MISSISSIPPI LEGISLATURE
2018 Regular Session
To: Public Health and Welfare; Judiciary, Division A
By: Senator(s) Burton
AN ACT TO CODIFY SECTION 43-19-36, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE ADMINISTRATIVE SUSPENSION OF CHILD SUPPORT FOR NONCUSTODIAL PARENTS WHO ARE INCARCERATED FOR MORE THAN 180 DAYS; TO AMEND SECTION 43-19-48, MISSISSIPPI CODE OF 1972, TO ALLOW FINANCIAL INSTITUTIONS TO AUTHORIZE THE DEPARTMENT OF HUMAN SERVICES TO SEND NOTICES REGARDING CHILD SUPPORT IN A MANNER OTHER THAN CERTIFIED MAIL; TO AMEND SECTIONS 93-11-65, 93-11-103 AND 93-11-111, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT OVERDUE CHILD SUPPORT IS PAYABLE TO THE CUSTODIAL PARENT AFTER EMANCIPATION OF A CHILD UNLESS A COURT DETERMINES OTHERWISE, CLARIFY LUMP-SUM WITHHOLDINGS AND CLARIFY WHEN AN EMPLOYER MAY RECEIVE A FEE FOR WITHHOLDING CHILD SUPPORT; 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) Child support obligations shall he 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 exist:
(a) The person owing support has the means to pay support in accordance with the guidelines established in Sections 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, as defined in Section 97-3-7, child abuse as defined in Section 97-5-39, or criminal nonpayment of child support as defined in Section 97-5-3.
(2) 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.
(3) (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 pursuant to subsection (1) of this section if all of the following occurs:
(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 (1) 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.
(4) This section does not prohibit the Department of Human Services or a party from petitioning a court for a determination of child support or arrears amounts.
(5) For purposes of this section, the following definitions shall apply:
(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. Incarceration or involuntarily institutionalized does not include probation or work release, and the one hundred eighty (180) consecutive days excludes credit for time served before sentencing.
(b) "Child support obligation" is defined as the payment due on the current child support order, an arrears payment on a preexisting arrears balance, or interest on arrears.
(c) "Suspension" is defined as a child support obligation being administratively set to Zero Dollars ($0) for the period in which the person owing support is incarcerated or involuntarily institutionalized, and prevents the accrual of arrears during said period of incarceration.
(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) days after the enactment of this section.
SECTION 2. Section 43-19-48, Mississippi Code of 1972, is amended as follows:
43-19-48. (1) The Department of Human Services and financial institutions doing business in the state are required to enter into agreements:
(a) To develop and operate a data match system, using automated data exchanges, in which each such financial institution is required to provide for each calendar quarter the name, record address, social security number or other taxpayer identification number, and other identifying information for each noncustodial parent who maintains an account at such institution and who owes past-due support, as identified by the Department of Human Services by name and social security number or other taxpayer identification number;
(b) To encumber or surrender, as the case may be, assets held by such institution on behalf of any noncustodial parent who is subject to a child support lien; and
(c) To provide for payment of reasonable fees to financial institutions for conducting data matches, and for responding to other requests made pursuant to this section, with such fees not to exceed the actual costs incurred by such financial institutions.
(2) When the operation of such data match system results in the location of an account of a noncustodial parent who owes past-due support, or when such account is located through any means, the department may request and shall receive additional financial or other information including account numbers, names and social security numbers on record for accounts, and account balances, from any financial institution needed to establish, modify or enforce a support order.
(3) The department shall have the authority to encumber and seize assets held by an obligor in a financial institution doing business in Mississippi. Such assets shall be encumbered for either:
(a) A forty-five-day period; or
(b) Until such time as the issue of overdue support is resolved, provided the obligor has filed a petition for hearing with a court of appropriate jurisdiction and the financial institution receives written notice thereof from the department before the end of the said forty-five-day period.
(4) Notice of such encumbrance initiated by the department shall be provided to the financial institution and to the obligor:
(a) The department shall send, by certified mail or other approved types of communication allowed by the financial institution, notice to the financial institution with which the account is placed, directing that the financial institution shall:
(i) Immediately encumber funds in any account(s) in which the obligor has an interest, and to the extent of the debt indicated in the notice from the department;
(ii) Forward the encumbered funds to the department after either the forty-five-day period stated in subsection 3(a) of this section, or a determination favorable to the department by a court of appropriate jurisdiction; or
(iii) In the event the obligor prevails before the court, immediately release said funds to the obligor.
(b) Notice shall be delivered to the obligor at the current mailing address as recorded by the department. Such notice shall be sent by regular mail at the commencement of the action described herein.
(c) The financial institution shall not disclose to an account holder or the depositor that the name of such person has been received from or furnished to the department. The financial institution shall disclose to its account holders or its depositors that under the data match system the department has the authority to request certain identifying information on the account holders' or the depositor's accounts.
(5) Challenges to encumbrance of an account:
(a) Challenges to such levy for child support arrearage may be initiated only by the obligor or by an account holder of interest.
(b) Challenges shall be made by the filing of a petition for hearing by the obligor in a court of appropriate jurisdiction under Rule 81(d)(2) of the Mississippi Rules of Civil Procedure. Service upon the department shall be as prescribed by Rule 4(d)(5) of the Mississippi Rules of Civil Procedure.
(c) Grounds for the petition challenging the encumbrance shall be limited to:
(i) Mistakes of identity; or
(ii) Mistakes in amount of overdue support.
(6) Liability of the financial institution and the department:
(a) Neither the department nor the financial institution shall be liable for any applicable early withdrawal penalties on the obligor's account(s).
(b) A financial institution shall be absolutely immune from any civil liability under any law or regulation to any person for the disclosure of or failure to disclose any information pursuant to this chapter or for the escrow, encumbrance, seizure or surrender of any assets held by the financial institution in response to any notice issued by the Department of Human Services, the Child Support Unit or any contractors or agents thereof unless the disclosure or failure to disclose was willful or intentional, or for any other action taken in good faith to comply with the requirements of this chapter.
(7) Any amount encumbered and forwarded by the financial institution under this section shall not exceed the arrearage owed by the obligor.
(8) The provisions herein and any other relevant sections shall be employed equally by authorized contractors of the department to collect delinquent support payments.
(9) A financial institution shall not be liable under federal or state law to any person:
(a) For any disclosure of information to the Department of Human Services;
(b) For encumbering or forwarding any assets held by such financial institution in response to a notice of lien or levy;
(c) For any other action taken in good faith to comply with the requirements of subsection (1)(a) or (b) above.
(10) Definitions. For purposes of this section:
(a) The term "financial institution" has the meaning given to such by Section 81-12-3, Mississippi Code of 1972, and shall include, but not be limited to, credit unions, stock brokerages, public or private entities administering retirement, savings, annuities, life insurance and/or pension funds;
(b) The term
"account" means any money held in the name of the account owner,
individually or jointly with another, including, but not limited to, a * * * deposit account, demand account,
member account, time certificate of deposit, share account, checking or
negotiable withdrawal order account, savings account, time deposit account or
money-market mutual fund account.
(11) Failure to comply with the provisions of this section or the willful rendering of false information shall subject the financial institution to a fine of not less than One Thousand Dollars ($1,000.00).
SECTION 3. 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; * * *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 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 * * *; and
(d) Overdue child support shall remain payable to the custodian 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 4. 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 5. 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. This 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 6. This act shall take effect and be in force from and after July 1, 2018.