Bill Text: MS HB1266 | 2017 | Regular Session | Introduced
Bill Title: Accrual of child support for incarcerated noncustodial parents; suspend during incarceration and certain period after release.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2017-01-31 - Died In Committee [HB1266 Detail]
Download: Mississippi-2017-HB1266-Introduced.html
MISSISSIPPI LEGISLATURE
2017 Regular Session
To: Corrections; Judiciary A
By: Representative Anderson
House Bill 1266
AN ACT TO AMEND SECTION 93-11-65, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE DUTY TO PAY CHILD SUPPORT IS SUSPENDED DURING THE PERIOD OF INCARCERATION OF A NONCUSTODIAL PARENT WHO IS CONVICTED OF A FELONY OFFENSE; TO PROVIDE THAT NO ARREARAGE SHALL BE ASSESSED DURING THE PERIOD OF INCARCERATION; TO PROVIDE THAT THE DUTY OF SUPPORT SHALL RESUME AFTER A CERTAIN PERIOD THAT THE PARENT IS RELEASED FROM INCARCERATION; TO AMEND SECTION 93-5-23, IN CONFORMITY TO THE SUCCEEDING SECTION; TO BRING FORWARD SECTION 93-11-71, MISSISSIPPI CODE OF 1972, WHICH PERTAINS TO JUDGMENT FOR OVERDUE CHILD SUPPORT, FOR PURPOSES OF POSSIBLE AMENDMENT; 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, * * *
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 * * *
the parent, any order
of support issued against * * * the parent may require him or her to
exercise the option of additional coverage in favor of * * * the 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 * * * are nonresidents of the state or residents of another
jurisdiction or are not found * * * after diligent search and inquiry or
are unknown after diligent search and inquiry; * * * 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 * * * finds 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 * * * before 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 * * *the payments, and whenever such
payments * * *
that have become due remain unpaid for a period of at least thirty (30)
days, the court may, upon petition of the person to whom * * * the payments are owing, or * * * that person's legal representative,
enter an order requiring that bond, sureties or other security be given by the
person obligated to make * * *such the 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 * * * the 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 * * * under this section, the
chancery court may proceed with the investigation, hearing and determination of * * * the 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; * * *or
(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 * * * before attaining the age of twenty-one (21) years, or
(iii) Cohabits with another person without the approval of the parent obligated to pay support; * * * and
(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.
(12) The duty of support of a child by a noncustodial parent who is incarcerated upon conviction for a felony shall be suspended while the parent is incarcerated, and the duty of support shall resume six (6) months after the parent is released from incarceration. The Department of Corrections shall certify the date of release of the noncustodial parent, and there shall be no arrearage assessed to the noncustodial parent for child support that would have otherwise accrued during the period that the duty of a child support is suspended under this subsection. The suspension and grace period provided under this subsection shall only be applicable during the first six months after release and shall not be renewed due to loss of employment.
SECTION 2. 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. * * * If 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 * * * that parent, any order of support
issued against * * *
the parent may require him or her to exercise the option of additional coverage
in favor of * * *
the children as he or she is legally responsible to support.
Whenever the court has
ordered a party to make periodic payments for the maintenance or support of a
child, but no bond, sureties or other guarantee has been required to secure * * * the payments, and whenever * * * the 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 * * * that person's legal representative,
enter an order requiring that bond, sureties or other security be given by the
person obligated to make * * *such the 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. Placement under this provision shall not trigger suspension of the duty to pay support under Section 93-11-65 (12).
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 * * * the continuance, the court may
direct the party and his attorney making * * * the 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 * * *
the allegation and take * * * any 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 * * * the allegation.
The court may investigate,
hear and make a determination in a custody action when a charge of abuse * * * or neglect or both abuse and 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 * * * 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 3. Section 93-11-71, Mississippi Code of 1972, is brought forward as follows:
93-11-71. (1) Whenever a court orders any person to make periodic payments of a sum certain for the maintenance or support of a child, and whenever such payments as have become due remain unpaid for a period of at least thirty (30) days, a judgment by operation of law shall arise against the obligor in an amount equal to all payments 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. This act shall take effect and be in force from and after July 1, 2017.
