Senate Bill No. 615
(By Senators Kessler, Dempsey, Fanning, Foster, Hunter, Jenkins,
Minard, White, Barnes, Lanham and Weeks)
____________
[Originating in the Committee on the Judiciary;
reported February 16, 2006.]
____________
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 §48-1-205 of said
code; to amend said code by adding thereto a new section,
designated §48-13-804; to amend and reenact §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-
15-201 of said code; to amend and reenact §48-18-102, §48-18-
120 and §48-18-206 of said code; and to amend and reenact §48-
27-403 of said code, all relating to child support
enforcement; clarifying the definition of "attributed income";
reinserting a statute that was deleted during recodification
relating to default and temporary orders; clarifying where to
file an affidavit of accrued support and to remove a restrictive reporting requirement; clarifying which fees and
overpayments may be collected through income withholding;
clarifying that the bureau is not responsible for refunding
support collected in good faith; providing a civil penalty
against employers who fail to comply with withholding
provisions; correcting a code site; having the penalty for
civil contempt be the same whether the action is initiated by
a private individual or by the bureau; removing the provision
requiring the bureau's attorney to meet with an individual and
allow a staff member to fulfill this duty; denying or revoking
licenses to applicants when child or spousal support is in
arrears; repealing the Support Enforcement Commission;
authorizing the commissioner to study the child support
formula as required by 45 C. F. R. 302.56(C)(3)(e); repealing
the provision concerning the issuance of payment coupons;
making the requirement provisions of service of process
consistent; and requiring magistrate courts to notify family
courts of emergency protective orders issued against
juveniles.
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amended, be repealed; that §48-17-101, §48-17-102, §48-17-103, §48-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109 of said code be repealed; that §48-1-205 of said code be amended and reenacted; that said code be amended by adding thereto
a new section, designated §48-13-804; that §48-14-203, §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 §48-15-201 of
said code be amended and reenacted; that §48-18-102, §48-18-120 and
§48-18-206 of said code be amended and reenacted; and that §48-27-
403 of said code be amended and reenacted, all to read as follows:
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 pursuing 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.
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 4 of article fourteen of
this chapter.
ARTICLE 14. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS.
§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
required by the provisions of
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 all
respects as provided for in part 14-401, et seq., except that in no
circumstances may the amount withheld exceed thirty-five percent of
the disposable earnings for the period, regardless of the length of
time that the overpayment has been owed.
§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) 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. Bureau
for Child Support Enforcement is not liable for refunding amounts
which have been withheld in good faith at the time of collection
unless the funds were kept by the state; otherwise, the obligee or
obligor who received the benefit of the withheld amounts shall be
liable for promptly refunding any amounts incorrectly withheld.
§48-14-414. Sending amounts withheld to
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:
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 family or 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. The
bureau may collect such judgment in the same manner as the bureau
shall collect other fees and may use such remedies as are available
to any judgment creditor.
§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. 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 1-
304:
(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 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 the county 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 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 15. ENFORCEMENT OF SUPPORT ORDER THROUGH ACTION AGAINST
LICENSE.
§48-15-201. Licenses subject to action.
The following licenses are subject to an action against a
license as provided for in this article:
(1) A permit or license issued under chapter seventeen-b of
this code, authorizing a person to drive a motor vehicle;
(2) A commercial driver's license, issued under chapter
seventeen-e of this code, authorizing a person to drive a class of
commercial vehicle;
(3) A permit, license or stamp issued under article two or two-b, chapter twenty of this code, regulating a person's
activities for wildlife management purposes, authorizing a person
to serve as an outfitter or guide, or authorizing a person to hunt
or fish;
(4) A license or registration issued under chapter thirty of
this code, authorizing a person to practice or engage in a
profession or occupation;
(5) A license issued under article twelve, chapter forty-seven
of this code, authorizing a person to transact business as a real
estate broker or real estate salesperson;
(6) A license or certification issued under article fourteen,
chapter thirty-seven of this code, authorizing a person to transact
business as a real estate appraiser;
(7) A license issued under article twelve, chapter thirty-
three of this code, authorizing a person to transact insurance
business as an agent, broker or solicitor;
(8) A registration made under article two, chapter thirty-two
of this code, authorizing a person to transact securities business
as a broker-dealer, agent or investment advisor;
(9) A license issued under article twenty-two, chapter twenty-
nine of this code, authorizing a person to transact business as a
lottery sales agent;
(10) A license issued under articles thirty-two or thirty-our,
chapter sixteen of this code, authorizing persons to pursue a trade or vocation in asbestos abatement or radon mitigation;
(11) A license issued under article eleven, chapter twenty-one
of this code, authorizing a person to act as a contractor;
(12) A license issued under article two-c, chapter nineteen of
this code, authorizing a person to act as an auctioneer; and
(13) A license, permit or certificate issued under chapter
nineteen of this code, authorizing a person to sell, market or
distribute agricultural products or livestock.
(14) A permit or license issued under article sixteen, chapter
eleven of this code, authorizing a person to sell or distribute
alcohol;
(15) A permit or license issued under article twenty-three,
chapter nineteen of this code, authorizing a person to conduct a
horse or dog race;
(16) A permit or license issued under article twenty-two-a,
chapter twenty-nine of this code, authorizing a person to operate
video lottery games;
(17) A permit or license issued under article twenty-two-b,
chapter twenty-nine of this code, authorizing a person to operate
limited video lottery retail games.
(18) A permit or license issued under article three-a, chapter
sixty of this code, authorizing a person to hold a retail liquor
license.
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) To administer the Child Support Enforcement Fund created
pursuant to section 18-107 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.
(3) 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 Legislature 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.
§48-18-120. 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, 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.
§48-27-403. Emergency protective orders of court; hearings;
persons present.
(a) Upon the filing of a verified petition under this article,
the magistrate court may enter an emergency protective order as it
may deem necessary to protect the petitioner or minor children from
domestic violence and, upon good cause shown, may do so ex parte
without the necessity of bond being given by the petitioner. Clear
and convincing evidence of immediate and present danger of abuse to the petitioner or minor children shall constitute good cause for
the issuance of an emergency protective order pursuant to this
section. If the respondent is not present at the proceeding, the
petitioner or the petitioner's legal representative shall certify
to the court, in writing, the efforts which have been made to give
notice to the respondent or just cause why notice should not be
required. Copies of medical reports or records may be admitted
into evidence to the same extent as though the original thereof.
The custodian of such records shall not be required to be present
to authenticate such records for any proceeding held pursuant to
this subsection. If the magistrate court determines to enter an
emergency protective order, the order shall prohibit the respondent
from possessing firearms.
(b) Following the proceeding, the magistrate court shall order
a copy of the petition to be served immediately upon the
respondent, together with a copy of any emergency protective order
entered pursuant to the proceedings, a notice of the final hearing
before the family court and a statement of the right of the
respondent to appear and participate in the final hearing, as
provided in subsection (d) of this section. Copies of any order
entered under the provisions of this section, a notice of the final
hearing before the family court and a statement of the right of the
petitioner to appear and participate in the final hearing, as
provided in subsection (d) of this section, shall also be delivered to the petitioner. Copies of any order entered shall also be
delivered to any law-enforcement agency having jurisdiction to
enforce the order, including municipal police, the county sheriff's
office and local office of the State Police, within twenty-four
hours of the entry of the order. An emergency protective order is
effective until modified by order of the family court upon hearing
as provided in subsection (d) of this section. The order is in
full force and effect in every county in this state.
(c) Subsequent to the entry of the emergency protective order,
service on the respondent and the delivery to the petitioner and
law-enforcement officers, the court file shall be transferred to
the office of the clerk of the circuit court for use by the family
court.
(d) The family court shall schedule a final hearing on each
petition in which an emergency protective order has been entered by
a magistrate. The hearing shall be scheduled not later than ten
days following the entry of the order by the magistrate. The
notice of the final hearing shall be served on the respondent and
delivered to the petitioner, as provided in subsection (b) of this
section, and must set forth the hearing date, time and place and
include a statement of the right of the parties to appear and
participate in the final hearing. The notice must also provide
that the petitioner's failure to appear will result in a dismissal
of the petition and that the respondent's failure to appear may result in the entry of a protective order against him or her for a
period of ninety or one hundred eighty days, as determined by the
court. The notice must also include the name, mailing address,
physical location and telephone number of the family court having
jurisdiction over the proceedings. To facilitate the preparation
of the notice of final hearing required by the provisions of this
subsection, the family court must provide the magistrate court with
a day and time in which final hearings may be scheduled before the
family court within the time required by law.
(e) Upon final hearing the petitioner must prove, by a
preponderance of the evidence, the allegation of domestic violence
or that he or she reported or witnessed domestic violence against
another and has, as a result, been abused, threatened, harassed or
has been the subject of other actions to attempt to intimidate him
or her, or such petition shall be dismissed by the family court.
If the respondent has not been served with notice of the emergency
protective order, the hearing may be continued to permit service to
be effected. The failure to obtain service upon the respondent
does not constitute a basis to dismiss the petition. Copies of
medical reports may be admitted into evidence to the same extent as
though the original thereof, upon proper authentication, by the
custodian of such records.
(f) No person requested by a party to be present during a
hearing held under the provisions of this article shall be precluded from being present unless such person is to be a witness
in the proceeding and a motion for sequestration has been made and
such motion has been granted. A person found by the court to be
disruptive may be precluded from being present.
(g) Upon hearing, the family court may dismiss the petition or
enter a protective order for a period of ninety days or, in the
discretion of the court, for a period of one hundred eighty days.
The hearing may be continued on motion of the respondent, at the
convenience of the court. Otherwise, the hearing may be continued
by the court no more than seven days. If a hearing is continued,
the family court may modify the emergency protective order as it
deems necessary.
(h) Notwithstanding any other provision of this code to the
contrary, a petition filed pursuant to this section that results in
the issuance of an emergency protective order naming a juvenile as
the respondent, shall be treated as a petition authorized by
section seven, article five, chapter forty-nine of this code,
alleging the juvenile is a juvenile delinquent: Provided, That the
magistrate court shall notify the family court and prosecuting
attorney in the county where the emergency protective order is
issued within twenty-four hours of the issuance of the emergency
protective order and the prosecuting attorney may file an amended
verified petition to comply with the provisions of subsection (a)
of section seven, article five, chapter forty-nine of this code within two judicial days.
__________
(Note: The purpose of this bill is to: (1) clarify the
definition of attributed income; (2) reinsert a statute that was
deleted during recodification relating to default and temporary
orders; (3) clarify where to file an affidavit of accrued support
and to remove restrictive reporting requirements; (4) clarify that
fees and overpayments may be collected through income withholding;
(5) clarify that the BCSE is not responsible for refunding support
collected in good faith; (6) provide strengthened remedies against
employers who fail to comply; (7) correct a code site; (8) have the
penalty for civil contempt be the same whether the action is
initiated by a private individual or by the bureau; (9) remove the
provision requiring the BCSE attorney meet with an individual and
to allow a staff member to fulfill this duty; (10) deny to revoke
licenses to applicants when child or spousal support is in arrears;
(11) to repeal the Support Enforcement Commission;(12) authorize
the Commissioner to study the child support formula as required by
45 C.F.R. 302.56(C)(3)(e); to (13) repeal the provision concerning
the issuance of payment coupons; to (14) make the requirement
provisions of process of service consistent; and (15) requiring
magistrate courts to notify family courts of emergency protective
orders.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§48-13-804 is new; therefore, strike-throughs and underscoring
have been omitted.)
Email
Webmaster | © 2024 West Virginia Legislature **
