MISSISSIPPI LEGISLATURE
2022 Regular Session
To: Judiciary, Division A
By: Senator(s) Wiggins
AN ACT TO CREATE NEW SECTION 43-19-36, MISSISSIPPI CODE OF 1972, TO AID THE DEPARTMENT OF HUMAN SERVICES TO COMPLY WITH FEDERAL LAW; TO PROVIDE THAT CHILD SUPPORT OBLIGATIONS SHALL BE SUSPENDED BY OPERATION OF LAW FOR PERSONS ORDERED TO PAY CHILD SUPPORT WHO ARE INCARCERATED OR INVOLUNTARILY INSTITUTIONALIZED FOR MORE THAN 180 DAYS, WITH CERTAIN EXCEPTIONS; TO PROVIDE THAT THE CHILD SUPPORT OBLIGATION WILL RESUME 60 DAYS AFTER THE NONCUSTODIAL PARENT IS RELEASED FROM INCARCERATION, AND THE NONCUSTODIAL PARENT'S CHILD SUPPORT ORDER AND OBLIGATION WILL BECOME ENFORCEABLE ON THAT DATE; TO AUTHORIZE THE DEPARTMENT OF HUMAN SERVICES WHEN ENFORCING A CHILD SUPPORT ORDER TO ADMINISTRATIVELY ADJUST THE ARREARS BALANCE FOR AN ORDER FOR CHILD SUPPORT THAT WAS SUSPENDED BECAUSE OF INCARCERATION OR INSTITUTIONALIZATION UNDER CERTAIN CONDITIONS; TO AMEND SECTIONS 93-11-65, 93-11-71 AND 93-5-23, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTION; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 43-19-36, Mississippi Code of 1972:
43-19-36. (1) For the purposes of this section, the following terms shall be defined as provided in this subsection:
(a) "Incarcerated or involuntarily institutionalized" includes, but is not limited to, involuntary confinement to a federal or state prison or correctional facility, a county jail, a juvenile detention center or a mental health facility. This term does not include probation or work release, and the one hundred and eighty (180) consecutive days excludes credit for time served before sentencing.
(b) "Child support obligation" means the payment due on the current child support order, an arrears payment on a preexisting arrears balance, or interest on arrears.
(c) "Suspension" means a child support obligation being administratively set to Zero Dollars ($0.00) for the period in which the person owing support is incarcerated or involuntarily institutionalized, and prevents the accrual of arrears during that period of incarceration.
(2) Child support obligations shall be suspended, by operation of law, for any period exceeding one hundred eighty (180) consecutive days in which the person ordered to pay support is incarcerated or involuntarily institutionalized, unless either of the following conditions exists:
(a) The person owing support has the means to pay support in accordance with the guidelines established in 43-19-101 and 43-19-103 while incarcerated or involuntarily institutionalized; or
(b) The person owing support was incarcerated or involuntarily institutionalized for an offense constituting domestic violence under Section 97-3-7, child abuse under Section 97-5-39, or criminal nonpayment of child support under Section 97-5-3.
(3) The child support obligation will resume the first day of the month following the expiration of sixty (60) days after the date the noncustodial parent is released from incarceration, and the noncustodial parent's child support order and obligation will become enforceable on that date. This section does not preclude a person owing support from seeking a modification of the child support order based on a change in circumstances or other appropriate reason.
(4) (a) The Department of Human Services enforcing a child support order under Title IV-D of the Social Security Act (42 USC Section 651 et seq.) may, upon written notice of the proposed adjustment to the obligor and the obligee, administratively adjust the arrears balance for an order for child support suspended under subsection (2) of this section if all of the following occur:
(i) The department verifies that arrears were accrued in violation of this section;
(ii) The department verifies that neither of the conditions set forth in paragraph (a) or (b) of subsection (2) of this section exist; and
(iii) Neither the support obligor nor obligee objects in writing within thirty (30) days of receipt of the notice of proposed adjustment by the department.
(b) If either the support obligor or obligee objects to the administrative adjustment set forth in this subsection, the department shall file a petition with the court for a determination of the arrears balance.
(c) The department may perform this adjustment without regard to whether it was enforcing the child support order at the time the parent owing support qualified for relief under this section.
(5) This section does not prohibit the department or a party from petitioning a court for a determination of child support or arrears amounts.
(6) This section applies to every child support obligation in which the person who is ordered to pay is incarcerated for one hundred eighty (180) consecutive days after the enactment of this section.
SECTION 2. 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) Except as otherwise provided in Section 1 of this act for persons who are incarcerated or involuntarily institutionalized, 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.
(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 3. Section 93-11-71, Mississippi Code of 1972, is amended as follows:
93-11-71. (1) Except as otherwise provided in Section 1 of this act for persons who are incarcerated or involuntarily institutionalized, 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 that are then due and owing.
(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 the judgment may be begun 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 subsection (2) of this section, 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 and such assets shall apply to all child support owed including all arrears:
(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 that are received in periodic payments made over a period in excess of thirty (30) days;
(c) Assets held in financial institutions;
(d) Settlements and awards resulting from civil actions;
(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; and
(f) Lump-sum payments as defined in Section 93-11-101.
(4) Notwithstanding the provisions of subsections (1) and (2) of this section, upon disestablishment of paternity granted pursuant to Section 93-9-10 and a finding of clear and convincing evidence including negative DNA testing that the obligor is not the biological father of the child or children for whom support has been ordered, the court shall disestablish paternity and may forgive any child support arrears of the obligor for the child or children determined by the court not to be the biological child or children of the obligor, if the court makes a written finding that, based on the totality of the circumstances, the forgiveness of the arrears is equitable under the circumstances.
(5) 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.
(6) A parent who receives social security disability insurance payments who is liable for a child support arrearage and whose disability insurance benefits provide for the payment of past due disability insurance benefits for the support of the minor child or children for whom the parent owes a child support arrearage shall receive credit toward the arrearage for the payment or payments for the benefit of the minor child or children if the arrearage accrued after the date of disability onset as determined by the Social Security Administration.
SECTION 4. 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. For the purposes of orders touching the maintenance and alimony of the wife or husband, "property" and "an asset of a spouse" shall not include any interest a party may have as an heir at law of a living person or any interest under a third-party will, nor shall any such interest be considered as an economic circumstance or other factor. 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.
Except as otherwise provided in Section 1 of this act for persons who are incarcerated or involuntarily institutionalized, 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.
At the discretion of the court, any person found in contempt for failure to pay child support and imprisoned therefor may be referred for placement in a state, county or municipal restitution, house arrest or restorative justice center or program, provided such person meets the qualifications prescribed in Section 99-37-19.
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 pursuant to Section 93-11-65.
Custody and visitation upon military temporary duty, deployment or mobilization shall be governed by Section 93-5-34.
SECTION 5. This act shall take effect and be in force from and after July 1, 2022.