H. B. 2400
(By Delegates Webb and Faircloth)
[Introduced January 26, 1999; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section three, article three, chapter
forty-eight-a of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to removing
jurisdiction of the child advocate to collect or otherwise
seek to enforce the payment of alimony from one party to
another.
Be it enacted by the Legislature of West Virginia:
That section three, article three, chapter forty-eight-a of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted to read as follows:
ARTICLE 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 may 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 involving a claim for child support 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 child's primary caretaker is
an applicant for or recipient of aid to families with dependent
children, and when such the 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 the primary
caretaker is an applicant or recipient of aid to families with
dependent children, shall undertake to establish the paternity of
such the child.
(e) The children's advocate shall undertake to secure child
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 child 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
child 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 child 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 child support.
(f) The children's advocate shall pursue the enforcement of
child 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 child 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 child 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 child 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 the action will
determine the issue of support for the child: Provided, That
such the action shall be deemed to be is considered 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) Notwithstanding any other provision of law to the
contrary, the children's advocate may not seek to collect any
alimony from an individual on behalf of another individual. Nor
may the child advocate seek to enforce any existing order for
alimony against an individual on behalf of another individual.
NOTE: The purpose of this bill is to remove authority
resting with the child advocate to collect or otherwise seek to
enforce the payment of alimony from one party to another.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.