Senate Bill No. 395

(By Senators Love and Schoonover)

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[Introduced February 14, 1996; referred to the Committee on the Judiciary.]
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A BILL to amend and reenact sections sixteen and twenty-four,
article two, chapter forty-eight-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to general duties and powers of the child support enforcement division; and disbursement of amounts collected as support.

Be it enacted by the Legislature of West Virginia:
That sections sixteen and twenty-four, article two, chapter forty-eight-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 2. WEST VIRGINIA SUPPORT ENFORCEMENT COMMISSION; CHILD
SUPPORT ENFORCEMENT DIVISION; ESTABLISHMENT AND ORGANIZATION.
§48A-2-16. General duties and powers of the child support
enforcement division.
In carrying out the policies and procedures for enforcing the provisions of this chapter, the division shall have the following power and authority:
(1) To undertake directly, or by contract, activities to obtain and enforce support orders and establish paternity;
(2) To undertake directly, or by contract, activities to establish paternity for minors for whom paternity has not been acknowledged by the father or otherwise established by law;
(3) To undertake directly, or by contract, activities to collect and disburse support payments;
(4) To contract for professional services with any person, firm, partnership, professional corporation, association or other legal entity to provide representation for the division and the state in administrative or judicial proceedings brought to obtain and enforce support orders and establish paternity;
(5) To ensure that activities of a contractor under a contract for professional services are carried out in a manner consistent with attorneys' professional responsibilities as established in the rules of professional conduct as promulgated by the supreme court of appeals;
(6) To contract for collection services with any person, firm, partnership, corporation, association or other legal entity to collect and disburse amounts payable as support;
(7) To ensure the compliance of contractors and their employees with the provisions of this chapter and legislative rules promulgated pursuant to this chapter, and to terminate, after notice and hearing, the contractual relationship between the division and a contractor who fails to comply;
(8) To require a contractor to take appropriate remedial or disciplinary action against any employee who has violated or caused the contractor to violate the provisions of this chapter, in accordance with procedures prescribed in legislative rules promulgated by the commission;
(9) To locate parents who owe a duty to pay child support;
(10) To ensure the enforcement through necessary legal means of visitation rights for noncustodial parents who are current on their support obligations and who desire the services of the child support enforcement division;
(10) (11) To cooperate with other agencies of this state and other states to search their records to help locate absent parents;
(11) (12) To cooperate with other states in establishing and enforcing support obligations;
(12) (13) If the child support enforcement division is transferred to the department of tax and revenue pursuant to section forty-two of this article, the director of the child support enforcement division may exercise any power available to him or her as director, or to the tax commissioner, in order to accomplish the purposes of this chapter, including, but not limited to, the powers associated with gaining access to all information gained and maintained by the department of tax and revenue in the collection of taxes, and any and all powers to levy, through distraint or seizure by any means, upon all property or rights to property without the need to obtain a separate court order for the attachment;
(13) (14) To exercise such other powers as may be necessary to effectuate the provisions of this chapter.
§48A-2-24. Disbursements of amounts collected as support.
(a) Amounts collected as child or spousal support by the child support enforcement division shall be distributed within ten days of receipt, except as otherwise specifically provided in this chapter. Such amounts shall, except as otherwise provided under the provisions of subsection (c) of this section, be distributed as follows:
(1) The first fifty dollars of such amounts as are collected periodically which represent monthly support payments shall be paid to the obligee without affecting the eligibility of such person's family for assistance from the department of health and human resources or decreasing any amount otherwise payable as assistance to such family during such month;
(2) Such amounts as are collected periodically which are in excess of any amount paid to the family under subdivision (1) of this subsection and which represent monthly support payments shall be paid by the child support enforcement division to the appropriate administrative unit of the department of health and human resources to reimburse it for assistance payments to the family during such period (with appropriate reimbursement of the federal government to the extent of its participation in the financing);
(3) Such amounts as are in excess of amounts required to reimburse the department of health and human resources under subdivision (2) of this subsection and are not in excess of the amount required to be paid during such period to the family by a court order shall be paid to the obligee; and
(4) Such amounts as are in excess of amounts required to be distributed under subdivisions (1), (2) and (3) of this subsection shall be: (A) Paid by the child support enforcement division to the appropriate administrative unit of the department of health and human resources (with appropriate reimbursement of the federal government to the extent of its participation in the financing) as reimbursement for any past assistance payments made to the family for which the department has not been reimbursed; or (B) if no assistance payments have been made by the department which have not been repaid, such amounts shall be paid to the obligee.
(b) (1) Whenever a family for whom support payments have been collected and distributed under the provisions of this chapter ceases to receive assistance from the department of health and human resources, the child support enforcement division shall provide notice to the family of their rights with regard to a continuation of services. Unless notified by the family that services are no longer desired, the child support enforcement division shall continue to collect amounts of support payments which represent monthly support payments from the obligor and pay any amount so collected, which represents monthly support payments, to the family (without requiring any formal reapplication and without the imposition of any application fee) on the same basis as in the case of other obligees who are not receiving assistance from the department of health and human resources.
(2) So much of any amounts of support so collected as are in excess of the payments required to be made in subdivision (1) of this subsection shall be paid, first, to the obligee until all past due support owed to the family by the obligor has been paid. After all arrearages owing to the family have been paid, any amounts of support collected which are in excess of the required support payments shall be distributed in the manner provided by paragraphs (A) and (B), subdivision (4), subsection (a) of this section with respect to excess amounts described in said subsection.
(c) (1) Notwithstanding the preceding provisions of this section, amounts collected by the child support enforcement division as child support for months in any period on behalf of a child for whom the department of health and human resources is making foster care maintenance payments shall:
(A) Be paid by the child support enforcement division to the appropriate administrative unit of the department of health and human resources to the extent necessary to reimburse the department for foster care maintenance payments made with respect to the child during such period (with appropriate reimbursement of the federal government to the extent of its participation in financing);
(B) Be paid to the appropriate administrative unit of the department of health and human resources to the extent that the amounts collected exceed the foster care maintenance payments made with respect to the child during such period but do not exceed the amounts required by a court order to be paid as support on behalf of the child during such period; and the department of health and human resources may use the payments in the manner it determines will serve the best interests of the child, including setting such payments aside for the child's future needs or making all or a part thereof available to the person responsible for meeting the child's day-to-day needs; and
(C) Be paid to the appropriate administrative unit of the department of health and human resources if any portion of the amounts collected remains after making the payments required under paragraphs (A) and (B) of this subdivision, to the extent that such portion is necessary to reimburse the department of health and human resources (with appropriate reimbursement to the federal government to the extent of its participation in the financing), for any past foster care maintenance payments, or payments of aid to families with dependent children which were made with respect to the child (and with respect to which past collections have not previously been retained);
(2) Any balance of the amounts required to be paid under the provisions of subdivision (1) of this subsection shall be paid to the appropriate administrative unit of the department of health and human resources, for use by the department in accordance with paragraph (B) of said subdivision.
(d) Any payment required to be made under the provisions of this section to a family shall be made to the resident parent, legal guardian or caretaker relative having custody of or responsibility for the child or children.
(e) The commission shall establish bonding requirements for employees of the child support enforcement division who receive, disburse, handle or have access to cash.
(f) The director shall maintain methods of administration which are designed to assure that employees of the child support enforcement division or any persons employed pursuant to a contract who are responsible for handling cash receipts do not participate in accounting or operating functions which would permit them to conceal in the accounting records the misuse of cash receipts: Provided, That the director may provide for exceptions to this requirement in the case of sparsely populated areas in this state where the hiring of unreasonable additional staff in the local office would otherwise be necessary.
(g) No penalty or fee may be collected by or distributed to a recipient of child support enforcement division services from the state treasury or from the child support enforcement fund when child support is not distributed to the recipient in accordance with the time frames established herein.
(h) It shall be the duty of the child support enforcement division to collect from the custodial parent any money erroneously withheld from the noncustodial parent and which was forwarded to the custodial parent: Provided, That the child support enforcement division may elect at its discretion not to seek the money erroneously paid and simply apply the money to future support payments.




NOTE: The purpose of this bill is to authorize the child support enforcement division to enforce visitation rights for noncustodial parents who are current on their support. The bill further authorizes the child support enforcement division to recover or credit future payments for money that was originally erroneously withheld from the noncustodial parent and forwarded to the custodial parent.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.