MISSISSIPPI LEGISLATURE
2021 Regular Session
To: Judiciary A
By: Representative Yates
AN ACT TO AMEND SECTION 43-19-101, MISSISSIPPI CODE OF 1972, TO REVISE CHILD SUPPORT CALCULATION PROCEDURES BY PROHIBITING IMPUTATION OF INCOME BASED UPON A STANDARD AMOUNT IN LIEU OF GATHERING FACTS; TO CHANGE THE REFERENCE OF "ABSENT PARENT" TO "OBLIGATED PARENT" IN THE PROVISIONS OF LAW GOVERNING THE CHILD SUPPORT UNIT OF THE DEPARTMENT OF HUMAN SERVICES; TO AMEND SECTIONS 43-19-31, 43-19-35, 43-19-37, 43-19-41 AND 43-19-45, MISSISSIPPI CODE OF 1972, TO CONFORM THE REFERENCES OF "ABSENT" TO "OBLIGATED"; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 43-19-101, Mississippi Code of 1972, is amended as follows:
43-19-101. (1) The following child support award guidelines shall be a rebuttable presumption in all judicial or administrative proceedings regarding the awarding or modifying of child support awards in this state:
Number Of Children Percentage Of Adjusted Gross Income
Due Support That Should Be Awarded For Support
1 14%
2 20%
3 22%
4 24%
5 or more 26%
(2) The guidelines provided for in subsection (1) of this section apply unless the judicial or administrative body awarding or modifying the child support award makes a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined under the criteria specified in Section 43-19-103.
(3) The amount of "adjusted gross income" as that term is used in subsection (1) of this section shall be calculated as follows:
(a) Determine gross
income from all potential sources that may reasonably be expected to be
available to the * * *
obligated parent including, but not limited to, the following: wages
and salary income; income from self-employment; income from commissions; income
from investments, including dividends, interest income and income on any trust
account or property; * * *
obligated parent's portion of any joint income of both parents; workers'
compensation, disability, unemployment, annuity and retirement benefits,
including an Individual Retirement Account (IRA); any other payments made by
any person, private entity, federal or state government or any unit of local government;
alimony; any income earned from an interest in or from inherited property; any
other form of earned income; and gross income shall exclude any monetary
benefits derived from a second household, such as income of the * * * obligated parent's current
spouse;
(b) Subtract the following legally mandated deductions:
(i) Federal, state and local taxes. Contributions to the payment of taxes over and beyond the actual liability for the taxable year shall not be considered a mandatory deduction;
(ii) Social security contributions;
(iii) Retirement and disability contributions except any voluntary retirement and disability contributions;
(c) If the * * * obligated parent is subject to an
existing court order for another child or children, subtract the amount of that
court-ordered support;
(d) If the * * * obligated parent is also the
parent of another child or other children residing with him, then the court may
subtract an amount that it deems appropriate to account for the needs of said
child or children;
(e) Compute the total annual amount of adjusted gross income based on paragraphs (a) through (d) of this subsection, then divide this amount by twelve (12) to obtain the monthly amount of adjusted gross income.
Upon conclusion of the calculation of paragraphs (a) through (e) of this subsection, multiply the monthly amount of adjusted gross income by the appropriate percentage designated in subsection (1) of this section to arrive at the amount of the monthly child support award.
(4) In cases in which the adjusted gross income as defined in this section is more than One Hundred Thousand Dollars ($100,000.00) or less than Ten Thousand Dollars ($10,000.00), the court shall make a written finding in the record as to whether or not the application of the guidelines established in this section is reasonable. The court shall take into account the basic subsistence needs of the obligated parent who has a limited ability to pay.
(5) The court shall not base the imputation of income upon a standard amount in lieu of fact gathering. In the absence of specific sufficient evidence of past earnings and employment history to use as the measure of an obligated parent's ability to pay, the recommended support obligation amount shall be based on available information about the specific circumstances of the obligated parent. This can include, but is not limited to, such factors as assets, residence, job skills, educational attainment, literacy, age, health, criminal record and other employment barriers, and record of seeking work, as well as the local job market, the availability of employers willing to hire the obligated parent, prevailing earnings level in the local community, and other relevant factors in the case.
( * * *6) The Department of Human Services
shall review the appropriateness of these guidelines beginning January 1, 1994,
and every four (4) years thereafter and report its findings to the Legislature
no later than the first day of the regular legislative session of that year.
The Legislature shall thereafter amend these guidelines when it finds that
amendment is necessary to ensure that equitable support is being awarded in all
cases involving the support of minor children.
( * * *7) All orders involving support of
minor children, as a matter of law, shall include reasonable medical support.
Notice to the obligated parent's employer that medical support has been ordered
shall be on a form as prescribed by the Department of Human Services. In any
case in which the support of any child is involved, the court shall make the
following findings either on the record or in the judgment:
(a) The availability to all parties of health insurance coverage for the child(ren);
(b) The cost of health insurance coverage to all parties.
The court shall then make appropriate provisions in the judgment for the provision of health insurance coverage for the child(ren) in the manner that is in the best interests of the child(ren). If the court requires the custodial parent to obtain the coverage then its cost shall be taken into account in establishing the child support award. If the court determines that health insurance coverage is not available to any party or that it is not available to either party at a cost that is reasonable as compared to the income of the parties, then the court shall make specific findings as to such either on the record or in the judgment. In that event, the court shall make appropriate provisions in the judgment for the payment of medical expenses of the child(ren) in the absence of health insurance coverage.
SECTION 2. 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 * * *
obligated 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 * * * obligated 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: * * * a. 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; * * * b.
the court cause number of the action; * * * c. name, address and telephone number
of employer; * * *
d. any restraining or protective order indicating domestic violence; and * * * e. 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;
(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; and
(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 3. 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 * * *
obligated 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 * * * obligated 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 * * * obligated 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 4. 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 * * *
obligated 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 * * * obligated 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 * * * obligated parent or to the court-ordered
obligation for the payment of the attorney's fee. Failure of the * * * obligated 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 5. Section 43-19-41, Mississippi Code of 1972, is amended as follows:
43-19-41. Any applicant or
recipient who refuses to provide reasonable assistance to the local county
department or to the child support unit established by the State Department of
Public Welfare in identifying and locating the * * * obligated parent of a dependent
child or otherwise refuses to cooperate with the department in securing support
or in establishing paternity shall be ineligible for aid to dependent children,
shall not be considered a needy relative and shall not be entitled to receive
or use any part of the aid in grant nor shall be eligible for medical
assistance under the Mississippi Medical Assistance Act; provided, however,
that aid for the support of the child of such applicant or recipient shall not
be denied or terminated as a result of such refusal to provide assistance or
cooperation, but that the department may provide aid to said child in the form
of protective vendor payments.
SECTION 6. Section 43-19-45, Mississippi Code of 1972, is amended as follows:
43-19-45. (1) The Child
Support Unit shall establish a state parent locator service for the purpose of
locating * * *
obligated and nonsupporting parents and alleged parents, which will
utilize all appropriate public and private locator sources. In order to carry
out the responsibilities imposed under Sections 43-19-31 through 43-19-53, the
Child Support Unit may secure, by administrative subpoena from the customer
records of public utilities and cable television companies, the names and
addresses of individuals and the names and addresses of employers of such
individuals that would enable the location of parents or alleged parents who
have a duty to provide support and maintenance for their children. The Child
Support Unit may also administratively subpoena any and all financial
information, including account numbers, names and social security numbers of
record for assets, accounts, and account balances from any individual,
financial institution, business or other entity, public or private, needed to
establish, modify or enforce a support order. No entity complying with an
administrative subpoena to supply the requested information of whatever nature
shall be liable in any civil action or proceeding on account of such
compliance. Full faith and credit shall be given to all uniform administrative
subpoenas issued by other state child support units. The recipient of an
administrative subpoena shall supply the Child Support Unit, other state and
federal IV-D agencies, its attorneys, investigators, probation officers, county
or district attorneys in this state, all information relative to the location,
employment, employment-related benefits including, but not limited to,
availability of medical insurance, income and property of such parents and
alleged parents and with all information on hand relative to the location and
prosecution of any person who has, by means of a false statement or
misrepresentation or by impersonation or other fraudulent device, obtained
Temporary Assistance for Needy Families (TANF) to which he or she was not
entitled, notwithstanding any provision of law making such information
confidential. The Mississippi Department of Information Technology Services
and any other agency in this state using the facilities of the Mississippi
Department of Information Technology Services are directed to permit the Child
Support Unit access to their files, inclusive of those maintained for other
state agencies, for the purpose of locating * * * obligated and nonsupporting
parents and alleged parents, except to the extent that any such access would violate
any valid federal statute or regulation issued pursuant thereto. The Child
Support Unit, other state and federal IV-D agencies, its attorneys,
investigators, probation officers, or county or district attorneys, shall use
such information only for the purpose of investigating or enforcing the support
liability of such * * *
obligated parents or alleged parents or for the prosecution of other
persons mentioned herein. Neither the Child Support Unit nor those authorities
shall use the information, or disclose it, for any other purpose. All records
maintained pursuant to the provisions of Sections 43-19-31 through 43-19-53
shall be confidential and shall be available only to the Child Support Unit,
other state and federal IV-D agencies, the attorneys, investigators and other
staff employed or under contract under Sections 43-19-31 through 43-19-53,
district or county attorneys, probation departments, child support units in
other states, and courts having jurisdiction in paternity, support or abandonment
proceedings. The Child Support Unit may release to the public the name, photo,
last-known address, arrearage amount and other necessary information of a
parent who has a judgment against him for child support and is currently in
arrears in the payment of this support. Such release may be included in a
"Most Wanted List" or other media in order to solicit assistance.
(2) The Child Support Unit
shall have the authority to secure information from the records of the
Mississippi Department of Employment Security that may be necessary to locate * * * obligated and nonsupporting
parents and alleged parents under the provisions of Sections 43-19-31 through
43-19-53. Upon request of the Child Support Unit, all departments, boards,
bureaus and agencies of the state shall provide to the Child Support Unit
verification of employment or payment and the address and social security
number of any person designated as an * * * obligated or nonsupporting parent
or alleged parent. In addition, upon request of the Child Support Unit, the
Mississippi Department of Employment Security, or any private employer or payor
of any income to a person designated as an * * * obligated or nonsupporting parent
or alleged parent, shall provide to the Child Support Unit verification of
employment or payment and the address and social security number of the person
so designated. Full faith and credit shall be given to such notices issued by
child support units in other states. All such records and information shall be
confidential and shall not be used for any purposes other than those specified
by Sections 43-19-31 through 43-19-53. The violation of the provisions of this
subsection shall be unlawful and any person convicted of violating the
provisions of this subsection shall be guilty of a misdemeanor and shall pay a
fine of not more than Two Hundred Dollars ($200.00).
(3) Federal and state IV-D agencies shall have access to the state parent locator service and any system used by the Child Support Unit to locate an individual for purposes relating to motor vehicles or law enforcement. No employer or other source of income who complies with this section shall be liable in any civil action or proceeding brought by the obligor or obligee on account of such compliance.
SECTION 7. This act shall take effect and be in force from and after July 1, 2021.