MISSISSIPPI LEGISLATURE
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 CODIFY SECTION 43-19-32, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE ADMINISTRATIVE ESTABLISHMENT OF CHILD SUPPORT OBLIGATIONS BY THE CHILD SUPPORT UNIT OF THE DEPARTMENT OF HUMAN SERVICES BY APPLICANTS FOR SERVICES, TO ESTABLISH AN OFFICE OF ADMINISTRATIVE HEARINGS, TO PROVIDE FOR JURISDICTION OVER PARTIES, NOTICE OF PROCEEDINGS TO ESTABLISH ADMINISTRATIVE SUPPORT ORDERS, PROVIDE PROCEDURES FOR HEARINGS AND ISSUANCE OF ADMINISTRATIVE ORDERS, TO PROVIDE FOR COLLECTION ACTIONS AND ENFORCEMENT OF ADMINISTRATIVE ORDERS FOR SUPPORT THROUGH INCOME WITHHOLDING, TO PROVIDE FOR ADMINISTRATIVE REVIEW AND JUDICIAL REVIEW OF ADMINISTRATIVE SUPPORT ORDERS, TO PROVIDE FOR COURT ORDER SUPERSEDING AN ADMINISTRATIVE ORDER, AND TO AUTHORIZE THE DEPARTMENT TO PROMULGATE RULES TO ADMINISTER ADMINISTRATIVE SUPPORT PROCEEDINGS; 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; TO AMEND SECTION 93-25-5, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE OFFICE OF ADMINISTRATIVE HEARINGS OF THE DEPARTMENT OF HUMAN SERVICES IS AN OFFICIAL TRIBUNAL FOR UFISA 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, modify, enforce 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. Whenever a child or children for whom child support services have been provided ceases to receive public assistance, the department shall continue to provide services and establish paternity, secure, modify, enforce 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, modify, enforce 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, modify, enforce 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. The following shall be codified as Section 43-19-32, Mississippi Code of 1972:
43-19-32. Administrative establishment of child support obligations.
(1) Definitions. As used in this section, the term:
(a) "Administrative support order" means a final order rendered by or on behalf of the department pursuant to this section determining paternity, establishing or modifying the obligation of a noncustodial parent to contribute to the support and maintenance of his or her child or children, which may include provisions for monetary support, retroactive support, health care, and other elements of support pursuant to Chapters 43 and 93, Mississippi Code of 1972.
(b) The recipient of services is any individual who is currently receiving or has previously accepted public assistance or has made an application for child support services.
(c) "Filed" means a document has been received and accepted for filing at the offices of the department by the clerk or any authorized deputy clerk of the department. The date of filing must be indicated on the face of the document by the clerk or deputy clerk.
(d) "Financial declaration" means an affidavit or written declaration which shows an individual's income, allowable deductions, net income and other information needed to calculate the child support guideline amount under Sections 43-19-101 and 43-19-103.
(e) "Rendered" means that a signed written order is filed with the clerk or any deputy clerk of the department and sent to the respondent. The date of filing must be indicated on the face of the order at the time of rendition.
(f) "Title IV-D case" means a case or proceeding in which the department is providing child support services within the scope of Title IV-D of the Social Security Act, 42 USC Section 651 et seq.
(g) "Retroactive support" means a child support obligation established pursuant to Sections 93-9-11 and 93-11-65.Other terms used in this section have the meanings ascribed in Chapters 43 and 93, Mississippi Code of 1972.
(2) Purpose and scope.
(a) It is not the Legislature's intent to limit the jurisdiction of the courts to hear and determine issues regarding child support. This section is intended to provide the department with an alternative procedure for establishing child support obligations in Title IV-D cases in a fair and expeditious manner when there is no court order of support. The procedures in this section are effective throughout the state and shall be implemented statewide.
(b) The administrative procedure set forth in this section concerns only the determination of paternity and the establishment and the modification of child support obligations. This section does not grant jurisdiction to the department or the Office of Administrative Hearings to hear or determine issues of dissolution of marriage, separation, alimony or spousal support, termination of parental rights, dependency, award of or change of custody, or visitation. This paragraph notwithstanding, the department and the Office of Administrative Hearings may make findings of fact that are necessary for a proper determination of a noncustodial parent's support obligation as authorized by this section.
(c) When there is no court order for paternity or support, the department may determine paternity and establish the noncustodial parent's child support obligation pursuant to this chapter and Chapter 93, Mississippi Code of 1972, and other relevant provisions of state law. The noncustodial parent's obligation determined by the department may include any obligation to pay retroactive support and shall address health care coverage for the minor child(ren). The department may proceed on behalf of:
(i) An applicant or recipient of public assistance;
(ii) A former recipient of public assistance;
(iii) An individual who has applied for services;
(iv) Itself; or
(v) A state or local government of another state.
(d) Either parent, or a recipient of services if applicable, may at any time file a civil action in a court having jurisdiction and proper venue to determine the noncustodial parent's child support obligations, if any. An order issued by a court may supersede an administrative support order rendered by the department prospectively only.
(e) Pursuant to paragraph (b), neither the department nor the Office of Administrative Hearings has jurisdiction to award or change child custody or rights of visitation. Either parent may at any time file a civil action in a court having jurisdiction and proper venue for a determination of child custody and rights of visitation.
(f) The department shall terminate the administrative proceeding, if written notice is received within twenty (20) days of the initial filing that the noncustodial parent has filed an action to determine paternity and/or support in a court of appropriate jurisdiction.
(g) The notices and orders issued by the department under this section shall be written clearly and plainly.
(3) Office of Administrative Hearings.
(a) The Office of Administrative Hearings within the child support division of the department shall be headed by a chief administrative law judge who shall be appointed by the executive director of the department. The chief administrative law judge, and any deputy chief administrative law judge, must possess the same minimum qualifications as the administrative law judges employed by the office. The funding for this office shall be provided in a separate appropriation bill for the office which shall be separate and under the control of the chief administrative law judge. The department shall provide administrative support and service to the office to the extent requested by the chief administrative law judge. The office shall not be subject to control, supervision or direction by the department in any manner, including, but not limited to, personnel, purchasing, transactions involving real or personal property and budgetary matters.
(b) The office shall employ a minimum of ten (10) administrative law judges to conduct hearings required by this chapter or other law. Any person employed by the office as an administrative law judge must have been a member of The Mississippi Bar in good standing for the preceding five (5) years.
(c) The chief administrative law judge shall have the discretion to designate a temporary interim administrative law judge if there is a vacancy for over thirty (30) days.
(d) By rule, the office may establish:
(i) Further qualifications for administrative law judges and shall establish procedures by which candidates will be considered for employment or contract.
(ii) Procedures for the assignment of administrative law judges.
(e) The office shall have the authority to adopt reasonable rules to carry out the provisions of this act.
(f) Rules promulgated by the office may authorize any reasonable sanctions except contempt for violation of the rules of the office or failure to comply with a reasonable order issued by an administrative law judge, which is not under judicial review.
(g) The office and its administrative law judges shall have power to preserve and enforce order during hearings; to issue subpoenas for, to administer oaths to and to compel the attendance and testimony of witnesses or the production of books, papers, documents and other evidence, or the taking of depositions before any designated individual competent to administer oaths; to examine witnesses; and to do all things conformable to law which may be necessary to enable them effectively to discharge the duties of their office.
(h) If any person in proceedings before an administrative law judge disobeys or resists any lawful order or process, or misbehaves during a hearing or so near the place thereof as to obstruct the same, or neglects to produce, after having been ordered to do so, any pertinent book, paper or document, or refuses to appear after having been subpoenaed or upon appearing refuses to take the oath as a witness, or after having taken the oath refuses to be examined according to law, the administrative law judge shall certify the facts to the court having jurisdiction in the place in which it is sitting, and the court shall thereupon in a summary manner hear the evidence as to the acts complained of and, if the evidence so warrants, punish such person in the same manner and to the same extent as for a contempt committed before the court, or commit such person upon the same condition as if the doing of the forbidden act had occurred with reference to the process of or in the presence of the court.
(i) In making an investigation or inquiry or conducting a hearing, the administrative law judge shall not be bound by common law or statutory rules of evidence or by technical or formal rules or procedure, except as provided by this chapter, but may make such investigation or inquiry or conduct such hearing in such manner as best to ascertain the rights of the parties.
(4) Jurisdiction over nonresidents. The department may use the procedures authorized by this section to determine paternity or establish or modify child support obligations against a nonresident over whom the state may assert personal jurisdiction under Chapter 43 or Chapter 93, Mississippi Code of 1972.
(5) Notice of proceeding to establish administrative support order. To commence a proceeding under this section, the department shall provide to the custodial parent a notice of proceeding to establish an administrative order and serve the noncustodial parent with a notice of proceeding to establish an administrative order along with a blank financial declaration form. The notice must state:
(a) The names of both parents, the name of the recipient of services, if any, and the name and date of birth of the child or children;
(b) The date, time and location of the administrative hearing at which the department intends to establish an administrative order as defined in this section;
(c) That the noncustodial parent must submit a completed financial declaration on or before the date of the hearing to the department after receiving the notice, as provided by paragraph (13)(a);
(d) That both parents, or parent and recipient of services if applicable, are required to furnish to the department information regarding their identities and locations, as provided by paragraph (13)(b);
(e) That both parents, or parent and recipient of services if applicable, are required to promptly notify the department of any change in their mailing addresses to ensure receipt of all subsequent pleadings, notices and orders, as provided by paragraph (13)(c);
(f) That the department will calculate support obligations based on the child support guidelines in Sections 43-19-101 and 43-19-103 and using all available information, as provided by paragraph (5)(a);
(g) That the department will send by regular mail to both parents, or parent and recipient of services if applicable, a copy of the administrative support order when entered;
(h) That the noncustodial parent may sign an agreed order at any time in the process and thereby waive an administrative hearing;
(i) That if the noncustodial parent does not appear at the scheduled hearing after receiving proper notice, the department will issue an administrative support order;
(j) That after an administrative support order is rendered, the department will file a copy of the order with the clerk of the court of appropriate jurisdiction;
(k) That after an administrative support order is rendered, the department may enforce the administrative support order by any lawful means;
(l) That either parent, or recipient of services if applicable, may file at any time a civil action in a court having jurisdiction and proper venue to determine the noncustodial parent's child support obligations, if any, and that a support order issued by a court may supersede an administrative support order rendered by the department prospectively only;
(m) That if written notice is received within twenty (20) days of the initial filing that the noncustodial parent has filed an action to determine paternity and/or support in a court of appropriate jurisdiction, then the department shall terminate the administrative process.
(n) That if such action is terminated as set forth in paragraph 5(m), the administrative process ends without prejudice and the action may proceed in court;
The department may serve the notice of proceeding to establish administrative support order by certified mail, restricted delivery, return receipt requested. Alternatively, the department may serve the notice by any means permitted for service of process in a civil action. For purposes of this section, an authorized employee of the department may serve the notice and execute an affidavit of service. Service by certified mail is completed when the certified mail is received or refused by the addressee or by an authorized agent as designated by the addressee in writing. If a person other than the addressee signs the return receipt, the department shall attempt to reach the addressee by telephone to confirm whether the notice was received, and the department shall document any telephonic communications and shall submit an affidavit of same. The Office of Administrative Hearing shall determine if the evidence is sufficient to constitute actual notice. If someone other than the addressee signs the return receipt, the addressee does not respond to the notice, and the department is unable to confirm that the addressee has received the notice, service is not completed and the department shall attempt to have the addressee served under any means permitted for service of process in a civil action. The department shall provide the custodial parent or recipient of services with a copy of the notice by regular mail to the last known address of the custodial parent or caretaker.
(6) Hearing.
(a) The hearing may be conducted in the county where the custodial parent resides or where the administrative support order was entered. However, venue is subject to transfer pursuant to Section 93-9-17. Further, in actions taken under the Uniform Interstate Family Support Act, to determine paternity or establish support, the hearing may be conducted where the noncustodial parent resides or may be found as provided under Chapter 93, Mississippi Code of 1972.
(b) The administrative law judge shall consider all available and admissible information and any presumptions that apply as provided herein.
(c) After serving notice upon the noncustodial parent in accordance with subsection (4), the department shall calculate the noncustodial parent's child support obligation under the child support guidelines as provided by Sections 43-19-101 and 42-19-103, based on any timely financial declarations received and other information available to the department. If the noncustodial parent fails to comply with the requirement to furnish a financial declaration, the department may proceed on the basis of information available from any source, if such information is sufficiently reliable and detailed to allow calculation of guideline amounts under Sections 43-19-101 and 43-19-103. If there is a lack of sufficient reliable information concerning a noncustodial parent's actual earnings for a current or past period, it shall be presumed for the purpose of establishing a support obligation that the parent had an earning capacity equal to the federal minimum wage during the applicable period.
(d) If the department receives additional information that makes it necessary to modify, amend, alter or set aside the administrative support order, it shall follow the same procedure as enumerated in this section.
(7) Administrative support order.
(a) If a hearing is held, the administrative law judge of the Office of Administrative Hearings shall issue an administrative support order, or a final order denying an administrative support order, which constitutes final action by the office. The Office of Administrative Hearings shall transmit any such order to the department for filing and rendering.
(b) If the noncustodial parent waives the right to a hearing, or consents in writing to the entry of an order without a hearing, the department through the office may render an administrative support order.
(c) The department shall send by regular mail a copy of the administrative support order, or the final order denying an administrative support order, to both parents, or a parent and recipient of services if applicable. The noncustodial parent shall be notified of the right to seek judicial review of the administrative support order by filing an action with the appropriate court.
(d) The department shall develop a standard form or forms for administrative support orders. An administrative support order must provide and state findings, if applicable, concerning:
(i) The full name and date of birth of the child or children;
(ii) The name of the noncustodial parent and the custodial parent or recipient of services;
(iii) The noncustodial parent's duty and ability to provide support;
(iv) The amount of the noncustodial parent's monthly support obligation;
(v) Any obligation to pay retroactive support;
(vi) The noncustodial parent's obligation to provide for the health care needs of each child through insurance coverage;
(vii) The beginning date of any required monthly payments and health care coverage;
(viii) That all support payments ordered must be paid to the Mississippi Centralized Receipting and Disbursement Unit;
(ix) That the parents, or recipient of services if applicable, must file with the department when the administrative support order is rendered, if they have not already done so, and update as appropriate the information required pursuant to paragraph (13)(b); and
(x) That both parents, or parent and recipient of services if applicable, shall be required to promptly notify the department of any change in their mailing addresses pursuant to paragraph (13)(c).
An order for withholding which complies with the provisions of Section 93-11-101 et seq. shall be entered by the Office of Administrative Hearings in every case where a child support obligation is established or modified pursuant to this section.
(8) Filing with the clerk of the court; official payment record; judgment by operation of law. The department shall file with the clerk of the court of appropriate jurisdiction a certified copy of an administrative support order rendered under this section. The cost of this filing shall not exceed Ten Dollars ($10.00). The County Department of Human Services where the administrative support order has been filed shall:
(a) Act as the official record keeper for payments required under the administrative support order;
(b) Establish and maintain the necessary payment accounts;
(c) Upon a delinquency, initiate the judgment by operation of law procedure as provided by Section 93-11-71; and
(d) Perform all other duties required with respect to a support order entered by a tribunal or court of this state.
(9) Collection action; enforcement.
(a) The department may implement an income withholding notice/order immediately upon rendition of said notice/order.
(b) The department may initiate other collection action thirty (30) days after the date an administrative support order is rendered under this section.
(c) In a subsequent proceeding to enforce an administrative support order, notice of the proceeding that is sent by regular mail to the person's address of record furnished to the department constitutes adequate notice of the proceeding pursuant to paragraph (13)(c).
(d) An administrative support order rendered under this section has the same force and effect as a court order and, until modified by the department or superseded by a court order, may be enforced:
(i) In any administrative manner permitted for enforcement of a support order issued by a court of this state, except for contempt, including, but not limited to:
1. The collection procedures pursuant to Chapters 43 and 93, Mississippi Code of 1972; or
2. The filing of a petition for enforcement before the Office of Administrative Hearings; or
(ii) Pursuant to the following judicial and quasi-judicial remedies:
1. Except as otherwise provided by statute:
a. The department may seek enforcement of an administrative order by filing a petition for confirmation and enforcement of the administrative order, as provided in this section, in the court of the appropriate jurisdiction. The matter shall be triable thirty (30) days after service of process is effected upon the defendant pursuant to the Rules of Civil Procedure.
b. A petition for enforcement of an administrative order filed by a nongovernmental person in the court of appropriate jurisdiction may be in the name of the State of Mississippi on the relation of the petitioner, and the doctrines of res judicata and collateral estoppel shall apply.
c. In an action brought under item (b), the department whose action is sought to be enforced, if not a party, may intervene as a matter of right.
2. A petition for enforcement may request declaratory relief; temporary or permanent equitable relief; any fine, forfeiture, penalty or other remedy provided by statute; any combination of the foregoing; or, in the absence of any other specific statutory authority, a fine not to exceed One Thousand Dollars ($1,000.00).
3. If the court issues its own order enforcing the administrative support order, the court may enforce its order by contempt. The presumption of ability to pay and purge contempt applies to an administrative support order that includes a finding of present ability to pay. Enforcement by the court, without any change by the court in the support obligations established in the administrative support order, does not supersede the administrative support order or affect the department's authority to modify the administrative support order as provided by subsection (12). An order by the court that requires the noncustodial parent to make periodic payments on arrearages does not constitute a change in the support obligations established in the administrative support order and does not supersede the administrative order.
4. After the court has rendered judgment on a petition for enforcement, no other petition shall be filed or adjudicated against the same department action, on the basis of the same transaction or occurrence, unless expressly authorized on remand. The doctrines of res judicata and collateral estoppel shall apply, and the court shall make such orders as are necessary to avoid multiplicity of actions.
5. In all judicial enforcement proceedings:
a. If enforcement depends on any facts other than those appearing in the record, the court may ascertain such facts under the rules.
b. If one or more petitions for enforcement and a petition for review involving the same department action are pending at the same time, the court considering the review petition may order all such actions transferred to and consolidated in one court. Each party shall be under an affirmative duty to notify the court when it becomes aware of multiple proceedings.
c. Should any party willfully fail to comply with an order of the court, the court shall punish that party in accordance with the law applicable to contempt committed by a person in the trial of any other action.
6. In any enforcement proceeding the respondent may assert as a defense the invalidity of any relevant statute, the inapplicability of the administrative determination to respondent, compliance by the respondent, the inappropriateness of the remedy sought by the department, or any combination of the foregoing. In addition, if the petition for enforcement is filed during the time within which the respondent could petition for judicial review of the administrative order, the respondent may assert the invalidity of the department action.
7. In any final order on a petition for enforcement where the department prevails, the court shall award to the department costs of litigation and reasonable attorney's fees and expert witness fees.
(10) Administrative review; judicial review, enforcement or court order superseding administrative support order.
(a) A noncustodial parent or the department may file before the Office of Administrative Hearings a motion for rehearing within ten (10) days of the rendering of an administrative support order or an order denying an administrative support order.
(b) A noncustodial parent has the right to seek judicial review of an administrative support order or a final order denying an administrative support order in accordance with this section. The department has the right to seek judicial review, in accordance with this section, of an administrative support order or a final order denying an administrative support order entered by an administrative law judge of the Office of Administrative Hearings.
(c) A court of this state, where venue is proper and the court has jurisdiction of the parties, may enter an order prospectively changing the support obligations established in an administrative support order, in which case the administrative support order is superseded and the court's order shall govern future proceedings in the case. Any unpaid support owed under the superseded administrative support order may not be retroactively modified by the court, except as provided by Section 43-19-34, and remains enforceable by the department, by the obligee or by the court. In all cases in which an administrative support order is superseded, the court shall determine the amount of any unpaid support owed under the administrative support order and shall include the amount as arrearage in its superseding order. In such instances, the court may remand the case for future action by the Office of Administrative Hearings.
(d) The procedure for judicial review shall be as follows:
(i) A party who is adversely affected by a final administrative order is entitled to judicial review in the court of appropriate jurisdiction located in the county where the order is filed.
(ii) All proceedings shall be instituted by filing a petition for review in accordance with the Mississippi Rules of Civil Procedure within thirty (30) days after the rendition of the order for which review is sought.
(iii) The filing of the petition does not itself stay enforcement of the Office of Administrative Hearings' order, absent an order of the court. The Office of Administrative Hearings may also grant a stay upon appropriate terms. In any event, the court or the Office of Administrative Hearings shall specify the conditions, if any, upon which the stay or supersedeas is granted.
(iv) Judicial review of any administrative order shall be de novo but the court shall take judicial notice of all contents of the file of the Office of Administrative Hearings.
(v) The reviewing court's decision may be mandatory, prohibitory or declaratory in form, and it shall provide whatever relief is appropriate irrespective of the original form of the petition.
(vi) If the court sets aside an administrative order or remands the case to the Office of Administrative Hearings for further proceedings, it may make such interlocutory order as the court finds necessary to preserve the interests of any party and the public pending further proceedings.
(vii) The court shall remand a case to the Office of Administrative Hearings for further proceedings consistent with the court's decision or set aside the administrative order, as appropriate, when it finds that:
1. There has been no hearing prior to entry of an administrative order and the reviewing court finds that the validity of the action depends upon disputed facts;
2. The Office of Administrative Hearings' decision depends on any finding of fact that is not supported by competent, substantial evidence in the record of a hearing; however, the court shall not substitute its judgment for that of the Office of Administrative Hearings as to the weight of the evidence on any disputed finding of fact;
3. The fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure;
4. The Office of Administrative Hearings has erroneously interpreted a provision of law and a correct interpretation compels a particular action; or
5. The Office of Administrative Hearings' exercise of discretion was:
a. Outside the range of discretion delegated to the Office of Administrative Hearings by law; or
b. Otherwise in violation of a constitutional or statutory provision; but the court shall not substitute its judgment for that of the Office of Administrative Hearings on an issue of discretion.
(viii) Unless the court finds a ground for setting aside, modifying, remanding or ordering the Office of Administrative Hearings to take further action or ancillary relief under a specified provision of this section, it shall affirm the Office of Administrative Hearings' order.
(11) Effectiveness of administrative support order. An administrative support order rendered under this section has the same force and effect as a court order and remains in effect until modified by the department, vacated on review or superseded by a subsequent court order. If the department closes a Title IV-D case in which an administrative support order has been rendered:
(a) The department shall take no further action to enforce or modify the administrative support order;
(b) The administrative support order remains effective until superseded by a subsequent court order; and
(c) The administrative support order may be enforced by the obligee by any means provided by law.
(12) Modification of administrative support order. If it has not been superseded by a subsequent court order or has been remanded by a court of appropriate jurisdiction, the Office of Administrative Hearings may modify, suspend or terminate an administrative support order in a Title IV-D case, subject to the provisions of Section 43-19-34, by following the same procedures set forth in this section for establishing an administrative support order, as applicable.
(13) Required disclosures; presumptions; notice sent to address of record. In all proceedings pursuant to this section:
(a) An updated financial declaration must be executed and furnished to the department at the inception of each proceeding to modify an administrative support order. Recipient of services are not required to furnish financial declarations.
(b) The noncustodial parent, custodial parent and recipient of services if applicable, shall disclose to the department, and update as appropriate, information regarding their identity and location, including names they are known by; social security numbers; residential and mailing addresses; telephone numbers; driver's license numbers; and names, addresses and telephone numbers of employers. Pursuant to the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996, each person must provide his or her social security number in accordance with this section. Disclosure of social security numbers obtained through this requirement shall be limited to the purpose of administration of the Title IV-D program for child support enforcement.
(c) The noncustodial parent, custodial parent and recipient of services, if applicable, have a continuing obligation to promptly inform the department in writing of any change in their mailing addresses to ensure receipt of all subsequent pleadings, notices, payments, statements and orders, and receipt is presumed if sent by regular mail to the most recent address furnished by the person.
(14) Judicial pleadings and motions. A party to any subsequent judicial proceeding concerning the support of the same child or children shall affirmatively plead the existence of, and furnish the court with a correct copy of, an administrative support order rendered under this section, and shall provide the department with a copy of the initial pleading. The department may intervene as a matter of right in any such judicial proceeding involving issues within the scope of the Title IV-D case.
(15) Provisions supplemental to existing law. This section does not limit or negate the department's authority to determine paternity, seek establishment or modification of child support obligations under any other applicable state or federal law.
(16) Rulemaking authority. The department and the office may adopt rules to administer this section.
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 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 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 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. 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 5. 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 Commissioner of Human Services is empowered to enter into cooperative agreements with district attorneys, county attorneys and attorneys employed by the county boards of supervisors. 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 6. 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 7. 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 8. 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 9. Section 93-25-5, Mississippi Code of 1972, is amended as follows:
93-25-5. The chancery courts, circuit and county courts, family courts and tribal courts, and the Office of Administrative Hearings of the Department of Human Services, are the tribunals of this state.
SECTION 10. This act shall take effect and be in force from and after its passage.