2002 Regular Session
To: Judiciary A
By: Representative Formby, Cameron, Chism, Jennings, Lott, Martinson, Moore (60th), Robertson, Wells-Smith
AN ACT TO PROVIDE THAT WHENEVER A PERSON IS REQUIRED TO MAKE CHILD SUPPORT PAYMENTS TO ANOTHER PERSON, THE OBLIGOR SHALL DEPOSIT THE PAYMENTS INTO AN ACCOUNT IN A FINANCIAL INSTITUTION, AND THE OBLIGEE SHALL BE ALLOWED TO ACCESS THE PAYMENTS IN THE ACCOUNT ONLY BY THE USE OF A DEBIT CARD; TO PROVIDE THAT WHENEVER A PERSON IS REQUIRED TO MAKE CHILD SUPPORT PAYMENTS TO THE DEPARTMENT OF HUMAN SERVICES, THE DEPARTMENT SHALL ALLOW THE OBLIGEE TO ACCESS THE CHILD SUPPORT PAYMENTS ONLY BY THE USE OF A DEBIT CARD; TO AMEND SECTIONS 43-19-35, 43-19-37, 43-19-39 AND 93-11-65, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING PROVISIONS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) Whenever a court orders a person to make periodic payments to another person for the support of a child, or wherever a person has entered into a written stipulated agreement to make periodic payments to another person for the support of a child, the obligor for the child support payments shall deposit the payments into an account in a financial institution located in the municipality or county in which the obligee resides. The obligee shall be allowed to access the child support payments in the account only by the use of a debit card, which the obligor shall provide to the obligee.
(2) Whenever a person is required to make periodic payments to the State Department of Human Services for the support of a child, the department shall allow the obligee to access the child support payments only by the use of a debit card, which the department shall provide to the obligee.
SECTION 2. Section 43-19-35, Mississippi Code of 1972, is amended as follows:
43-19-35. (1) By accepting public assistance for and on behalf of a child or children, the recipient shall be deemed to have made an assignment to the State Department of Human Services of any and all rights and interests in any cause of action, past, present or future, that the recipient or the children may have against any parent failing to provide for the support and maintenance of the minor child or children for the period of time that assistance is being paid by the department. The department shall be subrogated to any and all rights, title and interest the recipient or the children may have against any and all property belonging to the absent or nonsupporting parent in the enforcement of any claim for child or spousal support, whether liquidated through court order or not. The recipient shall also be deemed, without the necessity of signing any document, to have appointed the State Department of Human Services to act in his or her, as well as the children's, name, place, and stead to perform the specific act of instituting suit to establish paternity or secure support, collecting any and all amounts due and owing for child or spousal support as required or permitted under Title IV-D of the federal Social Security Act, and endorsing any and all drafts, checks, money orders or other negotiable instruments representing child or spousal support payments that are received on behalf of the recipient or the children, and retaining any portion thereof permitted under federal and state statutes as reimbursement for public assistance monies previously paid to the recipient or children.
(2) Court orders of support for any child or children receiving services through Title IV-D of the federal Social Security Act shall be amended, by operation of law, and without the necessity of a motion by the Child Support Unit and a hearing thereon to provide that the payment of support shall be directed by the absent parent to the Mississippi Department of Human Services Central Receipting and Disbursement Unit as provided in Section 43-19-37 and not to the recipient. The absent parent shall be notified of that amendment before it takes effect. Payments of support made by the absent parent to the Department of Human Services as provided under this subsection shall be subject to the provisions of subsection (2) of Section 1 of this act.
(3) Any attorney initiating legal proceedings under Sections 43-19-31 through 43-19-53 shall be deemed to represent the interest of the State Department of Human Services exclusively. No attorney-client relationship shall exist between the attorney and any recipient of services under Title IV-D of the federal Social Security Act for and on behalf of a child or children, regardless of the name in which the legal proceedings are initiated.
(4) The assignment to the State Department of Human Services shall be free of any legal or equitable defense to the payment of child support that may accrue to any person legally liable for the support of any child or children receiving aid from the State Department of Human Services, as a result of the conduct of the person who is accepting public assistance for and on behalf of the child or children.
SECTION 3. Section 43-19-37, Mississippi Code of 1972, is amended as follows:
43-19-37. (1) Court orders of support in all cases brought under the provisions of Sections 43-19-31 through 43-19-53 shall specify that the payment of court costs shall be directed by the absent parent to the Mississippi Department of Human Services Central Receipting and Disbursement Unit for further disbursement in the manner as prescribed by Title IV-D of the federal Social Security Act. Payments of support made by the absent parent to the Department of Human Services shall be subject to the provisions of subsection (2) of Section 1 of this act. Attorney's fees, if any, shall be paid directly to the Mississippi Department of Human Services Central Receipting and Disbursement Unit in cases instituted by the department, in a manner separate and distinct from the payment of child support. Any payments made by the absent parent directly to the recipient or applicant in violation of the court order shall not be deemed to be a support payment and shall not be credited to the court-ordered obligation of the absent parent. Failure of the absent parent to comply with an order of support for a period of thirty (30) days shall be directed to the court having jurisdiction of the matter for contempt proceedings or execution issued in the manner and form prescribed by statute. If civil proceedings become ineffective in producing support in any case involving a legitimate child or a child in which paternity has been established by law or acknowledged in writing, the case shall promptly be referred to the district attorney for prosecution as a violation of Section 97-5-3.
(2) Each application, petition, order or filing made under this section shall include the social security number(s) of the applicant or father, mother and child(ren), as applicable, in accordance with Section 93-11-64.
SECTION 4. Section 43-19-39, Mississippi Code of 1972, is amended as follows:
43-19-39. (1) All child support payments collected by the child support unit under Section 43-19-35 shall be distributed in the manner as prescribed by the federal Social Security Act and any amendments adopted thereto. Child support payments collected by the child support unit shall be subject to the provisions of subsection (2) of Section 1 of this act. Nothing contained herein shall preclude the child support unit in processing a paternity or support action for and on behalf of a child or children receiving Temporary Assistance to Needy Families (TANF) grants in which the applicant or recipient has refused cooperation. If a parent of any child receiving public assistance fails or refuses to cooperate with the local county department or child support unit in locating and securing support from the nonsupporting responsible parent, this parent may be cited to appear before the judge of any court having jurisdiction over the matter and compelled to disclose that information under oath. Any parent who, having been cited to appear before a judge of the court having jurisdiction over such matter, fails or refuses to appear or fails or refuses to provide the information requested may be found to be in contempt of the court and may be fined not more than One Hundred Dollars ($100.00) or imprisoned not more than six (6) months or both.
(2) In a manner which is consistent with the federal Social Security Act, any amendments thereto and its implementing regulations, the child support unit is * * * authorized to withhold from distribution any payment or portion thereof which it may receive on behalf of a child or children for whom it is providing services if reimbursement is needed for any payments that may have been mistakenly or erroneously advanced on behalf of that child or children. The child support unit shall adopt policies that minimize any hardship that is caused by withholding from distribution any current support payments to reimburse past mistaken or erroneous advancements.
SECTION 5. Section 93-11-65, Mississippi Code of 1972, is amended as follows:
93-11-65. (1) (a) In addition to the right to proceed under Section 93-5-23, and in addition to the remedy of habeas corpus in proper cases, and other existing remedies, the chancery court of the proper county shall have jurisdiction to entertain suits for the custody, care, support and maintenance of minor children and to hear and determine all such matters, and shall, if need be, require bond, sureties or other guarantee to secure any order for periodic payments for the maintenance or support of a child. If a legally responsible parent has health insurance available to him or her through an employer or organization that may extend benefits to the dependents of the parent, any order of support issued against the parent may require him or her to exercise the option of additional coverage in favor of the children as he or she is legally responsible to support. Proceedings may be brought by or against a resident or nonresident of the State of Mississippi, whether or not having the actual custody of minor children, for the purpose of judicially determining the legal custody of a child. All actions * * * authorized in this section may be brought in the county where the child is actually residing, or in the county of the residence of the party who has actual custody, or of the residence of the defendant. Process shall be had upon the parties as provided by law for process in person or by publication, if they are nonresidents of the state or residents of another jurisdiction or are not found therein after diligent search and inquiry or are unknown after diligent search and inquiry. * * * The court or chancellor in vacation may fix a date in termtime or in vacation to which process may be returnable and shall have power to proceed in termtime or vacation. * * * If the court * * * finds that both parties are fit and proper persons to have custody of the children, and that either party is able to adequately provide for the care and maintenance of the children, and that it would be to the best interest and welfare of the children, then any such child who has reached his twelfth birthday shall have the privilege of choosing the parent with whom he will live.
(b) An order of child support shall specify the sum to be paid weekly or otherwise. In addition to providing for support and education, the order shall also provide for the support of the child before the making of the order for child support, and such other expenses as the court may deem proper.
(c) The court may require the payment to be made to the custodial parent, or to some person or corporation to be designated by the court as trustee, but if the child or custodial parent is receiving public assistance, the Department of Human Services shall be made the trustee. If the court requires the payments to be made to the custodial parent, the payments shall be subject to the provisions of subsection (1) of Section 1 of this act.
(d) The noncustodial parent's liabilities for past education and necessary support and maintenance and other expenses are limited to a period of one (1) year next preceding the commencement of an action.
(2) * * * Where the proof shows that both parents have separate incomes or estates, the court may require that each parent contribute to the support and maintenance of the children in proportion to the relative financial ability of each.
(3) Whenever the court has ordered a party to make periodic payments for the maintenance or support of a child, but no bond, sureties or other guarantee has been required to secure the payments, and whenever the payments that have become due remain unpaid for a period of at least thirty (30) days, the court may, upon petition of the person to whom the payments are owing, or the person's legal representative, enter an order requiring that bond, sureties or other security be given by the person obligated to make the payments, the amount and sufficiency of which shall be approved by the court. The obligor shall, as in other civil actions, be served with process and shall be entitled to a hearing in that case.
(4) When a charge of abuse or neglect of a child first arises in the course of a custody or maintenance action pending in the chancery court under this section, the chancery court may proceed with the investigation, hearing and determination of the abuse or neglect charge as a part of its hearing and determination of the custody or maintenance issue as between the parents, as provided in Section 43-21-151, notwithstanding the other provisions of the Youth Court Law. The proceedings in chancery court on the abuse or neglect charge shall be confidential in the same manner as provided in youth court proceedings, and the chancery court shall appoint a guardian ad litem in those cases, as provided under Section 43-21-121 for youth court proceedings, who shall be an attorney. Unless the chancery court's jurisdiction has been terminated, all disposition orders in those cases for placement with the Department of Human Services shall be reviewed by the court or designated authority at least annually to determine if continued placement with the department is in the best interest of the child or the public.
(5) Each party to a paternity or child support proceeding shall notify the other within five (5) days after any change of address. In addition, the noncustodial and custodial parent shall file and update, with the court and with the state case registry, information on that party's location and identity, including social security number, residential and mailing addresses, telephone numbers, photograph, driver's license number, and name, address and telephone number of the party's employer. This information shall be required upon entry of an order or within five (5) days of a change of address.
(6) In any case subsequently enforced by the Department of Human Services under Title IV-D of the Social Security Act, the court shall have continuing jurisdiction.
(7) In any subsequent child support enforcement action between the parties, upon sufficient showing that diligent effort has been made to ascertain the location of a party, due process requirements for notice and service of process shall be deemed to be met with respect to the party upon delivery of written notice to the most recent residential or employer address filed with the state case registry.
(8) The duty of support of a child terminates upon the emancipation of the child. The court may determine that emancipation has occurred and no other support obligation exists when the child:
(a) Attains the age of twenty-one (21) years, or
(b) Marries, or
(c) Discontinues full-time enrollment in school and obtains full-time employment prior to attaining the age of twenty-one (21) years, or
(d) Voluntarily moves from the home of the custodial parent or guardian and establishes independent living arrangements and obtains full-time employment prior to attaining the age of twenty-one (21) years.
(9) Upon motion of a party requesting temporary child support pending a determination of parentage, temporary support shall be ordered if there is clear and convincing evidence of paternity on the basis of genetic tests or other evidence, unless the court makes written findings of fact on the record that the award of temporary support would be unjust or inappropriate in a particular case.
SECTION 6. This act shall take effect and be in force from and after July 1, 2002.