2007 Regular Session
To: Public Health and Welfare; Judiciary, Division A
By: Senator(s) Dearing
AN ACT TO AMEND SECTION 93-9-11, MISSISSIPPI CODE OF 1972, TO ENACT A STATUTE OF LIMITATIONS ON PATERNITY ACTIONS; TO AMEND SECTION 93-9-28, MISSISSIPPI CODE OF 1972, TO REQUIRE THAT MOTHERS BE INFORMED OF THE EXISTENCE OF THE STATUTE OF LIMITATIONS; TO AMEND SECTIONS 93-11-103 AND 93-11-119, MISSISSIPPI CODE OF 1972, TO REQUIRE THE DEPARTMENT OF HUMAN SERVICES TO SEEK AN ORDER OF VISITATION FOR THE NONCUSTODIAL PARENT CONCURRENTLY WITH THE CHILD SUPPORT PROCEEDINGS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 93-9-11, Mississippi Code of 1972, is amended as follows:
93-9-11. Any action brought under this chapter to establish paternity shall be brought on or before the day the child who is the subject of the action is of the age of eighteen (18) months or be forever barred.
SECTION 2. Section 93-9-28, Mississippi Code of 1972, is amended as follows:
93-9-28. (1) The Mississippi Department of Health in cooperation with the Mississippi Department of Human Services shall develop a form and procedure which may be used to secure a voluntary acknowledgement of paternity from the mother and father of any child born out of wedlock in Mississippi. The form shall clearly state on its face that the execution of the acknowledgement of paternity shall result in the same legal effect as if the father and mother had been married at the time of the birth of the child. When such form has been completed according to the established procedure and the signatures of both the mother and father have been notarized, then such voluntary acknowledgement shall constitute a full determination of the legal parentage of the child. The completed voluntary acknowledgement of paternity shall be filed with the Bureau of Vital Statistics of the Mississippi Department of Health. The name of the father shall be entered on the certificate of birth upon receipt of the completed voluntary acknowledgement.
(2) (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 (2)(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.
(3) The Mississippi Department of Health and the Mississippi Department of Human Services shall cooperate to establish procedures to facilitate the voluntary acknowledgement of paternity by both father and mother at the time of the birth of any child born out of wedlock. Such procedures shall establish responsibilities for each of the departments and for hospitals, birthing centers, midwives and/or other birth attendants to seek and report voluntary acknowledgements of paternity. In establishing such procedures, the departments shall provide for obtaining the social security account numbers of both the father and mother on voluntary acknowledgements.
(4) Upon the birth of a child out of wedlock, the hospital, birthing center, midwife or other birth attendant shall provide an opportunity for the child's mother and natural father to complete an acknowledgement of paternity by giving the mother and natural father the appropriate forms and information developed through the procedures established in paragraph (3). The hospital, birthing center, midwife or other birth attendant shall be responsible for providing printed information, and audiovisual material if available, related to the acknowledgement of paternity, and shall be required to provide notary services needed for the completion of acknowledgements of paternity. The information described above shall be provided to the mother and natural father, if present and identifiable, within twenty-four (24) hours of birth or before the mother is released. Such information, including forms, brochures, pamphlets, video tapes and other media, shall be provided at no cost to the hospital, birthing center or midwife by the Mississippi State Department of Health, the Department of Human Services or other appropriate agency. The printed information and audiovisual material shall further include information as to the provisions of Section 93-9-11, and the hospital, birthing center, midwife or other birth attendant shall obtain written verification from the mother that this information has been delivered to her.
SECTION 3. Section 93-11-103, Mississippi Code of 1972, is amended as follows:
93-11-103. (1) Upon entry of any order for support by a court of this state where the custodial parent is a recipient of services under Title IV-D of the federal Social Security Act, issued on or after October 1, 1996, the court entering such order shall enter a separate order for withholding which shall take effect immediately without any requirement that the obligor be delinquent in payment. All such orders for support issued prior to October 1, 1996, shall, by operation of law, be amended to conform with the provisions contained herein. All such orders for support issued shall:
(a) Contain a provision for monthly income withholding procedures to take effect in the event the obligor becomes delinquent in paying the order for support without further amendment to the order or further action by the court; and
(b) Require that the payor withhold any additional amount for delinquency specified in any order if accompanied by an affidavit of accounting, a notarized record of overdue payments, official payment record or an attested judgment for delinquency or contempt. Any person who willfully and knowingly files a false affidavit, record or judgment shall be subject to a fine of not more than One Thousand Dollars ($1,000.00). The Department of Human Services shall be the designated agency to receive payments made by income withholding in child support orders enforced by the department. All withholding orders shall be on a form as prescribed by the department.
(2) Upon entry of any order for support by a court of this state where the custodial parent is not a recipient of services under Title IV-D of the federal Social Security Act, issued or modified or found to be in arrears on or after January 1, 1994, the court entering such order shall enter a separate order for withholding which shall take effect immediately. Such orders shall not be subject to immediate income withholding under this subsection: (a) if one (1) of the parties (i.e., noncustodial or custodial parent) demonstrates, and the court finds, that there is good cause not to require immediate income withholding, or (b) if both parties agree in writing to an alternative arrangement. The Department of Human Services or any other person or entity may be the designated agency to receive payments made by income withholding in all child support orders. Withholding orders shall be on a form as prescribed by the department.
(3) If a child support order is issued or modified in the state but is not subject to immediate income withholding, it automatically becomes so if the court finds that a support payment is thirty (30) days past due. If the support order was issued or modified in another state but is not subject to immediate income withholding, it becomes subject to immediate income withholding on the date on which child support payments are at least thirty (30) days in arrears, or (a) the date as of which the noncustodial parent requests that withholding begin, (b) the date as of which the custodial parent requests that withholding begin, or (c) an earlier date chosen by the court whichever is earlier.
(4) The clerk of the court shall submit copies of such orders to the obligor's payor, any additional or subsequent payor, and to the Mississippi Department of Human Services Case Registry. The clerk of the court, the obligee's attorney, or the department may serve such immediate order for withholding by first-class mail or personal delivery on the obligor's payor, superintendent, manager, agent or subsequent payor, as the case may be. In a case where the obligee's attorney or the department serves such immediate order, the clerk of the court shall be notified in writing, which notice shall be placed in the court file. There shall be no need for further notice, hearing, order, process or procedure before service of said order on the payor or any additional or subsequent payor. The obligor may contest, if grounds exist, service of the order of withholding on additional or subsequent payors, by filing an action with the issuing court. Such filing shall not stay the obligor's duty to support pending judicial determination of the obligor's claim. Nothing herein shall be construed to restrict the authority of the courts of this state from entering any order it deems appropriate to protect the rights of any parties involved.
(5) The order for withholding shall:
(a) Direct any payor to withhold an amount equal to the order for current support;
(b) Direct any payor to withhold an additional amount, not less than fifteen percent (15%) of the order for support, until payment in full of any delinquency; * * *
(c) Direct the payor not to withhold in excess of the amounts allowed under Section 303(b) of the Consumer Credit Protection Act, being 15 USCS 1673, as amended; and
(d) Make appropriate provision for visitation by the noncustodial parent with the child or children for whom support is ordered.
(6) All orders for withholding may permit the Department of Human Services to withhold through said withholding order additional amounts to recover costs incurred through its efforts to secure the support order, including, but not limited to, all filing fees, court costs, service of process fees, mailing costs, birth certificate certification fee, genetic testing fees, the department's attorney's fees; and, 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 medical costs of prenatal care, birthing, postnatal care and any other medical expenses incurred by the child or by the mother as a consequence of her pregnancy or delivery.
(7) At the time the order for withholding is entered, the clerk of the court shall provide copies of the order for withholding and the order for support to the obligor, which shall be accompanied by a statement of the rights, remedies and duties of the obligor under Sections 93-11-101 through 93-11-119. The clerk of the court shall make copies available to the obligee and to the department or its local attorney.
(8) The order for withholding shall remain in effect for as long as the order for support upon which it is based.
(9) The failure of an order for withholding to state an arrearage is not conclusive of the issue of whether an arrearage is owing.
(10) Any order for withholding entered pursuant to this section shall not be considered a garnishment.
(11) All existing orders for support shall become subject to additional withholding if arrearages occur, subject to court hearing and order. The Department of Human Services or the obligee or his agent or attorney must send to each delinquent obligor notice that:
(a) The withholding on the delinquency has commenced;
(b) The information along with the required affidavit of accounting, notarized record of overdue payment or attested judgment of delinquency or contempt has been sent to the employer; and
(c) The obligor may file an action with the issuing court on the grounds of mistake of fact. Such filing must be made within thirty (30) days of receipt of the notice and shall not stay the obligor's duty to support pending judicial determination of the obligor's claim.
(12) An employer who complies with an income withholding notice that is regular on its face and which is accompanied by the required accounting affidavit, notarized record of overdue payments or attested judgment of delinquency or contempt shall not be subject to civil liability to any individual or agency for conduct in compliance with the notice.
SECTION 4. Section 93-11-119, Mississippi Code of 1972, is amended as follows:
93-11-119. (1) The rights, remedies, duties and penalties created by Sections 93-11-101 through 93-11-119 are in addition to and not in substitution for any other rights, remedies, duties and penalties created by any other law.
(2) Nothing in Sections 93-11-101 through 93-11-119 shall be construed as invalidating any garnishment, attachment or assignment of wages or benefits instituted prior to July 1, 1985; provided, however, any such garnishment, attachment or assignment shall be subject to the priorities established under the provisions of subsection (3) of Section 93-11-111.
(3) Nothing in Sections 93-11-101 through 93-11-119 shall be construed as impairing the obligation of the Department of Human Services to seek visitation rights for noncustodial parent concurrent with the child support order proceeding.
SECTION 5. This act shall take effect and be in force from and after July 1, 2007.