Senate Bill No. 752
(By Senators Wooton, Ball, Bowman, Dittmar, Hunter, Kessler,
Oliverio, Ross, Schoonover, Snyder, White, Deem and Kimble)
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[Originating in the Committee on the Judiciary;
reported February 27, 1998.]
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A BILL 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 amend and reenact section thirty,
article one-a, chapter forty-eight-a of said code; to amend
and reenact section sixteen, 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; requiring the obligee to make an accounting of
expenditures, upon request of the obligor, where support in
excess of five hundred dollars per month, per child is
awarded; transferring health care coverage for a child to
a health plan offered by the obligated parent's new
employer; defining "support order"; requiring child support
payments in excess of two thousand dollars per child per
month to be placed in trust for the education of the child;
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; eliminating a trial by jury in paternity
proceedings; 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 section thirty, article one-a,
chapter forty-eight-a of said code be amended and reenacted;
that section sixteen, 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. (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;
and
(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. (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. (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.
§48-2-15. 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
section one, 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.
When the
amount of child support order exceeds five hundred dollars per
month per child, the court shall, upon request of the obligor,
require the obligee to provide an accounting of all sums
expended on behalf of the child;
(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
(j) (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.
(j) (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.
(k) (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.
(l) (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.
(m) (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-16. Investment of child support.
A circuit judge has the discretion, in appropriate cases,
to direct that a portion of child support be placed in trust and invested for future educational or other needs of the child:
Provided, That where child support is ordered in the amount of
two thousand dollars or more per month per child, the circuit
court shall order any amount in excess of two thousand dollars
per month per child be placed in trust and invested for future
educational or other needs of the child: Provided, however,
That if the excess amount is necessary to meet the medical
expenses of the child, the circuit court may waive this
requirement. The family law master may recommend and the
circuit judge may order such investment when all of the child's
day-to-day needs are being met such that, with due consideration
of the age of the child, the child is living as well as his or
her parents. A trustee named by the court shall use the judgment
and care under the circumstances then prevailing that persons of
prudence, discretion and intelligence exercise in the management
of their own affairs, not in regard to speculation but in regard
to the permanent disposition of their funds, considering the
probable income as well as the probable safety of their capital.
A trustee shall be governed by the provisions of the uniform
prudent investor act as set forth in article six-c, chapter
forty-four of this code. The court may prescribe the powers of
the trustee and provide for the management and control of the
trust. Upon petition of a party or the child's guardian or next
friend and upon a showing of good cause, the court may order the
release of funds in the trust from time to time.
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
obligors 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
shall have access to such service when the contract which
includes a provision to ensure that the confidentiality of
such
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
to authorized persons.
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
ten two business days
after of receipt
except as otherwise
specifically provided in this chapter. 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
as are in excess of amounts required to
reimburse the department of health and human resources under
subdivision (1) of this subsection and
are not in excess of the
amount required to be paid during such period to the family by
a court order shall be paid to the obligee; and
(3) Amounts
that are 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)
(1) Notwithstanding the preceding provisions of this
section, amounts collected by the child support enforcement
division as child support for months in any period on behalf of
a child for whom the department of health and human resources is
making foster care maintenance payments shall:
(A) (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);
(B) (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
(C) (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
(A) (1) and
(B) (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) Any payment required to be made under the provisions of
this section to a family shall be made to the resident parent,
legal guardian or caretaker relative having custody of or
responsibility for the child or children.
(e) (d) The commission shall establish bonding requirements
for employees of the child support enforcement division who
receive, disburse, handle or have access to cash.
(f) (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.
(g) (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.
(c) (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.
(d) (2) The procedural rule adopted shall afford the
obligor with procedural due process prior to making information
available with respect to the obligor.
(e) (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.
(f) (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
three thirty-four article five of this
chapter 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
may serve, by certified mail or personal service, an
administrative subpoena,
or subpoena of any out-of-state agency
administering a program under Title IV-D of the Social Security
Act, 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 division of child support
enforcement.
(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
division of 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
division of 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 pursuant to
section four, article five of this chapter.
§48A-2-34. Employment and income reporting.
(a) Except as provided in subsections (b) and (c) of this
section, all employers doing business in the state of West
Virginia shall report to the child support enforcement division:
(1) The hiring of any person who resides or works in this
state to whom the employer anticipates paying earnings; and
(2) The rehiring or return to work of any employee who
resides or works in this state.
(b) Employers are not required to report the hiring,
rehiring or return to work of any person who:
(1) Is employed for less than one month's duration; or
(2) Is employed sporadically so that the employee will be
paid for less than three hundred fifty hours during a continuous
six-month period; or
(3) Has gross earnings of less than three hundred dollars
per month.
(c) The commission may establish additional exemptions to
reduce unnecessary or burdensome reporting through promulgation
of a legislative rule pursuant to chapter twenty-nine-a of this code.
(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.
(d)(e) Employers shall report by mailing to the child
support enforcement division a copy of the employee's W-4 form;
However 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.
(e)(f) Employers shall submit a report within fourteen days
of the date of the hiring, rehiring or return to work of the
employee.
The report shall include the employee's name, address, social security number and date of birth and the employer's name
and address, any different address of the payroll office and the
employer's federal tax identification number. 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.
(f)(g) An employer
of an obligor shall provide to the child
support enforcement division, upon its written request,
information regarding
the an obligor's employment, wages or
salary, medical insurance, and location of employment.
(g)(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 twenty-five dollars per failure. If the
failure to report is the result of a conspiracy between the
employer and the employee
to 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
three five hundred
fifty dollars.
(h)(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) Every three years after the entry of a final judgment
containing a child support order has been entered in a domestic
relations matter, the child support enforcement division shall
examine the records and conduct any investigation considered
necessary to determine whether the child support amount should
be increased or decreased in view of a temporary or permanent
change in physical custody of the child which the court has not
ordered, increased need of the child or changed financial
conditions.
(b) Upon the written request by an obligee or obligor, the child support enforcement division shall examine the record and
conduct any investigation considered necessary to determine
whether the child support amount should be increased or
decreased in view of a temporary or permanent change in physical
custody of the child which the court has not ordered, increased
need of the child or other financial conditions.
(c) Notwithstanding the requirements imposed by this
section, the child support enforcement division is not required
to review the matter when:
(1) The child is being supported, in whole or in part, by
assistance payments from the division of human services, the
child support enforcement division has determined that such a
review would not be in the best interests of the child and
neither parent has requested a review; or
(2) Neither parent has requested a review.
(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.
(d) (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.
and 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
petition to seek move for modification or of a proposal that
there should be no change.
(e) (c) When the result of the review is a proposal to
petition to seek move for modification
of the child support
order,
then each parent shall be given thirty days' notice of
the hearing on the
petition 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,
then any parent disagreeing with that proposal may, within
thirty days of the notice of the results of the review, file
with the court a
petition motion for modification setting forth
in full the grounds therefor.
(f) The child support enforcement division shall petition
the court for modification of the amount of a child support
order if modification is determined to be necessary under subsection (a) of this section. A written report and
recommendation shall accompany the petition.
(g) (d) As used in 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.
§48A-2-40. Access to records, confidentiality.
(a) All records in the possession of the child support
enforcement division, including records
in the possession of the
division concerning an individual case of child or spousal
support, shall be kept confidential and shall not be released
except as provided below:
(1) Records shall be disclosed or withheld as required by
federal law or regulations promulgated thereunder
notwithstanding other provisions of this section.
(2) 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.
(2) (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
(3) (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.
(3) (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.
(4) (5) Information in specific cases may be released as is
necessary or to determine the identity, location, employment,
income and assets of an obligor.
(5) (6) Information and records may be disclosed to the
department bureau of vital statistics,
department bureau of
employment
security programs, the
department of 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
aid
to families with dependent children 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
under the prior enactments of
this code, 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",
with
the clerk of the circuit court, 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 a foreign support
order an order from another jurisdiction, the obligee shall
first register the
foreign support order in
the same manner and
with the same effect as such orders are registered in actions
under the uniform interstate family support act as set forth in
article six, accordance with the provisions of chapter forty-
eight-b of this code:
Provided, That
a copy of the reciprocal
enforcement of support law of the state in which the order was
made need not be filed with the clerk 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.
(b) (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.
(c) (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.
(d) (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.
(e) (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
children's advocate 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
children's advocate child
support enforcement division.
(f) (g) The notice provided for in subsection
(e) (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
children's advocate child
support enforcement division in writing of the reasons why the
affidavit is contested and request a meeting with the
children's
advocate 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
children's advocate 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.
(g) (h) Upon being informed by an obligor that he or she
desires to contest the affidavit, the
children's advocate 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.
(h) (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
advocate office support enforcement division. The notice of the
filing of an affidavit shall be in a form prescribed by the
child
advocate office support enforcement division.
(i) (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.
(j) (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
notice withholding is required by
either
subsection
(a) or (b) of this section,
is appropriate, the child
support enforcement division
shall determine the time for a meeting between the obligor and the child support enforcement
division and the time for a hearing before the family law
master, and shall then set forth in such notice the times and
places at which the meeting and hearing will be held if
withholding is contested. The meeting and hearing may be
scheduled on the same date, but in no case shall the meeting
with the child support enforcement division be scheduled less
than fifteen days after the date the notice is mailed nor shall
the hearing before the master be scheduled more than twenty-one
days after the date the notice is mailed. The child support
enforcement division shall send
such notice by first class mail
or electronic means to the
delinquent obligor
notice that
withholding has commenced. The notice shall inform the
delinquent obligor of the following:
(1) The amount owed;
(2) That
it is proposed that there be a withholding from
the obligor's income of amounts payable as support
has
commenced; and that if withholding is uncontested, or is
contested but determined appropriate,
(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;
(3) (4) The definition of "
gross income" as defined in
section nineteen, article
one one-a of this chapter;
(4) (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;
(5) (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;
(6) (7) That payment of the arrearage after the date of the
notice is not a bar to such withholding;
(7) (8) That
if the obligor
fails to appear at the meeting,
withholding will automatically occur as described in the notice
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;
(8) (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;
(9) (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
notice
withholding, but may be raised by the filing of a separate
petition
in circuit court;
(10) (11) That if the obligor contests the withholding, in
writing, a meeting with the child support enforcement division
will be held at
a an arranged time and place
set forth in the
notice, for the purpose of attempting to settle
any the
contested issues;
which are contested, and that a hearing before
the family law master cannot be held until after the meeting
with the child support enforcement division occurs;
(11) (12) That if the meeting with the child support
enforcement division fails to resolve the
contested issues,
being contested, a hearing before the family law master shall be
held at a time and place set forth in the notice, and that
following such hearing, the master will make a recommended order
to the circuit court the obligor may petition the circuit court
for a resolution; and
(12) That a master's recommended order as to withholding
will become effective when it is confirmed and entered by the
circuit court, and that if the obligor disagrees with the
master's recommended order, he or she will be given the
opportunity to make objections known to the circuit court; and
(13) That
if, while the withholding is being contested
it
is determined that the obligor is in arrears in an amount equal
to or greater than one month's support obligation, but the
amount of the arrearage is disputed, then income withholding for
the current payment of support will be instituted, and through
either the child support enforcement division or the court, the income withholding may not be stayed.
pending a final
determination as to the amount of arrearage due.
(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,
and the withholding is
contested, then after entry of the master's recommended order by
the circuit court. When withholding is ordered or otherwise
required, 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
payments month's
obligation plus arrearages are being withheld from salaries or
wages in no case shall the total amounts withheld for
the
current
payments month's obligation plus arrearage exceed the
amounts withheld for
the current
payments obligation by an
amount greater than
ten twenty-five percent of the
obligor's
disposable income 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.
(6) (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
child support enforcement division to the
child support enforcement division, the same day that the
obligor is paid;
(3) That, in addition to the amount withheld under the
provisions of subdivision (1) of this subsection, the source of
income may deduct a fee, not to exceed one dollar, for
administrative costs incurred by the source of income, for each
withholding;
(4) That withholding is binding on the source of income
until further notice by the child support enforcement division
or until the source of income notifies the child support
enforcement division of a termination of the obligor's
employment in accordance with the provisions of subsection (l)
of this section;
(5) That the source of income is subject to a fine for
discharging an obligor from employment, refusing to employ, or
taking disciplinary action against any obligor because of the
withholding;
(6) That when the source of income fails to withhold income
in accordance with the provisions of the notice, the source of
income is liable for the accumulated amount the source of income
should have withheld from the obligor's income;
(7) That the withholding under the provisions of this
section shall have priority over any other legal process under
the laws of this state against the same income, and shall be effective despite any exemption that might otherwise be
applicable to the same income;
(8) That when an employer has more than one employee who is
an obligor who is subject to wage withholding from income under
the provisions of this code, the employer may combine all
withheld
payment 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
imposed against real
and personal property
for amounts of
overdue support owed by of an obligor who resides or owns
property within this state
when the provisions of have been
complied with: Provided, That 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 court 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
be registered as a foreign support
register the order
with the clerk in the same manner as such
orders are registered in actions under the uniform interstate
family support act as set forth in article six, in accordance
with the provisions of chapter forty-eight-b of this code.
Provided, That
a copy of the reciprocal enforcement of support
law of the state in which the order was made need not be filed
with the clerk. 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
twelve 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.
(a) The child support enforcement division may enforce a
lien against real property arising under section four of this
article by instituting an action in the circuit court pursuant
to the provisions of article three, chapter thirty-eight of this
code.
(b) The complaint instituting the action to enforce the
lien shall be accompanied by an affidavit stating that an
execution or levy on other property of the obligor was not
sufficient to satisfy the overdue support obligation.
(c) The plaintiff in the action in circuit court shall
serve a copy of the complaint, along with a copy of the
affidavit on the obligor, the obligee, and all interested
parties in accordance with rule four of the West Virginia rules
of civil procedure.
(d) 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.
§48A-5-5. Enforcement of support orders by contempt
proceedings; penalties.
(a)
(1) In addition to or in lieu of the other remedies
provided by this article for the enforcement of support orders,
the
office of the children's advocate 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.
(2) (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:
(A) (1) Require additional terms and conditions consistent
with the court's support order.
(B) (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.
(C) (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.
(D) (5) If appropriate under the provisions of section
twenty-two, article two, chapter forty-eight of this code:
(i) (A) Commit the contemnor to the county jail; or
(ii) (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.
(3) (c) A commitment under
paragraph (D), subdivision (2)
subdivision (5) of
this subsection
(b) shall not exceed forty-
five days for the first adjudication of contempt or ninety days
for any subsequent adjudication of contempt.
(4) (d) An obligor committed under
paragraph (D),
subdivision (2) subdivision (5), of this 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.
(5) (e) If an obligor is committed to jail under the
provisions of
subparagraph (ii), paragraph (D), subdivision (2)
paragraph (B), subdivision (5),
of this 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
subparagraph (ii) paragraph (B) for the
balance of the period of commitment imposed by the court.
(6) (f) If a person is committed to jail under the
provisions of
subparagraph (ii), paragraph (D), subdivision (2)
paragraph (B), subdivision (5), of this 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
trial 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.
(b) (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 without
requiring third party foundation testimony if accompanied by an
affidavit from the service provider attesting to the content of
the bill and the provision of the underlying service. 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.
_________
(NOTE: The purpose of this bill is to conform West
Virginia's child support enforcement legislation to federal
requirements in order to maintain eligibility for federal funds
for the program; to provide for an accounting of expenditures
when child support is ordered in excess of $500 per month per
child; and to require child support in excess of $2000 per month
per child to be placed in trust for the child's education.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
Sections 48A-2-24a, 48A-2-43, 48A-5-4a and 48A-5-7 are new;
therefore, underlining and strike-throughs have been omitted.)