ENGROSSED

Senate Bill No. 574

(By Senators Redd and Boley)

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[Introduced February 12, 2002;

referred to the Committee on the Judiciary.]

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A BILL to amend and reenact sections three hundred two and three hundred seven, article one, chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section one hundred three, article eleven of said chapter; to amend and reenact section one hundred eleven, article twelve of said chapter; to further amend said article by adding thereto a new section, designated section one hundred eighteen; to amend and reenact sections four hundred one, four hundred six, four hundred seven and eight hundred one, article fourteen of said chapter; to amend and reenact sections one hundred twenty-five and one hundred thirty-two, article eighteen of said chapter; and to amend and reenact sections one hundred one and one hundred three, article twenty-four of said chapter, all relating to child support generally; clarifying code citations; reenacting sections omitted in recodification; providing for the continuation of amnesty for child support arrears; providing for payment of child support past age eighteen to a custodian as well as a parent; providing for recognition of interstate medical support; civil and criminal penalties for failure of an employer to enroll a child in medical insurance coverage; providing for reporting of start date of employees upon request of the bureau for child support enforcement; payment of support by income withholding; changing the threshold for an increase in monthly support to satisfy arrears; and clarifying genetic testing.

Be it enacted by the Legislature of West Virginia:
That sections three hundred two and three hundred seven, article one, chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that section one hundred three, article eleven of said chapter be amended and reenacted; that section one hundred eleven, article twelve of said chapter be amended and reenacted; that said article be further amended by adding thereto a new section, designated section one hundred eighteen; that sections four hundred one, four hundred six, four hundred seven and eight hundred one, article fourteen of said chapter be amended and reenacted; that sections one hundred twenty-five and one hundred thirty-two, article eighteen of said chapter be amended and reenacted; and that sections one hundred one and one hundred three, article twenty-four of said chapter be amended and reenacted, all to read as follows:
ARTICLE 1. GENERAL PROVISIONS; DEFINITIONS.
PART 3. MISCELLANEOUS PROVISIONS RELATING

TO DOMESTIC RELATIONS.

§48-1-302. Calculation of interest.
(a) If an obligation to pay interest arises under this chapter, the rate of interest is that specified in section 56-6-31 of this code. Interest accrues only upon the outstanding principal of such obligation. On and after the ninth day of June, one thousand nine hundred ninety-five, this section will be construed to permit the accumulation of simple interest and may not be construed to permit the compounding of interest. Interest which accrued on unpaid installments accruing before the ninth day of June, one thousand nine hundred ninety-five, may not be modified by any court, irrespective of whether such installment accrued simple or compound interest: Provided, That unpaid installments upon which interest was compounded before the effective date of this section shall accrue only simple interest thereon on and after the ninth day of June, one thousand nine hundred ninety-five.
(b) Notwithstanding any other provision of law, no court may award or approve prejudgment interest in a domestic relations action against a party unless the court finds, in writing, that the party engaged in conduct that would violate subsection (b), rule eleven of the West Virginia rules of civil procedure. If prejudgment interest is awarded, the court shall calculate prejudgment interest from the date the offending representation was presented to the court.
(c) Upon written agreement by both parties, an obligor may petition the court to enter an order conditionally suspending the collection of all or part of the interest that has accrued on past due child support prior to the date of the agreement: Provided, That said agreement shall also establish a reasonable payment plan which is calculated to fully discharge all arrearages within twenty-four months. Upon successful completion of the payment plan, the court shall enter an order which permanently relieves the obligor of the obligation to pay the accrued interest. If the obligor fails to comply with the terms of the written agreement, then the court shall enter an order which reinstates the accrued interest. Any proceeding commenced pursuant to the provisions of this subsection may only be filed after the first day of January, two thousand one and before the thirty-first day of December, two thousand one.
§48-1-307. Collection of child or spousal support by collection agencies.

(a) Any person attempting to collect a child or spousal support obligation or arrearage on behalf of a resident or from a resident of this state is subject to the provisions of article sixteen, chapter forty-seven of this code and the provisions of this section and is otherwise subject to the jurisdiction of this state.
(b) The amount of delinquent child or spousal support or arrearage established by order of a court of competent jurisdiction in this state is not subject to waiver or compromise, either by agreement of the parties or by a collection agency acting on behalf of a party and may only be modified by an order of a court of competent jurisdiction.
(c) No child or spousal support or arrearage of child or spousal support collected by the state IV-D agency may be redirected to any collection agency.
(d) No collection agency attempting to collect a child or spousal support obligation or arrearage on behalf of a resident or from a resident of this state may include any funds collected by a IV-D agency in the amount from which their fee is determined or collected.
(e) No collection agency, other than an attorney licensed to practice law in this state, attempting to collect a child support or spousal support obligation or arrearage may engage in conduct which is considered the practice of law, including, but not limited to:
(1) The performance of legal services, the offering of legal advice or the making of a false representation, directly or by implication, that a person is an attorney;
(2) Any communication with persons in the name of an attorney or upon stationery or other written matter bearing an attorney's name; and
(3) Any demand for or payment of money constituting a share of compensation for services performed or to be performed by an attorney in collecting a claim.
(f) No collection agency may collect or attempt to collect any money alleged to be due and owing by any threat, coercion or attempt to coerce, including, but not limited to:
(1) The use, or the express or implicit threat of use, of violence or other criminal means, to cause harm to the person, reputation or property of any person;
(2) The accusation or threat to accuse any person of fraud, of any crime, or of any conduct which, if true, would tend to disgrace the other person or in any way subject them to ridicule or contempt of society;
(3) False accusations made to another person, including any credit reporting agency, that a person is willfully refusing to pay a just claim, or the threat to make such false accusations;
(4) The threat that nonpayment of an alleged claim will result in the arrest of any person, or of the taking of any other action requiring judicial sanction, without informing the person that there must be in effect a court order permitting the action before it can be taken; and
(5) The threat to take any action prohibited by this section or other law regulating the conduct of a collection agency.
(g) No collection agency may unreasonably oppress or abuse any person in connection with the collection of or attempt to collect any child or spousal support obligation or arrearage, including, but not limited to:
(1) The use of profane or obscene language or language that is intended to unreasonably abuse the listener or reader;
(2) The placement of telephone calls without disclosure of the caller's identity and with the intent to annoy, harass or threaten any person at the called number;
(3) Causing expense to any person in the form of long distance telephone tolls, telegram fees or other charges incurred by a medium of communication by concealment of the true purpose of the communication; and
(4) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously, or at unusual times or at times known to be inconvenient, with intent to annoy, abuse, oppress or threaten any person at the called number.
(h) No collection agency may unreasonably publicize information relating to any alleged child or spousal support obligation or arrearage, including, but not limited to:
(1) The communication to any employer or his or her agent of any information relating to an employee's indebtedness other than through proper legal action, process or proceeding;
(2) The disclosure, publication or communication of information relating to a child or spousal support obligation or arrearage to any relative or family member of the obligor, except through proper legal action or process or at the express and unsolicited request of the obligor;
(3) The disclosure, publication or communication of any information relating to an obligor's child or spousal support obligation or arrearage to any other person other than a credit reporting agency, by publishing or posting any list of persons, commonly known as "deadbeat lists", or in any manner other than through proper legal action, process or proceeding; and
(4) The use of any form of communication to the obligor, which ordinarily may be seen by any other person, that displays or conveys any information about the alleged claim other than the name, address and telephone number of the collection agency.
(i) No collection agency may use any fraudulent, deceptive or misleading representation or means to collect or attempt to collect claims or to obtain information concerning support obligors, including, but not limited to:
(1) The use of any business, company or organization name while engaged in the collection of claims, other than the true name of the collection agency's business, company or organization;
(2) Any false representation that the collection agency has in its possession information or something of value for the obligor with the underlying purpose of soliciting or discovering information about the person;
(3) The failure to clearly disclose the name of the person to whom the claim is owed, at the time of making any demand for money;
(4) Any false representation or implication of the character, extent or amount of a claim against an obligor or of the status of any legal proceeding;
(5) Any false representation or false implication that any collection agency is vouched for, bonded by, affiliated with an agency, instrumentality, agent or official of this state or of the federal or local government;
(6) The use, distribution or sale of any written communication which simulates or is falsely represented to be a document authorized, issued or approved by a court, an official or any other legally constituted or authorized authority, or which creates a false impression about its source, authorization or approval;
(7) Any representation that an existing obligation of the obligor may be increased by the addition of attorney's fees, investigation fees, service fees or any other fees or charges when in fact the fees or charges may not legally be added to the existing obligation; and
(8) Any false representation or false impression about the status or true nature of the services rendered by the collection agency.
(j) No collection agency may use unfair or unconscionable means to collect or attempt to collect any claim, including, but not limited to:
(1) The collection of or the attempt to collect any interest in excess of that interest authorized by the provisions of this chapter, or other charge, fee or expense incidental to the principal obligation that exceeds ten percent of the principal amount from an obligor or obligee; and
(2) Any communication with an obligor whenever it appears the obligor is represented by an attorney and the attorney's name and address are known, or could be easily ascertained, unless the attorney fails to answer correspondence, return telephone calls or discuss the obligation in question, or unless the attorney and the obligor consent to direct communication.
(k) No collection agency may use, distribute, sell or prepare for use any written communication which violates or fails to conform to United States postal laws and regulations.
(l) No collection agency may place a telephone call or otherwise communicate by telephone with an obligor at any place, including a place of employment, falsely stating that the call is "urgent" or an "emergency".
(m) No collection agency may attempt to collect any portion of a fee from any money collected by any other entity or authority. The collection agency may only collect a fee from funds procured solely through its collection activities.
(n) A collection agency must provide the state IV-D agency with an accounting of any money collected and forwarded to the obligee as child support, spousal support or arrearages every sixty days until the collection agency ceases all collection activity.
(o) Any resident of this state who contracts for services with a collection agency to collect current or past due child support or spousal support arrearages may, upon thirty days written notice, cancel the contract for collection. The notice must be mailed to the collection agency by first class mail. All contracts signed by residents of this state must include written notification of this right of cancellation.
(p) Any person who violates the provisions of this section is subject to the penalties set forth in section 47-16-5 and section 11-12-9.
(q) Any person who violates the provisions of this section is liable to the injured party in a civil action. Additionally, any person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one thousand dollars nor more than five thousand dollars for each separate incident.
(r) For any action filed pursuant to this section alleging illegal, fraudulent or unconscionable conduct or any prohibited debt collection practice, the court, in its discretion, may award all or a portion of the costs of litigation, including reasonable attorney fees, court costs and fees, to the injured party. Upon a finding by the court that an action filed pursuant to this section on the grounds of illegal, fraudulent or unconscionable conduct or any prohibited debt collection practice was brought in bad faith and for the purposes of harassment, the court may award the defendant reasonable attorney fees.
ARTICLE 11. SUPPORT OF CHILDREN.
§48-11-103. Child support beyond age eighteen.
(a) Upon a specific finding of good cause shown and upon findings of fact and conclusions of law in support thereof, an order for child support may provide that payments of such support continue beyond the date when the child reaches the age of eighteen, so long as the child is unmarried and residing with a parent, guardian or custodian and is enrolled as a full-time student in a secondary educational or vocational program and making substantial progress towards a diploma: Provided, That such payments may not extend past the date that the child reaches the age of twenty.
(b) Nothing herein shall be construed to abrogate or modify existing case law regarding the eligibility of handicapped or disabled children to receive child support beyond the age of eighteen.
(c) The reenactment of this section during the regular session of the Legislature in the year one thousand nine hundred ninety-four shall not, by operation of law, have any effect upon or vacate any order or portion thereof entered under the prior enactment of this section which awarded educational and related expenses for an adult child accepted or enrolled and making satisfactory progress in an educational program at a certified or accredited college. Any such order or portion thereof shall continue in full force and effect until the court, upon motion of a party, modifies or vacates the order upon a finding that:
(1) The facts and circumstances which supported the entry of the original order have changed, in which case the order may be modified;
(2) The facts and circumstances which supported the entry of the original order no longer exist because the child has not been accepted or is not enrolled in and making satisfactory progress in an educational program at a certified or accredited college, or the parent ordered to pay such educational and related expenses is no longer able to make such payments, in which case the order shall be vacated;
(3) The child, at the time the order was entered, was under the age of sixteen years, in which case the order shall be vacated;
(4) The amount ordered to be paid was determined by an application of child support guidelines in accordance with the provisions of article 13-101, et seq., or legislative rules promulgated thereunder, in which case the order may be modified or vacated; or
(5) The order was entered after the fourteenth day of March, one thousand nine hundred ninety-four, in which case the order shall be vacated.
ARTICLE 12. MEDICAL SUPPORT.
§48-12-111. Employer's duties upon service of national medical support notice; notice from another state.

(a) Upon service of the national medical support notice requiring insurance coverage for the children, the employer, multiemployer 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, unless the child is already enrolled in this plan.
(b) If more than one plan is offered by the employer, multiemployer trust or union, the child shall be enrolled in the same plan as the obligated parent. If the obligated parent is not enrolled for insurance coverage, the employer shall promptly report the availability of plans to the IV-D agency. The IV-D agency, in consultation with parent, shall promptly select the most appropriate plan, considering both the health needs of the child and the cost to the parents, and shall notify the plan administrator and the parties of the selection.
(c) Insurance coverage for the child which is ordered pursuant to the provisions of this section shall not be terminated except as provided in section one hundred fifteen of this chapter article.
(d) A medical support notice issued by the appropriate IV-D agency of another state may be sent directly to an employer in this state without the necessity of first filing a petition or similar pleading or registering the order with the IV-D agency of this state. The medical support notice shall have the same force and effect as if the notice had been issued by the IV-D agency of this state. Upon receipt of a medical support notice from the IV-D agency of another state, the employer shall immediately provide a copy of the notice to the obligor.
§48-12-118.Failure of employer to comply with medical insurance coverage; penalties.

For the failure of any employer, multiemployer trust or employee's union to comply with the requirements of this article the bureau for child support enforcement may assess a civil penalty of not more than one hundred dollars. If a court of competent jurisdiction determines that the employer, multiemployer trust or the employee's union wilfully failed to comply with the provisions of this article the employer, multiemployer trust or employee's union shall be found guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than five hundred dollars nor more than one thousand dollars.
ARTICLE 14. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS.
PART 4. WITHHOLDING OF INCOME OF AMOUNTS PAYABLE AS SUPPORT.

 §48-14-401. Support orders to provide for withholding from income.
(a) Every order entered or modified under the provisions of this article that requires the payment of child support or spousal support must include a provision for automatic withholding from income of the obligor in order to facilitate income withholding as a means of collecting support.
(b) Every support order heretofore or hereafter entered by a court of competent jurisdiction is considered to provide for an order of income withholding, notwithstanding the fact that the support order does not in fact provide for an order of withholding. Income withholding may be instituted under this part for any arrearage without the necessity of additional judicial or legal action.
(c) Every such order as described in subsection (a) of this section shall contain language authorizing income withholding for both current support and for any arrearages to commence without further court action as follows:
(1) The order shall provide that income withholding shall begin immediately, without regard to whether there is an arrearage;
(A) When a child for whom support is ordered is included or becomes included in a grant of assistance from the division of human services or a similar agency of a sister state for temporary assistance for needy families benefits, medical assistance only benefits or foster care benefits and is referred to the bureau for child support enforcement; or
(B) When the support obligee has applied for services from the bureau for child support enforcement created pursuant to section 18-101, et seq., of this chapter, or the support enforcement agency of another state or is otherwise receiving services from the bureau for child support enforcement as provided for in this chapter. In any case where one of the parties demonstrates, and the court finds, that there is good cause not to require immediate income withholding, or in any case where there is filed with the court a written agreement between the parties which provides for an alternative arrangement, such order shall not provide for income withholding to begin immediately, pursuant to article fourteen, section four hundred three of this chapter.
§48-14-406. Notice to source of income; withholding in compliance with order.

(a) Withholding shall occur and the notice to withhold shall be sent either by first class mail or by electronic means to the source of income when the support order provides for immediate income withholding pursuant to sections four hundred one and four hundred two, of this article or if immediate income withholding is not so provided, when the support payments are in arrears in the amount specified in section 403 [§ 48-14-403] of this article.
(b) 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 for both current support and for any arrearages which are due. Such withholding, unless otherwise terminated under the provisions of this part, shall apply to any subsequent source of income or any subsequent period of time during which income is received by the obligor.
(c) In addition to any amounts payable as support withheld form 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.
§48-14-407. Contents of notice to source of income.
(a)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 bureau for child support enforcement 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 and no source of income may require additional information or documentation. 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 to the bureau for child support enforcement, along with such identifying information as may be required by the bureau, 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 cots incurred by the source of income for each withholding.
(4) That withholding is binding on the source of income until further notice by the bureau for child support enforcement or until the source of income notifies the bureau for child support enforcement of a termination of the obligor's employment in accordance with the provisions of subsection (l) section four hundred twelve of this section article;
(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 part 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 payments to the bureau for child support enforcement when the employer properly identifies each payment with the information listed in this part. 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 part 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 bureau for child support enforcement 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.
(b) The commission shall, by administrative rule, establish procedures for promptly refunding to obligors amounts which have been improperly withheld under the provisions of this part.
§48-14-801. When monthly payments may be increased to satisfy overdue support.

(a) For the purpose of securing overdue support, the bureau for child support enforcement has the authority to increase the monthly support payments of an obligor by as much as one hundred dollars per month to satisfy the arrearage where the obligor when:
(1) Owes an arrearage of not less than eight thousand dollars;
(1) An obligor has failed to make payments as required by a support order and arrears are equal to an amount of support payable for six months if the order requires support to be paid in monthly installments; or
(2) An obligor has failed to make payments as required by a support order and arrears are equal to an amount of support payable for twenty-seven weeks if the order requires support to be paid in weekly or biweekly installments.; or
(2)
Has not paid support for twelve consecutive months

(b)An increase in monthly support under this section will be in addition to any amounts withheld from income pursuant to part 4 of this article.
(c) This increase in monthly support may be enforced through the withholding process.
ARTICLE 18. BUREAU FOR CHILD SUPPORT ENFORCEMENT.
§48-18-125. Employment and income reporting.

(a) For purposes of this section:
(1) "Employee" means an individual who is an "employee" for purposes of federal income tax withholding, as defined in 26 U.S.C. §3401;
(2) "Employer" means the person or entity for whom an individual performs or performed any service of whatever nature and who has control of the payment of the individual's wages for performance of such service or services, as defined in 26 U.S.C. §3401;
(3) An individual is considered a "new hire" on the first day in which that individual performs services for remuneration and on 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 bureau for child support enforcement:
(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 could endanger the safety of the employee or compromise an ongoing investigation or intelligence mission.
(d) An employer that has employees in states other than this state and that transmits reports magnetically or electronically is not required to report to the bureau for child support enforcement the hiring, rehiring or return to work of any employee if the employer has filed with the secretary of the federal department of health and human services, as required by 42 U.S.C. §653A, a written designation of another state in which it has employees as the reporting state.
(e) Employers shall report by mailing to the bureau for child support enforcement 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 bureau for child support enforcement prior to the transmittal. The report shall include the employee's name, address and social security number, 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 shall provide to the bureau for child support enforcement, upon its written request, information regarding an obligor's employment, wages or salary, medical insurance, start date 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 not to 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 bureau for child support enforcement shall use information received pursuant to this section to locate individuals for purposes of establishing paternity and of establishing, modifying and enforcing child support obligations and may disclose such information to any agent of the agency that is under contract with the bureau to carry out such purposes;
(3) State agencies 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) The bureau of employment programs shall have access to information reported by employers for purposes of administering employment security and workers' compensation programs.
 §48-18-132. 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 bureau for child support enforcement or any out-of-state agency administering a program under Title IV-D of the Social Security Act shall cooperate with the bureau or with the out-of-state agency in the location of parents who have abandoned and deserted children and shall provide the bureau or the out-of-state agency 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 bureau 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 bureau 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 bureau for child support enforcement shall have access, subject to safeguards on privacy and information security, and to the nonliability 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, one hundred twenty three, article two eighteen of this chapter; and
(ii) Information, including information on assets and liabilities, on such individuals held by financial institutions.
(2) Out-of-state agencies administering programs under Title IV-D of the Social Security Act shall, without the need for any court order, have the authority to access records in this state by making a request through the bureau for child support enforcement.
(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) 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 bureau for child support enforcement 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.
(g) No state, county or municipal agency or licensing board required to release information pursuant to the provisions of this section to the bureau for child support enforcement or to any out-of-state agency administering programs under Title IV-D of the Social Security Act may require the bureau for child support enforcement or any out-of-state agency to obtain a court order prior to the release of the information.
(h) Any information received pursuant to the provisions of this section is subject to the confidentiality provisions set forth in section 18-131 of this chapter.
ARTICLE 24. ESTABLISHMENT OF PATERNITY.

§48-24-101. 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 family 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.
(b) A "paternity proceeding" is a summary proceeding, equitable in nature and within the domestic relations jurisdiction of the courts, wherein a family 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. The parties to a paternity proceeding 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 respondent, rather than her husband, is the father of the child;
(3) The state of West Virginia, including the bureau for child support enforcement;
(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 or her own right at any time after the child's eighteenth birthday but prior to the child's twenty-first birthday; or
(8) A man who believes he is the father of a child born out of wedlock when there has been no prior judicial determination of paternity.
(f) If a paternity proceeding is brought that names the father of the child as being someone other than the person whose name appears on the child's birth certificate, then the person bringing the action shall cause a copy of the verified complaint to be served on the person named as the father on the birth certificate. Service must be in accordance with rule 4 of the rules of civil procedure.
(f)(g) 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)(h) 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)(i) 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.
§48-24-103. Medical testing procedures to aid in the determination of paternity.

(a) Prior to the commencement of an action for the establishment of paternity, the bureau for child support enforcement may order the mother, her child and the man to submit to genetic tests to aid in proving or disproving paternity. The bureau may order the tests upon the request, supported by a sworn statement, of any person entitled to petition the court for a determination of paternity as provided in section one of this article. If the request is made by a party alleging paternity, the statement shall set forth facts establishing a reasonable possibility or requisite sexual contact between the parties. If the request is made by a party denying paternity, the statement may set forth facts establishing a reasonable possibility of the nonexistence of sexual contact between the parties or other facts supporting a denial of paternity. If genetic testing is not performed pursuant to an order of the bureau for child support enforcement, the court may, on its own motion or shall upon the motion of any party, order such tests. A request or motion may be made upon ten days' written notice to the mother and alleged father without the necessity of filing a complaint. When the tests are ordered, the court or the bureau shall direct that the inherited characteristics, including, but not limited to, blood types, be determined by appropriate testing procedures at a hospital, independent medical institution or independent medical laboratory duly licensed under the laws of this state or any other state and an expert qualified as an examiner of genetic markers shall analyze, interpret and report on the results to the court or to the bureau for child support enforcement. The results shall be considered as follows:
(1) Blood or tissue test results which exclude the man as the father of the child are admissible and shall be clear and convincing evidence of nonpaternity and, if a complaint has been filed, the court shall, upon considering such evidence, dismiss the action.
(2) Blood or tissue test results which show a statistical probability of paternity of less than ninety-eight percent are admissible and shall be weighed along with other evidence of the respondent's paternity.
(3) Undisputed blood or tissue test results which show a statistical probability of paternity of more than ninety-eight percent shall, when filed, legally establish the man as the father of the child for all purposes and child support may be established pursuant to the provisions of this chapter.
(4) When a party desires to challenge the results of the blood or tissue tests or the expert's analysis of inherited characteristics, he or she shall file a written protest with the family court or with the bureau for child support enforcement, if appropriate, within thirty days of the filing of such test results and serve a copy of such protest upon the other party. The written protest shall be filed at least thirty days prior to any hearing involving the test results. The court or the bureau for child support enforcement, upon reasonable request of a party, shall order that additional tests be made by the same laboratory or another laboratory within thirty days of the entry of the order, at the expense of the party requesting additional testing. Costs shall be paid in advance of the testing. When the results of the blood or tissue tests or the expert's analysis which show a statistical probability of paternity of more than ninety-eight percent are confirmed by the additional testing, then the results are admissible evidence which is clear and convincing evidence of paternity. The admission of the evidence creates a presumption that the man tested is the father.
(b) Documentation of the chain of custody of the blood or tissue specimens is competent evidence to establish the chain of custody. A verified expert's report shall be admitted at trial unless a challenge to the testing procedures or a challenge to the results of test analysis has been made before trial. The costs and expenses of making the tests shall be paid by the parties in proportions and at times determined by the court.
(c) Except as provided in subsection (d) of this section, when a blood or tissue test is ordered pursuant to this section, the moving party shall initially bear all costs associated with the blood or tissue test unless that party is determined by the court to be financially unable to pay those costs. This determination shall be made following the filing of an affidavit pursuant to section one, article two, chapter fifty-nine of this code. When the court finds that the moving party is unable to bear that cost, the cost shall be borne by the state of West Virginia. Following the finding that a person is the father based on the results of a blood or tissue test ordered pursuant to this section, the court shall order that the father be ordered to reimburse the moving party for the costs of the blood or tissue tests unless the court determines, based upon the factors set forth in this section, that the father is financially unable to pay those costs.
(d) When a blood or tissue test is ordered by the bureau for child support enforcement, the bureau shall initially bear all costs subject to recoupment from the alleged father if paternity is established.