H. B. 2231
(By Delegate Webb)
[Introduced January 14, 1999; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section thirty-five, article two,
chapter forty-eight-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to amend
and reenact section three, article three of said chapter,
all relating to child support enforcement; and requiring
services to be available to the noncustodial parent.
Be it enacted by the Legislature of West Virginia:
That section thirty-five, article two, chapter forty-eight-a
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; and that
section three, article three of said chapter be amended and
reenacted, all to read as follows:
ARTICLE 2. WEST VIRGINIA SUPPORT ENFORCEMENT COMMISSION; CHILD
SUPPORT ENFORCEMENT DIVISION; ESTABLISHMENT AND ORGANIZATION.
§48A-2-35. Review and adjustment of child support orders.
(a) Either parent or, if there has been an assignment of
support to the department of health and human resources, the
child support enforcement division shall have has the right to
request an administrative review of the child support award in
the following circumstances:
(1) Where the request for review is received thirty-six
months or more after the date of the entry of the order or from
the completion of the previous administrative review, whichever
is later, the child support enforcement division shall conduct a
review to determine whether the amount of the child support award
in such the order varies from the amount of child support that
would be awarded at the time of the review pursuant to the
guidelines for child support awards contained in article one-b of
this chapter. If the amount of the child support award under the
existing order differs by ten percent or more from the amount
that would be awarded in accordance with the child support
guidelines, the child support enforcement division shall file
with the circuit court a motion for modification of the child
support order. If the amount of the child support award under
the existing order differs by less than ten percent from the
amount that would be awarded in accordance with the child support guidelines, the child support enforcement division may, if it
determines that such action is in the best interest of the child
or otherwise appropriate, file with the circuit court a motion
for modification of the child support order.
(2) Where the request for review of a child support award is
received less than thirty-six months after the date of the entry
of the order or from the completion of the previous
administrative review, the child support enforcement division
shall undertake a review of the case only where it is alleged
that there has been a substantial change in circumstances. If
the child support enforcement division determines that there has
been a substantial change in circumstances and if it is in the
best interests of the child, the division shall file with the
circuit court a motion for modification of the child support
order in accordance with the guidelines for child support awards
contained in article one-b of this chapter.
(b) The child support enforcement division shall notify both
parents at least once every three years of their right to request
a review of a child support order. The notice may be included in
any order granting or modifying a child support award. The child
support enforcement division shall give each parent at least
thirty days' notice before commencing any review, and shall
further notify each parent, upon completion of a review, of the
results of the review, whether of a proposal to move for modification or of a proposal that there should be no change.
(c) When the result of the review is a proposal to move for
modification of the child support order, each parent shall be
given thirty days' notice of the hearing on the motion, the
notice to be directed to the last known address of each party by
first class mail. When the result of the review is a proposal
that there be no change, any parent disagreeing with that
proposal may, within thirty days of the notice of the results of
the review, file with the court a motion for modification setting
forth in full the grounds therefor.
(d) For the purposes of this section, a "substantial change
in circumstances" includes, but is not limited to, a changed
financial condition, a temporary or permanent change in physical
custody of the child which the court has not ordered, increased
need of the child, or other financial conditions. "Changed
financial conditions" means increases or decreases in the
resources available to either party from any source. Changed
financial conditions includes, but is not limited to, the
application for or receipt of any form of public assistance
payments, unemployment compensation and workers' compensation, or
a fifteen percent or more variance from the amount of the
existing order and the amount of child support that would be
awarded according to the child support guidelines.
(e) All child support orders shall contain a notice which contains language substantially similar to the following: "The
amount of the monthly child support can be modified as provided
by law based upon a change in the financial or other
circumstances of the parties if those circumstances are among
those considered in the child support formula. In order to make
the modification a party must file a motion to modify the child
support amount. Unless a motion to modify is filed, the child
support amount will continue to be due and cannot later be
changed retroactively even though there has been a change of
circumstances since the entry of the order. Self help forms for
modification can be found at the circuit clerk's office." The
failure of an order to have such a provision does not alter the
effectiveness of the order.
(f) The noncustodial parent shall be given equal access to
the legal services provided by the child support enforcement
division as are provided to the custodial parent.
ARTICLE 3. CHILDREN'S ADVOCATE.
§48A-3-3. Duties of the children's advocate.
Subject to the control and supervision of the director:
(a) The children's advocate shall supervise and direct the
secretarial, clerical and other employees in his or her office in
the performance of their duties as such performance affects the
delivery of legal services. The children's advocate will provide appropriate instruction and supervision to employees of his or
her office who are nonlawyers, concerning matters of legal ethics
and matters of law, in accordance with applicable state and
federal statutes, rules and regulations.
(b) In accordance with the requirements of rule 5.4(c) of
the rules of professional conduct as promulgated and adopted by
the supreme court of appeals, the children's advocate shall may
not permit a nonlawyer who is employed by the department of
health and human resources in a supervisory position over the
children's advocate to direct or regulate the advocate's
professional judgment in rendering legal services to recipients
of services in accordance with the provisions of this chapter;
nor shall any nonlawyer employee of the department attempt to
direct or regulate the advocate's professional judgment.
(c) The children's advocate shall make available to the
public an informational pamphlet, designed in consultation with
the director. The informational pamphlet shall explain the
procedures of the court and the children's advocate; the duties
of the children's advocate; the rights and responsibilities of
the parties; and the availability of human services in the
community. The informational pamphlet shall be provided as soon
as possible after the filing of a complaint or other initiating
pleading. Upon request, a party to a domestic relations
proceeding shall receive an oral explanation of the informational pamphlet from the office of the children's advocate.
(d) The children's advocate shall act to establish the
paternity of every child born out of wedlock for whom paternity
has not been established, when such the child's primary caretaker
is an applicant for or recipient of aid to families with
dependent children, and when such primary caretaker has assigned
to the division of human services any rights to support for the
child which might be forthcoming from the putative father:
Provided, That if the children's advocate is informed by the
secretary of the department of health and human resources or his
or her authorized employee that it has been determined that it is
against the best interest of the child to establish paternity,
the children's advocate shall decline to so act. The children's
advocate, upon the request of any primary caretaker of a child
born out of wedlock, regardless of whether such primary caretaker
is an applicant or recipient of aid to families with dependent
children, shall undertake to establish the paternity of such
child.
(e) The children's advocate shall undertake to secure
support for any individual who is receiving aid to families with
dependent children when such individual has assigned to the
division of human services any rights to support from any other
person such individual may have: Provided, That if the children's advocate is informed by the secretary of the
department of health and human resources or his or her authorized
employee that it has been determined that it is against the best
interests of a child to secure support on the child's behalf, the
children's advocate shall decline to so act. The children's
advocate, upon the request of any individual, regardless of
whether such the individual is an applicant or recipient of aid
to families with dependent children, shall undertake to secure
support for the individual. If circumstances require, the
children's advocate shall utilize the provisions of chapter
forty-eight-b of this code and any other reciprocal arrangements
which may be adopted with other states for the establishment and
enforcement of support obligations, and if such arrangements and
other means have proven ineffective, the children's advocate may
utilize the federal courts to obtain and enforce court orders for
support.
(f) The children's advocate shall pursue the enforcement of
support orders through the withholding from income of amounts
payable as support:
(1) Without the necessity of an application from the obligee
in the case of a support obligation owed to an obligee to whom
services are already being provided under the provisions of this
chapter; and
(2) On the basis of an application for services in the case of any other support obligation arising from a support order
entered by a court of competent jurisdiction.
(g) The children's advocate may decline to commence an
action to obtain an order of support under the provisions of
section one, article five of this chapter if an action for
divorce, annulment or separate maintenance is pending, or the
filing of such action is imminent, and such action will determine
the issue of support for the child: Provided, That such action
shall be is deemed to be imminent if it is proposed by the
obligee to be commenced within the twenty-eight days next
following a decision by the children's advocate that an action
should properly be brought to obtain an order for support.
(h) If the child advocate office, through the children's
advocate, shall undertake undertakes paternity determination
services, child support collection or support collection services
for a spouse or former spouse upon the written request of an
individual who is not an applicant or recipient of assistance
from the division of human services, the office may impose an
application fee for furnishing such services. Such The
application fee shall be in a reasonable amount, not to exceed
twenty-five dollars, as determined by the director: Provided,
That the director may fix such the amount at a higher or lower
rate which is uniform for this state and all other states if the secretary of the federal department of health and human services
determines that a uniform rate is appropriate for any fiscal year
to reflect increases or decreases in administrative costs. Any
cost in excess of the application fee so imposed may be collected
from the obligor who owes the child or spousal support obligation
involved.
(i) The noncustodial parent shall be given equal access to
the legal services provided by the child support enforcement
division as are provided to the custodial parent. These legal
services include the preparation of standardized forms for both
parties which will facilitate appearances before the family law
master, or participation in other legal proceedings relating to
the purposes of this article. The forms shall be available to
both the custodial and noncustodial parents. The standardized
forms will include, but not be limited to, those which enable the
noncustodial parent to petition the family law master or circuit
court for modification of orders.
NOTE: The purpose of this bill is to require the Child
Advocate Office to provide legal services and standardized forms
to the noncustodial parent to the same degree legal services and
standardized forms are rendered to the custodial parent.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.