Senate Bill 2734

AN ACT TO AMEND SECTION 93-11-105, MISSISSIPPI CODE OF 1972, TO PROVIDE AN ALTERNATIVE MEANS BY WHICH CUSTODIAL PARENTS MAY SECURE CHILD SUPPORT; TO AMEND SECTION 93-11-71, MISSISSIPPI CODE OF 1972, TO STRENGTHEN THE MEANS BY WHICH PARENTS MAY BE HELD IN CONTEMPT OF COURT AND JAILED FOR FAILURE TO PAY CHILD SUPPORT; TO AMEND SECTION 93-5-23, MISSISSIPPI CODE OF 1972, TO FORCE JUDGES TO CONSIDER THE BEST INTERESTS OF THE CHILD OR CHILDREN IN A DIVORCE; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 93-11-105, Mississippi Code of 1972, is amended as follows:

93-11-105. (1) Notwithstanding the provisions of Section 93-11-103, the Department of Human Services shall be authorized to implement administrative orders for withholding without the necessity of obtaining an order through judicial proceedings. The administrative order for withholding shall be implemented pursuant to a previously rendered order for support and shall be on a form prescribed by the Department of Human Services. Unless inconsistent with the provisions of this section, the order for withholding shall be subject to the same requirements as provided in Sections 93-11-101 through 93-11-118.

(2) The administrative order shall be filed with the clerk by the department and a copy shall be transmitted to the obligor by regular mail to the last known address of the obligor.

(3) The order for withholding shall:

(a) Direct any payor to withhold an amount equal to the order for the current support obligation;

(b) Direct any payor to withhold an additional amount equal to twenty percent (20%) of the current support obligation, unless a different amount has been previously ordered by the court, until payment in full of any delinquency; and

(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.

(4) Any parent who is owed child support may go to any chancery or circuit court in the state and provide the name of the offending child support parent, along with the offending parent's work and home addresses, sign an affidavit stating the above and the clerk shall immediately have the affidavit signed by a judge and send to the workplace of the offending parent for garnishment of wages. Child support shall be sent the Child Support Unit of the Department of Human Services and handled as other child support and paid to the custodial parent.

SECTION 2. Section 93-11-71, Mississippi Code of 1972, is amended as follows:

93-11-71. (1) Whenever a court orders any person to make periodic payments of a sum certain for the maintenance or support of a child, and whenever such payments as have become due remain unpaid for a period of at least thirty (30) days, a judgment by operation of law shall arise against the obligor in an amount equal to all payments which are then due and owing. The parent shall also be ordered in contempt of court and taken to jail immediately to show cause. If without very sufficient cause, the parent shall be fined One Thousand Dollars ($1,000.00) on the first offense, Five Thousand Dollars ($5,000.00) for each second or subsequent offense, and remain in jail until the parent has provided the court a sufficient plan of action to support the child. The court shall order a portion of the fine to be paid to the custodial parent.

(a) A judgment arising under this section shall have the same effect and be fully enforceable as any other judgment entered in this state. A judicial or administrative action to enforce said judgment may be commenced at any time; and

(b) Such judgments arising in other states by operation of law shall be given full faith and credit in this state.

(2) Any judgment arising under the provisions of this section shall operate as a lien upon all the property of the judgment debtor, both real and personal, which lien shall be perfected as to third parties without actual notice thereof only upon enrollment on the judgment roll. The department or attorney representing the party to whom support is owed shall furnish an abstract of the judgment for periodic payments for the maintenance and support of a child, along with sworn documentation of the delinquent child support, to the circuit clerk of the county where the judgment is rendered, and it shall be the duty of the circuit clerk to enroll the judgment on the judgment roll. Liens arising under the provisions of this section may be executed upon and enforced in the same manner and to the same extent as any other judgment.

(3) Notwithstanding the provisions in paragraph (2), any judgment arising under the provisions of this section shall subject the following assets to interception or seizure without regard to the entry of the judgment on the judgment roll of the situs district or jurisdiction:

(a) Periodic or lump-sum payments from a federal, state or local agency, including unemployment compensation, workers' compensation and other benefits;

(b) Winnings from lotteries and gaming winnings which are received in periodic payments made over a period in excess of thirty (30) days;

(d) Settlements and awards resulting from civil actions; and

(e) Public and private retirement funds, only to the extent that the obligor is qualified to receive and receives a lump sum or periodic distribution from the funds.

(4) In any case in which a child receives assistance from block grants for Temporary Assistance for Needy Families (TANF), and the obligor owes past-due child support, the obligor, if not incapacitated, may be required by the court to participate in any work programs offered by any state agency.

SECTION 3. Section 93-5-23, Mississippi Code of 1972, is amended as follows:

93-5-23. When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders touching the care, custody and maintenance of the children of the marriage, and also touching the maintenance and alimony of the wife or the husband, or any allowance to be made to her or him, and shall, if need be, require bond, sureties or other guarantee for the payment of the sum so allowed. Orders touching on the custody of the children of the marriage shall be made in accordance with the provisions of Section 93-5-24. Divorce participants with children must show exactly how said children will be taken care, where and by whom daycare will be provided, etc., with a six-month trial period before the petition for divorce will be granted. The divorce petition must be proved to the judge to represent the best interest of the child or children before the judge can grant it. The court may afterwards, on petition, change the decree, and make from time to time such new decrees as the case may require. However, where 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 of the marriage in proportion to the relative financial ability of each. In the event 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 such parent, any order of support issued against such parent may require him or her to exercise the option of additional coverage in favor of such children as he or she is legally responsible to support.

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 such payments, and whenever such payments as have become due remain unpaid for a period of at least thirty (30) days, the court may, upon petition of the person to whom such payments are owing, or such person's legal representative, enter an order requiring that bond, sureties or other security be given by the person obligated to make such 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 such case.

Whenever in any proceeding in the chancery court concerning the custody of a child a party alleges that the child whose custody is at issue has been the victim of sexual or physical abuse by the other party, the court may, on its own motion, grant a continuance in the custody proceeding only until such allegation has been investigated by the Department of Human Services. At the time of ordering such continuance the court may direct the party, and his attorney, making such allegation of child abuse to report in writing and provide all evidence touching on the allegation of abuse to the Department of Human Services. The Department of Human Services shall investigate such allegation and take such action as it deems appropriate and as provided in such cases under the Youth Court Law (being Chapter 21 of Title 43, Mississippi Code of 1972) or under the laws establishing family courts (being Chapter 23 of Title 43, Mississippi Code of 1972).

If after investigation by the Department of Human Services or final disposition by the youth court or family court allegations of child abuse are found to be without foundation, the chancery court shall order the alleging party to pay all court costs and reasonable attorney's fees incurred by the defending party in responding to such allegation.

The court may investigate, hear and make a determination in a custody action when a charge of abuse and/or neglect arises in the course of a custody action as provided in Section 43-21-151, and in such cases the court shall appoint a guardian ad litem for the child as provided under Section 43-21-121, who shall be an attorney. Unless the chancery court's jurisdiction has been terminated, all disposition orders in such 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 public.

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.

SECTION 4. This act shall take effect and be in force from and after July 1, 2002.