H. B. 2402


(By Delegates Webb and Faircloth)

[Introduced February 21, 2001; 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 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 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 temporary assistance for needy families, 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 the mother, alleged father or the primary caretaker of a child born out of wedlock, regardless of whether the mother, alleged father or the primary caretaker is an applicant or recipient of temporary assistance for needy families, shall undertake to establish the paternity of such child.
(e) The children's advocate shall undertake to secure child support for any individual who is receiving temporary assistance for needy families 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 individual is an applicant or recipient of temporary assistance for needy families, 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 action will determine the issue of support for the child: Provided, That such action shall be 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 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 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 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.