Senate Bill No. 466
(By Senator Bailey)
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[Introduced February 21, 1994; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact section eight, article two, chapter
forty-eight-a of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to enforcement
of family obligations; West Virginia child advocate office;
guidelines for child support awards; and providing that
overtime wages are not to be considered in establishing
child support obligations.
Be it enacted by the Legislature of West Virginia:
That section eight, article two, chapter forty-eight-a of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted to read as follows:
ARTICLE 2. WEST VIRGINIA CHILD ADVOCATE OFFICE.
§48A-2-8. Guidelines for child support awards.
(a) The director of the child advocate office shall, by
legislative rule, establish guidelines for child support award
amounts so as to ensure greater uniformity by those persons who
make child support recommendations and enter child support ordersand to increase predictability for parents, children and other
persons who are directly affected by child support orders. There
shall be a rebuttable presumption, in any proceeding before a
family law master or circuit court judge for the award of child
support, that the amount of the award which would result from the
application of such guidelines is the correct amount of child
support to be awarded. A written finding or specific finding on
the record that the application of the guidelines would be unjust
or inappropriate in a particular case shall be sufficient to
rebut the presumption in that case. The guidelines shall not be
followed:
(1) When the child support award proposed to be made
pursuant to the guidelines has been disclosed to the parties and
each party has made a knowing and intelligent waiver of said
amount, and the support obligors have entered into an agreement
which provides for the custody and support of the child or
children of the parties; or
(2) When the child support award proposed to be made
pursuant to the guidelines would be contrary to the best
interests of the child or children, or contrary to the best
interests of the parties.
(b) The Legislature, by the enactment of this article,
recognizes that children have a right to share in their natural
parents' level of living. Accordingly, guidelines promulgated
under the provisions of this section shall not be based upon any
schedule of minimum costs for rearing children based uponsubsistence level amounts set forth by various agencies of
government. The Legislature recognizes that expenditures in
families are not made in accordance with subsistence level
standards, but are rather made in proportion to household income,
and as parental incomes increase or decrease, the actual dollar
expenditures for children also increase or decrease
correspondingly. In order to ensure that children properly share
in their parents' resources, regardless of family structure, the
guidelines shall be structured so as to provide that after a
consideration of respective parental incomes, that child support
will be related, to the extent practicable, to the level of
living which such children would enjoy if they were living in a
household with both parents present.
(c) The guidelines promulgated under the provisions of this
section shall take into consideration the financial contributions
of both parents. The Legislature recognizes that expenditures in
households are made in aggregate form and that total family
income is pooled to determine the level at which the family can
live. The guidelines shall provide for examining the financial
contributions of both parents in relationship to total income,
so as to establish and equitably apportion the child support
obligation. Under the guidelines, the child support obligation
of each parent will vary proportionately according to their
individual incomes.
(d) The guidelines shall be structured so as to take into
consideration any preexisting support orders which imposeadditional duties of support upon an obligor outside of the
instant case and shall provide direction in cases involving split
or shared custody.
(e) The guidelines shall have application to cases of
divorce, paternity, actions for support and modifications
thereof.
(f) In promulgating the legislative rule provided for under
the provisions of this section, the director shall be directed
by the following legislative findings:
(1) That amounts to be fixed as child support should not
include awards for alimony, notwithstanding the fact that any
amount fixed as child support will impact upon the living
conditions of custodial parents;
(2) That parental expenditures on children represent a
relatively constant percentage of family consumption as family
consumption increases, so that as family income increases, the
family's level of consumption increases, and the children should
share in and benefit from this increase;
(3) That parental expenditures on children represent a
declining proportion of family income as the gross income of the
family increases, so that while total dollar outlays for children
have a positive relationship to the family's gross income, the
proportion of gross family income allotted for the children has
a negative relationship to gross income;
(4) That expenditures on children vary according to the
number of children in the family, and as the number of childrenin the family increases, the expenditures for the children as a
group increase and the expenditures on each individual child
decrease; so that due to increasing economies of scale and the
increased sharing of resources among family members, spending
will not increase in direct proportion to the number of children;
(5) That as children grow older, expenditures on children
increase, particularly during the teenage years.
(g) The director of the child advocate office shall review
the guidelines at least once every four years to ensure that
their application results in the determination of appropriate
child support awards. Such four-year period shall begin on the
first day of July, one thousand nine hundred eighty-nine. Upon
completion of the four-year review period ending on the thirtieth
day of June, one thousand nine hundred ninety-three, after
consulting with the supreme court of appeals, circuit judges and
family law masters, the director shall propose for promulgation
a legislative rule in accordance with the provisions of article
three, chapter twenty-nine-a of this code which amends and
updates the guidelines required by this section. Such proposed
amended rule, shall include, but not be limited to, provisions
regarding the following subject matters:
(1) In determining the child support obligation of a parent
whose employment income consists, in part, of compensation for
overtime hours worked, the guidelines shall provide for a child
support order which includes a consideration of such overtime
compensation, balancing the interest of children to share in theresources of such parent with the interest of the parent in not
being penalized for accepting overtime work. Any formula which
is used to compute anticipated overtime compensation shall allow
for the irregular nature of such compensation.
(2) (1) In determining the child support obligation of a
parent whose employment income consists of compensation for
seasonal employment, the guidelines shall provide for
discretionary use of alternative payment schedules which may vary
the periodic amounts required to be paid.
(3) (2) In determining the child support obligation of a
parent whose support obligation extends to the children of more
than one family, the guidelines shall be structured so as to
equitably provide for all children to whom the obligor owes a
duty of support.
NOTE: The purpose of this bill is to remove the requirement
that overtime wages are to be considered in establishing child
support obligations.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.