable as support under the
provisions of this section is binding on the source of income until
further notice by the child support enforcement division 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-5-8. Procedures before the child support enforcement
division.
(a) In any case arising under the provisions of this article
wherein a notice is served upon a person requiring him or her to
notify the child support enforcement division if the person is
contesting action proposed to be taken against him:
(1) If the person so notified does not submit written reasons
for contesting the action within the time set to contest the
proposed action, and does not request a meeting with the child
support enforcement division, then the child support enforcement
division shall proceed with the proposed action; or
(2) If the person so notified does submit written reasons for
contesting the action within the time set to contest the proposed
action, and requests a meeting with the child support enforcement
division, then the child support enforcement division shall
schedule a meeting at the earliest practicable time with the person
and attempt to resolve the matter informally.
(b) If the matter cannot be resolved informally, the child
support enforcement division shall make a determination as to
whether the proposed action is proper and should actually occur.
(c) The determination of the child support enforcement
division shall be made within forty-five days from the date of the
notice which first apprised the person of the proposed action.
Upon making the determination, the child support enforcement division shall inform the parties as to whether or not the proposed
action will occur, and, if it is to occur, of the date on which it
is to begin, and in the case of withholding from income, shall
furnish the obligor with the information contained in any notice
given to an employer under the provisions of subsection (h),
section three of this article with respect to such withholding.
ARTICLE 6. ESTABLISHMENT OF PATERNITY.
§48A-6-1. Paternity proceedings.
(a) A civil action to establish the paternity of a child and
to obtain an order of support for the child may be instituted, by
verified complaint, in the circuit court of the county where the
child resides:
Provided, That if such venue creates a hardship for
the parties, or either of them, or if judicial economy requires,
the court may transfer the action to the county where either of the
parties resides.
(b) A "paternity proceeding" is a summary proceeding,
equitable in nature and within the domestic relations jurisdiction
of the courts, wherein a circuit court upon the petition of the
state or another proper party may intervene to determine and
protect the respective personal rights of a child for whom
paternity has not been lawfully established, of the mother of the
child and of the putative father of the child.
(c) The sufficiency of the statement of the material
allegations in the complaint set forth as grounds for relief and
the grant or denial of the relief prayed for in a particular case
shall rest in the sound discretion of the court, to be exercised by
the court according to the circumstances and exigencies of the
case, having due regard for precedent and the provisions of the
statutory law of this state.
(d) A decree or order made and entered by a court in a
paternity proceeding shall include a determination of the filial
relationship, if any, which exists between a child and his or her
putative father, and, if such relationship is established, shall
resolve dependent claims arising from family rights and obligations
attendant to such filial relationship.
(e) A paternity proceeding may be brought by any of the
following persons:
(1) An unmarried woman with physical or legal custody of a
child to whom she gave birth;
(2) A married woman with physical or legal custody of a child
to whom she gave birth, if the complaint alleges that:
(A) 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 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) The court may, on its own motion, or shall upon the motion
of any party, order the mother, her child and the man to submit to
blood tests or tissue tests to aid the court in proving or
disproving paternity. Such motion may be made, upon ten days'
written notice to the mother and alleged father, without the
necessity of filing a complaint. When the tests are ordered, the
court shall direct that the inherited characteristics, including,
but not limited to, blood types be determined by appropriate
testing procedures at a hospital, independent medical institution
or independent medical laboratory duly licensed under the laws of
this state, or any other state, and shall appoint an expert
qualified as an examiner of genetic markers to analyze and
interpret the results and to report to the court. The court shall consider the results as follows:
(1) Blood or tissue test results which exclude the man as the
father of the child are admissible and shall be clear and
convincing evidence of nonpaternity and the court shall, upon
considering such evidence, dismiss the action.
(2) Blood or tissue test results which show a statistical
probability of paternity of less than ninety-eight percent are
admissible and shall be weighed along with other evidence of the
defendant's paternity.
(3) Undisputed blood or tissue test results which show a
statistical probability of paternity of more than ninety-eight
percent shall, when filed with the court, legally establish the man
as the father of the child for all purposes and child support may
be established pursuant to the provisions of this chapter.
(4) When the defendant desires to challenge the results of the
blood or tissue tests or the expert's analysis of inherited
characteristics, he shall file a written protest with the family
law master or circuit court within thirty days of the filing of
such test results and serve a copy of such protest upon the other
party. The written protest shall be filed at least thirty days
prior to any hearing involving the test results. The court, upon
reasonable request of a party, shall order that additional tests be made by the same laboratory or another laboratory within thirty
days of the entry of the order, at the expense of the party
requesting additional testing. When the results of the blood or
tissue tests or the expert's analysis which show a statistical
probability of paternity of more than ninety-eight percent are
confirmed by the additional testing, then the results are
admissible evidence which is clear and convincing evidence of
paternity. The admission of the evidence creates a presumption
that the defendant is the father.
(b) Documentation of the chain of custody of the blood or
tissue specimens is competent evidence to establish 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) 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.
§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 trial on the merits, the court shall find,
by clear and convincing evidence that the man is the father of the
child, the court shall order support in accordance with the
provisions of this section.
(b) 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.
§48A-6-5. Representation of parties.
Notwithstanding any provision of this code to the contrary, no
parent in any proceeding brought pursuant to this article may have counsel appointed for them according to section two, article
twenty-one, chapter twenty-nine of this code or otherwise receive
legal services provided solely by the state in such action. The
child support enforcement division providing representation to the
state of West Virginia shall solely represent the state of West
Virginia and does not provide any representation to any party.
§48A-6-6. Establishing paternity by acknowledgment of natural
father.
(a) A written, notarized acknowledgment by both the man and
woman that the man is the father of the named child legally
establishes the man as the father of the child for all purposes and
child support may be established under the provisions of this
chapter. The acknowledgment of paternity is irrevocable from the
time of execution, unless a court of competent jurisdiction finds
that such acknowledgment was obtained by fraud or duress.
(b) The written acknowledgment shall include:
(1) Filing instructions;
(2) The parents' social security numbers and addresses; and
(3) A statement regarding the rights and obligations of
acknowledging paternity, including, but not limited to, the duty to
support a child.
(c) 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 or duress.
(d) 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.
ARTICLE 7. REVISED UNIFORM RECIPROCAL ENFORCEMENT OF SUPPORT ACT.
§48A-7-12. Child support enforcement division to represent the
state.
When this state is acting as an initiating state, any attorney
employed by the child support enforcement division or agency or
entity pursuant to article two of this chapter, represents the
interest of the state and not the interest of any other party. The
provision of services by an attorney under this chapter does not
create an attorney-client relationship between the attorney and any
other party. The child support enforcement division shall, at the time an application for child support services is made, inform the
applicant that any attorney who provides services for the child
support enforcement division is the attorney for the state of West
Virginia and that the attorney providing those services does not
provide legal representation to the applicant.
§48A-7-36. Attorney for child support enforcement division to
represent state.
When this state is acting either as a rendering or a
registering state, any attorney employed by the child support
enforcement division or agency or entity pursuant to a contract
with the division pursuant to article two of this chapter,
represents the interest of the state and not the interest of any
other party. The provision of services by an attorney under this
chapter does not create an attorney-client relationship between the
attorney and any other party.
CHAPTER 59. FEES, ALLOWANCES AND COSTS; NEWSPAPERS;
LEGAL ADVERTISEMENTS.
ARTICLE 2. COSTS GENERALLY.
§59-2-1. Suits by persons financially unable to pay.
(a) A natural person who is financially unable to pay the fees
or costs attendant to the commencement, prosecution or defense of
any civil action or proceeding, or an appeal therein, is permitted
to proceed without prepayment in any court of this state, after filing with the court an affidavit that he or she is financially
unable to pay the fees or costs or give security therefor.
(1) The clerk of the court and all other officers of the court
shall issue and serve all process and perform all duties in such
cases.
(2) Judgment may be rendered for costs at the conclusion of
the action, where otherwise authorized by law, and be taxable
against a losing party who has not been determined to be
financially unable to pay.
(3) Upon the filing of an affidavit in accordance with this
subsection, seeking an appeal in a civil case from a circuit court
to the supreme court of appeals, the supreme court of appeals may
direct payment by the administrative office of the supreme court of
appeals of the expenses of duplicating the record on appeal after
it is transmitted by the clerk of the circuit court. The
transcript of proceedings before the circuit court, if the petition
for appeal is to be filed with the transcript, shall be provided by
the court reporter without cost:
Provided, That actual expenses of
the court reporter for supplies used in preparing the transcript
may be paid when authorized by the director of the administrative
office of the supreme court of appeals.
(b) The supreme court of appeals or the chief justice thereof shall establish and periodically review and update financial
guidelines for determining the eligibility of civil litigants to
proceed in forma pauperis.
(c) The supreme court of appeals shall adopt a financial
affidavit form for use by persons seeking a waiver of fees, costs
or security pursuant to the provisions of this section. Copies of
the form shall be available to the public in the offices of the
clerk of any court of this state. The affidavit shall state the
nature of the action, defense or appeal and the affiant's belief
that he or she is entitled to redress. The form shall elicit
information from the affiant which will enable the court in which
it is filed to consider the following factors in determining
whether the affiant is financially unable to pay fees, costs or
security:
(1) Current income prospects, taking into account seasonal
variations in income;
(2) Liquid assets, assets which may provide collateral to
obtain funds and other assets which may be liquidated to provide
funds to pay fees, costs or security;
(3) Fixed debts and obligations, including federal, state and
local taxes and medical expenses;
(4) Child care, transportation and other expenses necessary for employment;
(5) Age or physical infirmity of resident family members;
(6) Whether the person has paid or will pay counsel fees, or
whether counsel will be provided by a private attorney on a
contingent fee basis, an attorney pro bono, a legal services
attorney, or some other attorney at no cost or a reduced cost to
the affiant; and
(7) The consequences for the individual if a waiver of fees,
costs or security is denied.
(d) When the information set forth in the affidavit or the
evidence submitted in the action reveals that the person filing the
affidavit is financially able to pay the fees and costs, the court
or the family law master may order the person to pay the fees and
costs in the action.
(e) No other party in any proceeding may initiate an inquiry
by motion or other pleading or participate in any proceeding
relevant to the issues raised pursuant to this section.
(f) The making of an affidavit subject to inquiry under this
section does not in any event give rise to criminal remedies
against the affiant nor occasion any civil action against the
affiant except for the recovery of costs as in any other case where
costs may be recovered and the recovery of the value of services, if any, provided pursuant to this section. A person who has made
an affidavit knowing the contents thereof to be false may be
prosecuted for false swearing as provided by law.