Senate Bill No. 395
(By Senators Love and Schoonover)
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[Introduced February 14, 1996; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact sections sixteen and twenty-four,
article two, chapter forty-eight-a of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
all relating to general duties and powers of the child
support enforcement division; and disbursement of amounts
collected as support.
Be it enacted by the Legislature of West Virginia:
That sections sixteen and twenty-four, article two, chapter
forty-eight-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted, all to
read as follows:
ARTICLE 2. WEST VIRGINIA SUPPORT ENFORCEMENT COMMISSION; CHILD
SUPPORT ENFORCEMENT DIVISION; ESTABLISHMENT AND ORGANIZATION.
§48A-2-16. 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 ensure the enforcement through necessary legal means
of visitation rights for noncustodial parents who are current on
their support obligations and who desire the services of the
child support enforcement division;
(10) (11) To cooperate with other agencies of this state and other states to search their records to help locate absent
parents;
(11) (12) To cooperate with other states in establishing and
enforcing support obligations;
(12) (13) 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) (14) To exercise such other powers as may be necessary
to effectuate the provisions of this chapter.
§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.
(h) It shall be the duty of the child support enforcement
division to collect from the custodial parent any money
erroneously withheld from the noncustodial parent and which was
forwarded to the custodial parent: Provided, That the child support enforcement division may elect at its discretion not to
seek the money erroneously paid and simply apply the money to
future support payments.
NOTE: The purpose of this bill is to authorize the child
support enforcement division to enforce visitation rights for
noncustodial parents who are current on their support. The bill
further authorizes the child support enforcement division to
recover or credit future payments for money that was originally
erroneously withheld from the noncustodial parent and forwarded
to the custodial parent.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.