ENROLLED
Senate Bill No. 752
(By Senators Wooton, Ball, Bowman, Dittmar, Hunter, Kessler,
Oliverio, Ross, Schoonover, Snyder, White, Deem and Kimble)
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[Passed March 14, 1998; in effect ninety days from passage.]
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AN ACT to amend and reenact section five, article five, chapter
sixteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact sections
fifteen and fifteen-a, article two, chapter forty-eight of
said code; to further amend said article by adding thereto a
new section, designated section ten-c; to amend and reenact
section thirty, article one-a, chapter forty-eight-a of said
code; to amend and reenact section nine, article one-b of said
chapter; to amend and reenact sections twenty-two, twenty- four, thirty-one, thirty-two, thirty-three, thirty-three-a,
thirty-four, thirty-five, forty and forty-one, article two of
said chapter; to further amend said article by adding thereto
two new sections, designated sections twenty-four-a and forty- three; to amend and reenact sections one, two, three, four and
five, article five of said chapter; to further amend said
article by adding thereto two new sections, designated sections four-a and seven; to amend and reenact sections one
and four, article six of said chapter; and to amend and
reenact section twelve, article one, chapter fifty-seven of
said code, all relating to child support and authorizing the
state registrar of vital statistics to offer voluntary
paternity establishment services; providing for parent
education classes for parents of minor children when the
parents are involved in actions for divorce, paternity,
custody or separate maintenance; authorizing the child support
enforcement division to file a motion for modification of a
child support order; transferring health care coverage for a
child to a health plan offered by the obligated parent's new
employer; defining "support order"; establishing who may use
and what information may be requested from the state and
federal parent locator services; establishing the time for
disbursement of child support collections; authorizing the
child support enforcement division to redirect support
payments administratively where someone other than the
custodial parent has physical custody; specifying the
conditions under which the child support enforcement division
may obtain consumer credit reports; providing for submission
of information by parties to support proceedings to the state
case registry; allowing enforcement of subpoenas issued by
out-of-state agencies administering certain programs for child
support enforcement; providing for development of a data match system with financial institutions for obtaining information
regarding obligor depositors and for immunity from liability
for financial institutions supplying such information;
reporting of information regarding employment and income by an
employer and specifying who has access to such information;
providing for an administrative review and adjustment of child
support orders which differ from the child support guidelines;
prohibiting the release of information on the whereabouts of
a protected party or child; providing the child support
enforcement division and certain out-of-state agencies access
to records of public and private entities for purposes of
child support enforcement; recording social security numbers
in certain family matters; providing procedures for
administrative enforcement of child support orders through
writs of execution, suggestions or suggestee executions on
personal property; withholding from income of amounts payable
as support; creating liens against real property for overdue
child support; providing for release of real property liens
upon satisfaction of the overdue support obligation; providing
procedures for enforcing liens on real property for overdue
child support; authorizing the circuit court to order one
found in contempt for violating a child support order to work
or to pay support in accordance with a plan approved by the
child support enforcement division; authorizing the child
support enforcement division to increase monthly support payments to secure overdue child support; restating that there
is no right to trial by jury in a paternity proceeding;
issuing temporary child support in paternity actions in cases
of clear and convincing evidence of paternity; providing for
admission into evidence of bills for testing as prima facie
evidence in a paternity case without third-party testimony;
and requiring full faith and credit be given to records and
proceedings in other jurisdictions in conformity with federal
law.
Be it enacted by the Legislature of West Virginia:
That section five, article five, chapter sixteen of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; that sections fifteen and fifteen-a,
article two, chapter forty-eight of said code be amended and
reenacted; that said article be further amended by adding thereto
a new section, designated section ten-c; that section thirty,
article one-a, chapter forty-eight-a of said code be amended and
reenacted; that section nine, article one-b of said chapter be
amended and reenacted; that sections twenty-two, twenty-four,
thirty-one, thirty-two, thirty-three, thirty-three-a, thirty-four,
thirty-five, forty and forty-one, article two of said chapter be
amended and reenacted; that said article be further amended by
adding thereto two new sections, designated sections twenty-four-a
and forty-three; that sections one, two, three, four and five, article five of said chapter be amended and reenacted; that said
article be further amended by adding thereto two new sections,
designated sections four-a and seven; that sections one and four,
article six of said chapter be amended and reenacted; and that
section twelve, article one, chapter fifty-seven of said code be
amended and reenacted, all to read as follows:
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 5. VITAL STATISTICS.
§16-5-5. Duties of state registrar of vital statistics; enforcement
of article.
(a) The state registrar of vital statistics shall:
(1) Administer and enforce the provisions of this article and
all other applicable laws of this state and all lawful rules and
regulations adopted and promulgated thereunder;
(2) Direct and supervise the statewide system of vital
statistics and the operation of the division of vital statistics,
and act as custodian of its records;
(3) Direct, supervise and control the activities of local
registrars and the activities of public officers in relation to the
operation of the vital statistics system and provide them with the
postage necessary for them to carry out their duties under this
article;
(4) Prescribe, provide and distribute, subject to the rules
and regulations promulgated by the board of health, all forms necessary to carry out the provisions of this article and of the
rules and regulations adopted and promulgated thereunder;
(5) Prepare and publish annual reports of vital statistics of
this state, and such other reports as may be required by the
director of the state health department; and
(6) Offer voluntary paternity establishment services.
(b) The state registrar of vital statistics may delegate such
functions and duties as are hereby vested in him or her to officers
and employees of the division of vital statistics and to local
registrars as the state registrar may deem necessary or expedient.
(c) The state registrar, either personally or by a duly
delegated representative, shall have authority to investigate cases
of irregularity or violation of law arising under the provisions of
this article, and all local registrars, deputy local registrars and
subregistrars shall aid him or her, upon request, in such
investigations. When he or she shall deem it necessary, he or she
shall report cases of violation of any of the provisions of this
article to the prosecuting attorney of the county, with a statement
of the facts and circumstances. When any such case is reported to
him or her by the state registrar, the prosecuting attorney shall
forthwith initiate and promptly prosecute the necessary court
proceedings against the person or corporation responsible for the
alleged violation of law. Upon request of the state registrar, the
attorney general shall assist in the enforcement of the provisions of this article.
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 2. DIVORCE, ANNULMENT AND SEPARATE MAINTENANCE.
§48-2-10c. Parent education classes.
(a) A circuit court, or a judge thereof, may, by
administrative rule or order, and with the approval of the supreme
court of appeals, designate an organization or agency to establish
and operate education programs designed for parents who have filed
an action for divorce, paternity, support or separate maintenance
and who have minor children. The education programs shall be
designed to instruct and educate parents about the effects of
divorce and custody disputes on their children and to teach parents
ways to help their children and minimize their trauma.
(b) The circuit court may issue an order requiring parties to
an action for divorce, paternity, custody or separate maintenance
to attend parental education classes established pursuant to
subsection (a) of this section and may, by order, establish
sanctions for failure to attend.
(c) The circuit court may require that each person attending
a parental education class pay a fee, not to exceed twenty-five
dollars, to the clerk of such court to defray the cost of materials
and of hiring teachers:
Provided, That where it is determined that
a party is indigent and unable to pay for such classes, the court
shall waive the payment of the fee for such party. The clerk of the circuit court shall, on or before the tenth day of each month,
transmit all fees collected under this subsection to the state
treasurer for deposit in the state treasury to the credit of
special revenue fund to be known as the "parental education fund",
which is hereby created. All moneys collected and received under
this subsection and paid into the state treasury and credited to
the "parental education fund" shall be used by the administrative
office of the supreme court of appeals solely for reimbursing the
provider of parental education classes for the costs of materials
and of providing such classes. Such moneys shall not be treated by
the auditor and treasurer as part of the general revenue of the
state.
(d) The administrative office of the supreme court of appeals
shall submit a report to the joint committee on government and
finance summarizing the effectiveness of any program of parent
education no later than two years from the initiation of the
program.
§48-2-15. Relief upon ordering divorce or annulment or granting
decree of separate maintenance.
(a) Upon ordering a divorce or granting a decree of separate
maintenance, the court may require either party to pay alimony in
the form of periodic installments, or a lump sum, or both, for the
maintenance of the other party. Payments of alimony are to be
ordinarily made from a party's income, but when the income is not sufficient to adequately provide for those payments, the court may,
upon specific findings set forth in the order, order the party
required to make those payments to make them from the corpus of his
or her separate estate. An award of alimony shall not be
disproportionate to a party's ability to pay as disclosed by the
evidence before the court.
(b) Upon ordering the annulment of a marriage or a divorce or
granting of decree of separate maintenance, the court may further
order all or any part of the following relief:
(1) The court may provide for the custody of minor children of
the parties, subject to such rights of visitation, both in and out
of the residence of the custodial parent or other person or persons
having custody, as may be appropriate under the circumstances. In
every action where visitation is awarded, the court shall specify
a schedule for visitation by the noncustodial parent:
Provided,
That with respect to any existing order which provided for
visitation but which does not provide a specific schedule for
visitation by the noncustodial parent, upon motion of any party,
notice of hearing and hearing, the court shall issue an order which
provides a specific schedule of visitation by the noncustodial
parent;
(2) When the action involves a minor child or children, the
court shall require either party to pay child support in the form
of periodic installments for the maintenance of the minor children of the parties in accordance with support guidelines promulgated
pursuant to article one-b, chapter forty-eight-a of this code.
Payments of child support are to be ordinarily made from a party's
income, but in cases when the income is not sufficient to
adequately provide for those payments, the court may, upon specific
findings set forth in the order, order the party required to make
those payments to make them from the corpus of his or her separate
estate;
(3) When the action involves a minor child or children, the
court shall provide for medical support for any minor children in
accordance with section fifteen-a of this article;
(4) As an incident to requiring the payment of alimony or
child support, the court may order either party to continue in
effect existing policies of insurance covering the costs of health
care and hospitalization of the other party:
Provided, That if the
other party is no longer eligible to be covered by such insurance
because of the granting of an annulment or divorce, the court may
require a party to substitute such insurance with a new policy to
cover the other party or may consider the prospective cost of such
insurance in awarding alimony to be paid in periodic installments.
Payments made to an insurer pursuant to this subdivision, either
directly or by a deduction from wages, shall be deemed to be
alimony or installment payments for the distribution of marital
property, in such proportion as the court shall direct:
Provided, however, That if the court does not set forth in the order that a
portion of such payments is to be deemed installment payments for
the distribution of marital property, then all such payments made
pursuant to this subdivision shall be deemed to be alimony:
Provided further, That the designation of insurance coverage as
alimony under the provisions of this subdivision shall not, in and
of itself, give rise to a subsequent modification of the order to
provide for alimony other than insurance for covering the costs of
health care and hospitalization;
(5) The court may grant the exclusive use and occupancy of the
marital home to one of the parties, together with all or a portion
of the household goods, furniture and furnishings reasonably
necessary for such use and occupancy. Such use and occupancy shall
be for a definite period, ending at a specific time set forth in
the order, subject to modification upon the petition of either
party. Except in extraordinary cases supported by specific
findings set forth in the order granting relief, a grant of the
exclusive use and occupancy of the marital home shall be limited to
those situations when such use and occupancy is reasonably
necessary to accommodate the rearing of minor children of the
parties. The court may require payments to third parties in the
form of home loan installments, land contract payments, rent,
property taxes and insurance coverage if the amount of such
coverage is reduced to a fixed monetary amount set forth in the court's order. When such third party payments are ordered, the
court shall specify whether such payments or portions of payments
are alimony, child support, a partial distribution of marital
property or an allocation of marital debt:
Provided, That if the
court does not set forth in the order that a portion of such
payments is to be deemed child support or installment payments for
the distribution of marital property, then all such payments made
pursuant to this subdivision shall be deemed to be alimony. When
such third party payments are ordered, the court shall specify
whether such payments or portions of payments are alimony, child
support, a partial distribution of marital property or an
allocation of marital debt. If the payments are not designated in
an order and the parties have waived any right to receive alimony,
the court may designate the payments upon motion by any party.
Nothing contained in this subdivision shall abrogate an existing
contract between either of the parties and a third party or affect
the rights and liabilities of either party or a third party under
the terms of such contract;
(6) As an incident to requiring the payment of alimony, the
court may grant the exclusive use and possession of one or more
motor vehicles to either of the parties. The court may require
payments to third parties in the form of automobile loan
installments or insurance coverage if available at reasonable
rates, and any such payments made pursuant to this subdivision for the benefit of the other party shall be deemed to be alimony or
installment payments for the distribution of marital property, as
the court may direct. Nothing contained in this subdivision shall
abrogate an existing contract between either of the parties and a
third party or affect the rights and liabilities of either party or
a third party under the terms of such contract;
(7) When the pleadings include a specific request for specific
property or raise issues concerning the equitable division of
marital property as defined in section one of this article, the
court shall order such relief as may be required to effect a just
and equitable distribution of the property and to protect the
equitable interests of the parties therein;
(8) Unless a contrary disposition is ordered pursuant to other
provisions of this section, then upon the motion of either party,
the court may compel the other party to deliver to the moving party
any of his or her separate estate which may be in the possession or
control of the respondent party and may make such further order as
is necessary to prevent either party from interfering with the
separate estate of the other;
(9) When allegations of abuse have been proven, the court
shall enjoin the offending party from molesting or interfering with
the other, or otherwise imposing any restraint on the personal
liberty of the other or interfering with the custodial or
visitation rights of the other. Such order may permanently enjoin the offending party from entering the school, business or place of
employment of the other for the purpose of molesting or harassing
the other; or from contacting the other, in person or by telephone,
for the purpose of harassment or threats; or from harassing or
verbally abusing the other in a public place;
(10) The court may order either party to take necessary steps
to transfer utility accounts and other accounts for recurring
expenses from the name of one party into the name of the other
party or from the joint names of the parties into the name of one
party. Nothing contained in this subdivision shall affect the
liability of the parties for indebtedness on any such account
incurred before the transfer of such account.
(c) When an annulment or divorce is denied, the court shall
retain jurisdiction of the case and may order all or any portion of
the relief provided for in subsections (a) and (b) of this section
which has been demanded or prayed for in the pleadings.
(d) When a divorce or annulment is granted in this state upon
constructive service of process and personal jurisdiction is
thereafter obtained of the defendant in such case, the court may
order all or any portion of the relief provided for in subsections
(a) and (b) of this section which has been demanded or prayed for
in the pleadings.
(e) After the entry of an order pursuant to the provisions of
this section, the court may revise the order concerning the maintenance of the parties and enter a new order concerning the
same, as the circumstances of the parties may require.
The court may also from time to time afterward, upon motion of
either of the parties and upon proper service, revise such order to
grant relief pursuant to subdivision (9), subsection (b) of this
section, and enter a new order concerning the same, as the
circumstances of the parties and the benefit of children may
require. The court may also from time to time afterward, upon the
motion of either of the parties or other proper person having
actual or legal custody of the minor child or children of the
parties, revise or alter the order concerning the custody and
support of the children, and make a new order concerning the same,
issuing it forthwith, as the circumstances of the parents or other
proper person or persons and the benefit of the children may
require:
Provided, That all orders modifying child support shall
be in conformance with the requirements of support guidelines
promulgated pursuant to article one-b, chapter forty-eight-a of
this code:
Provided, however, That an order providing for child
support payments may be revised or altered for the reason, inter
alia, that the existing order provides for child support payments
in an amount that is less than eighty-five percent or more than one
hundred fifteen percent of the amount that would be required to be
paid under the child support guidelines promulgated pursuant to the
provisions of said section:
Provided further, That the child support enforcement division may review a child support order and,
if appropriate, file a motion with the circuit court for
modification of the child support order pursuant to the provisions
of section thirty-five, article two, chapter forty-eight-a of this
code.
In granting relief under this subsection, the court may, when
other means are not conveniently available, alter any prior order
of the court with respect to the distribution of marital property,
if such property is still held by the parties, and if necessary to
give effect to a modification of alimony, child support or child
custody or necessary to avoid an inequitable or unjust result which
would be caused by the manner in which the modification will affect
the prior distribution of marital property.
(f) When a separation agreement is the basis for an award of
alimony, the court, in approving the agreement, shall examine the
agreement to ascertain whether it clearly provides for alimony to
continue beyond the death of the payor party or to cease in such
event. When alimony is to be paid pursuant to the terms of a
separation agreement which does not state whether the payment of
alimony is to continue beyond the death of the payor party or is to
cease, or when the parties have not entered into a separation
agreement and alimony is to be awarded, the court shall
specifically state as a part of its order whether such payments of
alimony are to be continued beyond the death of the payor party or cease.
(g) When a separation agreement is the basis for an award of
alimony, the court, in approving the agreement, shall examine the
agreement to ascertain whether it clearly provides for alimony to
continue beyond the remarriage of the payee party or to cease in
such event. When alimony is to be paid pursuant to the terms of a
separation agreement which does not state whether the payment of
alimony is to continue beyond the remarriage of the payee party or
is to cease, or when the parties have not entered into a separation
agreement and alimony is to be awarded, the court shall
specifically state as a part of its order whether such payments of
alimony are to be continued beyond the remarriage of the payee
party or cease.
(h) In addition to the disclosure requirements set forth in
section thirty-three of this article, the court may order accounts
to be taken as to all or any part of marital property or the
separate estates of the parties and may direct that the accounts be
taken as of the date of the marriage, the date upon which the
parties separated or any other time in assisting the court in the
determination and equitable division of property.
(i) In determining whether alimony is to be awarded, or in
determining the amount of alimony, if any, to be awarded under the
provisions of this section, the court shall consider and compare
the fault or misconduct of either or both of the parties and the effect of such fault or misconduct as a contributing factor to the
deterioration of the marital relationship. However, alimony shall
not be awarded when both parties prove grounds for divorce and are
denied a divorce, nor shall an award of alimony under the
provisions of this section be ordered which directs the payment of
alimony to a party determined to be at fault, when, as a grounds
granting the divorce, such party is determined by the court:
(1) To have committed adultery; or
(2) To have been convicted for the commission of a crime which
is a felony, subsequent to the marriage if such conviction has
become final; or
(3) To have actually abandoned or deserted his or her spouse
for six months.
(j) Whenever under the terms of this section or section
thirteen of this article a court enters an order requiring the
payment of alimony or child support, if the court anticipates the
payment of such alimony or child support or any portion thereof to
be paid out of "disposable retired or retainer pay" as that term is
defined in 10 U.S.C. §1408, relating to members or former members
of the uniformed services of the United States, the court shall
specifically provide for the payment of an amount, expressed in
dollars or as a percentage of disposable retired or retainer pay,
from the disposable retired or retainer pay of the payor party to
the payee party.
(k) Any order which provides for the custody or support of a
minor child shall include:
(1) The name of the custodian;
(2) The amount of the support payments;
(3) The date the first payment is due;
(4) The frequency of the support payments;
(5) The event or events which trigger termination of the
support obligation;
(6) A provision regarding wage withholding;
(7) The address where payments shall be sent;
(8) A provision for medical support; and
(9) When child support guidelines are not followed, a specific
written finding pursuant to section fourteen, article one-b,
chapter forty-eight-a of this code.
(l) (1) Unless the best interests of the child require
otherwise, every final order and every modification order which
provides for the custody of a minor child of the parties shall also
provide for the following:
(A) The custodial parent shall be required to authorize school
authorities in the school in which the child is enrolled to release
to the noncustodial parent copies of any and all information
concerning the child which would otherwise be properly released to
the custodial parent;
(B) The custodial parent shall be required, promptly after receipt, to transmit to the noncustodial parent a copy of the
child's grades or report card and copies of any other reports
reflecting the status or progress of the child;
(C) The custodial parent shall be required, when practicable,
to arrange appointments for parent-teacher conferences at a time
when the noncustodial parent can be present;
(D) The custodial parent shall be required to authorize
medical providers to release to the noncustodial parent copies of
any and all information concerning medical care provided to the
child which would otherwise be properly released to the custodial
parent;
(E) The custodial parent shall be required to promptly inform
the noncustodial parent of any illness of the child which requires
medical attention; or, if the child is in the actual physical
custody of the noncustodial parent during a period of visitation,
the noncustodial parent shall be required to promptly inform the
custodial parent of any illness of the child which requires medical
attention;
(F) The custodial parent shall be required to consult with the
noncustodial parent prior to any elective surgery being performed
on the child; and in the event emergency medical procedures are
undertaken for the child which require the parental consent of
either parent, if time permits, the other parent shall be
consulted, or if time does not permit such consultation, the other parent shall be promptly informed of such emergency medical
procedures:
Provided, That the same duty to inform the custodial
parent applies to the noncustodial parent in the event that the
emergency medical procedures are required while the child is in the
physical custody of the noncustodial parent during a period of
visitation:
Provided, however, That nothing contained herein shall
be deemed to alter or amend the law of this state as it otherwise
pertains to physicians or health care facilities obtaining parental
consent prior to providing medical care or performing medical
procedures.
(2) In the event a custodial parent shall fail or refuse to
authorize the release of school or medical records as provided for
by subdivision (1) of this subsection, then upon the ex parte
application of the noncustodial parent, the family law master shall
prepare an order for entry by the circuit court which appoints the
family law master as a special commissioner authorized to execute
a consent for the release of such records and direct it to the
appropriate school authorities or medical providers.
§48-2-15a. Medical support enforcement.
(a) For the purposes of this section:
(1) "Custodian for the children" means a parent, legal
guardian, committee or other third party appointed by court order
as custodian of child or children for whom child support is
ordered.
(2) "Obligated parent" means a natural or adoptive parent who
is required by agreement or order to pay for insurance coverage and
medical care, or some portion thereof, for his or her child.
(3) "Insurance coverage" means coverage for medical, dental,
including orthodontic, optical, psychological, psychiatric or other
health care service.
(4) "Child" means a child to whom a duty of child support is
owed.
(5) "Medical care" means medical, dental, optical,
psychological, psychiatric or other health care service for
children in need of child support.
(6) "Insurer" means any company, health maintenance
organization, self-funded group, multiple employer welfare
arrangement, hospital or medical services corporation, trust, group
health plan, as defined in 29 U.S.C. §1167, Section 607(1) of the
Employee Retirement Income Security Act of 1974 or other entity
which provides insurance coverage or offers a service benefit plan.
(b) In every action to establish or modify an order which
requires the payment of child support, the court shall ascertain
the ability of each parent to provide medical care for the children
of the parties. In any temporary or final order establishing an
award of child support or any temporary or final order modifying a
prior order establishing an award of child support, the court shall
order one or more of the following:
(1) The court shall order either parent or both parents to
provide insurance coverage for a child, if such insurance coverage
is available to that parent on a group basis through an employer or
through an employee's union. If similar insurance coverage is
available to both parents, the court shall order the child to be
insured under the insurance coverage which provides more
comprehensive benefits. If such insurance coverage is not
available at the time of the entry of the order, the order shall
require that if such coverage thereafter becomes available to
either party, that party shall promptly notify the other party of
the availability of insurance coverage for the child.
(2) If the court finds that insurance coverage is not
available to either parent on a group basis through an employer,
multiemployer trust or employees' union, or that the group insurer
is not accessible to the parties, the court may order either parent
or both parents to obtain insurance coverage which is otherwise
available at a reasonable cost.
(3) Based upon the respective ability of the parents to pay,
the court may order either parent or both parents to be liable for
reasonable and necessary medical care for a child. The court shall
specify the proportion of the medical care for which each party
shall be responsible.
(4) If insurance coverage is available, the court shall also
determine the amount of the annual deductible on insurance coverage which is attributable to the children and designate the proportion
of the deductible which each party shall pay.
(5) The order shall require the obligor to continue to provide
the child support enforcement division created by article two,
chapter forty-eight-a of this code with information as to his or
her employer's name and address and information as to the
availability of employer-related insurance programs providing
medical care coverage so long as the child continues to be eligible
to receive support.
(c) The cost of insurance coverage shall be considered by the
court in applying the child support guidelines provided for in
article one-b, chapter forty-eight-a of this code.
(d) Within thirty days after the entry of an order requiring
the obligated parent to provide insurance coverage for the
children, that parent shall submit to the custodian for the child
written proof that the insurance has been obtained or that an
application for insurance has been made. Such proof of insurance
coverage shall consist of, at a minimum:
(1) The name of the insurer;
(2) The policy number;
(3) An insurance card;
(4) The address to which all claims should be mailed;
(5) A description of any restrictions on usage, such as prior
approval for hospital admission, and the manner in which to obtain such approval;
(6) A description of all deductibles; and
(7) Five copies of claim forms.
(e) The custodian for the child shall send the insurer or the
obligated parent's employer the children's address and notice that
the custodian will be submitting claims on behalf of the children.
Upon receipt of such notice, or an order for insurance coverage
under this section, the obligated parent's employer, multiemployer
trust or union shall, upon the request of the custodian for the
child, release information on the coverage for the children,
including the name of the insurer.
(f) A copy of the court order for insurance coverage shall not
be provided to the obligated parent's employer or union or the
insurer unless ordered by the court, or unless:
(1) The obligated parent, within thirty days of receiving
effective notice of the court order, fails to provide to the
custodian for the child written proof that the insurance has been
obtained or that an application for insurance has been made;
(2) The custodian for the child serves written notice by mail
at the obligated parent's last known address of intention to
enforce the order requiring insurance coverage for the child; and
(3) The obligated parent fails within fifteen days after the
mailing of the notice to provide written proof to the custodian for
the child that the child has insurance coverage.
(g) (1) Upon service of the order requiring insurance coverage
for the children, the employer, multiemployer trust or union shall
enroll the child as a beneficiary in the group insurance plan and
withhold any required premium from the obligated parent's income or
wages.
(2) If more than one plan is offered by the employer,
multiemployer trust or union, the child shall be enrolled in the
same plan as the obligated parent at a reasonable cost.
(3) Insurance coverage for the child which is ordered pursuant
to the provisions of this section shall not be terminated except as
provided in subsection (k) of this section.
(h) Where a parent is required by a court or administrative
order to provide health coverage, which is available through an
employer doing business in this state, the employer is required:
(1) To permit the parent to enroll under family coverage any
child who is otherwise eligible for coverage without regard to any
enrollment season restrictions;
(2) If the parent is enrolled but fails to make application to
obtain coverage of the child, to enroll the child under family
coverage upon application by the child's other parent, by the state
agency administering the medicaid program or by the child support
enforcement division;
(3) Not to disenroll or eliminate coverage of any such child
unless the employer is provided satisfactory written evidence that:
(A) The court or administrative order is no longer in effect;
(B) The child is or will be enrolled in comparable coverage
which will take effect no later than the effective date of
disenrollment; or
(C) The employer has eliminated family health coverage for all
of its employees;
(4) To withhold from the employee's compensation the
employee's share, if any, of premiums for health coverage and to
pay this amount to the insurer:
Provided, That the amount so
withheld may not exceed the maximum amount permitted to be withheld
under 15 U.S.C. §1673, Section 303(b) of the Consumer Credit
Protection Act.
(i) (1) The signature of the custodian for the child shall
constitute a valid authorization to the insurer for the purposes of
processing an insurance payment to the provider of medical care for
the child.
(2) No insurer, employer or multiemployer trust in this state
may refuse to honor a claim for a covered service when the
custodian for the child or the obligated parent submits proof of
payment for medical bills for the child.
(3) The insurer shall reimburse the custodian for the child or
the obligated parent who submits copies of medical bills for the
child with proof of payment.
(4) All insurers in this state shall comply with the provisions of section sixteen, article fifteen, chapter thirty- three of this code and section eleven, article sixteen of said
chapter and shall provide insurance coverage for the child of a
covered employee notwithstanding the amount of support otherwise
ordered by the court and regardless of the fact that the child may
not be living in the home of the covered employee.
(j) Where an obligated parent changes employment, and the new
employer provides the obligated parent's health care coverage, the
child support enforcement division shall transfer to the new
employer notice of the obligated parent's duty to provide health
care coverage. Unless contested by the obligated parent in writing
and in accordance with section eight, article five, chapter forty- eight-a of this code, the notice shall operate to enroll the child
in the new employer's health care plan.
(k) When an order for insurance coverage for a child pursuant
to this section is in effect and the obligated parent's employment
is terminated, or the insurance coverage for the child is denied,
modified or terminated, the insurer shall in addition to complying
with the requirements of article sixteen-a, chapter thirty-three of
this code, within ten days after the notice of change in coverage
is sent to the covered employee, notify the custodian for the child
and provide an explanation of any conversion privileges available
from the insurer.
(l) A child of an obligated parent shall remain eligible for insurance coverage until the child is emancipated or until the
insurer under the terms of the applicable insurance policy
terminates said child from coverage, whichever is later in time, or
until further order of the court.
(m) If the obligated parent fails to comply with the order to
provide insurance coverage for the child, the court shall:
(1) Hold the obligated parent in contempt for failing or
refusing to provide the insurance coverage or for failing or
refusing to provide the information required in subsection (d) of
this section;
(2) Enter an order for a sum certain against the obligated
parent for the cost of medical care for the child and any insurance
premiums paid or provided for the child during any period in which
the obligated parent failed to provide the required coverage;
(3) In the alternative, other enforcement remedies available
under sections two and three, article five, chapter forty-eight-a
of this code, or otherwise available under law, may be used to
recover from the obligated parent the cost of medical care or
insurance coverage for the child;
(4) In addition to other remedies available under law, the
child support enforcement division may garnish the wages, salary or
other employment income of, and withhold amounts from state tax
refunds to any person who:
(A) Is required by court or administrative order to provide coverage of the cost of health services to a child eligible for
medical assistance under medicaid; and
(B) Has received payment from a third party for the costs of
such services but has not used the payments to reimburse either the
other parent or guardian of the child or the provider of the
services, to the extent necessary to reimburse the state medicaid
agency for its costs:
Provided, That claims for current and past
due child support shall take priority over these claims.
(n) Proof of failure to maintain court ordered insurance
coverage for the child constitutes a showing of substantial change
in circumstances or increased need pursuant to section fifteen of
this article, and provides a basis for modification of the child
support order.
CHAPTER 48A. ENFORCEMENT OF FAMILY OBLIGATIONS.
ARTICLE 1A. DEFINITIONS.
§48A-1A-30. Support order.
(a) For cases being enforced pursuant to Title IV-D of the
Social Security Act, "support order" means a judgment, decree or
order, whether temporary, final, or subject to modification, issued
by a court or an administrative agency of competent jurisdiction,
for the support and maintenance of a child, including a child who
has attained the age of majority under the law of the issuing
state, or a child and the parent with whom the child is living,
which provides for monetary support, health care, arrearage or reimbursements, and which may include related costs and fees,
interest and penalties, income withholding, attorneys' fees and
other relief.
(b) For all other cases, "support order" means an order as
defined in subsection (a) of this section and, in addition, an
order for the support and maintenance of a spouse or former spouse.
ARTICLE 1B. GUIDELINES FOR CHILD SUPPORT AWARDS.
§48A-1B-9. Adjustment for obligor's social security benefits sent
directly to the child; receipt by child of
supplemental security income.
(a) If a proportion of the obligor's social security benefit
is paid directly to the custodian of his or her dependents who are
the subject of the child support order, the following adjustment
shall be made. The total amount of the social security benefit
which includes the amounts paid to the obligor and the obligee
shall be counted as gross income to the obligor. In turn, the
child support order will be calculated as described in section six
of this article. To arrive at the final child support amount,
however, the amount of the social security benefits sent directly
to the child's household will be subtracted from the child support
order. If the child support order amount results in a negative
amount it shall be set at zero.
(b) If a child is a recipient of disability payments as
supplemental security income for aged, blind and disabled, under the provisions of 42 U.S.C. §1382,
et seq., and if support
furnished by an obligor would be considered unearned income that
renders the child ineligible for disability payments or medical
benefits, no child support order shall be entered for that child.
If a support order is entered for the child's siblings or other
persons in the household, the child shall be excluded from the
calculation of support, and the amount of support for the child
shall be set at zero.
ARTICLE 2. WEST VIRGINIA SUPPORT ENFORCEMENT COMMISSION; CHILD
SUPPORT ENFORCEMENT DIVISION; ESTABLISHMENT AND ORGANIZATION.
§48A-2-22. Establishment of parent locator service.
(a) The child support enforcement division shall establish a
parent locator service to locate individuals for the purposes of
establishing parentage and of establishing, modifying or enforcing
child support obligations, utilizing all sources of information and
available records and the parent locator service in the federal
department of health and human services. For purposes of obtaining
information from the parent locator service, any person, agency or
entity providing services to the child support enforcement division
pursuant to a contract that includes a provision to ensure that the
confidentiality of information is maintained shall be deemed to be
an agent of the child support enforcement division.
(b) Upon entering into an agreement with the secretary of the
federal department of health and human services for the use of that department's parent locator service, the child support enforcement
division shall accept and transmit to the secretary of the federal
department of health and human services requests from authorized
persons for information with regard to the whereabouts of a
noncustodial obligor to be furnished by such federal parent locator
service. For purposes of this subsection, "authorized persons"
means: (1) An attorney or agent of the child support enforcement
division; (2) a family law master or circuit judge or any agent
thereof; or (3) a resident parent, legal guardian, attorney or
agent for a child. The child support enforcement division shall
charge a reasonable fee sufficient to cover the costs to the state
and to the federal department of health and human services incurred
by reason of such requests, and shall transfer to that department
from time to time, so much of the fees collected as are
attributable to the costs incurred by that department.
(c) The information obtained by the child support enforcement
division from the federal parent locator service shall be used for,
but not limited to, the following purposes:
(1) Establishing parentage and establishing, setting the
amount of, modifying or enforcing child support obligations;
(2) Obtaining and transmitting information to any family law
master or circuit court or agent thereof or to an attorney or
employee of the United States or of any state responsible for
enforcing any federal or state law with respect to the unlawful taking or restraint of a child or making or enforcing a child
custody or visitation determination.
(d) The child support enforcement division may request from
the federal parent locator service information:
(1) About, or which will facilitate the discovery of
information about, the location of any individual: (A) Who is under
an obligation to pay child support; (B) against whom such an
obligation is sought; or (C) to whom such an obligation is owed,
including the individual's social security number, or numbers, most
recent address, and the name, address and employer identification
number of the individual's employer;
(2) Concerning the individual's wages or other income from,
and benefits of, employment, including rights to or enrollment in
group health care coverage; and
(3) Concerning the type, status, location and amount of any
assets of, or debts owed by or to, any such individual.
(e) A circuit court shall have jurisdiction to hear and
determine, upon a petition by an authorized person, as defined in
subsection (b) of this section, whether the release of information
from the federal parent locator service to that person could be
harmful to the custodial parent or the child.
§48A-2-24. Disbursements of amounts collected as support.
(a) Amounts collected as child or spousal support by the child
support enforcement division shall be distributed within two business days after receipt from the employer or other source of
periodic income. Such amounts shall, except as otherwise provided
under the provisions of subsection (c) of this section, be
distributed as follows:
(1) Any amounts which are collected periodically which
represent monthly support payments shall be paid by the child
support enforcement division to the appropriate administrative unit
of the department of health and human resources to reimburse it for
assistance payments to the family during that period (with
appropriate reimbursement of the federal government to the extent
of its participation in the financing);
(2) Amounts in excess of amounts required to reimburse the
department of health and human resources under subdivision (1) of
this subsection and not in excess of the amount required to be paid
during such period to the family by a court order shall be paid to
the obligee; and
(3) Amounts in excess of amounts required to be distributed
under subdivisions (1) and (2) of this subsection shall be: (A)
Paid by the child support enforcement division to the appropriate
administrative unit of the department of health and human resources
(with appropriate reimbursement of the federal government to the
extent of its participation in the financing) as reimbursement for
any past assistance payments made to the family for which the
department has not been reimbursed; or (B) if no assistance payments have been made by the department which have not been
repaid, such amounts shall be paid to the obligee.
(b) (1) Whenever a family for whom support payments have been
collected and distributed under the provisions of this chapter
ceases to receive assistance from the department of health and
human resources, the child support enforcement division shall
provide notice to the family of their rights with regard to a
continuation of services. Unless notified by the family that
services are no longer desired, the child support enforcement
division shall continue to collect amounts of support payments
which represent monthly support payments from the obligor and pay
any amount so collected, which represents monthly support payments,
to the family (without requiring any formal reapplication and
without the imposition of any application fee) on the same basis as
in the case of other obligees who are not receiving assistance from
the department of health and human resources.
(2) So much of any amounts of support so collected shall be
paid, first, to the obligee until all past due support owed to the
family by the obligor has been paid. After all arrearages owing to
the family have been paid, any amounts of support collected which
are in excess of the required support payments shall be distributed
in the manner provided by paragraphs (A) and (B), subdivision (3),
subsection (a) of this section with respect to excess amounts
described in said subsection.
(c) Notwithstanding the preceding provisions of this section,
amounts collected by the child support enforcement division as
child support for months in any period on behalf of a child for
whom the department of health and human resources is making foster
care maintenance payments shall:
(1) Be paid by the child support enforcement division to the
appropriate administrative unit of the department of health and
human resources to the extent necessary to reimburse the department
for foster care maintenance payments made with respect to the child
during such period (with appropriate reimbursement of the federal
government to the extent of its participation in financing);
(2) Be paid to the appropriate administrative unit of the
department of health and human resources to the extent that the
amounts collected exceed the foster care maintenance payments made
with respect to the child during such period but do not exceed the
amounts required by a court order to be paid as support on behalf
of the child during such period; and the department of health and
human resources may use the payments in the manner it determines
will serve the best interests of the child, including setting such
payments aside for the child's future needs or making all or a part
thereof available to the person responsible for meeting the child's
day-to-day needs; and
(3) Be paid to the appropriate administrative unit of the
department of health and human resources if any portion of the amounts collected remains after making the payments required under
paragraphs (1) and (2) of this subsection, to the extent that such
portion is necessary to reimburse the department of health and
human resources (with appropriate reimbursement to the federal
government to the extent of its participation in the financing),
for any past foster care maintenance payments or payments of aid to
families with dependent children or temporary assistance to needy
families which were made with respect to the child (and with
respect to which past collections have not previously been
retained);
(d) The commission shall establish bonding requirements for
employees of the child support enforcement division who receive,
disburse, handle or have access to cash.
(e) The director shall maintain methods of administration
which are designed to assure that employees of the child support
enforcement division or any persons employed pursuant to a contract
who are responsible for handling cash receipts do not participate
in accounting or operating functions which would permit them to
conceal in the accounting records the misuse of cash receipts:
Provided, That the director may provide for exceptions to this
requirement in the case of sparsely populated areas in this state
where the hiring of unreasonable additional staff in the local
office would otherwise be necessary.
(f) No penalty or fee may be collected by or distributed to a recipient of child support enforcement division services from the
state treasury or from the child support enforcement fund when
child support is not distributed to the recipient in accordance
with the time frames established herein.
(g) For purposes of this section, "business day" means a day
on which state offices are open for regular business.
§48A-2-24a. Amounts collected as support to be disbursed to person
having custody; procedure for redirecting disbursement of
payments where physical custody transferred to a person other
than the custodial parent.
(a) Any payment required to be made under the provisions of
section twenty-four of this article to a family shall be made to
the resident parent, legal guardian or caretaker relative having
custody of or responsibility for the child or children.
(b) Where physical custody of the child has been transferred
from the custodial parent to another person, the child support
enforcement division may redirect disbursement of support payments
to such other person, on behalf of the child, in the following
circumstances:
(1) Where the noncustodial parent has physical custody of the
child, excluding visitation, upon filing with the child support
enforcement division:
(A) An affidavit attesting that the noncustodial parent has
obtained physical custody of the child, describing the circumstances under which the transfer of physical custody took
place, and stating that he or she anticipates that his or her
physical custody of the child will continue for the foreseeable
future; and
(B) Documentary proof that the noncustodial parent has
instituted proceedings in circuit court for a modification of legal
custody.
(2) Where a person other than the custodial or noncustodial
parent has physical custody of the child, excluding visitation,
filing with the child support enforcement division:
(A) An affidavit attesting that the person has obtained
physical custody of the child, describing the circumstances under
which the transfer of physical custody took place, and stating that
he or she anticipates that his or her physical custody of the child
will continue for the foreseeable future; and
(B) Documentary proof that the person claiming physical
custody is currently the person responsible for the child by
producing at least one of the following:
(i) School records demonstrating that school authorities
consider the person claiming physical custody the adult responsible
for the child;
(ii) Medical records demonstrating that the person claiming
physical custody is empowered to make medical decisions on behalf
of the child;
(iii) Documents from another public assistance agency showing
that the person claiming physical custody is currently receiving
other public assistance on behalf of the child;
(iv) A notarized statement from the custodial parent attesting
to the fact that he or she has transferred physical custody to the
person;
(v) A verifiable order of a court of competent jurisdiction
transferring physical or legal custody to the person;
(vi) Documentation that the person claiming physical custody
has filed a petition in circuit court to be appointed the child's
guardian;
(vii) Documentation that the child, if over the age of
fourteen, has instituted proceedings in circuit court to have the
person claiming physical custody nominated as his or her guardian;
or
(viii) Any other official documents of a federal, state or
local agency or governing body demonstrating that the person
currently has physical custody of the child and has taken action
indicating that he or she anticipates such physical custody to
continue in the foreseeable future.
(c) The child support enforcement division shall mail, by
first class mail, a copy of the affidavit and supporting
documentary evidence required under subsection (b) of this section,
to the circuit court which issued the support order being enforced by child support enforcement division and to the parties to the
order, at their last known addresses, together with a written
notice stating that any party has ten days to object to the
redirection of support payments by filing an affidavit and evidence
showing that the person seeking redirection of the payments does
not have physical custody of the child. If no objection is
received by the child support enforcement division by the end of
the ten-day period, the division may order payments redirected to
the person claiming physical custody for the benefit of the child.
If a responsive affidavit and supporting evidence is filed within
the ten-day period and, in the opinion of the child support
enforcement division, either disproves the claim of the person
seeking redirection of support payments or raises a genuine issue
of fact as to whether the person has actual physical custody of the
child, the child support enforcement division shall continue to
forward support payments to the custodial parent. Any person who
disagrees with the determination of the child support enforcement
division may petition the circuit court for modification of the
child support order.
(d) Any person who files a false affidavit pursuant to this
section shall be guilty of false swearing and, upon conviction
thereof, shall be punished as provided by law for such offense.
§48A-2-31. Providing information to consumer reporting agencies;
requesting consumer credit reports for child support purposes.
(a) For purposes of this section, the term "consumer reporting
agency" means any person who, for monetary fees, dues, or on a
cooperative nonprofit basis, regularly engages, in whole or in
part, in the practice of assembling or evaluating consumer credit
information or other information on consumers for the purpose of
furnishing consumer reports to third parties.
(b) The commission shall propose and adopt a procedural rule
in accordance with the provisions of sections four and eight,
article three, chapter twenty-nine-a of this code, establishing
procedures whereby information regarding the amount of overdue
support owed by an obligor will be reported periodically by the
child support enforcement division to any consumer reporting
agency, after a request by the consumer reporting agency that it be
provided with the periodic reports.
(1) The procedural rule adopted by the commission shall
provide that any information with respect to an obligor shall be
made available only after notice has been sent to the obligor of
the proposed action, and such obligor has been given a reasonable
opportunity to contest the accuracy of the information.
(2) The procedural rule adopted shall afford the obligor with
procedural due process prior to making information available with
respect to the obligor.
(c) The information made available to a consumer reporting
agency regarding overdue support may only be made available to an entity that has furnished evidence satisfactory to the division
that the entity is a consumer reporting agency as defined in
subsection (a) of this section.
(d) The child support enforcement division may impose a fee
for furnishing such information, not to exceed the actual cost
thereof.
(e) The head of the child support enforcement division, or her
or his designee, may request a consumer reporting agency to prepare
and furnish to the child support enforcement division a consumer
report for purposes relating to child support, by certifying to the
consumer reporting agency that:
(1) The consumer report is needed for the purpose of
establishing an individual's capacity to make child support
payments or determining the appropriate level of such payments in
order to set an initial or modified child support award;
(2) The paternity of the child of the individual has been
established or acknowledged by the individual in accordance with
state law;
(3) The individual whose report is being requested has been
given at least ten days' prior notice of such request by certified
mail to his or her last known address that such report is being
requested; and
(4) The consumer report will be kept confidential, will be
used solely for a purpose described in subdivision (1) of this subsection and will not be used in connection with any other civil,
administrative or criminal proceeding or for any other purpose.
§48A-2-32. Central state case registry.
(a) The child support enforcement division shall establish and
maintain a central state case registry of child support orders.
All orders in cases when any party receives any service provided by
the child support enforcement division shall be included in the
registry. Any other support order entered or modified in this
state on or after the first day of October, one thousand nine
hundred ninety-eight, shall be included in the registry. The child
support enforcement division, upon receipt of any information
regarding a new hire provided pursuant to section thirty-four of
this article shall compare information received to determine if the
new hire's income is subject to wage withholding and notify the
employer pursuant to that section.
(b) Each party to a child support proceeding shall, upon entry
of an order awarding or modifying child support, complete and file
with the clerk of the circuit court issuing the order a form, to be
promulgated by the administrative office of the supreme court of
appeals, listing information concerning the location and identity
of a party including, but not limited to: The party's social
security number, residential and mailing address, telephone number
and driver's license number; the child's name, birth date and
social security number; and the party's employer's name, address and telephone number. The clerk shall promptly forward all such
information to the state case registry. The parties are required
to notify the state case registry of any change in the information
contained on the form, and every order for support shall so state.
All information provided to the state case registry shall be
subject to the privacy and confidentiality safeguards contained in
section forty of this article.
(c) In any subsequent child support enforcement action between
the parties, there shall be a presumption that the requirements for
notice and service of process have been met upon a showing that the
child support enforcement division has made a diligent effort to
ascertain the location of a party by delivery of written notice by
certified mail, return receipt requested, to the most recent
employer or residential mailing address filed with the state case
registry pursuant to subsection (b) of this section.
§48A-2-33. Subpoenas.
In order to obtain financial and medical insurance or other
information pursuant to the establishment, enforcement and
modification provisions set forth in this chapter or chapter
forty-eight of this code, the child support enforcement division or
any out-of-state agency administering a program under Title IV-D of
the Social Security Act may serve, by certified mail or personal
service, an administrative subpoena on any person, corporation,
partnership, financial institution, labor organization or state agency, for an appearance or for production of financial or medical
insurance or other information. In case of disobedience to the
subpoena, the child support enforcement division may invoke the aid
of any circuit court in requiring the appearance or production of
records and financial documents. The child support enforcement
division may assess a civil penalty of no more than one hundred
dollars for the failure of any person, corporation, financial
institution, labor organization or state agency to comply with
requirements of this section.
§48A-2-33a. Liability for financial institutions providing
financial records to the child support enforcement division;
agreements for data match system; encumbrance or surrender of
assets.
(a) Notwithstanding any other provision of this code, a
financial institution shall not be liable under the law of this
state to any person for:
(1) Disclosing any financial record of an individual to the
child support enforcement division in response to a subpoena issued
by the division pursuant to section thirty-three of this article;
(2) Disclosing any financial record of an individual to the
child support enforcement division pursuant to the terms of an
agreement with such financial institution pursuant to subsection
(f) of this section;
(3) Encumbering or surrendering assets held by such financial institution in response to a notice of lien or levy issued by the
child support enforcement division as provided in subsection (g) of
this section; or
(4) For any other action taken in good faith to comply with
the requirements of this section.
(b) The child support enforcement division, after obtaining a
financial record of an individual from a financial institution, may
disclose such financial record only for the purpose of, and to the
extent necessary in, establishing, modifying or enforcing a child
support obligation of such individual.
(c) The civil liability of a person who knowingly, or by
reason of negligence, discloses a financial record of an individual
in violation of subsection (b) of this section is governed by the
provisions of federal law as set forth in 42 U.S.C. §669A.
(d) For purposes of this section, the term "financial
institution" means:
(1) Any bank or savings association;
(2) A person who is an institution-affiliated party, as that
term is defined in the Federal Deposit Insurance Act, 12 U.S.C.
§1813(u);
(3) Any federal credit union or state-chartered credit union,
including an institution-affiliated party of a credit union; and
(4) Any benefit association, insurance company, safe deposit
company, money-market mutual fund, or similar entity authorized to do business in this state.
(e) For purposes of this section, the term "financial record"
means an original of, a copy of, or information known to have been
derived from, any record held by a financial institution pertaining
to a customer's relationship with the financial institution.
(f) Notwithstanding any provision of this code to the
contrary, the child support enforcement division shall enter into
agreements with financial institutions doing business in the state
to develop and operate, in coordination with such financial
institutions, a data match system, using automated data exchanges,
to the maximum extent feasible, in which each financial institution
is required to provide for each calendar quarter the name, record
address, social security number or other taxpayer identification
number, and other identifying information for each obligor, as
defined in section twenty-three, article one-a of this chapter, who
maintains an account at such institution and who owes past due
support. The child support enforcement division will identify to
the financial institution an obligor who owes past due support by
his or her name and social security number or other taxpayer
identification number. The child support enforcement division,
upon written request and proof of actual costs incurred, may pay a
reasonable fee to a financial institution for conducting the data
match not to exceed the actual costs incurred by such financial
institution.
(g) The financial institution, in response to a notice of a
lien or levy, shall encumber or surrender, as the case may be,
assets held by such institution on behalf of any noncustodial
parent who is subject to a lien for child support.
§48A-2-34. Employment and income reporting.
(a) For purposes of this section:
(1) "Employee" means an individual who is an "employee" for
purposes of federal income tax withholding, as defined in 26 U.S.C.
§3401;
(2) "Employer" means the person or entity for whom an
individual performs or performed any service of whatever nature and
who has control of the payment of the individual's wages for
performance of such service or services, as defined in 26 U.S.C.
§3401;
(3) An individual is considered a "new hire" on the first day
in which that individual performs services for remuneration and on
which an employer begins to withhold amounts for income tax
purposes.
(b) Except as provided in subsections (c) and (d) of this
section, all employers doing business in the state shall report to
the child support enforcement division:
(1) The hiring of any person who resides or works in this
state to whom the employer anticipates paying earnings; and
(2) The rehiring or return to work of any employee who resides or works in this state.
(c) Employers are not required to report the hiring, rehiring
or return to work of any person who is an employee of a federal or
state agency performing intelligence or counterintelligence
functions if the head of such agency has determined that reporting
could endanger the safety of the employee or compromise an ongoing
investigation or intelligence mission.
(d) An employer that has employees in states other than this
state and that transmits reports magnetically or electronically is
not required to report to the child support enforcement division
the hiring, rehiring or return to work of any employee if the
employer has filed with the secretary of the federal department of
health and human services, as required by 42 U.S.C. §653A, a
written designation of another state in which it has employees as
the reporting state.
(e) Employers shall report by mailing to the child support
enforcement division a copy of the employee's W-4 form; however, an
employer may transmit such information through another means if
approved in writing by the child support enforcement division prior
to the transmittal. The report shall include the employee's name,
address and social security number, the employer's name and
address, any different address of the payroll office and the
employer's federal tax identification number. The employer may
report other information, such as date of birth or income information, if desired.
(f) Employers shall submit a report within fourteen days of
the date of the hiring, rehiring or return to work of the employee.
However, if the employer transmits the reports magnetically or
electronically by two monthly submissions, the reports shall be
submitted not less than twelve days nor more than sixteen days
apart.
(g) An employer shall provide to the child support enforcement
division, upon its written request, information regarding an
obligor's employment, wages or salary, medical insurance, and
location of employment.
(h) Any employer who fails to report in accordance with the
provisions of this section shall be assessed a civil penalty of no
more than twenty-five dollars per failure. If the failure to
report is the result of a conspiracy between the employer and the
employee not to supply the required report or to supply a false or
incomplete report, the employer shall be assessed a civil penalty
of no more than five hundred dollars.
(i) Employers required to report under this section may assess
each employee so reported one dollar for the administrative costs
of reporting.
(j) Uses for the new hire information include, but are not
limited to, the following:
(1) The state directory of new hires shall furnish the information to the national directory of new hires;
(2) The child support enforcement division shall use
information received pursuant to this section to locate individuals
for purposes of establishing paternity and of establishing,
modifying and enforcing child support obligations, and may disclose
such information to any agent of the agency that is under contract
with the division to carry out such purposes;
(3) State agencies responsible for administering a program
specified in 42 U.S.C. §1320b-7(b) shall have access to information
reported by employers for purposes of verifying eligibility for the
program; and
(4) The bureau of employment programs shall have access to
information reported by employers for purposes of administering
employment security and workers' compensation programs.
§48A-2-35. Review and adjustment of child support orders.
(a) Either parent or, if there has been an assignment of
support to the department of health and human resources, the child
support enforcement division shall have the right to request an
administrative review of the child support award in the following
circumstances:
(1) Where the request for review is received thirty-six months
or more after the date of the entry of the order or from the
completion of the previous administrative review, whichever is
later, the child support enforcement division shall conduct a review to determine whether the amount of the child support award
in such order varies from the amount of child support that would be
awarded at the time of the review pursuant to the guidelines for
child support awards contained in article one-b of this chapter.
If the amount of the child support award under the existing order
differs by ten percent or more from the amount that would be
awarded in accordance with the child support guidelines, the child
support enforcement division shall file with the circuit court a
motion for modification of the child support order. If the amount
of the child support award under the existing order differs by less
than ten percent from the amount that would be awarded in
accordance with the child support guidelines, the child support
enforcement division may, if it determines that such action is in
the best interest of the child or otherwise appropriate, file with
the circuit court a motion for modification of the child support
order.
(2) Where the request for review of a child support award is
received less than thirty-six months after the date of the entry of
the order or from the completion of the previous administrative
review, the child support enforcement division shall undertake a
review of the case only where it is alleged that there has been a
substantial change in circumstances. If the child support
enforcement division determines that there has been a substantial
change in circumstances and if it is in the best interests of the child, the division shall file with the circuit court a motion for
modification of the child support order in accordance with the
guidelines for child support awards contained in article one-b of
this chapter.
(b) The child support enforcement division shall notify both
parents at least once every three years of their right to request
a review of a child support order. The notice may be included in
any order granting or modifying a child support award. The child
support enforcement division shall give each parent at least thirty
days' notice before commencing any review, and shall further notify
each parent, upon completion of a review, of the results of the
review, whether of a proposal to move for modification or of a
proposal that there should be no change.
(c) When the result of the review is a proposal to move for
modification of the child support order, each parent shall be given
thirty days' notice of the hearing on the motion, the notice to be
directed to the last known address of each party by first class
mail. When the result of the review is a proposal that there be no
change, any parent disagreeing with that proposal may, within
thirty days of the notice of the results of the review, file with
the court a motion for modification setting forth in full the
grounds therefor.
(d) For the purposes of this section, a "substantial change in
circumstances" includes, but is not limited to, a changed financial condition, a temporary or permanent change in physical custody of
the child which the court has not ordered, increased need of the
child, or other financial conditions. "Changed financial
conditions" means increases or decreases in the resources available
to either party from any source. Changed financial conditions
includes, but is not limited to, the application for or receipt of
any form of public assistance payments, unemployment compensation
and workers' compensation, or a fifteen percent or more variance
from the amount of the existing order and the amount of child
support that would be awarded according to the child support
guidelines.
(e) All child support orders shall contain a notice which
contains language substantially similar to the following: "The
amount of the monthly child support can be modified as provided by
law based upon a change in the financial or other circumstances of
the parties if those circumstances are among those considered in
the child support formula. In order to make the modification a
party must file a motion to modify the child support amount.
Unless a motion to modify is filed, the child support amount will
continue to be due and cannot later be changed retroactively even
though there has been a change of circumstances since the entry of
the order. Self help forms for modification can be found at the
circuit clerk's office." The failure of an order to have such a
provision does not alter the effectiveness of the order.
§48A-2-40. Access to records, confidentiality.
(a) All records in the possession of the child support
enforcement division, including records concerning an individual
case of child or spousal support, shall be kept confidential and
shall not be released except as provided below:
(1) Records shall be disclosed or withheld as required by
federal law or regulations promulgated thereunder notwithstanding
other provisions of this section.
(2) Information as to the whereabouts of a party or the child
shall not be released to a person against whom a protective order
has been entered with respect to such party or child or where the
state has reason to believe that the release of the information to
the person making the request may result in physical or emotional
harm to the party or the child.
(3) The phone number, address, employer and other information
regarding the location of the obligor, the obligee and the child
shall only be disclosed: (A) Upon his or her written consent, to
the person whom the consent designates; or (B) notwithstanding
subdivision (4) of this subsection, to the obligee, the obligor,
the child or the caretaker or representative of the child, upon
order of a court if the court finds that the disclosure is for a
bona fide purpose, is not contrary to the best interest of a child
and does not compromise the safety of any party:
Provided, That
the identity and location of the employer may be disclosed on the letters, notices and pleadings of the division as necessary and
convenient for the determination of support amounts and the
establishment, investigation, modification, enforcement, collection
and distribution of support.
(4) Information and records other than the phone number,
address, employer and information regarding the location of the
obligor, the obligee and the child shall be disclosed to the
obligor, the obligee, the child or the caretaker of the child or
his or her duly authorized representative, upon his or her written
request:
Provided, That when the obligor requests records other
than collection and distribution records, financial records
relevant to the determination of the amount of support pursuant to
the guidelines, or records the obligor has supplied, the division
shall mail a notice by first class mail to the last known address
of the obligee notifying him or her of the request. The notice
shall advise the obligee of his or her right to object to the
release of records on the grounds that the records are not relevant
to the determination of the amount of support, or the
establishment, modification, enforcement, collection or
distribution of support. The notice shall also advise the obligee
of his or her right to disclosure of records provided in this
section in order to determine what records the child support
enforcement division may have. In the event of any objection, the
division shall determine whether or not the information shall be released.
(5) Information in specific cases may be released as is
necessary or to determine the identity, location, employment,
income and assets of an obligor.
(6) Information and records may be disclosed to the bureau of
vital statistics, bureau of employment programs, the workers'
compensation division, state tax department and the internal
revenue service, or other state or federal agencies or departments
as may be necessary or desirable in obtaining any address,
employment, wage or benefit information for the purpose of
determining the amount of support or establishing, enforcing,
collecting and distributing support.
(b) Any person who willfully violates this section shall be
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than one hundred nor more than one thousand dollars,
or confined in jail not more than six months, or both fined and
imprisoned.
§48A-2-41. Access to information.
(a) All state, county and municipal agencies, offices and
employers, including profit, nonprofit and governmental employers,
receiving a request for information and assistance from the child
support enforcement division or any out-of-state agency
administering a program under Title IV-D of the Social Security
Act, shall cooperate with the division or with the out-of-state agency in the location of parents who have abandoned and deserted
children and shall provide the division or the out-of-state agency
with all available pertinent information concerning the location,
income and property of those parents.
(b) Notwithstanding any other provision of law to the
contrary, any entity conducting business in this state or
incorporated under the laws of this state shall, upon certification
by the division or any out-of-state agency administering a program
under Title IV-D of the Social Security Act that the information is
needed to locate a parent for the purpose of collecting or
distributing child support, provide the division or the out-of- state agency with the following information about the parent: Full
name, social security number, date of birth, home address, wages
and number of dependents listed for income tax purposes:
Provided,
That no entity may provide any information obtained in the course
of providing legal services, medical treatment or medical services.
(c) (1) The child support enforcement division shall have
access, subject to safeguards on privacy and information security,
and to the nonliability of entities that afford such access under
this subdivision, to information contained in the following
records, including automated access, in the case of records
maintained in automated data bases:
(A) Records of other state and local government agencies
including, but not limited to:
(i) Vital statistics, including records of marriage, birth and
divorce;
(ii) State and local tax and revenue records, including
information on residence address, employer, income and assets;
(iii) Records concerning real and titled personal property;
(iv) Records of occupational and professional licenses, and
records concerning the ownership and control of corporations,
partnerships, and other business entities;
(v) Employment security records;
(vi) Records of agencies administering public assistance
programs;
(vii) Records of the division of motor vehicles; and
(viii) Corrections records.
(B) Certain records held by private entities with respect to
individuals who owe or are owed support or certain individuals
against, or with respect to, whom a support obligation is sought,
consisting of:
(i) The names and addresses of such individuals and the names
and addresses of the employers of such individuals, as appearing in
the customer records of public utilities and cable television
companies, pursuant to an administrative subpoena authorized by
section thirty-three, article two of this chapter; and
(ii) Information, including information on assets and
liabilities, on such individuals held by financial institutions.
(2) Out-of-state agencies administering programs under Title
IV-D of the Social Security Act shall, without the need for any
court order, have the authority to access records in this state by
making a request through the child support enforcement division.
(d) All federal and state agencies conducting activities under
Title IV-D of the Social Security Act shall have access to any
system used by this state to locate an individual for purposes
relating to motor vehicles or law enforcement.
(e) Out-of-state agencies administering programs under Title
IV-D of the Social Security Act shall have the authority and right
to access and use, for the purpose of establishing or enforcing a
support order, the state law-enforcement and motor vehicle data
bases.
(f) The child support enforcement division and out-of-state
agencies administering programs under Title IV-D of the Social
Security Act shall have the authority and right to access and use,
for the purpose of establishing or enforcing a support order,
interstate networks that state law-enforcement agencies and motor
vehicle agencies subscribe to or participate in, such as the
national law-enforcement telecommunications system (NLETS) and the
American association of motor vehicle administrators (AAMVA)
networks.
§48A-2-43. Recording of social security numbers in certain family
matters.
(a) The social security number, if any, of any applicant for
a professional license, driver's license, occupational license,
recreational license, or marriage license must be recorded on the
application for such license.
(b) The social security number of any individual who is
subject to a divorce decree, support order, or paternity
determination or acknowledgment must be placed in the records
relating to the matter.
(c) For the purposes of subsection (a) of this section, if the
licensing authority allows the use of a number other than the
social security number on the face of the document while the social
security number is kept on file at the agency, the applicant shall
be so advised by such authority.
ARTICLE 5. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS
AND VISITATION.
§48A-5-1. Action to obtain an order for support of minor child.
(a) An action may be brought in circuit court to obtain an
order for the support of a minor child when:
(1) Such child has a parent and child relationship with an
obligor;
(2) Such obligor is not the primary caretaker or guardian of
the child;
(3) The obligor is not meeting an obligation to support the
child;
(4) An enforceable order for the support of the child by the
obligor has not been entered by a court of competent jurisdiction;
and
(5) There is no pending action for divorce, separate
maintenance or annulment in which the obligation of support owing
from the obligor to the child is at issue.
(b) An action may be brought under the provisions of
subsection (a) of this section by:
(1) A custodial parent of a child, when the divorce order or
other order which granted custody did not make provision for the
support of the child by the obligor;
(2) A primary caretaker of a child;
(3) A guardian of the property of a child or the committee for
a child; or
(4) The child support enforcement division, on behalf of the
state, when the department of health and human resources is
providing assistance on behalf of the child in the form of
temporary assistance to needy families, 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
child support enforcement division.
(c) An action under the provisions of this section may be
brought in the county where the obligee, the obligor or the child
resides.
(d) When an action for child support is brought under the
provisions of this section by an obligee against his or her spouse,
such obligee may also seek spousal support from the obligor, unless
such support has been previously waived by agreement or otherwise.
(e) Every order of support heretofore or hereafter entered or
modified under the provisions of this section shall include a
provision for the income withholding in accordance with the
provisions of section fifteen-a or fifteen-b, article two, chapter
forty-eight of this code.
(f) At any time after the entry of an order for support, the
court may, upon the verified petition of an obligee or the obligor,
revise or alter such order, and make a new order, as the altered
circumstances or needs of a child, an obligee, or the obligor may
render necessary to meet the ends of justice.
§48A-5-2. Arrearages; liens on personal property; enforcement
through writ of execution, suggestion or suggestee execution.
(a) The total of any matured, unpaid installments of child
support required to be paid by an order entered or modified by a
court of competent jurisdiction, or by the order of a magistrate
court of this state, shall stand, by operation of law, as a
decretal judgment against the obligor owing such support. The
amount of unpaid support shall bear interest from the date it
accrued, at a rate of ten dollars upon one hundred dollars per
annum, and proportionately for a greater or lesser sum, or for a longer or shorter time. A child support order shall not be
retroactively modified so as to cancel or alter accrued
installments of support. When an obligor is in arrears in the
payment of support which is required to be paid by the terms of
such order, an obligee may file an abstract of the order giving
rise to the support obligation and an "Affidavit of Accrued
Support", setting forth the particulars of such arrearage and
requesting a writ of execution, suggestion or suggestee execution.
The filing of the abstract and affidavit shall give rise, by
operation of law, to a lien against personal property of an obligor
who resides within this state for overdue support.
(b) If the duty of support is based upon an order from another
jurisdiction, the obligee shall first register the order in
accordance with the provisions of chapter forty-eight-b of this
code:
Provided, That nothing in this subsection shall prevent the
child support enforcement division from enforcing foreign orders
for support without registration of the order in accordance with
the provisions of section five hundred seven, article five, chapter
forty-eight-b of this code.
(c) The affidavit may be filed with the clerk of the circuit
court in the county wherein the obligee or the obligor resides, or
where the obligor's source of income is located.
(d) The affidavit may be filed when a payment required by such
order has been delinquent, in whole or in part, for a period of fourteen days.
(e) The affidavit shall:
(1) Identify the obligee and obligor by name and address, and
shall list the obligor's social security number or numbers, if
known;
(2) Name the court which entered the support order and set
forth the date of such entry;
(3) State the total amount of accrued support which has not
been paid by the obligor;
(4) List the date or dates when support payments should have
been paid but were not, and the amount of each such delinquent
payment; and
(5) If known, the name and address of the obligor's source of
income.
(f) Upon receipt of the affidavit, the clerk shall issue a
writ of execution, suggestion or suggestee execution, and shall
mail a copy of the affidavit and a notice of the filing of the
affidavit to the obligor, at his last known address. If the child
support enforcement division is not acting on behalf of the obligee
in filing the affidavit, the clerk shall forward a copy of the
affidavit and the notice of the filing to the child support
enforcement division.
(g) The notice provided for in subsection (f) of this section
shall inform the obligor that if he or she desires to contest the affidavit on the grounds that the amount claimed to be in arrears
is incorrect or that a writ of execution, suggestion or suggestee
execution is not proper because of mistakes of fact, he or she
must, within fourteen days of the date of the notice: (1) Inform
the child support enforcement division in writing of the reasons
why the affidavit is contested and request a meeting with the child
support enforcement division; or (2) where a court of this state
has jurisdiction over the parties, obtain a date for a hearing
before the circuit court or the family law master and mail written
notice of such hearing to the obligee and to the child support
enforcement division on a form prescribed by the administrative
office of the supreme court of appeals and made available through
the office of the clerk of the circuit court.
(h) Upon being informed by an obligor that he or she desires
to contest the affidavit, the child support enforcement division
shall inform the circuit court of such fact, and the circuit court
shall require the obligor to give security, post a bond, or give
some other guarantee to secure payment of overdue support.
(i) The clerk of the circuit court shall make available form
affidavits for use under the provisions of this section. Such form
affidavits shall be provided to the clerk by the child support
enforcement division. The notice of the filing of an affidavit
shall be in a form prescribed by the child support enforcement
division.
(j) Writs of execution, suggestions or suggestee executions
issued pursuant to the provisions of this section shall have
priority over any other legal process under the laws of this state
against the same income, except for withholding from income of
amounts payable as support in accordance with the provisions of
section three of this article, and shall be effective despite any
exemption that might otherwise be applicable to the same income.
(k) Notwithstanding any other provision of this code to the
contrary, the amount to be withheld from the disposable earnings of
an obligor pursuant to a suggestee execution in accordance with the
provisions of this section shall be the same amount which could
properly be withheld in the case of a withholding order under the
provisions of subsection (e), section three of this article.
(l) Any person who files a false affidavit shall be guilty of
false swearing and, upon conviction thereof, shall be punished as
provided by law for such offense.
(m) The provisions of this section apply to support orders
issued by an out-of-state court or tribunal, as defined in section
one hundred one, article one, chapter forty-eight-b of this code,
of any other state.
§48A-5-3. Withholding from income of amounts payable as support.
(a) The withholding from an obligor's income of amounts
payable as spousal or child support shall be enforced by the child
support enforcement division in accordance with the provisions of section fifteen-a or fifteen-b, article two, chapter forty-eight of
this code. Every support order heretofore or hereafter entered by
a circuit court or a magistrate of this state and every support
order entered by a court of competent jurisdiction of another state
shall be considered to provide for an order of income withholding
in accordance with the provisions of said sections, notwithstanding
the fact that such support order does not in fact provide for such
an order of withholding.
(b) When immediate income withholding is not required due to
the findings required by subsection (c), section fifteen-b, article
two, chapter forty-eight of this code, the child support
enforcement division shall mail a notice to the obligor pursuant to
this section when the support payments required by the order are in
arrears in an amount equal to:
(1) One month's support, if the order requires support to be
paid in monthly installments;
(2) Four weeks' support, if the order requires support to be
paid in weekly or biweekly installments; or
(3) Two biweekly installments, if biweekly payments are
provided.
(c) When withholding is required by either subsection (a) or
(b) of this section, the child support enforcement division shall
send by first class mail or electronic means to the obligor notice
that withholding has commenced. The notice shall inform the obligor of the following:
(1) The amount owed;
(2) That a withholding from the obligor's income of amounts
payable as support has commenced;
(3) That the amount withheld will be equal to the amount
required under the terms of the current support order, plus amounts
for any outstanding arrearage;
(4) The definition of "gross income" as defined in section
nineteen, article one-a of this chapter;
(5) That the withholding will apply to the obligor's present
source of income and to any future source of income and, therefore,
no other notice of withholding will be sent to the obligor. A copy
of any new or modified withholding notice will be sent to the
obligor at approximately the same time the original is sent to the
source of income;
(6) That any action by the obligor to purposefully minimize
his or her income will result in the enforcement of support being
based upon potential and not just actual earnings;
(7) That payment of the arrearage after the date of the notice
is not a bar to such withholding;
(8) That the obligor may contest the withholding by written
request to the child support enforcement division when the obligor
has information showing an error in the current or overdue support
amount or a mistake as to the identity of the obligor;
(9) That a mistake of fact exists only when there is an error
in the amount of current or overdue support claimed in the notice,
or there is a mistake as to the identity of the obligor;
(10) That matters such as lack of visitation,
inappropriateness of the support award, or changed financial
circumstances of the obligee or the obligor will not be considered
at any hearing held pursuant to the withholding, but may be raised
by the filing of a separate petition in circuit court;
(11) That if the obligor contests the withholding, in writing,
a meeting with the child support enforcement division will be held
at an arranged time and place for the purpose of attempting to
settle the contested issues;
(12) That if the meeting with the child support enforcement
division fails to resolve the contested issues, the obligor may
petition the circuit court for a resolution; and
(13) That while the withholding is being contested through
either the child support enforcement division or the court, the
income withholding may not be stayed.
(d) Withholding shall occur and the notice to withhold shall
be sent to the source of income when the support order provides for
immediate income withholding, or if immediate income withholding is
not so provided, when the support payments are in arrears in the
amount specified in subsection (b) of this section. The source of
income shall withhold so much of the obligor's income as is necessary to comply with the order authorizing such withholding, up
to the maximum amount permitted under applicable law. Such
withholding, unless otherwise terminated under the provisions of
this section, shall apply to any subsequent source of income or any
subsequent period of time during which income is received by the
obligor.
(e) Notwithstanding any other provision of this code to the
contrary which provides for a limitation upon the amount which may
be withheld from earnings through legal process, the amount of an
obligor's aggregate disposable earnings for any given workweek
which may be withheld as support payments is to be determined in
accordance with the provisions of this subsection, as follows:
(1) After ascertaining the status of the payment record of the
obligor under the terms of the support order, the payment record
shall be examined to determine whether any arrearage is due for
amounts which should have been paid prior to a twelve-week period
which ends with the workweek for which withholding is sought to be
enforced.
(2) When none of the withholding is for amounts which came due
prior to such twelve-week period, then:
(A) When the obligor is supporting another spouse or dependent
child other than the spouse or child for whom the proposed
withholding is being sought, the amount withheld may not exceed
fifty percent of the obligor's disposable earnings for that week; and
(B) When the obligor is not supporting another spouse or
dependent child as described in paragraph (A) of this subdivision,
the amount withheld may not exceed sixty percent of the obligor's
disposable earnings for that week.
(3) When a part of the withholding is for amounts which came
due prior to such twelve-week period, then:
(A) Where the obligor is supporting another spouse or
dependent child other than the spouse or child for whom the
proposed withholding is being sought, the amount withheld may not
exceed fifty-five percent of the obligor's disposable earnings for
that week; and
(B) Where the obligor is not supporting another spouse or
dependent child as described in paragraph (A) of this subdivision,
the amount withheld may not exceed sixty-five percent of the
obligor's disposable earnings for that week.
(4) In addition to the percentage limitations set forth in
subdivisions (2) and (3) of this subsection, it shall be a further
limitation that when the current month's obligation plus arrearages
are being withheld from salaries or wages in no case shall the
total amounts withheld for the current month's obligation plus
arrearage exceed the amounts withheld for the current obligation by
an amount greater than twenty-five percent of the current monthly
support obligation.
(5) The provisions of this subsection shall apply directly to
the withholding of disposable earnings of an obligor regardless of
whether the obligor is paid on a weekly, biweekly, monthly or other
basis.
(6) The child support enforcement division has the authority
to prorate the current support obligation in accordance with the
pay cycle of the source of income. This prorated current support
obligation shall be known as the "adjusted support obligation".
The current support obligation or the adjusted support obligation
is the amount, if unpaid, on which interest will be charged.
(7) When an obligor acts so as to purposefully minimize his or
her income and to thereby circumvent the provisions of this section
which provide for withholding from income of amounts payable as
support, the amount to be withheld as support payments may be based
upon the obligor's potential earnings rather than his or her actual
earnings, and such obligor may not rely upon the percentage
limitations set forth in this subsection which limit the amount to
be withheld from disposable earnings.
(f) The source of income of any obligor who is subject to
withholding, upon being given notice of withholding, shall withhold
from such obligor's income the amount specified by the notice and
pay such amount to the child support enforcement division for
distribution. The notice given to the source of income shall
contain only such information as may be necessary for the source of income to comply with the withholding order. Such notice to the
source of income shall include, at a minimum, the following:
(1) The amount to be withheld from the obligor's disposable
earnings, and a statement that the amount to be withheld for
support and other purposes, including the fee specified under
subdivision (3) of this subsection, may not be in excess of the
maximum amounts permitted under Section 303(b) of the federal
Consumer Credit Protection Act or limitations imposed under the
provisions of this code;
(2) That the source of income shall send the amount to be
withheld from the obligor's income to the child support enforcement
division, along with such identifying information as may be
required by the division, the same day that the obligor is paid;
(3) That, in addition to the amount withheld under the
provisions of subdivision (1) of this subsection, the source of
income may deduct a fee, not to exceed one dollar, for
administrative costs incurred by the source of income, for each
withholding;
(4) That withholding is binding on the source of income until
further notice by the child support enforcement division or until
the source of income notifies the child support enforcement
division of a termination of the obligor's employment in accordance
with the provisions of subsection (l) of this section;
(5) That the source of income is subject to a fine for discharging an obligor from employment, refusing to employ, or
taking disciplinary action against any obligor because of the
withholding;
(6) That when the source of income fails to withhold income in
accordance with the provisions of the notice, the source of income
is liable for the accumulated amount the source of income should
have withheld from the obligor's income;
(7) That the withholding under the provisions of this section
shall have priority over any other legal process under the laws of
this state against the same income, and shall be effective despite
any exemption that might otherwise be applicable to the same
income;
(8) That when an employer has more than one employee who is an
obligor who is subject to wage withholding from income under the
provisions of this code, the employer may combine all withheld
payments to the child support enforcement division when the
employer properly identifies each payment with the information
listed in this section. A source of income is liable to an
obligee, including the state of West Virginia or the department of
health and human resources where appropriate, for any amount which
the source of income fails to identify with the information
required by this section and is therefore not received by the
obligee;
(9) That the source of income shall implement withholding no later than the first pay period or first date for payment of income
that occurs after fourteen days following the date the notice to
the source of income was mailed; and
(10) That the source of income shall notify the child support
enforcement division promptly when the obligor terminates his or
her employment or otherwise ceases receiving income from the source
of income, and shall provide the obligor's last known address and
the name and address of the obligor's new source of income, if
known.
(g) The commission shall, by administrative rule, establish
procedures for promptly refunding to obligors amounts which have
been improperly withheld under the provisions of this section.
(h) After implementation in accordance with the provisions of
subsection (k) of this section, a source of income shall send the
amount to be withheld from the obligor's income to the child
support enforcement division and shall notify the child support
enforcement division of the date of withholding, the same date that
the obligor is paid.
(i) In addition to any amounts payable as support withheld
from the obligor's income, the source of income may deduct a fee,
not to exceed one dollar, for administrative costs incurred by the
source of income, for each withholding.
(j) Withholding of amounts payable as support under the
provisions of this section is binding on the source of income until further notice by the child support enforcement division or until
the source of income notifies the child support enforcement
division of a termination of the obligor's employment in accordance
with the provisions of subsection (l) of this section.
(k) Every source of income who receives a notice of
withholding under the provisions of this section shall implement
withholding no later than the first pay period or first date for
the payment of income which occurs after fourteen days following
the date the notice to the source of income was mailed.
(l) A source of income who employs or otherwise pays income to
an obligor who is subject to withholding under the provisions of
this section shall notify the child support enforcement division
promptly when the obligor terminates employment or otherwise ceases
receiving income from the source of income, and shall provide the
child support enforcement division with the obligor's last known
address and the name and address of the obligor's new source of
income, if known.
(m) When an employer has more than one employee who is an
obligor who is subject to wage withholding from income for amounts
payable as support, the employer may combine all withheld payments
to the child support enforcement division when the employer
properly identifies each payment with the information listed in
this section. A source of income is liable to an obligee,
including the state of West Virginia or the department of health and human resources where appropriate, for any amount which the
source of income fails to identify in accordance with this section
and is therefore not received by the obligee.
(n) A source of income is liable to an obligee, including the
state of West Virginia or the department of health and human
resources where appropriate, for any amount which the source of
income fails to withhold from income due an obligor following
receipt by such source of income of proper notice under subsection
(f) of this section:
Provided, That a source of income shall not
be required to vary the normal pay and disbursement cycles in order
to comply with the provisions of this section.
(o) Any source of income who knowingly and willfully conceals
the fact that the source of income is paying income to an obligor,
with the intent to avoid withholding from the obligor's income of
amounts payable as support, is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than one hundred
dollars.
(p) When the child support enforcement division makes a
written request to a source of income to provide information as to
whether the source of income has paid income to a specific obligor,
within the preceding sixty-day period, the source of income shall,
within fourteen days thereafter, respond to such request, itemizing
all such income, if any, paid to the obligor during such sixty-day
period. A source of income shall not be liable, civilly or criminally, for providing such information in good faith.
(q) Support collection under the provisions of this section
shall have priority over any other legal process under the laws of
this state against the same income, and shall be effective despite
any exemption that might otherwise be applicable to the same
income.
(r) Any source of income who discharges from employment,
refuses to employ, or takes disciplinary action against any obligor
subject to income withholding required by this section because of
the existence of such withholding and the obligations or additional
obligations which it imposes on the source of income, shall be
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than five hundred dollars nor more than one thousand
dollars.
§48A-5-4. Liens against real property for overdue support.
(a) An order for support entered by a court of competent
jurisdiction will give rise, by operation of law, to a lien against
real property of an obligor who resides or owns property within
this state for overdue support upon the filing by the obligee, or,
when appropriate, the child support enforcement division, an
abstract of the order giving rise to the support obligation and an
"Affidavit of Accrued Support" setting forth the particulars of the
arrearage.
(b) The affidavit and abstract shall be filed with the clerk of the county commission in which the real property is located.
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;
(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.
(c) If the duty of support is based upon a foreign order the
obligee shall first register the order in accordance with the
provisions of chapter forty-eight-b of this code.
Provided, That
nothing in this subsection shall prevent the child support
enforcement division from enforcing foreign orders for support
without registration of the order in accordance with the provisions
of section five hundred seven, article five, chapter forty-eight-b
of this code.
(d) This state will accord full faith and credit to liens
described in subsection (a) of this section arising in another state, when the out-of-state agency, party, or other entity seeking
to enforce such a lien complies with the procedural rules relating
to recording or serving liens that arise within the other state.
(e) Upon satisfaction of the overdue support obligation, the
obligee shall issue a release to the obligor and file a copy
thereof with the clerk of the county commission in the county in
which the lien arose pursuant to this section. The child support
enforcement division shall issue a release in the same manner and
with the same effect as liens taken by the tax commissioner
pursuant to section twelve, article ten, chapter eleven of this
code.
(f) Any person who files a false affidavit shall be guilty of
false swearing and, upon conviction thereof, shall be punished as
provided by law for such offense.
(g) The provisions of this section shall apply to support
orders issued by a court or tribunal, as defined in section one
hundred one, article one, chapter forty-eight-b of this code, of
any other state.
§48A-5-4a. Enforcement by the child support enforcement division
of lien on real property.
The child support enforcement division may enforce a lien upon
real property pursuant to the provisions of article three, chapter
thirty-eight of this code.
§48A-5-5. Enforcement of support orders by contempt proceedings; penalties.
(a)In addition to or in lieu of the other remedies provided by
this article for the enforcement of support orders, the child
support enforcement division may commence a civil or criminal
contempt proceeding in accordance with the provisions of section
twenty-two, article two, chapter forty-eight of this code against
an obligor who is alleged to have willfully failed or refused to
comply with the order of a court of competent jurisdiction
requiring the payment of support. Such proceeding shall be
instituted by filing with the circuit court a petition for an order
to show cause why the obligor should not be held in contempt.
(b) 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 subsection (e), section fifteen, article two, chapter
forty-eight of this code. A 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 child support enforcement division or to
participate in such work activities as the court deems appropriate.
(5) If appropriate under the provisions of section twenty-two,
article two, chapter forty-eight of this code:
(A) Commit the contemnor to the county jail; or
(B) Commit the contemnor to the county 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.
(c) A commitment under subdivision (5) of subsection (b) shall
not exceed forty-five days for the first adjudication of contempt
or ninety days for any subsequent adjudication of contempt.
(d) An obligor committed under subdivision (5), subsection (b)
of this section shall be released if the court has reasonable cause
to believe that the obligor will comply with the court's orders.
(e) If an obligor is committed to jail under the provisions of
paragraph (B), subdivision (5), subsection (b) of this section and
violates the conditions of the court, the court may commit the person to the county jail without the privilege provided under said
paragraph (B) for the balance of the period of commitment imposed
by the court.
(f) If a person is committed to jail under the provisions of
paragraph (B), subdivision (5), subsection (b) of this section and
willfully fails to return to the place of confinement within the
time prescribed, such person shall be considered to have escaped
from custody and shall be guilty of a misdemeanor, punishable by
imprisonment for not more than one year.
§48A-5-7. Increase in monthly payments.
(a) For the purpose of securing overdue support, the child
support enforcement division has the authority to increase the
monthly support payments by as much as one hundred dollars per
month to satisfy the arrearage where the obligor:
(1) Owes an arrearage of not less than eight thousand dollars;
or
(2) Has not paid support for twelve consecutive months.
(b) This increase in monthly support will be in addition to
any amounts withheld pursuant to section three, article five of
this chapter.
(c) This increase in monthly support may be enforced through
the withholding process.
(d) Notice of the increase shall be sent to the obligor at the
time such increase is implemented. If the obligor disagrees with the increase in payments, he or she may file, within thirty days of
the date of the notice, a motion with the circuit court in which
the case is situated for a determination of whether there should be
an increase in monthly payments and the amount of that increase, if
any.
(e) The provisions of this section apply to support orders
issued by a court or tribunal, as defined in section one hundred
one, article one, chapter forty-eight-b of this code, of this or
any other state.
ARTICLE 6. ESTABLISHMENT OF PATERNITY.
§48A-6-1. Paternity proceedings.
(a) A civil action to establish the paternity of a child and
to obtain an order of support for the child may be instituted, by
verified complaint, in the circuit court of the county where the
child resides:
Provided, That if such venue creates a hardship for
the parties, or either of them, or if judicial economy requires,
the court may transfer the action to the county where either of the
parties resides.
(b) A "paternity proceeding" is a summary proceeding,
equitable in nature and within the domestic relations jurisdiction
of the courts, wherein a circuit court upon the petition of the
state or another proper party may intervene to determine and
protect the respective personal rights of a child for whom
paternity has not been lawfully established, of the mother of the child and of the putative father of the child. The parties to a
paternity proceeding are not entitled to a trial by jury.
(c) The sufficiency of the statement of the material
allegations in the complaint set forth as grounds for relief and
the grant or denial of the relief prayed for in a particular case
shall rest in the sound discretion of the court, to be exercised by
the court according to the circumstances and exigencies of the
case, having due regard for precedent and the provisions of the
statutory law of this state.
(d) A decree or order made and entered by a court in a
paternity proceeding shall include a determination of the filial
relationship, if any, which exists between a child and his or her
putative father, and, if such relationship is established, shall
resolve dependent claims arising from family rights and obligations
attendant to such filial relationship.
(e) A paternity proceeding may be brought by any of the
following persons:
(1) An unmarried woman with physical or legal custody of a
child to whom she gave birth;
(2) A married woman with physical or legal custody of a child
to whom she gave birth, if the complaint alleges that:
(A) The married woman lived separate and apart from her
husband preceding the birth of the child;
(B) The married woman did not cohabit with her husband at any time during such separation and that such separation has continued
without interruption; and
(C) The defendant, rather than her husband, is the father of
the child.
(3) The state of West Virginia, including the child support
enforcement division defined in article two of this chapter;
(4) Any person who is not the mother of the child, but who has
physical or legal custody of the child;
(5) The guardian or committee of the child;
(6) The next friend of the child when the child is a minor;
(7) By the child in his own right at any time after the
child's eighteenth birthday but prior to the child's twenty-first
birthday; or
(8) A man purporting to be the father of a child born out of
wedlock, when there has been no prior judicial determination of
paternity.
(f) Blood or tissue samples taken pursuant to the provisions
of this article may be ordered to be taken in such locations as may
be convenient for the parties so long as the integrity of the chain
of custody of the samples can be preserved.
(g) A person who has sexual intercourse in this state submits
to the jurisdiction of the courts of this state for a proceeding
brought under this article with respect to a child who may have
been conceived by that act of intercourse. Service of process may be perfected according to the rules of civil procedure.
(h) When the person against whom the proceeding is brought has
failed to plead or otherwise defend the action after proper service
has been obtained, judgment by default shall be issued by the court
as provided by the rules of civil procedure.
§48A-6-4. Establishment of paternity and duty of support.
(a) When the defendant, by verified responsive pleading,
admits that the man is the father of the child and owes a duty of
support, or if after a hearing on the merits, the court shall find,
by clear and convincing evidence that the man is the father of the
child, the court shall order support in accordance with the
provisions of this section.
(b) Upon motion by a party, the court shall issue a temporary
order for child support pending a judicial determination of
parentage if there is clear and convincing evidence of paternity on
the basis of genetic tests or other scientifically recognized
evidence.
(c) The court shall give full faith and credit to a
determination of paternity made by any other state, based on the
laws of that state, whether established through voluntary
acknowledgment or through administrative or judicial process.
(d) Bills for pregnancy, childbirth, and genetic testing are
admissible as evidence of expenses incurred. Evidence so admitted
shall constitute prima facie evidence of amounts incurred for such services or for testing on behalf of the child.
CHAPTER 57. EVIDENCE AND WITNESSES.
ARTICLE 1. LEGISLATIVE ACTS AND RESOLUTIONS; PUBLIC RECORDS.
§57-1-12. Authentication of records and proceedings of courts of
United States or other states; full faith and credit.
The records and judicial proceedings of any court of the
United States, or of any state or territory, or of any country
subject to the jurisdiction of the United States, shall be proved
or admitted in any court in this state, by the attestation of the
clerk, and the seal of the court annexed, if there be a seal,
together with a certificate of the judge, chief justice, or
presiding magistrate, that the said attestation is in due form. And
the said records and judicial proceedings, so authenticated, shall
have such faith and credit given to them in every court within this
state as they have by law or usage in the courts of the state or
jurisdiction from which they are taken. Full faith and credit for
child support orders shall be accorded by this state in conformity
with federal law.