Bill Text: MS HB850 | 2017 | Regular Session | Introduced
Bill Title: Child support; duty to pay suspended upon incarceration and revise period for certain licensee to have license revoked for failure to pay.
Sponsorship: Partisan Bill (Democrat 1)
Status: (Failed) 2017-01-31 - Died In Committee [HB850 Detail]
Download: Mississippi-2017-HB850-Introduced.html
MISSISSIPPI LEGISLATURE
2017 Regular Session
To: Judiciary A; Corrections
By: Representative Dixon
House Bill 850
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 AMEND SECTION 93-11-157, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT AN INDIVIDUAL WHO HAS BEEN INCARCERATED SHALL NOT HAVE HIS OR HER LICENSE SUSPENDED FOR FAILURE TO PAY CHILD SUPPORT, DURING THE PERIOD OF HIS OR HER INCARCERATION, UNTIL SIX MONTHS AFTER SUCH PERSON HAS BEEN RELEASED FROM INCARCERATION; 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. 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.
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 4. Section 93-11-157, Mississippi Code of 1972, is amended as follows:
93-11-157. (1) The division shall review the information received under Section 93-11-155 and any other information available to the division, and shall determine if a licensee is out of compliance with an order for support. If a licensee is out of compliance with the order for support, the division shall notify the licensee by first class mail that ninety (90) days or six (6) months if the licensee has been incarcerated as provided under Section 93-11-65, as the case may be, after the licensee receives the notice of being out of compliance with the order, the licensing entity will be notified to immediately suspend the licensee's license unless the licensee pays the arrearage owing, according to the accounting records of the Mississippi Department of Human Services or the attorney representing the party to whom support is due, as the case may be, or enters into a stipulated agreement and agreed judgment establishing a schedule for the payment of the arrearage. The licensee shall be presumed to have received the notice five (5) days after it is deposited in the mail.
(2) Upon receiving the notice provided in subsection (1) of this section the licensee may:
(a) Request a review with the division; however, the issues the licensee may raise at the review are limited to whether the licensee is the person required to pay under the order for support and whether the licensee is out of compliance with the order for support; or
(b) Request to participate in negotiations with the division for the purpose of establishing a payment schedule for the arrearage.
(3) The division director or the designees of the division director may and, upon request of a licensee, shall negotiate with a licensee to establish a payment schedule for the arrearage. Payments made under the payment schedule shall be in addition to the licensee's ongoing obligation under the latest entered periodic order for support.
(4) Should the division and the licensee reach an agreement on a payment schedule for the arrearage, the division director may submit to the court a stipulated agreement and agreed judgment containing the payment schedule which, upon the court's approval, is enforceable as any order of the court. If the court does not approve the stipulated agreement and agreed judgment, the court may require a hearing on a case-by-case basis for the judicial review of the payment schedule agreement.
(5) If the licensee and the division do not reach an agreement on a payment schedule for the arrearage, the licensee may move the court to establish a payment schedule. However, this action does not stay the license suspension.
(6) The notice given to a licensee that the licensee's license will be suspended in ninety (90) days or six (6) months, as the case may be, must clearly state the remedies and procedures that are available to a licensee under this section.
(7) If at the end of the ninety (90) days or six (6) months, as the case may be, the licensee has an arrearage according to the accounting records of the Mississippi Department of Human Services or the attorney representing the party to whom support is due, as the case may be, and the licensee has not entered into a stipulated agreement and agreed judgment establishing a payment schedule for the arrearage, the division shall immediately notify all applicable licensing entities in writing to suspend the licensee's license, and the licensing entities shall immediately suspend the license and shall within three (3) business days notify the licensee and the licensee's employer, where known, of the license suspension and the date of such suspension by certified mail return receipt requested. Within forty-eight (48) hours of receipt of a request in writing delivered personally, by mail or by electronic means, the department shall furnish to the licensee, licensee's attorney or other authorized representative a copy of the department's accounting records of the licensee's payment history. A licensing entity shall immediately reinstate the suspended license upon the division's notification of the licensing entities in writing that the licensee no longer has an arrearage or that the licensee has entered into a stipulated agreement and agreed judgment.
(8) Within thirty (30) days after a licensing entity suspends the licensee's license at the direction of the division under subsection (7) of this section, the licensee may appeal the license suspension to the chancery court of the county in which the licensee resides or to the Chancery Court of the First Judicial District of Hinds County, Mississippi, upon giving bond with sufficient sureties in the amount of Two Hundred Dollars ($200.00), approved by the clerk of the chancery court and conditioned to pay any costs that may be adjudged against the licensee. Notice of appeal shall be filed in the office of the clerk of the chancery court. If there is an appeal, the appeal may, in the discretion of and on motion to the chancery court, act as a supersedeas of the license suspension. The department shall be the appellee in the appeal, and the licensing entity shall not be a party in the appeal. The chancery court shall dispose of the appeal and enter its decision within thirty (30) days of the filing of the appeal. The hearing on the appeal may, in the discretion of the chancellor, be tried in vacation. The decision of the chancery court may be appealed to the Supreme Court in the manner provided by the rules of the Supreme Court. In the discretion of and on motion to the chancery court, no person shall be allowed to practice any business, occupation or profession or take any other action under the authority of any license the suspension of which has been affirmed by the chancery court while an appeal to the Supreme Court from the decision of the chancery court is pending.
(9) If a licensee who has entered a stipulated agreement and agreed judgment for the payment of an arrearage under this section subsequently is out of compliance with an order for support, the division shall immediately notify the licensing entity to suspend the licensee's license, and the licensing entity shall immediately suspend the license without a hearing and shall within three (3) business days notify the licensee in writing of the license suspension. In the case of a license suspension under the provisions of this subsection, the procedures provided for under subsections (1) and (2) of this section are not required; however, the appeal provisions of subsection (8) of this section still apply. After suspension of the license, if the licensee subsequently enters into a stipulated agreement and agreed judgment or the licensee otherwise informs the division of compliance with the order for support, the division shall within seven (7) days notify in writing the licensing entity that the licensee is in compliance. Upon receipt of that notice from the division, a licensing entity shall immediately reinstate the license of the licensee and shall within three (3) business days notify the licensee of the reinstatement.
(10) Nothing in this section prohibits a licensee from filing a motion for the modification of an order for support or for any other applicable relief. However, no such action shall stay the license suspension procedure, except as may be allowed under subsection (8) of this section.
(11) If a license is suspended under the provisions of this section, the licensing entity is not required to refund any fees paid by a licensee in connection with obtaining or renewing a license.
(12) The requirement of a licensing entity to suspend a license under this section does not affect the power of the licensing entity to deny, suspend, revoke or terminate a license for any other reason.
(13) The procedure for suspension of a license for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a license suspended for that purpose, shall be governed by this section and not by the general licensing and disciplinary provisions applicable to a licensing entity. Actions taken by a licensing entity in suspending a license when required by this section are not actions from which an appeal may be taken under the general licensing and disciplinary provisions applicable to the licensing entity. Any appeal of a license suspension that is required by this section shall be taken in accordance with the appeal procedure specified in subsection (8) of this section rather than any procedure specified in the general licensing and disciplinary provisions applicable to the licensing entity. If there is any conflict between any provision of this section and any provision of the general licensing and disciplinary provisions applicable to a licensing entity, the provisions of this section shall control.
(14) No license shall be
suspended under this section until ninety (90) days * * * or six (6) months in
cases where a licensee has been incarcerated as provided under Section 93-11-56.
This ninety-day period or six (6) month period, as the case may be,
shall be a one-time amnesty period in which any person who may be subject to
license suspension under this article may comply with an order of support in
order to avoid the suspension of any license.
(15) Any individual who fails to comply with a subpoena or warrant relating to paternity or child support proceedings after receiving appropriate notice may be subject to suspension or withholding of issuance of a license under this section.
SECTION 5. This act shall take effect and be in force from and after July 1, 2017.
