2003 Regular Session
To: Public Health and Welfare; Appropriations
By: Senator(s) Huggins
AN ACT TO AMEND SECTIONS 43-19-31 AND 43-19-35, MISSISSIPPI CODE OF 1972, TO DEFINE THE RANGE OF SERVICES TO BE PROVIDED BY THE DEPARTMENT OF HUMAN SERVICES THROUGH ITS CHILD SUPPORT UNIT AND TO PROVIDE THAT COURT COSTS AND ATTORNEY'S FEES RECOVERED BY THE CHILD SUPPORT UNIT SHALL BE DEPOSITED IN A SPECIAL FUND FOR CHILD SUPPORT SERVICES; TO AMEND SECTION 43-19-37, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT ATTORNEY'S FEES SHALL BE ASSESSED BY THE COURT IN CHILD SUPPORT AND PATERNITY ACTIONS BROUGHT BY THE CHILD SUPPORT UNIT OF THE DEPARTMENT OF HUMAN SERVICES, AND THAT SUCH ATTORNEY'S FEES SHALL BE USED TO MATCH FEDERAL FUNDS FOR THE SUPPORT OF THE LEGAL DIVISION OF THE CHILD SUPPORT UNIT; TO AMEND SECTIONS 43-19-47 AND 43-19-55, MISSISSIPPI CODE OF 1972, TO PROVIDE A MINIMUM SALARY FOR STAFF AND SENIOR ATTORNEYS IN THE CHILD SUPPORT UNIT TO BE PAID FROM THE SPECIAL FUND FOR CHILD SUPPORT SERVICES, AND TO AUTHORIZE THE EMPLOYMENT OF CONTRACT ATTORNEYS FOR CHILD SUPPORT ENFORCEMENT SERVICES; TO AMEND SECTIONS 93-9-9 AND 9-5-255, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR MINIMUM ATTORNEY'S FEES IN PATERNITY AND FAMILY MASTER ACTIONS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 43-19-31, Mississippi Code of 1972, is amended as follows:
43-19-31. The Department of Human Services is hereby authorized and empowered to establish a single and separate Child Support Unit for the following purposes:
(a) To develop and implement a nonsupport and paternity program and institute proceedings in the name of the Department of Human Services or in the name of the recipient in any court of competent jurisdiction in any county where the mother of the child resides or is found, in the county where the father resides or is found, or in the county where the child resides or is found;
(b) To secure and collect support by any method authorized under state law and establish paternity for any child or children receiving aid from the department any form of public assistance, including, but not limited to, medical assistance, foster care, food stamps, TANF, or any other program under the federal Social Security Act, from a parent or any other person legally liable for such support who has either failed or refused to provide support, deserted, neglected or abandoned the child or children, including cooperating with other states in establishing paternity, locating absent parents and securing compliance with court orders for support of Temporary Assistance for Needy Families (TANF) children; the department may petition the court for the inclusion of health insurance as part of any child support order on behalf of any child receiving aid from the department unless good cause for noncooperation, as defined by the Social Security Act or the Mississippi Department of Human Services, is established. Unless notified to the contrary, whenever a child or children for whom child support services have been provided ceases to receive public assistance, the department will continue to provide services and establish paternity, secure and collect such support payments from a parent or any other person legally liable for such support in accordance with the standards prescribed pursuant to the federal Social Security Act;
(c) To accept applications for child support enforcement services to establish paternity, secure and collect support from any proper party or person as defined by Title IV-D of the federal Social Security Act notwithstanding the fact that the child or children do not currently receive or have never received public assistance. The department shall have the authority to secure and collect support by any method authorized under state law and establish paternity for any child or children on behalf of a recipient of child support services, including individuals who do not currently receive or have never received public assistance from a parent or any other person legally liable for such support who has either failed or refused to provide support, deserted, neglected or abandoned the child or children, including cooperating with other states in establishing paternity, locating absent parents and securing compliance with court orders for support; the department may petition the court for the inclusion of health insurance as part of any child support order on behalf of such recipients of child support services. The proceeds of any collections resulting from such application shall be distributed in accordance with the standards prescribed in the federal Social Security Act;
(d) The department shall seek to recover from the individual who owes a support obligation to any individual who is a recipient of Title IV-D services as set forth in paragraph (b) or (c) on whose behalf the department is providing services, upon judicial proceedings conducted thereon after advance notice to such obligor, reasonable attorney's fees and court costs, in excess of any administrative fees collected and in excess of amounts of current support owed by the obligor, which the department incurs in recovering and collecting the support obligation, such costs and fees as the department recovers to be deposited in the Special Fund of the Mississippi Department of Human Services which is hereby established for the pursuit and collection of child support;
(e) To initiate contempt of court proceedings or any other remedial proceedings necessary to enforce (i) any order or decree of court relating to child support, and (ii) any order or decree of court relating to the maintenance and/or alimony of a parent where support collection services on his or her child's behalf are being provided by the department;
(f) To secure and collect by any method authorized under state law any maintenance and/or alimony on behalf of a parent whose child or children's support is being collected by the department. The department shall collect only such maintenance and/or alimony as is ordered or decreed by the court, and only in the event that the minor child and parent to whom such maintenance and/or alimony has been ordered are living in the same household;
(g) To obtain restitution of monies expended for public assistance from a parent or any other person legally liable for the support of any child or children receiving aid from the department; said action for restitution shall arise from the payment of public assistance for the dependent child or children and shall be for the amount of the public assistance paid. Said action for restitution shall not arise against the parent or other person legally responsible who receives public assistance for the benefit of any dependent child or children. When a court order of support has been issued, the amount recoverable shall be limited to the amount of the court order;
(h) Setting off against a debtor's income tax refund or rebate any debt which is in the form of a liquidated sum due and owing for the care, support or maintenance of a child;
(i) To have full responsibility in the aforementioned cases for initiating actions under the Uniform Interstate Family Support Act and for responding to the actions of other jurisdictions under said law when Mississippi is the responding state; however, this shall not impair private litigants' rights to proceed under any applicable interstate enforcement mechanisms;
(j) To enter into contracts for the purpose of performing any test which the department may, from time to time, require;
(k) To maintain a Central Receipting and Disbursement Unit to which all payments required by withholding orders and orders for support in all actions to which the Department of Human Services is a party shall be forwarded, and from which child support payments ordered by the court in actions to which the Department of Human Services is a party shall be disbursed to the custodial parent or other such party as may be designated by the court order. The Central Receipting and Disbursement Unit shall be operated by the Department of Human Services or any financial institution having operations and qualified to do business in Mississippi, whose deposits are insured by the Federal Deposit Insurance Corporation. The department shall conduct cost-benefit analyses to determine and utilize the more cost efficient manner of operating the unit;
(l) To maintain a Mississippi Department of Human Services Case Registry containing records with respect to:
(i) Each case in which services are being provided by the department under this section; and
(ii) Each support order established or modified in Mississippi on or after October 1, 1998; and
(iii) The Administrative Office of Courts, as established by Section 9-21-1, Mississippi Code of 1972, in consultation with the Mississippi Department of Human Services, shall devise, promulgate and require the use of a Uniform Child Support Order Tracking System.
1. Information collected from case filing forms shall be furnished to the Mississippi Department of Human Services, Division of Child Support Enforcement, in order that compliance with court-ordered obligations of support may be tracked with specificity throughout the duration of said obligations and any subsequent proceedings.
2. Such tracking system shall include: 1. the names, residential and mailing addresses, telephone numbers, Social Security numbers, driver's license numbers and dates of birth of each child and parent named in or subject to the court order; 2. the court cause number of the action; 3. name, address and telephone number of employer; 4. any restraining or protective order indicating domestic violence; and 5. any other information which may be used for the purpose of identifying any person named in or subject to the order or for the purposes of establishing, enforcing or modifying a child support order; and
(m) To take administrative actions relating to genetic testing, determine paternity, establish child support orders, modification of child support orders, income withholding, liens and subpoenas without the necessity of obtaining an order from any judicial or other administrative tribunal with respect to cases initiated or enforced by the department pursuant to Title IV-D of the Social Security Act;
(n) To have the authority to use high-volume automated administrative enforcement in interstate cases to the same extent as used for intrastate cases, in response to a request made by another state to enforce support orders;
(o) To provide any child support enforcement or other service as may be required by the United States of America, Department of Health and Human Services, Family Support Administration, Office of Child Support Enforcement or their successor pursuant to federal law or regulation.
SECTION 2. Section 43-19-35, Mississippi Code of 1972, is amended as follows:
43-19-35. (1) By currently or previously accepting public assistance or making application for child support services 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 said recipient or the children may have against any parent failing to provide for the support and maintenance of said minor child or children * * *; said 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 of Title IV-D services 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 or any other service 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 which 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 such amendment prior to it taking effect.
(3) Any attorney authorized by the state to initiate any action pursuant to Title IV-D of the federal Social Security Act, including, but not limited to, any action initiated pursuant to Sections 43-19-31 et seq. and 93-25-1 et seq. shall be deemed to represent the interest of the State Department of Human Services exclusively; no attorney-client relationship shall exist between said attorney and any recipient of services pursuant to 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. Said attorney representing the state in a Title IV-D case is only authorized to appear and prosecute and/or defend issues of support and cannot in a Title IV-D case address or provide representation to the Title IV-D recipient on any other ancillary issues raised or presented in that action.
(4) Said 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 said 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. The court shall assess attorney's fees to recover the costs associated with preparing and prosecuting the case, which shall be paid directly to the Mississippi Department of Human Services solely for the support of the legal division of the Child Support Unit, in a manner separate and distinct from the payment of child support. The court may allow the defendant to pay the attorney's fee over a period not to exceed four (4) months. The state portion of attorney's fees paid into the department shall be used to match federal funds for the support of the legal division of the Child Support Unit, in conjunction with the Office of Attorney General. 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 or an attorney's fee and shall not be credited to the court-ordered obligation of said absent parent or to the court-ordered obligation for the payment of the attorney's fee. Failure of the absent parent to comply with an order of support or for payment of an attorney's fee 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. Should civil proceedings become ineffective in producing support or attorney's fees in any case involving a legitimate child or a child wherein 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, Mississippi Code of 1972.
SECTION 4. Section 43-19-47, Mississippi Code of 1972, is amended as follows:
43-19-47. (1) The Child Support Unit of the State Department of Human Services, in cooperation with the Attorney General, may appoint at least one (1) full-time staff attorney in or for each chancery court district for the purpose of initiating proceedings under the provisions of Sections 43-19-31 through 43-19-53 in securing child support and establishing paternity. The qualifications and annual salary of each of the attorneys appointed by the Child Support Unit, in cooperation with the Attorney General's office under the provisions of Sections 43-19-31 through 43-19-53 shall be fixed at such sums as may be deemed proper in accordance with the salaries of other full-time employed state attorneys with the Attorney General's Office. Such salaries, inclusive of all reimbursable travel and other expenses, inclusive of financial arrangements perfected with the appropriate courts, the law enforcement officials and the district attorneys, shall be paid monthly from the funds appropriated to the Child Support Unit of the State Department of Human Services and from the special fund for the Division of Child Support in which the interest from its accounts and all attorney's fees and other fees is placed. The Mississippi Personnel Board shall survey the salaries of other Mississippi attorneys with the Attorney General's Office each year and shall raise the start step of the staff and senior attorneys accordingly and the minimum shall never go below Forty Thousand Dollars ($40,000.00) for staff attorneys or Fifty Thousand Dollars ($50,000.00) for senior attorneys.
(2) To assist in the implementation of the provisions of Sections 43-19-31 through 43-19-53, the Executive Director of the Department of Human Services is empowered to enter into cooperative agreements with district attorneys, county attorneys and attorneys employed by the county boards of supervisors, in conjunction with the Office of Attorney General. Said cooperative agreements shall be made in compliance with the regulations established by the Secretary of the Department of Health and Human Services, and may be funded either by funds appropriated to the Child Support Unit of the State Department of Human Services or funds appropriated by any county board of supervisors in this state for their respective county. Attorneys may be hired contractually to be paid in amounts commensurate with the department's staff attorneys.
SECTION 5. Section 43-19-55, Mississippi Code of 1972, is amended as follows:
43-19-55. The State Department of Human Services shall be authorized in maintaining separate accounts with Mississippi banks to handle funds received as incentives from the federal government earned as a result of collecting support and also any funds maintained on deposit as a result of federal and state income tax offsets and any other relevant account, and to aggressively manage the float in these accounts so as to accrue maximum interest advantage of the funds in the account, and to retain all earned interest on these funds to be applied to defray the expenses of the Child Support Unit.
SECTION 6. Section 93-9-9, Mississippi Code of 1972, is amended as follows:
93-9-9. (1) Paternity may be determined upon the petition of the mother, or father, the child or any public authority chargeable by law with the support of the child; provided that such an adjudication after the death of the defendant must be made only upon clear and convincing evidence. If paternity has been lawfully determined, or has been acknowledged in writing according to the laws of this state, the liabilities of the noncustodial parent may be enforced in the same or other proceedings by the custodial parent, the child, or any public authority which has furnished or may furnish the reasonable expenses of pregnancy, confinement, education, necessary support and maintenance, and medical or funeral expenses for the custodial parent or the child. The trier of fact shall receive without the need for third-party foundation testimony certified, attested or sworn documentation as evidence of (a) childbirth records; (b) cost of filing fees; (c) court costs; (d) services of process fees; (e) mailing cost; (f) genetic tests and testing fees; (g) the department's attorney's fees; (h) in cases where the state or any of its entities or divisions have provided medical services to the child or the child's mother, all costs of prenatal care, birthing, postnatal care and any other medical expenses incurred by the child or by the mother as a consequence of the mother's pregnancy or delivery; and (i) funeral expenses. All costs and fees shall be ordered paid to the Department of Human Services in all cases successfully prosecuted with a minimum of Two Hundred Fifty Dollars ($250.00) in attorney's fees or an amount determined by the court without submitting an affidavit. However, proceedings hereunder shall not be instituted by the Department of Human Services after the child has reached the age of eighteen (18) years but proceedings may be instituted by a private attorney at any time until such child attains the age of twenty-one (21) years unless the child has been emancipated as provided in Section 93-5-23 and Section 93-11-65. In the event of court-determined paternity, the surname of the child shall be that of the father, unless the judgment specifies otherwise.
(2) If the alleged father in an action to determine paternity to which the Department of Human Services is a party fails to appear for a scheduled hearing after having been served with process or subsequent notice consistent with the Rules of Civil Procedure, his paternity of the child(ren) shall be established by the court if an affidavit sworn to by the mother averring the alleged father's paternity of the child has accompanied the complaint to determine paternity. Said affidavit shall constitute sufficient grounds for the court's finding of the alleged father's paternity without the necessity of the presence or testimony of the mother at the said hearing. The court shall, upon motion by the Department of Human Services, enter a judgment of paternity. Any person who shall willfully and knowingly file a false affidavit shall be subject to a fine of not more than One Thousand Dollars ($1,000.00).
(3) Upon application of both parents to the State Board of Health and receipt by the State Board of Health of a sworn acknowledgement of paternity executed by both parents subsequent to the birth of a child born out of wedlock, the birth certificate of the child shall be amended to show such paternity if paternity is not shown on the birth certificate. Upon request of the parents for the legitimization of a child under this section, the surname of the child shall be changed on the certificate to that of the father.
(4) (a) A signed voluntary acknowledgment of paternity is subject to the right of any signatory to rescind the acknowledgment within the earlier of:
(i) Sixty (60) days; or
(ii) The date of a judicial proceeding relating to the child, including a proceeding to establish a support order, in which the signatory is a party.
(b) After the expiration of the sixty-day period specified in subsection (4)(a)(i) of this section, a signed voluntary acknowledgment of paternity may be challenged in court only on the basis of fraud, duress or material mistake of fact, with the burden of proof upon the challenger; the legal responsibilities, including child support obligations, of any signatory arising from the acknowledgment may not be suspended during the pendency of the challenge, except for good cause shown.
SECTION 7. Section 9-5-255, Mississippi Code of 1972, is amended as follows:
9-5-255. (1) Except as provided by subsection (9) of this section, the senior chancellor of each chancery court district in the state may apply to the Chief Justice of the Supreme Court for the appointment of one or more persons to serve as family masters in chancery in each of the counties or for all of the counties within the respective chancery court district if the senior chancellor states in writing that the chancery court district's docket is crowded enough to warrant an appointment of a family master. The Chief Justice shall determine from the information provided by the senior chancellor if the need exists for the appointment of a family master. If the Chief Justice determines that the need exists, a family master shall be appointed. If the Chief Justice determines that the need does not exist, no family master shall be appointed.
(2) Family masters in chancery shall have the power to hear cases and recommend orders establishing, modifying and enforcing orders for support in matters referred to them by chancellors and judges of the circuit, county or family courts of such county. The family master in chancery shall have jurisdiction over paternity matters brought pursuant to the Mississippi Uniform Law on Paternity and referred to them by chancellors and judges of the circuit, county or family courts of such county. As used in this section, "order for support" shall have the same meaning as such term is defined in Section 93-11-101.
(3) In all cases in which an order for support has been established and the person to whom the support obligation is owed is a nonrelated Temporary Assistance for Needy Families (TANF) family on whose behalf the Department of Human Services is providing services, the family master in chancery or any other judge or court of competent jurisdiction shall, upon proper pleading by the department and upon appropriate proceedings conducted thereon, order that the department may recover and that the obligor shall be liable for reasonable attorney's fees at a minimum of Two Hundred Fifty Dollars ($250.00) or an amount set by the court and court costs which the department incurs in enforcing and collecting amounts of support obligation which exceed administrative fees collected and current support owed by the obligor.
(4) Persons appointed as family masters in chancery pursuant to this section shall meet and possess all of the qualifications required of chancery and circuit court judges of this state, shall remain in office at the pleasure of the appointing chancellor, and shall receive reasonable compensation for services rendered by them, as fixed by law, or allowed by the court. Family masters in chancery shall be paid out of any available funds budgeted by the board of supervisors of the county in which they serve; provided, however, in the event that a family master in chancery is appointed to serve in more than one county within a chancery court district, then the compensation and expenses of such master shall be equally apportioned among and paid by each of the counties in which such master serves. The chancery clerk shall issue to such persons a certificate of appointment.
(5) Family masters in chancery shall have power to administer oaths, to take the examination of witnesses in cases referred to them, to examine and report upon all matters referred to them, and they shall have all the powers in cases referred to them properly belonging to masters or commissioners in chancery according to the practice of equity courts as heretofore exercised.
(6) Family masters in chancery shall have power to issue subpoenas for witnesses to attend before them to testify in any matter referred to them or generally in the cause, and the subpoenas shall be executed in like manner as subpoenas issued by the clerk of the court. If any witness shall fail to appear, the master shall proceed by process of attachment to compel the witness to attend and give evidence.
(7) Family masters in chancery are authorized and empowered to conduct original hearings on matters in such county referred to such masters by any chancellor or judge of such county.
(8) In all cases heard by masters pursuant to this section, such masters shall make a written report to the chancellor or judge who refers the case to him. Such chancellor or judge may accept, reject or modify, in whole or in part, the findings or recommendations made and reported by the master, and may recommit the matter to the master with instructions. In all cases referred to such master, initialing for approval by the master of a proposed decree shall be sufficient to constitute the master's report.
(9) Any chancellor required by this section to appoint a person or persons to serve as family masters in chancery may forego the requirement to appoint such masters or if family masters have been appointed, such chancellor may terminate such appointments and leave such positions vacant, only if an exemption from the United States Department of Health and Human Services is obtained for the county or counties involved. Such positions may remain vacant for as long as such exemption remains in effect.
SECTION 8. This act shall take effect and be in force from and after its passage.