MISSISSIPPI LEGISLATURE
2018 Regular Session
To: Judiciary A
By: Representative Clark
AN ACT TO AMEND SECTION 93-11-65, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT OVERDUE CHILD SUPPORT REMAINS PAYABLE TO THE CUSTODIAL PARENT OR GUARDIAN AFTER THE EMANCIPATION OF A CHILD UNLESS THE COURT AFFIRMATIVELY DETERMINES OTHERWISE; TO AMEND SECTION 93-11-103, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT THE AMOUNT OF CHILD SUPPORT ARREARAGES WITHHELD FROM LUMP SUM PAYMENTS BY AN EMPLOYER TO THE OBLIGOR MAY NOT EXCEED THE AMOUNT THAT THE EMPLOYER WOULD HAVE WITHHELD IF THE LUMP SUM HAD BEEN PAID AS THE EMPLOYEE'S USUAL EARNINGS; TO AMEND SECTION 93-11-111, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT THE EMPLOYER OF AN OBLIGOR FOR CHILD SUPPORT IS ENTITLED TO THE FEE FOR EACH PAY PERIOD FROM WHICH INCOME IS WITHHELD AND THAT THE FEE SHALL BE WITHHELD FROM THE INCOME OF THE OBLIGOR IN ADDITION TO THE SUPPORT PAYMENTS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 93-11-65, Mississippi Code of 1972, is amended as follows:
93-11-65. (1) (a) In addition to the right to proceed under Section 93-5-23, Mississippi Code of 1972, and in addition to the remedy of habeas corpus in proper cases, and other existing remedies, the chancery court of the proper county shall have jurisdiction to entertain suits for the custody, care, support and maintenance of minor children and to hear and determine all such matters, and shall, if need be, require bond, sureties or other guarantee to secure any order for periodic payments for the maintenance or support of a child. 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. Proceedings may be brought by or against a resident or nonresident of the State of Mississippi, whether or not having the actual custody of minor children, for the purpose of judicially determining the legal custody of a child. All actions herein authorized may be brought in the county where the child is actually residing, or in the county of the residence of the party who has actual custody, or of the residence of the defendant. Process shall be had upon the parties as provided by law for process in person or by publication, if they be nonresidents of the state or residents of another jurisdiction or are not found therein after diligent search and inquiry or are unknown after diligent search and inquiry; provided that the court or chancellor in vacation may fix a date in termtime or in vacation to which process may be returnable and shall have power to proceed in termtime or vacation. Provided, however, that if the court shall find that both parties are fit and proper persons to have custody of the children, and that either party is able to adequately provide for the care and maintenance of the children, the chancellor may consider the preference of a child of twelve (12) years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child. The chancellor shall place on the record the reason or reasons for which the award of custody was made and explain in detail why the wishes of any child were or were not honored.
(b) An order of child support shall specify the sum to be paid weekly or otherwise. In addition to providing for support and education, the order shall also provide for the support of the child prior to the making of the order for child support, and such other expenses as the court may deem proper.
(c) The court may require the payment to be made to the custodial parent, or to some person or corporation to be designated by the court as trustee, but if the child or custodial parent is receiving public assistance, the Department of Human Services shall be made the trustee.
(d) The noncustodial parent's liabilities for past education and necessary support and maintenance and other expenses are limited to a period of one (1) year next preceding the commencement of an action.
(2) Provided further, that where the 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 in proportion to the relative financial ability of each.
(3) 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.
(4) When a charge of abuse or neglect of a child first arises in the course of a custody or maintenance action pending in the chancery court pursuant to this section, the chancery court may proceed with the investigation, hearing and determination of such abuse or neglect charge as a part of its hearing and determination of the custody or maintenance issue as between the parents, as provided in Section 43-21-151, notwithstanding the other provisions of the Youth Court Law. The proceedings in chancery court on the abuse or neglect charge shall be confidential in the same manner as provided in youth court proceedings, and the chancery court shall appoint a guardian ad litem in such cases, as provided under Section 43-21-121 for youth court proceedings, who shall be an attorney. In determining whether any portion of a guardian ad litem's fee shall be assessed against any party or parties as a cost of court for reimbursement to the county, the court shall consider each party's individual ability to pay. 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 the public.
(5) Each party to a paternity or child support proceeding shall notify the other within five (5) days after any change of address. In addition, the noncustodial and custodial parent shall file and update, with the court and with the state case registry, information on that party's location and identity, including social security number, residential and mailing addresses, telephone numbers, photograph, driver's license number, and name, address and telephone number of the party's employer. This information shall be required upon entry of an order or within five (5) days of a change of address.
(6) In any case subsequently enforced by the Department of Human Services pursuant to Title IV-D of the Social Security Act, the court shall have continuing jurisdiction.
(7) In any subsequent child support enforcement action between the parties, upon sufficient showing that diligent effort has been made to ascertain the location of a party, due process requirements for notice and service of process shall be deemed to be met with respect to the party upon delivery of written notice to the most recent residential or employer address filed with the state case registry.
(8) (a) The duty of support of a child terminates upon the emancipation of the child. Unless otherwise provided for in the underlying child support judgment, emancipation shall occur when the child:
(i) Attains the age of twenty-one (21) years, or
(ii) Marries, or
(iii) Joins the military and serves on a full-time basis, or
(iv) Is convicted
of a felony and is sentenced to incarceration of two (2) or more years for committing
such felony * * *.
(b) Unless otherwise provided for in the underlying child support judgment, the court may determine that emancipation has occurred and no other support obligation exists when the child:
(i) Discontinues full-time enrollment in school having attained the age of eighteen (18) years, unless the child is disabled, or
(ii) Voluntarily moves from the home of the custodial parent or guardian, establishes independent living arrangements, obtains full-time employment and discontinues educational endeavors prior to attaining the age of twenty-one (21) years, or
(iii) Cohabits
with another person without the approval of the parent obligated to pay support * * *.
(c) The duty of support of a child who is incarcerated but not emancipated shall be suspended for the period of the child's incarceration.
(d) Overdue child support shall remain payable to the custodial parent or guardian after the emancipation of a child unless the court affirmatively determines otherwise.
(9) A determination of emancipation does not terminate any obligation of the noncustodial parent to satisfy arrearage existing as of the date of emancipation; the total amount of periodic support due prior to the emancipation plus any periodic amounts ordered paid toward the arrearage shall continue to be owed until satisfaction of the arrearage in full, in addition to the right of the person for whom the obligation is owed to execute for collection as may be provided by law.
(10) Upon motion of a party requesting temporary child support pending a determination of parentage, temporary support shall be ordered if there is clear and convincing evidence of paternity on the basis of genetic tests or other evidence, unless the court makes written findings of fact on the record that the award of temporary support would be unjust or inappropriate in a particular case.
(11) Custody and visitation upon military temporary duty, deployment or mobilization shall be governed by Section 93-5-34.
SECTION 2. Section 93-11-103, Mississippi Code of 1972, is amended as follows:
93-11-103. (1) Upon entry of any order for support by a court of this state where the custodial parent is a recipient of services under Title IV-D of the federal Social Security Act, issued on or after October 1, 1996, the court entering such order shall enter a separate order for withholding which shall take effect immediately without any requirement that the obligor be delinquent in payment. All such orders for support issued prior to October 1, 1996, shall, by operation of law, be amended to conform with the provisions contained herein. All such orders for support issued shall:
(a) Contain a provision for monthly income withholding procedures to take effect in the event the obligor becomes delinquent in paying the order for support without further amendment to the order or further action by the court; and
(b) Require that the payor withhold any additional amount for delinquency specified in any order if accompanied by an affidavit of accounting, a notarized record of overdue payments, official payment record or an attested judgment for delinquency or contempt. Any person who willfully and knowingly files a false affidavit, record or judgment shall be subject to a fine of not more than One Thousand Dollars ($1,000.00). The Department of Human Services shall be the designated agency to receive payments made by income withholding in child support orders enforced by the department. All withholding orders shall be on a form as prescribed by the department.
(2) Upon entry of any order for support by a court of this state where the custodial parent is not a recipient of services under Title IV-D of the federal Social Security Act, issued or modified or found to be in arrears on or after January 1, 1994, the court entering such order shall enter a separate order for withholding which shall take effect immediately. Such orders shall not be subject to immediate income withholding under this subsection: (a) if one (1) of the parties (i.e., noncustodial or custodial parent) demonstrates, and the court finds, that there is good cause not to require immediate income withholding, or (b) if both parties agree in writing to an alternative arrangement. The Department of Human Services shall be the designated agency to receive payments made by income withholding in all child support orders. Withholding orders shall be on a form as prescribed by the department.
(3) If a child support order is issued or modified in the state but is not subject to immediate income withholding, it automatically becomes so if the court finds that a support payment is thirty (30) days past due. If the support order was issued or modified in another state but is not subject to immediate income withholding, it becomes subject to immediate income withholding on the date on which child support payments are at least thirty (30) days in arrears, or (a) the date as of which the noncustodial parent requests that withholding begin, (b) the date as of which the custodial parent requests that withholding begin, or (c) an earlier date chosen by the court, whichever is earlier.
(4) The clerk of the court shall submit copies of such orders to the obligor's payor, any additional or subsequent payor, and to the Mississippi Department of Human Services Case Registry. The clerk of the court, the obligee's attorney, or the department may serve such immediate order for withholding by first-class mail or personal delivery on the obligor's payor, superintendent, manager, agent or subsequent payor, as the case may be. There shall be no need for further notice, hearing, order, process or procedure before service of said order on the payor or any additional or subsequent payor. The obligor may contest, if grounds exist, service of the order of withholding on additional or subsequent payors, by filing an action with the issuing court. Such filing shall not stay the obligor's duty to support pending judicial determination of the obligor's claim. Nothing herein shall be construed to restrict the authority of the courts of this state from entering any order it deems appropriate to protect the rights of any parties involved.
(5) The order for withholding shall:
(a) Direct any payor to withhold an amount equal to the order for current support;
(b) Direct any payor to withhold an additional amount, not less than fifteen percent (15%) of the order for support, until payment in full of any delinquency; 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.
(6) All orders for withholding may permit the Department of Human Services to withhold through said withholding order additional amounts to recover costs incurred through its efforts to secure the support order, including, but not limited to, all filing fees, court costs, service of process fees, mailing costs, birth certificate certification fee, genetic testing fees, the department's attorney's fees; and, in cases where the state or any of its entities or divisions have provided medical services to the child or the child's mother, all medical costs of prenatal care, birthing, postnatal care and any other medical expenses incurred by the child or by the mother as a consequence of her pregnancy or delivery.
(7) At the time the order for withholding is entered, the clerk of the court shall provide copies of the order for withholding and the order for support to the obligor, which shall be accompanied by a statement of the rights, remedies and duties of the obligor under Sections 93-11-101 through 93-11-119. The clerk of the court shall make copies available to the obligee and to the department or its local attorney.
(8) The order for withholding shall remain in effect for as long as the order for support upon which it is based.
(9) The failure of an order for withholding to state an arrearage is not conclusive of the issue of whether an arrearage is owing.
(10) Any order for withholding entered pursuant to this section shall not be considered a garnishment.
(11) All existing orders for support shall become subject to additional withholding if arrearages occur, subject to court hearing and order. The Department of Human Services or the obligee or his agent or attorney must send to each delinquent obligor notice that:
(a) The withholding on the delinquency has commenced;
(b) The information along with the required affidavit of accounting, notarized record of overdue payment or attested judgment of delinquency or contempt has been sent to the employer; and
(c) The obligor may file an action with the issuing court on the grounds of mistake of fact. Such filing must be made within thirty (30) days of receipt of the notice and shall not stay the obligor's duty to support pending judicial determination of the obligor's claim.
(12) An employer who complies with an income withholding notice that is regular on its face and which is accompanied by the required accounting affidavit, notarized record of overdue payments or attested judgment of delinquency or contempt shall not be subject to civil liability to any individual or agency for conduct in compliance with the notice.
(13) Any employer who has been served with an order for withholding under this section, which includes a provision for payment of arrears, shall notify the Department of Human Services before making any lump-sum payment of more than Five Hundred Dollars ($500.00) to the obligor.
An employer to whom this section applies shall notify the Department of Human Services of its intention to make a lump-sum payment at least forty-five (45) days before the planned date of the lump-sum payment, or as soon as the decision is made to make the payment, should that be less than forty-five (45) days. The employer shall not release the lump sum to the obligor until thirty (30) days after the intended date of the payment or until authorization is received from the Department of Human Services, whichever is earlier.
Upon receipt of notice to
pay a lump sum from an employer, the Department of Human Services shall provide
the employer with a Notice of Lien in accordance with Section 93-11-71
specifying the amount of the lump sum to be withheld for payment of child
support arrearage. * * *
The amount withheld from the lump sum for child support arrearages may
not exceed an amount equal to the amount the employer would have withheld if
the * * *
lump sum had been paid as the employee's usual earnings.
SECTION 3. Section 93-11-111, Mississippi Code of 1972, is amended as follows:
93-11-111. (1) It shall be the duty of any payor who has been served with a copy of the order for withholding and an attached affidavit of accounting, a certified record of payments, or judgment for delinquency to deduct and pay over income as provided in this section. The payor shall deduct the amount designated in the order for withholding beginning with the next payment of income that is payable to the obligor after fourteen (14) days following service of the order and notice. The payor shall pay the amounts withheld to the department within seven (7) days of the date the obligor is paid in accordance with the order for withholding and in accordance with any later notification received redirecting payments. The department shall then forward those amounts to the obligee.
(2) For * * * intrastate withholding of income, the payor
shall be entitled to receive a fee of Two Dollars ($2.00) * * * for each pay period from which income is
withheld, regardless of the number of payments the payor makes to the
department. The fee shall be withheld from the income of the obligor in
addition to the support payments. However, in all interstate withholding,
the rules and laws of the state where the obligor works shall determine the
payor's processing fee.
(3) The payor shall, unless otherwise notified by the department, withhold from the income of the obligor and forward to the department each month, an amount specified by the department not to exceed Fifteen Dollars ($15.00) per month to defray the department's administrative costs incurred in receiving and distributing money withheld under Sections 93-11-101 through 93-11-119. The payor may pay such amount to the department in any manner determined by the payor to be convenient and may include that amount in checks to the department for amounts withheld pursuant to the order for withholding.
(4) Regardless of the amount designated in the order for withholding and regardless of other fees imposed or amounts withheld under this section, the payor shall not deduct from the income of the obligor in excess of the amounts allowed under Section 303(b) of the Consumer Credit Protection Act, being 15 USCS 1673, as amended.
(5) A payor may combine all amounts that he is required to withhold and pay to the department in one (1) payment; however, the payor must send to the department a list showing the amount of the payment attributable to each obligor.
(6) Whenever the obligor is no longer receiving income from the payor, the payor shall return a copy of the order for withholding to the department and shall forward the obligor's last known address and name and address of the obligor's new employer, if known, to the department. The payor shall cooperate in providing further information for the purpose of enforcing Sections 93-11-101 through 93-11-119.
(7) Withholding of income under this section shall be made without regard to any prior or subsequent garnishments, attachments, wage assignments or any other claims of creditors. Payment as required by the order for withholding shall be a complete defense by the payor against any claims of the obligor or his creditors as to the sum so paid.
(8) In cases in which the payor has been served more than one (1) order for withholding for the same obligor, the payor shall honor the orders on a pro rata basis to result in withholding an amount for each order that is in direct proportion to the percentage of the obligor's adjusted gross income that the order represents, and the payor shall honor all those withholdings to the extent that the total amount withheld does not exceed the maximum amount specified in subsection (1) of this section.
(9) No payor shall discharge, discipline, refuse to hire or otherwise penalize any obligor because of the duty to withhold income.
SECTION 4. This act shall take effect and be in force from and after July 1, 2018.