H. B. 4654
(By Delegates Givens, Amores, Douglas, Smirl,
Fleischauer, Mahan and Warner)
[Introduced February 27, 1998; referred to
the Committee on the Judiciary then Finance.]
A BILL to repeal section seventeen, article two, chapter forty- eight of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact section five,
article five, chapter sixteen of said code; to amend and
reenact sections, eight, 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 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 a new
section, designated section 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 three
new sections, designated sections four-a, four-b 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 the offering of voluntary paternity establishment services by the state
registrar of vital statistics; the granting of statewide
jurisdiction in support actions after a child support order;
the transferring of cases between local jurisdictions; the
adjusting of child support awards; the transferring of a
child's health care coverage to a non-custodial parent's new
employer; the defining of "support order;" the using of the
state and federal parent locator services; the disbursing of
child support collections within the times specified by
federal regulations; the requesting of consumer credit reports
for child support purposes; the providing of information by
parties to child support proceedings for the state case
registry; the providing of notice and service of process for
subsequent child support enforcement actions; the obtaining of
financial and medical insurance or other information by West
Virginia and out-of-state child support enforcement agencies;
the expanding of nonliability of financial institutions for
compliance with data match and lien and levy requirements for
child support; the reporting of information regarding
employment and income; the reviewing and adjusting of child
support orders; the prohibiting of the release of information
on the whereabouts of a protected party or child; the
cooperating of employers with West Virginia and out-of-state
child support enforcement agencies; the accessing of records
of public and private entities for the purpose of child
support enforcement; the recording of social security numbers in certain family matters; the enforcing of child support
orders through writs of execution, suggestions or suggestee
executions; the withholding from income of amounts payable as
support; the creating of liens against real and personal
property for overdue child support; the enforcing of liens on
real property for child support; the decreeing of rental or
sale and distribution of real property encumbered by the child
support enforcement division; the requiring of the payment of
child support in accordance with a plan approved by the child
support enforcement division or the requiring of work; the
increasing of monthly payments to secure overdue child
support; the eliminating of a trial by jury in paternity
proceedings; the issuing of temporary child support in cases
of clear and convincing evidence of paternity; the admitting
of bills for testing in a paternity case and their
constituting prima facie evidence of amounts incurred; and the
granting of full faith and credit in conformity with federal
law for the records and judicial proceedings of state and
federal courts.
Be it enacted by the Legislature of West Virginia:
That section seventeen, article two, chapter forty-eight of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed, that section five, article five, chapter
sixteen of said code be amended and reenacted; that sections eight,
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
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 a new section,
designated section 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 three new
sections, designated sections four-a, four-b and seven; that
sections one and four, article six of said chapter be amended and
reenacted; and that section twelve, article one, chapter fifty- seven of said code be amended and reenacted, all to read as
follows:
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 5. VITAL STATISTICS.
§16-5-5. Duties of state registrar of vital statistics;
enforcement of article.
a. The state registrar of vital statistics shall:
(1) Administer and enforce the provisions of this article and
all other applicable laws of this state and all lawful rules and
regulations adopted and promulgated thereunder;
(2) Direct and supervise the statewide system of vital
statistics and the operation of the division of vital statistics,
and act as custodian of its records;
(3) Direct, supervise and control the activities of local
registrars and the activities of public officers in relation to the operation of the vital statistics system and provide them with the
postage necessary for them to carry out their duties under this
article;
(4) Prescribe, provide and distribute, subject to the rules
and regulations promulgated by the board of health, all forms
necessary to carry out the provisions of this article and of the
rules and regulations adopted and promulgated thereunder; 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. The state registrar of vital statistics may delegate such
functions and duties as are hereby vested in him to officers and
employees of the division of vital statistics and to local
registrars as the state registrar may deem necessary or expedient.
c. The state registrar, either personally or by a duly
delegated representative, shall have authority to investigate cases
of irregularity or violation of law arising under the provisions of
this article, and all local registrars, deputy local registrars and
subregistrars shall aid him, upon request, in such investigations.
When he shall deem it necessary, he 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 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.
§48-2-8. Venue of actions for annulment, affirmation or
divorce.
(a) The action for annulling or affirming a marriage, or for
divorce, shall, if the defendant be a resident of this state be
brought in the county in which the parties last cohabited, or, at
the option of the plaintiff, in the county in which the defendant
resides; but if the defendant be not a resident of this state, the
action shall be brought either in the county in which the plaintiff
resides, or in the county in which the parties last cohabited. In
the case of an action to annul a marriage performed in this state,
where neither party is a resident of the state, the action shall be
brought in the county where the marriage was performed.
(b) For any subsequent actions taken to establish, modify or
enforce a support order, the state agency or judicial tribunal with
authority to hear and determine support and paternity cases exerts
statewide jurisdiction over the parties. The case may be
transferred between local jurisdictions in the state without the
need for any additional filing by the petitioner, or service of
process upon the respondent to retain jurisdiction over the
parties.
§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 eight, article two, chapter forty-eight-a of
this code. Payments of child support are to be ordinarily made
from a party's income, but in cases when the income is not
sufficient to adequately provide for those payments, the court may,
upon specific findings set forth in the order, order the party
required to make those payments to make them from the corpus of his
or her separate estate;
(3) When the action involves a minor child or children, the
court shall provide for medical support for any minor children in
accordance with section fifteen-a of this article;
(4) As an incident to requiring the payment of alimony or
child support, the court may order either party to continue in
effect existing policies of insurance covering the costs of health
care and hospitalization of the other party: Provided, That if the
other party is no longer eligible to be covered by such insurance
because of the granting of an annulment or divorce, the court may
require a party to substitute such insurance with a new policy to
cover the other party or may consider the prospective cost of such
insurance in awarding alimony to be paid in periodic installments.
Payments made to an insurer pursuant to this subdivision, either
directly or by a deduction from wages, shall be deemed to be alimony or installment payments for the distribution of marital
property, in such proportion as the court shall direct: Provided,
however, That if the court does not set forth in the order that a
portion of such payments is to be deemed installment payments for
the distribution of marital property, then all such payments made
pursuant to this subdivision shall be deemed to be alimony:
Provided further, That the designation of insurance coverage as
alimony under the provisions of this subdivision shall not, in and
of itself, give rise to a subsequent modification of the order to
provide for alimony other than insurance for covering the costs of
health care and hospitalization;
(5) The court may grant the exclusive use and occupancy of the
marital home to one of the parties, together with all or a portion
of the household goods, furniture and furnishings reasonably
necessary for such use and occupancy. Such use and occupancy shall
be for a definite period, ending at a specific time set forth in
the order, subject to modification upon the petition of either
party. Except in extraordinary cases supported by specific
findings set forth in the order granting relief, a grant of the
exclusive use and occupancy of the marital home shall be limited to
those situations when such use and occupancy is reasonably
necessary to accommodate the rearing of minor children of the
parties. The court may require payments to third parties in the
form of home loan installments, land contract payments, rent,
property taxes and insurance coverage if the amount of such
coverage is reduced to a fixed monetary amount set forth in the court's order. When such third party payments are ordered, the
court shall specify whether such payments or portions of payments
are alimony, child support, a partial distribution of marital
property or an allocation of marital debt: Provided, That if the
court does not set forth in the order that a portion of such
payments is to be deemed child support or installment payments for
the distribution of marital property, then all such payments made
pursuant to this subdivision shall be deemed to be alimony. When
such third party payments are ordered, the court shall specify
whether such payments or portions of payments are alimony, child
support, a partial distribution of marital property or an
allocation of marital debt. If the payments are not designated in
an order and the parties have waived any right to receive alimony,
the court may designate the payments upon motion by any party.
Nothing contained in this subdivision shall abrogate an existing
contract between either of the parties and a third party or affect
the rights and liabilities of either party or a third party under
the terms of such contract;
(6) As an incident to requiring the payment of alimony, the
court may grant the exclusive use and possession of one or more
motor vehicles to either of the parties. The court may require
payments to third parties in the form of automobile loan
installments or insurance coverage if available at reasonable
rates, and any such payments made pursuant to this subdivision for
the benefit of the other party shall be deemed to be alimony or
installment payments for the distribution of marital property, as the court may direct. Nothing contained in this subdivision shall
abrogate an existing contract between either of the parties and a
third party or affect the rights and liabilities of either party or
a third party under the terms of such contract;
(7) When the pleadings include a specific request for specific
property or raise issues concerning the equitable division of
marital property as defined in section one of this article, the
court shall order such relief as may be required to effect a just
and equitable distribution of the property and to protect the
equitable interests of the parties therein;
(8) Unless a contrary disposition is ordered pursuant to other
provisions of this section, then upon the motion of either party,
the court may compel the other party to deliver to the moving party
any of his or her separate estate which may be in the possession or
control of the respondent party and may make such further order as
is necessary to prevent either party from interfering with the
separate estate of the other;
(9) When allegations of abuse have been proven, the court
shall enjoin the offending party from molesting or interfering with
the other, or otherwise imposing any restraint on the personal
liberty of the other or interfering with the custodial or
visitation rights of the other. Such order may permanently enjoin
the offending party from entering the school, business or place of
employment of the other for the purpose of molesting or harassing
the other; or from contacting the other, in person or by telephone,
for the purpose of harassment or threats; or from harassing or verbally abusing the other in a public place;
(10) The court may order either party to take necessary steps
to transfer utility accounts and other accounts for recurring
expenses from the name of one party into the name of the other
party or from the joint names of the parties into the name of one
party. Nothing contained in this subdivision shall affect the
liability of the parties for indebtedness on any such account
incurred before the transfer of such account.
(c) When an annulment or divorce is denied, the court shall
retain jurisdiction of the case and may order all or any portion of
the relief provided for in subsections (a) and (b) of this section
which has been demanded or prayed for in the pleadings.
(d) When a divorce or annulment is granted in this state upon
constructive service of process and personal jurisdiction is
thereafter obtained of the defendant in such case, the court may
order all or any portion of the relief provided for in subsections
(a) and (b) of this section which has been demanded or prayed for
in the pleadings.
(e) After the entry of an order pursuant to the provisions of
this section, the court may revise the order concerning the
maintenance of the parties and enter a new order concerning the
same, as the circumstances of the parties may require.
The court may also from time to time afterward, upon motion of
either of the parties and upon proper service, revise such order to
grant relief pursuant to subdivision (9), subsection (b) of this
section, and enter a new order concerning the same, as the circumstances of the parties and the benefit of children may
require. The court may also from time to time afterward, upon the
motion of either of the parties or other proper person having
actual or legal custody of the minor child or children of the
parties, revise or alter the order concerning the custody and
support of the children, and make a new order concerning the same,
issuing it forthwith, as the circumstances of the parents or other
proper person or persons and the benefit of the children may
require: Provided, That all orders modifying child support shall
be in conformance with the requirements of support guidelines
promulgated pursuant to article one-b, chapter forty-eight-a of
this code: Provided, however, That an order providing for child
support payments may be revised or altered for the reason, inter
alia, that the existing order provides for child support payments
in an amount that is less than eighty-five percent or more than one
hundred fifteen percent of the amount that would be required to be
paid under the child support guidelines promulgated pursuant to the
provisions of said section; Provided further, That if the child
support order has not been revised or altered for thirty-six months
or more from the date of the last order or the date of the last
review for adjustment, the amount of the child support award may be
adjusted if the amount of the child support owed under the existing
order differs from the amount that would be required to be paid
under the child support guidelines by ten percent or more.
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 eight, article two, 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,
multi-employer 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, multi-employer
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, multi-employer 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,
multi-employer 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) 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 multi-employer 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 a non-custodial parent is providing the child's
health care coverage and changes employment and the new employer
provides health care coverage, the child support enforcement
division shall transfer notice of the health care coverage to the
new employer. Unless the non-custodial parent contests the notice
in writing and in accordance with section eight, article five,
chapter forty-eight-a of this code, the notice shall serve as an
enrollment of 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 by the child support enforcement
division under 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" is defined as in
subsection (a) and also includes an order for the support and
maintenance of a spouse or former spouse.
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
purpose of establishing parentage and 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. 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 includes a provision to ensure that
the confidentiality of such information is maintained.
(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
department of health and human services requests for information to
be furnished by such federal parent locator service to authorized
persons. 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. The information transmitted to the child support enforcement division
shall be:
(i) On, or will facilitate the discovery of information on,
the location of any individual who is under an obligation to pay
child support; against whom such an obligation is sought; or 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;
(ii) On the individual's wages, or other income, from, and
benefits of, employment, including rights to or enrollment in group
health care coverage; and
(iii) On the type, status, location, and amount of any assets
of, or debts owed by or to, any such individual.
(2) Obtaining and transmitting information to the authorized
persons specified in section four hundred sixty-three of the Social
Security Act in order to enforce any federal or state law with
respect to the unlawful taking or restraint of a child, or to make
or enforce a child custody or visitation determination as defined
in section four hundred sixty-three of the Social Security Act.
(d) No information shall be disclosed to any person if the
disclosure of such information would contravene the national policy
or security interests of the United States or the confidentiality
of census data. No information shall be disclosed to any person if
the state has notified the secretary of the United States
department of health and human services that the state has reasonable evidence of domestic violence or child abuse and the
disclosure of such information could be harmful to the custodial
parent or the child of such parent, except in the specific
situations, and under the specific conditions, allowed by federal
law.
§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 the times specified by the federal regulations. 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) 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);
(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.
§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) (3) 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) (4) The child support enforcement division may impose a
fee for furnishing such information, not to exceed the actual cost
thereof.
(c) The head of the child support enforcement division, or her
or his designee, may request that a consumer report be furnished to
the child support enforcement division 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) At least ten days' prior notice that the report will be requested has been provided to the individual whose report is
requested by certified mail to the last known address of the
individual; 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, article
five of this chapter 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 receiving
services from the child support enforcement division shall, upon
entry of an order, be required to provide the state case registry
information on the location and identity of a party including, but
not limited to: social security number, residential and mailing
address, telephone number, driver's license number, and employer's name, address and telephone number. Such information shall be
updated as appropriate. All information shall be subject to
privacy and confidentiality safeguards.
(c) Each party to a child support proceeding not receiving
services from the child support enforcement division shall, upon
entry of an order, be required to provide to the circuit clerk of
the county in which the order was entered information on the
location and identity of a party including, but not limited to:
social security number, residential and mailing address, telephone
number, driver's license number, and employer's name, address and
telephone number. Such information shall be updated as
appropriate. All information shall be subject to privacy and
confidentiality safeguards. Upon receipt of the information on the
location and identity of a party, the circuit clerk shall promptly
forward all such information to the state case registry.
(d) In any subsequent child support enforcement action between
the parties, upon a sufficient showing that diligent effort has
been made to ascertain the location of a party, where there has
been delivery of written notice to the most recent employer or
residential mailing address filed with the state case registry
pursuant to subsection (b) of this section, the court or
administrative agency of competent jurisdiction shall deem the
state due process requirements for notice and service of process to
be met with respect to the party.
§48A-2-33. Subpoenas.
In order to obtain financial and medical insurance or other information pursuant to the establishment, enforcement and
modification provisions set forth in this chapter or chapter
forty-eight of this code, the child support enforcement division,
or any out-of-state agency administering a program under Title IV-D
of the Social Security Act, may serve, by certified mail or
personal service, an administrative subpoena on any person,
corporation, partnership, financial institution, labor organization
or state agency, for an appearance or for production of financial
or medical insurance or other information. In case of disobedience
to the subpoena, the child support enforcement division may invoke
the aid of any circuit court in requiring the appearance or
production of records and financial documents. The child support
enforcement division may assess a civil penalty of no more than one
hundred dollars for the failure of any person, corporation,
financial institution, labor organization or state agency to comply
with requirements of this section.
§48A-2-33a. Nonliability 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 in response to a subpoena
issued by the division pursuant to subsection (f) of this section
or section thirty-three of this article;
(2) 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
(3) For any other action taken in good faith to comply with
the requirements of this section.
(b) The division of child support enforcement, 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) 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 non-custodial
parent who maintains an account at such institution and who owes
past due support. The child support enforcement division will
identify to the financial institution the non-custodial parent 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 lien
or levy, shall encumber or surrender, as the case may be, assets
held by such institution on behalf of any non-custodial parent who
is subject to a lien for child support.
§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.
(d) Employers shall report by mailing to the child support
enforcement division a copy of the employee's W-4 form. However,
an employer may transmit such information through another means if
approved in writing by the child support enforcement division prior
to the transmittal.
(e) 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.
(f) An employer of an obligor shall provide to the child
support enforcement division, upon its written request, information
regarding the obligor's employment, wages or salary, medical
insurance and location of employment.
(g) 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 dollars. If the failure to report is the result
of a conspiracy between the employer and the employee to not 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
hundred fifty dollars.
(h) Employers required to report under this section may assess
each employee so reported one dollar for the administrative costs
of reporting.
(a) For purposes of this section:
(1) The term "employee" has the same meaning as in chapter
twenty-four of the Internal Revenue Code of 1986, as amended;
therefore, an individual who is an employee for purposes of federal
income tax withholding from wages is also an employee for new hire
reporting purposes. An "employee" is defined as every individual
performing services if the relationship between the individual and
the person for whom the services are performed is the legal
relationship of employer and employee. Generally, the legal relationship of employer and employee exists when the person for
whom the services are performed has the right to control and direct
the individual who performs the services not only as to the result
to be accomplished but also as to the details and means by which
that result is to be accomplished. It is not necessary that the
employer actually direct or control the manner in which the
services are performed; it is sufficient if he or she has the right
to do so;
(2) The term "employer" has the same meaning as in section
3401(d) of the Internal Revenue Code of 1986, as amended, that
defines employer as the person for whom an individual performs or
performed any service of whatever nature, as the employee of such
person, except that if the person for whom the individual performs
or performed the services does not have control of the payment of
the wages for such services, the term "employer" means the person
having control of the payment of such wages. This includes any
governmental entity and any labor organization. At a minimum, in
any case where an employer is required to give an employee a Form
W-2 showing the amount of taxes withheld, the employer must meet
the new hire reporting requirements;
(3) The term "labor organization" has the same meaning as in
section 2(5) of the National Labor Relations Act, and includes any
entity, also known as a "hiring hall", which is used by the
organization and an employer to carry out requirements described in
section 9(f)(3) of such Act of an agreement between the
organization and the employer. Thus, if a labor organization actually pays the individuals whom it refers, as opposed to having
them paid by the person or entity to whom they have been referred,
the labor organization would be considered the "employer" and
subject to the new hire reporting requirements; and
(4) An individual is considered a "new hire" on the first day
in which an individual performs services for remuneration; namely,
the first day of work. The first day of work is the first day in
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
the employee could endanger the safety of the employee or
compromise an ongoing investigation or intelligence mission.
(d) An employer that has employees in two or more states, and
that transmits reports magnetically or electronically, may report
the employees in all the states in which the employer has employees
to only one of those states; however, any employer that transmits reports pursuant to this subsection shall notify the United States
secretary of health and human services in writing as to which state
the employer designates for the purpose of sending the reports.
(e) Employers shall report by mailing to the child support
enforcement division a copy of the employee's W-4 form; however, an
employer may transmit such information through another means if
approved in writing by the child support enforcement division prior
to the transmittal. The report shall include the employee's name,
address, and social security number, and the employer's name and
address, any different address of the payroll office, and the
employer's federal tax identification number. The employer may
report other information, such as date of birth or income
information if desired.
(f) Employers shall submit a report within fourteen days of
the date of the hiring, rehiring or return to work of the employee.
However, if the employer transmits the reports magnetically or
electronically by two monthly submissions, the reports shall be
submitted not less than twelve days nor more than sixteen days
apart.
(g) An employer of an obligor shall provide to the child
support enforcement division, upon its written request, information
regarding the obligor's employment, wages or salary, medical
insurance, and location of employment.
(h) Any employer who fails to report in accordance with the
provisions of this section shall be assessed a civil penalty of no
more than twenty-five dollars per failure. If the failure to report is the result of a conspiracy between the employer and the
employee to not supply the required report or to supply a false or
incomplete report, the employer shall be assessed a civil penalty
of no more than five hundred dollars.
(i) Employers required to report under this section may assess
each employee so reported one dollar for the administrative costs
of reporting.
(j) Uses for the new hire information include, but are not
limited to the following:
(1) The state directory of new hires shall furnish the
information to the national directory of new hires;
(2) The child support enforcement division shall use
information received pursuant to this section to locate individuals
for purposes of establishing paternity and establishing, modifying,
and enforcing child support obligations, and may disclose such
information to any agent of the agency that is under contract with
the agency to carry out such purposes;
(3) The state agency 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) State agencies operating employment security and workers'
compensation programs shall have access to information reported by
employers for the purposes of administering such 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) Upon the request of either parent, or if there is an
assignment of support to the department of health and human
resources, upon the request of the child support enforcement division or either parent, the child support enforcement division
shall, with respect to a child support order, conduct a review,
which takes into account the best interest of the child or
children, and, if appropriate, petition the court to enter a new
order for child support in accordance with the guidelines for child
support awards.
(1) Where the request for a review for adjustment is made
thirty-six months or more from the entry date of the order or from
the completion of the previous review for adjustment, whichever is
later, then a petition for an adjustment of child support, if it is
in the best interest of the child and otherwise appropriate, shall
be filed in court by the child support enforcement division if the
amount of the child support award under the existing order differs
from the amount that would be awarded by ten percent or more.
(2) Where the child support order or last review for
adjustment has occurred within the past thirty-six month period,
then the child support enforcement division shall undertake a
review of the case only where there has been a substantial change
in circumstances. For the purposes of this review, 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. If there is a
substantial change in circumstances, then the child support
enforcement division shall, if it is in the best interest of the
child or children and otherwise appropriate, petition the court to enter a new order for child support in accordance with the
guidelines for child support awards.
(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 the order. 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 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 modification, then each parent shall be given
thirty days' notice of the hearing on the petition, 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 for modification setting forth in full the
grounds therefor.
(f) (d) 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) (e) As used in this section, "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 shall not be released on the whereabouts of
one party or the child to another party against whom a protective
order with respect to the former party or the child has been
entered or where the state has reason to believe that the release
of the information to that person 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 of vital statistics, department of employment security,
the department of workers' compensation, 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 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 subject to the non-liability 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) The child support enforcement division shall, without the
need for any court order, have the authority to access such records
on behalf of out-of-state agencies administering programs under
Title IV-D of the Social Security Act.
(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) 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, 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 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 to be used 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.
§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, and an assignment of any right to
support has been assigned to the department or 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. For any subsequent actions taken to establish, modify, or
enforce a support order, the state agency or judicial tribunal with
authority to hear and determine support and paternity cases exerts
statewide jurisdiction over the parties. The case may be
transferred between local jurisdictions in the state without the
need for any additional filing by the petitioner, or service of
process upon the respondents to retain jurisdiction over the
parties.
(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; 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 "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. If the duty of
support is based upon a foreign support order, 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, 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.
(b) The affidavit may be filed in the county wherein the
obligee or the obligor resides, or where the obligor's source of
income is located.
(c) 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) 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) 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 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.
(f) The notice provided for in subsection (e) 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 in writing of the reasons why the affidavit
is contested and request a meeting with the children's advocate; or
(2) obtain a date for a hearing before the family law master and
mail written notice of such hearing to the obligee and to the
children's advocate 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) Upon being informed by an obligor that he or she desires to contest the affidavit, the children's advocate shall inform the
court of such fact, and the court shall require the obligor to give
security, post a bond, or give some other guarantee to secure
payment of overdue support.
(h) 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. The notice of the filing of an affidavit shall be in a
form prescribed by the child advocate office.
(i) 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) 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.
(k) The provisions of subsections (a) through (j) 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.
§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 to
the delinquent obligor notice that withholding has commenced. The
notice may be issued through electronic means. 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) 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 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 and personal 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 an obligor who resides or owns property within this state.
when the provisions of section seventeen, article two, chapter
forty-eight of this code have been complied with: Provided, That
a foreign order shall first be registered as a foreign support
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, chapter forty-eight-b of this
code: Provided, however, 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.
(b) An abstract of the order may be recorded in the office of
the clerk of the county commission in the county wherein such real
property is situate without constituting a lien against such real
property, until the person entitled to receive such alimony, child
support or separate maintenance presents for recordation with the clerk an affidavit which sets forth allegations that the person
required to pay such alimony, child support or separate maintenance
is in arrears in such payment for a period of not less than thirty
days.
(c) Notice of the recordation of the abstract and affidavit
shall be given to the person against whom the order is entered by
first class mail to his or her last known address. The notice
shall inform the person against whom the order is entered of his or
her right to require the filing of an accounting and the right to
contest the accounting, as provided for in subsection (e) of this
section.
(d) The abstract of the order and the affidavit shall be
recorded in the same manner as other abstracts of judgments are
recorded, but shall not constitute a lien unless both the abstract
and affidavit are recorded. The abstract of judgment shall contain
the name of the parties to the action in which the order of
alimony, child support or separate maintenance was entered, the
name of the party in whose favor such award was made, the date of
the judgment and the court which rendered such judgment. In no
event shall the judgment order, in its entirety, be recorded.
(e) The person against whom the order is entered may, within
thirty days of receipt of his or her notice provided for in
subsection (c) of this section by notice in writing, require the
other party to file an accounting, in the office of the clerk of
the circuit court, of the matured, unpaid installments of alimony,
child support or separate maintenance alleged to be due and owing as of the date of recordation of the abstract of the order. Such
accounting shall also be mailed, by first class mail, to the other
party. The party against whom the order is entered may request
only one accounting per affidavit filed. If the party from whom
the accounting is requested fails to file the accounting, within
ten days after receipt of the written notice to do so, the lien
created by such affidavit shall be discharged and extinguished. If
the person against whom the order is entered desires to contest the
accounting, then he or she shall, within fourteen days of the
filing of the accounting, inform the other party in writing of the
reasons that the accounting is contested and obtain a date for a
hearing before the family law master. Forms for accounting and for
the notices required by the provisions of this subsection shall be
prescribed by the administrative office of the supreme court of
appeals and made available through the office of the clerk of the
circuit court. The lien created by such recording shall be
effective as to the amount of any judgment rendered in such
proceeding regardless of whether such judgment be for less or more
than the sum contained in the accounting.
(f) The provisions of this section restricting the right of
recordation of judgment orders shall not be deemed to limit the
right of any person to record a judgment for a sum certain for
past-due alimony, child support or separate maintenance.
(g) The State accords full faith and credit to liens described
in subsection (a) of this section arising in another state, when
the 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 state except that such rules
may not require judicial notice or hearing prior to the enforcement
of such a lien.
(h) The provisions of subsection (a) through (e) 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.
§48A-5-4a. Enforcement by the child support enforcement division
of lien on real property.
(a) The child support enforcement division may
administratively enforce a real property lien by:
(1) Certifying by affidavit that the obligor has no other
known available funds from which to satisfy this obligation; and
(2) Serving a copy of the affidavit along with a certificate
of service to the obligor, the obligee, and all interested parties
in accordance with rule four of the West Virginia rules of civil
procedure.
(b) The obligor, obligee, or any other interested party has
thirty days from the date on the certificate of service within
which to file in circuit court a motion contesting the execution of
the real property lien by the child support enforcement division.
(c) If no notice is filed within the thirty day period, then
the child support enforcement division may enforce the real
property lien as follows:
(1) No decree for the distribution of the proceeds shall be made under this section until a notice to all persons holding liens
on the real estate of the obligor is published as herein provided.
The notice shall be sufficient if it is in the form or effect as
follows:
To all persons holding liens by judgment or otherwise, on the
real estate, or any part thereof, of A....................
B..................:
In pursuance of a decree of the circuit court of...........
....... county, made in a cause therein pending, to subject the
real estate of the said A..................B..................to
the satisfaction of the liens thereon, you are hereby required to
present all claims held by you and each of you against the said
A................B.............., which are liens on his or her
real estate, or any part of it, for adjudication to me, at my
office in the county (or city, town or village, as the case may be)
of.................................on or before the.......day
of................
Given under my hand, this ....... day of ..................
C..............D..............., child support enforcement
division.
(2) Such notice shall be published as a class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, and the publication area for such
publication shall be the county. Publishing of such notice shall
be equivalent to the personal service thereof on all persons
holding liens, on any such real estate, unless the court shall, in the decree directing such notice to be so published, otherwise
order.
(d) If there is no request for intervention within the thirty
day time period pursuant to subsection (b) of this section, the
child support enforcement division shall, as soon as possible,
after such notice is published in accordance with subsection (c) of
this section, proceed to ascertain and report all of the liens on
the real estate or any part thereof, the holders of such liens, the
amount due to each, and the priorities thereof, and other such
relevant information.
§48A-5-4b. Confirmation of report; decree of rental or sale and
distribution of real property encumbered by the
child support enforcement division.
After issuance of the report in accordance with subsection
(d), section four-a, article five of this chapter, the child
support enforcement division shall file an action in court to
determine whether the obligor's real estate shall be divided,
rented, or sold, as well as the distribution of the property among
the several lienholders who have appeared and proved their liens
and claims, according to their several priorities, if any. The
court shall further determine that the courts order shall be a bar
to a claim on any lienholder who did not appear and present a claim
to the child support division as required by the notice in
subsection (c), section four-a, article five of this chapter,
except that if a surplus remains after the payment of the claims so
presented, proved and confirmed by the court, the lienholder who failed to appear may share in the surplus upon proving his claim at
anytime before a final decree in the case in such manner as the
court shall direct. If the lienholder fails to present his claim
before the final decree, he or she shall be forever barred of all
right to participate in the proceeds of such real estate in so far
as the other creditors of the obligor, holding liens on such real
estate, who have not so failed, are concerned.
§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 childrens' advocate 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 (d), 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.
(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 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 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 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 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 include the amounts for arrears in cases 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) The provisions of subsections (a) through (c) 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. For any subsequent actions taken to establish,
modify, or enforce a support order, the state agency or judicial
tribunal with authority to hear and determine support and paternity
cases exerts statewide jurisdiction over the parties. The case may
be transferred between local jurisdictions in the state without the
need for any additional filing by the petitioner, or service of
process upon the respondents to retain jurisdiction over the
parties.
(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. In any paternity
proceeding the parties to an action 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, a temporary order for child
support pending an administrative or judicial determination of
parentage, shall be issued if there is clear and convincing
evidence of paternity on the basis of genetic tests or other
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 without requiring third party foundation
testimony, and 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.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Sections 48A-2-43, 48A-5-4a, 48A-5-4b and 48A-5-7 are new;
therefore, underling and strike-throughs have been omitted.