REPORT TITLE:
Child Support Enforcement

DESCRIPTION:
Provides numerous revisions to comply with the mandates of Title
IV-D of the Social Security Act.  Compliance with these mandates
are required for continued funding of the Child Support
Enforcement Agency.  (SB2758 HD2)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        2758
THE SENATE                              S.B. NO.           S.D. 1
TWENTIETH LEGISLATURE, 2000                                H.D. 2
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO CHILD SUPPORT ENFORCEMENT.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Section 571-52, Hawaii Revised Statutes, is
 
 2 amended to read as follows:
 
 3      "571-52  Assignment by court order of future income for
 
 4 payments of support.(a)  Whenever any person has been ordered
 
 5 to pay an allowance for the support[, maintenance, or education]
 
 6 of a child[,] or for the support and maintenance of a spouse or
 
 7 former spouse, and fails or refuses to obey or perform the
 
 8 order[,] and has been adjudged guilty of contempt of court for
 
 9 such failure or refusal, the court may make an order [which]that
 
10 shall operate as an assignment by the person for the benefit of
 
11 the child or spouse, of such amounts at such times as may be
 
12 specified in the order, from any income due or to become due in
 
13 the future to such person from the person's employer or successor
 
14 employers, until further order of the court.  
 
15      The assignment of the amounts shall be to the clerk of the
 
16 court where the order is entered if for the support or
 
17 maintenance of a spouse or former spouse, or to the child support
 
18 enforcement agency if for the support[, maintenance, or
 
19 education] of a child or if child support and spouse support are
 
20 contained in the same order.  The order of assignment to the 
 

 
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 1 child support enforcement agency shall be in the standard format
 
 2 prescribed by Title IV-D of the Social Security Act, as amended
 
 3 by the child support enforcement agency.  The order of assignment
 
 4 shall be effective immediately after service upon an employer of
 
 5 a true copy of the order, which service may be effected by
 
 6 [certified or registered] regular mail [or], by personal
 
 7 delivery[.], or by transmission through electronic means.
 
 8      Thereafter, the employer shall for each pay period withhold
 
 9 from any income due to the person from the employer, and not
 
10 required to be withheld by any other provision of federal or
 
11 state law, and transmit to the clerk of the court or child
 
12 support enforcement agency as set forth in the order, as much as
 
13 may remain payable to the person for such pay period up to the
 
14 amount specified in the order of assignment as being payable
 
15 during the same period.  The person ordered to pay shall inform
 
16 the court immediately of any change [which]that would affect the
 
17 order of assignment or the disbursement thereof.
 
18      Compliance by an employer with the order of assignment shall
 
19 operate as a discharge of the employer's liability to the
 
20 employee for that portion of the employee's income withheld and
 
21 transmitted to the clerk of court or child support enforcement
 
22 agency, as the case may be, whether or not the employer has
 
23 withheld the correct amount.  
 

 
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 1      [The term "employer" as used in this section includes the
 
 2 United States government, the State, any political subdivision
 
 3 thereof and any person who is or shall become obligated to the
 
 4 obligor for payment of income.]
 
 5      (b)  Notwithstanding [the provisions] of subsection (a)[,]
 
 6 to the contrary, whenever a court has ordered any person
 
 7 (hereinafter "obligor") to make periodic payments toward the
 
 8 support of a child [and], upon petition of the person to whom
 
 9 such payments are ordered to be made[,] or that person's
 
10 assignee, and the court finds the obligor to be delinquent in
 
11 payments in an amount equal to or greater than the sum of
 
12 payments [which]that would become due over a one-month period
 
13 under the order, judgment, or decree providing for child support,
 
14 the court shall order an assignment of future income, or a
 
15 portion thereof, of the obligor in an amount adequate to insure
 
16 that past due payments and payments [which]that will become due
 
17 in the future under the terms of the support order will be paid.
 
18 Such an order shall operate as an assignment by the obligor to
 
19 the child support enforcement agency and shall be binding upon
 
20 any person who is or shall become obligated to the obligor for
 
21 payment of income and who has been served with a [certified] copy
 
22 of the assignment order.  
 

 
 
 
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 1      For each payment made pursuant to an assignment order, the
 
 2 person making such payment may deduct and retain as an
 
 3 administrative fee the additional amount of $2 from the income
 
 4 owed to the obligor.  Any assignment made pursuant to an
 
 5 assignment order shall have priority as against any garnishment,
 
 6 attachment, execution, or other assignment order, or any other
 
 7 order unless otherwise ordered by the court and the same shall
 
 8 not be subject to any of the exemptions or restrictions contained
 
 9 in part III of chapter 651, and chapters 652 and 653.
 
10      For purposes of this subsection, delinquencies in payments
 
11 shall be computed on the basis of the moneys owed and unpaid on
 
12 the date that the obligor under the support order has been given
 
13 notice pursuant to law of the application for the order of
 
14 assignment[, and the].  The fact that the obligor may have
 
15 subsequently paid such delinquencies shall not relieve the court
 
16 of its duty under this subsection to order the assignment.
 
17      (c)  An employer withholding income for payment to the child
 
18 support enforcement agency shall terminate withholding upon
 
19 receipt of a notice from the child support enforcement agency to
 
20 terminate income withholding.
 
21      [(c)] (d)  It shall be unlawful for any employer to refuse
 
22 to hire a prospective employee, to discharge an employee, or to
 
23 take any other disciplinary action against an employee, based in
 

 
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 1 whole or part[,] upon an assignment authorized by this section.
 
 2 Any employer violating this section shall be guilty of a
 
 3 misdemeanor under section 710-1077(1)(g).
 
 4      [(d)  Notwithstanding any other provision of law, for
 
 5 purposes of this section, the term "income" shall include without
 
 6 limitation,]
 
 7      (e)  As used in this section:
 
 8      "Employer" includes the United States Government, the State,
 
 9 any political subdivision thereof, and any person who is or shall
 
10 become obligated to the obligor for payment of income. 
 
11      "Income" includes salaries, wages, earnings, workers'
 
12 compensation, disability benefits, commissions, independent
 
13 contractor income, and any other entitlement to money including
 
14 moneys payable as a pension [or as an], annuity [or], retirement
 
15 [or], disability [or], death, or other benefit, or as a return of
 
16 contributions and interest [thereon] from the United States
 
17 government, [or from] the State, or other political subdivision
 
18 thereof, or from any retirement, disability, or annuity system
 
19 established by any of them pursuant to statute."
 
20      SECTION 2.  Section 571-52.2, Hawaii Revised Statutes, is
 
21 amended by amending subsection (d) to read as follows:
 
22      "(d ) The order for automatic assignment shall operate as an
 
23 assignment by the obligor to the child support enforcement agency
 

 
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 1 and shall be binding upon any person who is or shall become
 
 2 obligated to the obligor for payment of income and who has been
 
 3 served with a copy of the assignment order.  The order shall be
 
 4 in the standard format prescribed by Title IV-D of the Social
 
 5 Security Act, as amended by the child support enforcement agency.  
 
 6      The assignment shall be terminated when appropriate by the
 
 7 court [or], the clerk of the court, or the child support
 
 8 enforcement agency; provided that payment of all overdue support
 
 9 shall not be the sole basis for terminating the assignment.  An
 
10 employer withholding income for payment to the child support
 
11 enforcement agency shall terminate withholding upon receipt of a
 
12 notice from the child support enforcement agency to terminate
 
13 income withholding.  In the event that the obligee retains
 
14 private counsel or proceeds pro se, the obligee shall have
 
15 primary responsibility for terminating the assignment.  
 
16      If the obligee fails to terminate the assignment when
 
17 appropriate, the obligee shall reimburse the obligor to the
 
18 extent of any overpayment.  If the assignment is not terminated
 
19 when appropriate, the obligor may seek reimbursement for any
 
20 overpayment from the obligee or from the child support
 
21 enforcement agency, to the extent the overpayment was disbursed
 
22 to the department of human services. 
 

 
 
 
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 1      The child support enforcement agency shall establish
 
 2 procedures by rule in accordance with chapter 91 for the prompt
 
 3 reimbursement for any overpayment to the obligor."
 
 4      SECTION 3.  Section 576B-101, Hawaii Revised Statutes, is
 
 5 amended by amending the definition of "income withholding order"
 
 6 to read as follows:
 
 7      ""Income withholding order" means an order or other legal
 
 8 process directed to an obligor's employer as defined by sections
 
 9 571-52, 571-52.2, [and] 571-52.3, and 576D-14, to withhold
 
10 support from the income of the obligor."
 
11      SECTION 4.  Section 576B-501, Hawaii Revised Statutes, is
 
12 amended to read as follows:
 
13      "[[]576B-501[]]  Employer's receipt of income withholding
 
14 order of another state.  An income withholding order issued in
 
15 another state may be sent to the person or entity defined as the
 
16 obligor's employer under sections 571-52, 571-52.2, [and]
 
17 571-52.3, and 576E-16, without first filing a petition or
 
18 comparable pleading or registering the order with a tribunal of
 
19 this State."
 
20      SECTION 5.  Section 576D-14, Hawaii Revised Statutes, is
 
21 amended to read as follows:
 
22      "576D-14   Implementation of income withholding. (a) For
 
23 cases being enforced under the Title IV-D state plan or for those
 

 
Page 8                                                     2758
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 1 parents applying to the agency for services, the income of an
 
 2 obligor who receives income on a periodic basis and who has a
 
 3 support obligation imposed by a support order issued or modified
 
 4 in the State before October 1, 1996, if not otherwise subject to
 
 5 withholding, shall become subject to withholding as provided in
 
 6 subsection (b) if arrearages or delinquency occur, without the
 
 7 need for a judicial or administrative hearing.  The agency shall
 
 8 implement such withholding without the necessity of any
 
 9 application in the case of a child with respect to whom services
 
10 are already being provided under Title IV-D and shall implement
 
11 on the basis of an application for services under Title IV-D in
 
12 the case of any other child on whose behalf a support order has
 
13 been issued or modified.  In either case, such withholding shall
 
14 occur without the need for any amendment to the support order
 
15 involved or for any further action by the court or other entity
 
16 which issued such order.
 
17      (b)  If the obligor who receives income on a periodic basis
 
18 becomes delinquent in making payments under a support order in an
 
19 amount at least equal to the support payable for one month, the
 
20 agency shall issue an income withholding order that shall include
 
21 an amount to be paid towards the delinquency.  The income
 
22 withholding order shall be in the standard format prescribed by
 
23 Title IV-D of the Social Security Act, as amended by the child
 

 
Page 9                                                     2758
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 1 support enforcement agency.  The order shall be served upon the
 
 2 employer by [certified] regular mail [or], by personal [service,]
 
 3 delivery, or [transmitted] by transmission to the employer
 
 4 through electronic means.
 
 5      (c)  Upon the agency's receipt of an interstate income
 
 6 withholding request from another jurisdiction, the agency may
 
 7 issue an income withholding order to collect the support imposed
 
 8 upon the obligor by a support order issued or modified by the
 
 9 other state.  The order shall include an amount adequate to
 
10 ensure that past due payments and payments [which]that will
 
11 become due in the future under the terms of the support order
 
12 will be paid.
 
13      (d)  A copy of the order shall be filed in the office of the
 
14 clerk of the circuit court in the circuit where the order was
 
15 issued.
 
16      (e)  Upon sending the order of income withholding to the
 
17 employer, the agency shall send a notice of the withholding by
 
18 regular mail to each obligor to whom subsections (b) and (c)
 
19 apply.  The notice shall inform the obligor:
 
20      (1)  That the withholding has commenced;
 
21      (2)  That the obligor may request a hearing in writing
 
22           within fourteen days of the date of the notice;
 

 
 
 
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 1      (3)  That, unless the obligor files a written request for a
 
 2           hearing within fourteen days of the date of the notice,
 
 3           the money received from the income withholding will be
 
 4           distributed to the custodial parent or, in an
 
 5           interstate case, the obligee in the other jurisdiction,
 
 6           or in the case where the children are receiving public
 
 7           assistance, to the State;
 
 8      (4)  That the only defense to income withholding is a
 
 9           mistake of fact; and
 
10      (5)  Of the information that was provided to the employer
 
11           with respect to the employer's duties pursuant to
 
12           section 576E-16.
 
13      (f)  The agency may delay the distribution of collections
 
14 toward arrearages or delinquency until the resolution of any
 
15 requested hearing regarding the arrearages or delinquency.
 
16      (g)  Upon timely receipt of a request for a hearing from the
 
17 obligor[,] pursuant to the notice provided under subsection (e),
 
18 the agency shall refer the matter to the office and a hearing
 
19 shall be conducted pursuant to chapters 91 and 576E.
 
20      (h)  Upon receiving an order of income withholding from the
 
21 agency, the employer is subject to the requirements of section
 
22 576E-16(b) through (h).
 

 
 
 
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 1      (i)  In a case being enforced under the Title IV-D state
 
 2 plan or for those parents applying to the agency for services,
 
 3 the agency may terminate income withholding by sending a notice
 
 4 to the employer by regular mail or transmission by electronic
 
 5 means.  The notice shall be issued upon determination by the
 
 6 agency that the obligor no longer owes the child support or that
 
 7 the obligation is being satisfied through withholding by another
 
 8 employer."
 
 9      SECTION 6.  Section 576E-16, Hawaii Revised Statutes, is
 
10 amended as follows:
 
11      (1)  By amending subsections (a) and (b) to read:
 
12      "(a)  Whenever an administrative order is entered
 
13 establishing, modifying, or enforcing support, establishing an
 
14 arrearage that has accrued under a previous judicial or
 
15 administrative order for support, or establishing a public
 
16 assistance debt, there shall concurrently be issued an order
 
17 [which]that shall operate as an assignment to the agency for the
 
18 benefit of the child or in the case of spousal support, for the
 
19 benefit of a spouse or former spouse, of such amounts at such
 
20 times as may be specified in the order, from the responsible
 
21 parent's income due or to become due in the future from the
 
22 responsible parent's employer, or successor employers, [until
 
23 further court or administrative order;] except when alternative
 

 
Page 12                                                    2758
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 1 arrangements are ordered pursuant to section 576D-10.  The income
 
 2 withholding order shall be in the standard format prescribed by
 
 3 Title IV-D of the Social Security Act, as amended by the child
 
 4 support enforcement agency.  A copy of the income withholding
 
 5 order shall be filed in the office of the clerk of the circuit
 
 6 court in the circuit where the order was issued along with the
 
 7 copy of the support order as provided in section 576E-12.
 
 8      (b)  The income withholding order issued pursuant to
 
 9 subsection (a) or section 576D-14 shall be effective immediately
 
10 after service upon an employer of a copy of the order, which
 
11 service may be effected by [certified or registered] regular
 
12 mail, by personal delivery, or by transmission through electronic
 
13 means.  Thereafter, the employer shall for each pay period,
 
14 withhold from the income due to the responsible parent from the
 
15 employer, and not required to be withheld by any other provision
 
16 of federal or state law, and transmit to the designated obligee,
 
17 or upon request, to the child support enforcement agency of this
 
18 State, as much as may remain payable to the responsible parent
 
19 for such pay period up to the amount specified in the order as
 
20 being payable during the same period.  The employer shall
 
21 immediately inform the agency of any change that would affect the
 
22 income withholding order or the disbursement thereof."
 
23      2.   By amending subsection (d) to read:
 

 
Page 13                                                    2758
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 1      "(d)  An income withholding order shall remain in effect
 
 2 until terminated when appropriate by court or administrative
 
 3 order[.], except that an employer withholding income for payment
 
 4 to the child support enforcement agency shall terminate
 
 5 withholding upon receipt of a notice from the child support
 
 6 enforcement agency to terminate income withholding.  Payment by
 
 7 the responsible parent of any delinquency shall not in and of
 
 8 itself warrant termination of the income withholding order.  The
 
 9 agency shall promptly refund any amount withheld in error to the
 
10 responsible parent."
 
11      SECTION 7.  Statutory material to be repealed is bracketed.
 
12 New statutory material is underscored.
 
13      SECTION 8.  This Act shall take effect upon its approval.