Senate Bill No. 570
(By Senators Prezioso and Unger)
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[Introduced February 14, 2007; referred to the Committee on the
Judiciary.]
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A BILL to
repeal §48-16-308 of the Code of West Virginia, 1931, as
amended; to repeal §48-17-101, §48-17-102, §48-17-103,
§48-17-104, §48-17-105, §48-17-106, §48-17-107, §48-17-108 and
§48-17-109 of said code; to amend and reenact §16-5-10 of said
code; to amend and reenact §48-1-205, §48-1-225 and §48-1-230
of said code; to amend and reenact §48-11-105 of said code; to
amend said code by adding thereto a new section, designated
§48-13-804; to amend and reenact §48-14-102, §48-14-106,
§48-14-203, §48-14-302, §48-14-404, §48-14-407, §48-14-414,
§48-14-502, §48-14-503 and §48-14-701 of said code; to amend
and reenact §48-18-102, §48-18-118, §48-18-120 and §48-18-206
of said code; and to amend said code by adding thereto a new
section, designated §48-18-118a, all relating generally to
child support enforcement; clarifying requirements for
paternity affidavits; clarifying findings of fact in court orders when income is attributed for purposes of setting child
support; clarifying that prescription drugs are included in
medical support; providing that inmate concession accounts are
income for withholding purposes; establishing a procedure for
refunding of properly withheld amounts when a support order is
modified; requiring family court judges enter default orders
setting child support; allowing the Bureau for Child Support
Enforcement to bring an action for medical support; clarifying
that an affidavit of accrued support may be filed in the court
where the original order was entered; allowing the collection
through income withholding of court-ordered fees; providing
for remedies against employers who improperly withhold child
support; creating consistency among civil contempt penalties;
eliminating the requirement that the Bureau for Child Support
Enforcement attorney meet with the parties prior to the
posting of a bond; repealing the dormant Child Support
Enforcement Commission; clarifying the duties of the Bureau
for Child Support Enforcement Commissioner with respect to the
child support formula; allowing the Tax Commissioner to supply
names and addresses to the Bureau for Child Support
Enforcement for enforcement of support obligations; allowing
collection of overpayments to support obligees from state tax
refunds; eliminating the requirement that parties receive
annual statements; providing for consistency of service of process; and making technical corrections.
Be it enacted by the Legislature of West Virginia:
That §48-16-308 of the Code of West Virginia, 1931, as
amended, be repealed; that §48-17-101, §48-17-102, §48-17-103,
§48-17-104, §48-17-105, §48-17-106, §48-17-107, §48-17-108 and
§48-17-109 of said code be repealed; that §16-5-10 of said code be
amended and reenacted; that §48-1-205, §48-1-225 and §48-1-230 of
said code be amended and reenacted; that §48-11-105 of said code be
amended and reenacted; that said code be amended by adding thereto
a new section, designated §48-13-804; that §48-14-102, §48-14-106,
§48-14-203, §48-14-302, §48-14-404, §48-14-407, §48-14-414,
§48-14-502, §48-14-503 and §48-14-701 of said code be amended and
reenacted; that §48-18-102, §48-18-118, §48-18-120 and §48-18-206
of said code be amended and reenacted; and that said code be
amended by adding thereto a new section, designated §48-18-118a,
all to read as follows:
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 5. VITAL STATISTICS.
§16-5-10. Birth registration acknowledgment and rescission of
paternity.
(a) A certificate of birth for each live birth which occurs in
this state shall be filed with the section of vital statistics, or
as otherwise directed by the State Registrar, within seven days
after the birth and shall be registered if it has been completed and filed in accordance with this section.
(b) When a birth occurs in transit to or in an institution,
the person in charge of the institution or his or her authorized
designee shall obtain all data required by the certificate, prepare
the certificate, certify either by signature or by an approved
electronic process that the child was born alive at the place and
time and on the date stated, and file the certificate as directed
in subsection (a) of this section. The physician or other person
in attendance, or any person providing prenatal care shall provide
the medical information required by the certificate within
seventy-two hours after the birth.
(c) When a birth occurs other than in transit to or in an
institution, the certificate shall be prepared and filed by one of
the following persons in the indicated order of priority in
accordance with legislative rule:
(1) The physician in attendance at or immediately after the
birth;
(2) Any other person in attendance at or immediately after the
birth;
(3) The father or the mother, or, in the absence of the father
and the inability of the mother, the person in charge of the
premises where the birth occurred; or
(4) Any other person qualified by the department by rule to
establish the facts of birth.
(d) When a birth occurs on a moving conveyance within the
United States and the child is first removed from the conveyance in
this state, the birth shall be registered in this state, and the
place where it is first removed shall be considered the place of
birth. When a birth occurs on a moving conveyance while in
international waters or air space or in a foreign country or its
air space and the child is first removed from the conveyance in
this state, the birth shall be registered in this state, but the
certificate shall show the actual place of birth insofar as can be
determined.
(e) For the purposes of birth registration, the woman who
gives birth to the child is presumed to be the mother, unless
otherwise specifically provided by state law or determined by a
court of competent jurisdiction prior to the filing of the
certificate of birth.
(f) If the mother was married at the time of either conception
or birth, or between conception and birth, the name of the most
recent husband shall be entered on the certificate as the father of
the child, unless:
(1) Paternity has been determined otherwise by a court of
competent jurisdiction pursuant to the provisions of article
twenty-four, chapter forty-eight of this code or other applicable
law, in which case the name of the father as determined by the
court shall be entered on the certificate; or
(2) Genetic testing shows that the alleged father is the
biological father of the child pursuant to the following
guidelines:
(A) The tests show that the inherited characteristics
including, but not limited to, blood types, have been determined by
appropriate testing procedures at a hospital, independent medical
institution or independent medical laboratory duly licensed under
the laws of this state, or any other state, and an expert qualified
as an examiner of genetic markers has analyzed, interpreted and
reported on the results; and
(B) The blood or tissue or other genetic test results show a
statistical probability of paternity of more than ninety-eight
percent; or
(3) The mother, her husband, and an alleged father acknowledge
that the husband is not the biological father and that the alleged
father is the true biological father:
Provided, That the
conditions set forth in paragraphs (A) through (D) are met:
(A) The mother executes an affidavit of nonpaternity attesting
that her husband is not the biological father of the child and that
another man is the biological father; and
(B) The man named as the alleged biological father executes an
affidavit of paternity attesting that he is the biological father
and genetic tests, as required by section one hundred three,
article twenty-four, chapter forty-eight of this code, showing the alleged biological father is the actual biological father are
attached to the affidavit; and
(C) The husband executes an affidavit of nonpaternity
attesting that he is not the biological father; and
(D) Affidavits executed pursuant to the provisions of this
subdivision may be joint or individual or a combination thereof,
and each signature shall be individually notarized. If one of the
parties is an unemancipated minor, his or her parent or legal
guardian must also sign the respective affidavit.
(4) If the affidavits are executed as specified in subdivision
(3) of this section, or genetic tests as specified in subdivision
(2) of this section verify that the alleged father is the
biological father, the alleged father shall be shown as the father
on the certificate of live birth. Paternity established pursuant
to subdivision (2) or (3) of this section establishes the father
for all legal purposes including, but not limited to, the
establishment and enforcement of child support orders, and may be
rescinded only by court order upon a showing of fraud, duress or
material mistake of fact.
(5) Paternity may be established pursuant to subdivision (2)
or (3) of this section only when the husband's name does not appear
as the father of a child on a registered and filed certificate of
live birth and the affidavits or genetic tests are completed and
submitted to the section of vital statistics within one year of the date of birth of the child.
(g) If the mother was not married at the time of either
conception or birth, or between conception and birth, the name of
the father shall not be entered on the certificate of birth without
an affidavit of paternity signed by the mother and the person to be
named as the father. The affidavit may be joint or individual and
each signature shall be individually notarized.
(h) A notarized affidavit of paternity, signed by the mother
and the man to be named as the father, acknowledging that the man
is the father of the child, legally establishes the man as the
father of the child for all purposes, and child support may be
established pursuant to the provisions of chapter forty-eight of
this code.
(1) The notarized affidavit of paternity shall include filing
instructions, the parties' social security number and addresses and
a statement that parties were given notice of the alternatives to,
the legal consequences of, and the rights and obligations of
acknowledging paternity, including, but not limited to, the duty to
support a child. If either of the parents is a minor, the
statement shall include an explanation of any rights that may be
afforded due to the minority status.
(2) The failure or refusal to include all information required
by subdivision (1) of this subsection shall not affect the validity
of the affidavit of paternity, in the absence of a finding by a court of competent jurisdiction that it was obtained by fraud,
duress or material mistake of fact, as provided in subdivision (4)
of this subsection.
(3) The original notarized affidavit of paternity shall be
filed with the State Registrar. If a certificate of birth for the
child has been previously issued which is incorrect or incomplete,
a new certificate of birth will be created and placed on file. The
new certificate of birth will not be marked "Amended".
(4) Upon receipt of any notarized affidavit of paternity
executed pursuant to this section, the State Registrar shall
forward a copy to the Bureau for Child Support Enforcement.
(5) An acknowledgment executed under the provisions of this
subsection may be rescinded as follows:
(A) The parent wishing to rescind the acknowledgment shall
file with the clerk of the Circuit Court of the county in which the
child resides a verified complaint stating the name of the child,
the name of the other parent, the date of the birth of the child,
the date of the signing of the affidavit of paternity, and a
statement that he or she wishes to rescind the acknowledgment of
the paternity. If the complaint is filed more than sixty days from
the date of execution of the affidavit of paternity or the date of
an administrative or judicial proceeding relating to the child in
which the signatory of the affidavit of paternity is a party, the
complaint shall include specific allegations concerning the elements of fraud, duress or material mistake of fact.
(B) The complaint shall be served upon the other parent as
provided in Rule 4 of the West Virginia Rules of Civil Procedure.
(C) The family court judge shall hold a hearing within sixty
days of the service of process upon the other parent.
(D) If the complaint was filed within sixty days of the date
the affidavit of paternity was executed, the court shall order the
acknowledgment to be rescinded without any requirement of a showing
of fraud, duress, or material mistake of fact.
(E) If the complaint was filed more than sixty days from the
date of execution of the affidavit of paternity or the date of an
administrative or judicial proceeding relating to the child in
which the signatory of the affidavit of paternity is a party, the
court may set aside the acknowledgment only upon a finding, by
clear and convincing evidence, that the affidavit of paternity was
executed under circumstances of fraud, duress or material mistake
of fact.
(F) The circuit clerk shall forward a copy of any order
entered pursuant to this proceeding to the State Registrar by
certified mail. The order shall state all changes to be made, if
any, to the certificate of birth. The certificate of birth may not
be marked "Amended."
(i) In any case in which paternity of a child is determined by
a court of competent jurisdiction pursuant to the provisions of article twenty-four, chapter forty-eight of this code or other
applicable law, the name of the father and surname of the child
shall be entered on the certificate of birth in accordance with the
finding and order of the court.
(j) If the father is not named on the certificate of birth, no
other information about the father may be entered on the
certificate.
(k) In order to permit the filing of the certificate of birth
within the seven days prescribed in subsection (a) of this section,
one of the parents of the child must verify the accuracy of the
personal data to be entered on the certificate. Certificates of
birth filed after seven days, but within one year from the date of
birth, will be registered on the standard form of the certificate
of birth and will not be marked "Delayed." The State Registrar may
require additional evidence in support of the facts of birth for
certificates filed after seven days from the date of birth.
(l) In addition to the personal data furnished for the
certificate of birth issued for a live birth in accordance with the
provisions of this section, a person whose name is to appear on the
certificate of birth as a parent shall contemporaneously furnish to
the person preparing and filing the certificate of birth the social
security number or numbers issued to the parent. A record of the
social security number or numbers shall be filed with the local
registrar of the district in which the birth occurs within seven days after the birth, and the local registrar shall transmit the
number or numbers to the State Registrar in the same manner as
other personal data is transmitted to the State Registrar.
(m) The local registrar shall transmit by mail or an approved
electronic process each month to the county clerk of each county
the copies of the certificates of all births occurring in the
county or the data extracted therefrom, from which copies the clerk
shall compile records of the births and shall create an index to
the birth records that shall be a matter of public record. The
State Registrar shall prescribe the form of the index of births.
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 1. GENERAL PROVISIONS; DEFINITIONS.
§48-1-205. Attributed income defined.
(a) "Attributed income" means income not actually earned by a
parent but which may be attributed to the parent because he or she
is unemployed, is not working full time, or is working below
full-earning capacity or has nonperforming or underperforming
assets. Income may be attributed to a parent if the court
evaluates the parent's earning capacity in the local economy
(giving consideration to relevant evidence that pertains to the
parent's work history, qualifications, education and physical or
mental condition) and determines that the parent is unemployed, is
not working full time, or is working below full-earning capacity.
Income may also be attributed to a parent if the court finds that the obligor has nonperforming or underperforming assets.
(b) If an obligor: (1) Voluntarily leaves employment or
voluntarily alters his or her pattern of employment so as to be
unemployed, underemployed or employed below full-earning capacity;
(2) is able to work and is available for full-time work for which
he or she is fitted by prior training or experience; and (3) is not
seeking employment in the manner that a reasonably prudent person
in his or her circumstances would do, then an alternative method
for the court to determine gross income is to attribute to the
person an earning capacity based on his or her previous income. If
the obligor's work history, qualifications, education or physical
or mental condition cannot be determined, or if there is an
inadequate record of the obligor's previous income, the court may,
as a minimum, base attributed income on full-time employment (at
forty hours per week) at the federal minimum wage in effect at the
time the support obligation is established.
In order for the court
to consider attribution of income, it is not necessary for the
court to find that the obligor's termination or alteration of
employment was for the purpose of evading a support obligation.
(c) Income shall not be attributed to an obligor who is
unemployed or underemployed or is otherwise working below
full-earning capacity if any of the following conditions exist:
(1) The parent is providing care required by the children to
whom
both of the parties owe a
joint legal responsibility for support and such children are of preschool age or are handicapped
or otherwise in a situation requiring particular care by the
parent;
(2) The parent is pursing a plan of economic self-improvement
which will result, within a reasonable time, in an economic benefit
to the children to whom the support obligation is owed, including,
but not limited to, self-employment or education:
Provided, That
if the parent is involved in an educational program, the court
shall ascertain that the person is making substantial progress
toward completion of the program;
(3) The parent is, for valid medical reasons, earning an
income in an amount less than previously earned; or
(4) The court makes a written finding that other circumstances
exist which would make the attribution of income inequitable:
Provided, That in such case, the court may decrease the amount of
attributed income to an extent required to remove such inequity.
(d) The court may attribute income to a parent's nonperforming
or underperforming assets, other than the parent's primary
residence. Assets may be considered to be nonperforming or
underperforming to the extent that they do not produce income at a
rate equivalent to the current six-month certificate of deposit
rate or such other rate that the court determines is reasonable.
§48-1-225. Extraordinary medical expenses defined.
"Extraordinary medical expenses" means uninsured medical expenses in excess of two hundred fifty dollars per year per child
which are recurring and can reasonably be predicted by the court at
the time of establishment or modification of a child support order.
Such expenses shall include, but not be limited to, insurance
copayments and deductibles, reasonable costs for necessary
orthodontia, dental treatment, asthma treatments, physical therapy,
prescription pharmaceuticals, vision therapy and eye care and any
uninsured chronic health problem.
§48-1-230. Income defined.
"Income"includes, but is not limited to, the following:
(1) Commissions, earnings, salaries, wages, and other income
due or to be due in the future to an individual from his or her
employer and successor employers;
(2) Any payment due or to be due in the future to an
individual 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;
(3) Any amount of money which is owing to an individual 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;
(4) Any amount of money which is held by the Regional Jail
Authority for an inmate in an inmate's concession account.
ARTICLE 11. SUPPORT OF CHILDREN.
§48-11-105. Modification of child support order.
(a) The court may modify a child support order, for the
benefit of the child, when a motion is made that alleges a change
in the circumstances of a parent or another proper person or
persons. A motion for modification of a child support order may be
brought by a custodial parent or any other lawful custodian or
guardian of the child, by a parent or other person obligated to pay
child support for the child or by the Bureau for Child Support
Enforcement of the Department of Health and Human Resources of this
state.
(b) The provisions of the order may be modified if there is a
substantial change in circumstances. If application of the
guideline would result in a new order that is more than fifteen
percent different, then the circumstances are considered a
substantial change.
(c) An order that modifies the amount of child support to be
paid shall conform to the support guidelines set forth in article
13-101, et seq. of this chapter unless the court disregards the
guidelines or adjusts the award as provided
for in section 13-702.
(d) The Supreme Court of Appeals shall make available to the
courts a standard form for a petition for modification of an order for support, which form will allege that the existing order should
be altered or revised because of a loss or change of employment or
other substantial change affecting income or that the amount of
support required to be aid is not within fifteen percent of the
child support guidelines. The clerk of the circuit court and the
secretary-clerk of the family court shall make the forms available
to persons desiring to represent themselves in filing a motion for
modification of the support award.
(e) Upon entry of an order modifying a child support amount
the court shall, no later than five days from entry of the order,
provide a copy of the modified order to the Bureau for Child
Support Enforcement. If an overpayment to one of the parties
occurs as a result of the modified terms of the order, funds
properly withheld by the Bureau for Child Support Enforcement
pursuant to the terms of the original order shall not be returned
until such time as the Bureau for Child Support Enforcement
receives repayment from the party in possession of the overpayment.
ARTICLE 13. GUIDELINES FOR CHILD SUPPORT AWARDS.
§48-13-804. Default orders.
(a) In any proceeding in which the amount of support is to be
established, if the party has been served with proper pleadings and
has been notified of the date, time and place of a hearing before
a family court judge and does not enter an appearance or file a
response, the family court judge shall prepare a default order for entry, which order fixes support in an amount in accordance with
the child support guidelines contained in article thirteen of this
chapter.
(1) When applying the child support guidelines, the court may
accept financial information from the other party as accurate,
pursuant to Rule 12(b) of the rules of practice and procedure for
family court; or
(2) If financial information is not available, the court may
attribute income to the party based upon either:
(i) The party's work history;
(ii) Minimum wage, if appropriate; or
(iii) At a minimum, enter a child support order in a nominal
amount unless, in the court's discretion, a zero support order
should be entered.
(b) All orders shall provide for automatic withholding from
income of the obligor pursuant to part four of article fourteen of
this chapter.
ARTICLE 14. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS.
§48-14-102. Who may bring action for child support order.
An action may be brought under the provisions of section
14-101
of this chapter 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 Bureau for Child Support Enforcement, on behalf of the
state, when the Department of Health and Human Resources is
providing assistance on behalf of the child
or the person to whom
a duty of support is owed, in the form of temporary assistance to
needy families
or medical assistance, and any right to support has
been assigned to the department or in any other case wherein a
party has applied for child support enforcement services from the
Bureau for Child Support enforcement.
§48-14-106. Modification of support order.
(a) 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.
(b) The Supreme Court of Appeals shall make available to the
family courts a standard form for a petition for modification of an
order for support, which form will allege that the existing order
should be altered or revised because of a loss or change of
employment or other substantial change affecting income or that the
amount of support required to be paid is not within fifteen percent
of the child support guidelines. The clerk of the Circuit Court and the secretary-clerk of the family court shall make such forms
available to persons desiring to petition the court pro se for a
modification of the support award.
(c) Upon entry of an order modifying a child support amount
the court shall, no later than five days from entry of the order,
provide a copy of the modified order to the Bureau for Child
Support Enforcement. If an overpayment to one of the parties
occurs as a result of the modified terms of the order, funds
properly withheld by the Bureau for Child Support Enforcement
pursuant to the terms of the original order shall not be returned
until such time as the Bureau for Child Support Enforcement
receives repayment from the party in possession of the overpayment.
§48-14-203. Affidavit of accrued support.
(a) The affidavit of accrued support may be filed with the
clerk of the circuit court in the county in which the obligee or
the obligor resides,
in the county where the order originated, or
where the obligor's source of income is located.
(b) The affidavit may be filed when a payment required by such
order has been delinquent, in whole or in part, for a period of
fourteen days.
(c) The affidavit shall:
(1) Identify the obligee and obligor by name and address, and
shall list the obligor's social security number or numbers, if
known;
(2) Name the court which entered the support order and set
forth the date of such entry;
(3) State the total amount of accrued support which has not
been paid by the obligor;
and
(4) List the date or dates when support payments should have
been paid but were not, and the amount of each such delinquent
payment; and
(5) (4) State the name and address of the obligor's source of
income, if known.
§48-14-302. Affidavit of accrued support.
The affidavit and abstract
as provided in section four,
article three, chapter thirty-eight of this code shall be filed
with the clerk of the county commission in which the real property
is located
or in the county where the order originated. The
affidavit shall:
(1) Identify the obligee and obligor by name and address, and
shall list the obligor's social security number or numbers, if
known;
(2) Name the court which entered the support order and set
forth the date of such entry;
(3) Allege that the support obligor is at least thirty days in
arrears in the payment of child support;
and
(4) State the total amount of accrued support which has not
been paid by the obligor.
and
(5) List the date or dates when support payments should have
been paid but were not, and the amount of each such delinquent
payment.
§48-14-404. Enforcement of withholding by Bureau for Child
Support Enforcement.
The withholding from an obligor's income of amounts payable as
spousal or child support
or fees awarded by a court of competent
jurisdiction to the state in connection with the establishment of
paternity and support or the enforcement of a support order shall
be enforced by the Bureau for Child Support Enforcement in
accordance with the provisions of this part 4.
If an overpayment
of spousal or child support occurs and an arrearage exists, the
Bureau for Child Support shall first offset the overpayment of
spousal or child support against the arrearage. If no arrearage
exists with which to offset the overpayment or the arrearage is not
sufficient to offset the overpayment and the obligee does not enter
into a repayment agreement with the Bureau for Child Support
Enforcement, the Bureau for Child Support Enforcement may issue an
income withholding to the obligee's employer to recoup the amount
of the overpayment. The income withholding shall be in the same
manner as provided in article fourteen of this chapter: Provided,
That in no circumstances may the amount withheld exceed thirty-five
percent of the disposable earnings for the period, regardless of
the length of time that the overpayment has been owed.
§48-14-407. Contents of notice to source of income.
(a) 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 Bureau for Child Support Enforcement for
distribution. The notice given to the source of income shall
contain only such information as may be necessary for the source of
income to comply with the withholding order and no source of income
may require additional information or documentation. Such notice
to the source of income shall include, at a minimum, the following:
(1) The amount to be withheld from the obligor's disposable
earnings, and a statement that the amount to be withheld for
support and other purposes, including the fee specified under
subdivision (3) of this subsection, may not be in excess of the
maximum amounts permitted under Section 303(b) of the federal
Consumer Credit Protection Act or limitations imposed under the
provisions of this code;
(2) That the source of income shall send the amount to be
withheld from the obligor's income to the Bureau for Child Support
Enforcement, along with such identifying information as may be
required by the bureau, 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 Bureau for Child Support Enforcement or until
the source of income notifies the Bureau for Child Support
Enforcement of a termination of the obligor's employment in
accordance with the provisions of section four hundred twelve of
this article;
(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 part
shall have priority over any other legal process under the laws of
this state against the same income and shall be effective despite
any exemption that might otherwise be applicable to the same
income;
(8) That when an employer has more than one employee who is an
obligor who is subject to wage withholding from income under the
provisions of this code, the employer may combine all withheld payments to the Bureau for Child Support Enforcement when the
employer properly identifies each payment wit the information
listed in this part. 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 part 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 Bureau for
Child Support Enforcement 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.
(b) When the court reduces an order of support, The commission
shall, by administrative rule, establish procedures for promptly
refunding to obligors amounts which have been improperly withheld
under the provisions of this part the Bureau for Child Support
Enforcement is not liable for refunding amounts which have been
withheld pursuant to a court order which was valid at the time that
the bureau received the funds unless the funds were kept by the state. The obligee or obligor who received the benefit of the
withheld amounts shall be liable for promptly refunding any amounts
which would constitute an overpayment of the support obligation.
§48-14-414. Sending amounts withheld to
the Bureau for Child
Support Enforcement; notice.
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 section
14-407
of this chapter: 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.
The Bureau
for Child Support Enforcement may assess a civil penalty of no more
than five hundred dollars per occurrence for the failure of any
person, corporation, financial institution, labor organization or
state agency to comply with requirements of this section. The
Bureau for Child Support Enforcement may file an action with the
circuit court to enforce the assessed penalty. The court has the
authority to award the bureau a judgment for the amount of the
civil penalty or such other reasonable amount as the court shall
deem appropriate.
§48-14-502. Willful failure or refusal to comply with order to
pay support.
If the court finds that the obligor willfully failed or
refused to comply with an order requiring the payment of support,
the court shall find the obligor in contempt and may do one or more
of the following:
(1) Require additional terms and conditions consistent with
the court's support order.
(2) After notice to both parties and a hearing, if requested
by a party, on any proposed modification of the order, modify the
order in the same manner and under the same requirements as an
order requiring the payment of support may be modified under the
provisions of part 5-701, et seq. [§§ 48-5-701 through 48-5-706]
modification sought by an obligor, if otherwise justified, shall
not be denied solely because the obligor is found to be in
contempt.
(3) Order that all accrued support and interest thereon be
paid under such terms and conditions as the court, in its
discretion, may deem proper.
(4) Order the contemnor to pay support in accordance with a
plan approved by the Bureau for Child Support Enforcement or to
participate in such work activities as the court deems appropriate.
(5) If appropriate under the provisions of section 1-
305 304
of this chapter:
(A) Commit the contemnor to
the county or regional jail; or
(B) Commit the contemnor to
the county or regional jail with the privilege of leaving the jail, during such hours as the court
determines and under such supervision as the court considers
necessary, for the purpose of allowing the contemnor to go to and
return from his or her place of employment.
§48-14-503. Limitation on length of commitment.
(a) A commitment under subdivision (5) of section 14-502
of
this chapter shall
not exceed forty-five days for the first
adjudication of contempt or ninety days for any subsequent
adjudication of contempt confine the contemnor to jail for a period
not to exceed six months or until such time as the contemnor has
purged himself or herself, whichever shall occur first.
(b) An obligor committed under subdivision (5) of section
14-502
of this chapter shall be released
by court order if the
court has reasonable cause to believe that the obligor will comply
with the court's order.
§48-14-701. Posting of bonds or giving security to guarantee
payment of overdue support.
(a)An obligor with a pattern of overdue support may be
required by order of the court to post bond, give security or some
other guarantee to secure payment of overdue support. The
guarantee may include an order requiring that stocks, bonds or
other assets of the obligor be held in escrow by the court until
the obligor pays the support.
(b) No less than fifteen days before such an order may be entered, the Bureau for Child Support enforcement attorney shall
cause the mailing of a notice by first class mail to the obligor
informing the obligor of the impending action, his or her right to
contest it, and setting forth a date, time and place for a meeting
with the Bureau for Child Support enforcement attorney and the
date, time and place of a hearing before the family court if the
impending action is contested.
ARTICLE 18. BUREAU FOR CHILD SUPPORT ENFORCEMENT.
§48-18-102. Appointment of commissioner; duties; compensation.
(a) There is hereby created the position of commissioner.
whose duties include the ministerial management and administration
of the office of the support enforcement commission The
commissioner 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 commissioner;
(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 commissioner 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 commissioner shall include the
following:
(1) To direct and administer the daily operations of the
commission;
(2) (1) To administer the child support enforcement fund
created pursuant to section 18-107 of this
article chapter;
(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.
(2) To conduct the federally required review 45 C.F.R.
302.56(C) (3) (e) of the child support formula every four years and
make a report to the Joint Committee on Government and Finance of
the findings.
(c) All payments to the commissioner as compensation shall be
made from the child support enforcement fund. The commissioner 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.
§48-18-118. Obtaining support from state income tax refunds.
(a) The Tax Commissioner shall establish procedures necessary
for the Bureau for Child Support Enforcement to obtain payment of
past due support from state income tax refunds from overpayment
made to the Tax Commissioner pursuant to the provisions of article
twenty-one, chapter eleven of this code.
(b) The
Bureau for Child Support Enforcement Commissioner
shall establish procedures necessary
for the Bureau for Child
Support Enforcement to enforce a support order through a notice to
the Tax Commissioner which will cause any refund of state income
tax which would otherwise by payable to an obligor to be reduced by
the amount of overdue support owed by such obligor.
(1)
Such legislative rule The procedures shall, at a minimum,
prescribe:
(A) The time or times at which the Bureau for Child Support
Enforcement shall serve on the obligor or submit to the Tax
Commissioner notices of past due support;
(B) The manner in which such notices shall be served on the
obligor or submitted to the Tax Commissioner;
(C) The necessary information which shall be contained in or
accompany the notices;
(D) The amount of the fee to be paid to the Tax commissioner
for the full cost of applying the procedure whereby past due
support is obtained from state income tax refunds; and
(E) Circumstances when the Bureau for Child Support
Enforcement may deduct a twenty-five dollar fee from the obligor's
state income tax refund. This procedure may not require a
deduction from the state income tax refund of an applicant who is
a recipient of assistance from the Bureau for Children and Families
in the form of temporary assistance for needy families.
(2) Withholding from state income tax refunds may not be
pursued unless the Bureau for Child Support Enforcement has
examined the obligor's pattern of payment of support and the
obligee's likelihood of successfully pursuing other enforcement
actions, and has determined that the amount of past due support
which will be owed, at the time the withholding is to be made, will
be one hundred dollars or more. In determining whether the amount
of past due support will be one hundred dollars or more, the Bureau
for Child Support Enforcement shall consider the amount of all
unpaid past due support, including that which may have accrued
prior to the time that the Bureau for Child Support Enforcement
first agreed to enforce the support order.
(c) The Commissioner of the Bureau for Child Support
Enforcement shall enter into agreements with the Secretary of the
Treasury and the Tax Commissioner, and other appropriate governmental agencies, to secure information relating to the social
security number or numbers and the address or addresses of any
obligor,
and the name or names and address or addresses of any
employer or employers, in order to provide notice between such
agencies to aid the Bureau for Child Support Enforcement in
requesting state income tax deductions and to aid the Tax
Commissioner in enforcing such deductions. In each such case, the
Tax Commissioner, in processing the state income tax deduction,
shall notify the Bureau for Child Support Enforcement of the
obligor's home address and social security number or numbers. The
Bureau for Child Support Enforcement shall provide this information
to any other state involved in processing the support order;
(d) For the purposes of this section, "past due support" means
the amount of unpaid past due support owed under the terms of a
support order to or on behalf of a child, or to or on behalf of a
minor child and the parent with whom the child is living;
regardless of whether the amount has been reduced to a judgment or
not.
(e) The Bureau for Child Support Enforcement may, under the
provisions of this section, enforce the collection of past due
support on behalf of a child who has reached the age of majority.
(f) The procedure shall, at a minimum, provide that prior to
notifying the Tax Commissioner of past due support, a notice to the
obligor as prescribed under subsection (a) of this section shall:
(1) Notify the obligor that a withholding will be made from
any refund otherwise payable to such obligor;
(2) Instruct the obligor of the steps which may be taken to
contest the determination of the Bureau for Child Support
Enforcement that past due support is owed or the amount of the past
due support; and
(3) Provide information with respect to the procedures to be
followed, in the case of a joint return, to protect the share of
the refund which may be payable to another person.
(g) If the Bureau for Child Support Enforcement is notified by
the Tax Commissioner that the refund from which withholding is
proposed to be made is based upon a joint return, and if the past
due support which is involved has not been assigned to the
Department of Health and Human Resources, the Bureau for Child
Support Enforcement may delay distribution of the amount withheld
until such time as the Tax Commissioner notifies the Bureau for
Child Support Enforcement that the other person filing the joint
return has received his or her proper share of the refund, but such
delay shall not exceed six months.
(h) In any case in which an amount is withheld by the Tax
Commissioner under the provisions of this section and paid to the
Bureau for Child Support Enforcement, if the Bureau for Child
Support Enforcement subsequently determines that the amount
certified as past due was in excess of the amount actually owed at the time the amount withheld is to be distributed, the agency shall
pay the excess amount withheld to the obligor thought to have owed
the past due support or, in the case of amounts withheld on the
basis of a joint return, jointly to the parties filing the return.
(i) The amounts received by the Bureau for Child Support
Enforcement shall be distributed in accordance with the provisions
for distribution set forth in 42 U.S.C. §657.
§48-18-118a. Obtaining refunds of overpaid support from state
income tax refunds.
(a) Definitions.
(1) "Obligee" means the same as that term is defined in
section two hundred thirty-four, article one of this chapter.
(2) "Obligor" means the same as that term is defined in
section two hundred thirty-five, article one of this chapter.
(3) "Overpaid support" means the same as that term is defined
in section two hundred thirty-five, article one of this chapter.
(b) The Tax Commissioner shall cooperate with the Commissioner
of the Bureau for Child Support Enforcement in establishing and
implementing procedures for the collection of overpaid child
support from state income tax refunds that are payable to obligees.
The Tax Commissioner shall collect the refunds and send the amounts
to the Bureau for Child Support Enforcement for distribution to
obligors who made the overpayment.
§48-18-120. Statements of account.
The Bureau for Child Support enforcement 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 commissioner shall establish procedures whereby an
obligor or obligee can contest or correct a statement of account.
§48-18-206. Family court action on petition and proposed order
prepared by Bureau for Child Support Enforcement.
(a) Upon receipt of petition for modification and proposed
order prepared by the Bureau for Child Support Enforcement in
accordance with the provisions of this article, the circuit clerk
shall serve a copy of the petition and the proposed order upon all
parties to the proceeding by personal service or by United States
Certified Mail, return receipt requested,
with delivery restricted
to the addressee, in accordance with Rule 4(d)(1)(D) of the West
Virginia Rules of Civil Procedure, and direct the parties to file
any objections to the proposed modified child support order within
twenty days of the date of receiving such notice.
(b) Within five days of the filing of a petition for
modification and proposed order, the circuit clerk shall notify the
family court.
(c) If no party files timely objection to the proposed order or timely requests a hearing on the petition after receiving such
notice, then the family court may proceed to review the petition
and proposed order sua sponte, and may issue the proposed order.
If the family court receives no objection, but the family court
concludes that the proposed order should not be entered or should
be changed, it shall set the matter for hearing.
(d) If the family court receives an objection to the petition
or proposed order, the family court shall set a date and time for
hearing.
(e) At any hearing on the proposed order, the family court
shall treat the proposed order as a motion for modification made by
the party requesting the Bureau to initiate the modification. The
actions of the family court at a hearing shall be de novo and shall
not be an appeal from the Bureau's recommended order. The family
court shall notify the parties of the hearing and of the parties'
rights and the procedures to be followed.
(f) The fees to be assessed for filing and service of the
petition and the disbursement of the fee for petitions filed
pursuant to this section shall be the same as the fee charged by
the clerk for petitioning for an expedited modification of a child
support order, as set forth in section eleven, article one, chapter
fifty-nine of this code.
NOTE: The purpose of this bill is to: (1) Clarify that
genetic tests must be attached to the 3-way paternity affidavit for it to be valid; (2) establish a statute of limitations for child
support orders; (3) clarify the definition of attributed income;
(4) clarify that prescription pharmaceuticals are included in
medical support; (5) to update the provisions relating to medical
support to comply with federal regulations; (6) clarify that an
inmate's concession account is considered income for child support
purposes; (7) clarify when funds are to be refunded; (8) reinsert
a statute that was deleted during recodification relating to
default and temporary orders; (9) clarify that the Bureau may bring
an action for support in medical only cases; (10) clarify where to
file an affidavit of accrued support and to remove restrictive
reporting requirements; (11) clarify that fees and overpayments may
be collected through income withholding; (12) clarify that the BCSE
is not responsible for refunding support collected in good faith;
(13) provide strengthened remedies against employers who fail to
comply; (14) correct a code site; (15) have the penalty for civil
contempt be the same whether the action is initiated by a private
individual or by the bureau; (16) remove the provision requiring
the BCSE attorney meet with an individual and to allow a staff
member to fulfill this duty; (17) to repeal the Support Enforcement
Commission;(18) authorize the Commissioner to study the child
support formula as required by 45 C.F.R. 302.56(C)(3)(e); (19)
establish procedures to collect overpayments from obligees; (20) to
repeal the provision concerning the issuance of payment coupons;
and 21) to make the requirement provisions of process of service
consistent.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§48-13-804 and §48-18-118a are new; therefore, strike-throughs
and underscoring have been omitted.