Report Title:

Child Support Enforcement

Description:

Allows filing civil action in court to require child support enforcement agency to enforce support orders and comply with state and federal laws regarding disbursement and notification regarding child support accounts. Pays reasonable attorney's fees and litigation costs if successful.

HOUSE OF REPRESENTATIVES

H.B. NO.

1862

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to child support enforcement.

 

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

SECTION 1. The legislature finds that the child support enforcement agency is failing to properly:

(1) Enforce child support orders;

(2) Collect and timely disburse collected funds from custodial and non-custodial parents; and

(3) Notify both non-custodial and custodial parents regarding the status of their child support accounts.

The legislature further finds that both federal and state laws require the child support enforcement agency to enforce child support orders. Section 576D-3, Hawaii Revised Statutes, mandates the child support enforcement agency to undertake any legal or administrative action to secure support for a child by enforcing an existing court order or obtaining a court order of support. For this purpose, it allows the child support enforcement agency to commence or appear in any proceeding before any court or administrative agency through the offices of the corporation counsel, the county attorney, or the attorney general. Section 576D-6(4), Hawaii Revised Statutes, requires the child support enforcement agency to notify annually each custodial parent, guardian, protective payee, or other person having custody of a child in a family that receives financial assistance under the federal Aid to Families with Dependent Children program, or its successor, of the amount of child support collected on behalf of the child in the family.

Furthermore, under section 576D-10.5, Hawaii Revised Statutes, when an obligor has been ordered to pay an allowance for the support, maintenance, or education of a child, or for the support and maintenance of a spouse or former spouse in conjunction with child support, and the obligor becomes delinquent in those payments, a lien shall arise on the obligor's real and personal property, which shall be subject to foreclosure, distraint, seizure, and sale, or notice to withhold and deliver, and the child support enforcement agency is required to enforce that lien.

The child support enforcement agency has a further tool at its disposal. Under section 576D-13, Hawaii Revised Statutes, when it is determined that an obligor is not in compliance with an order of support or that an individual failed to comply with a subpoena or warrant relating to a paternity or child support proceeding, and that the obligor or individual is the holder of or an applicant for a license issued by a licensing authority in this State, the agency is required to serve notice upon the obligor or individual of the agency's intent to certify the obligor or individual as noncompliant and direct the appropriate licensing authority to deny or suspend the license or to deny the application for renewal, reinstatement, or restoration of the license.

Under section 576D-15, Hawaii Revised Statutes, the attorney general has available to it financial institution records of non-custodial parents who owe past due support in order to facilitate enforcement. In addition, under section 571-52.3, Hawaii Revised Statutes, in cases of child support where the obligor receives income on a periodic basis, the court is required to concurrently enter an order for immediate income withholding that shall operate as an assignment by the obligor to the child support enforcement agency for the benefit of the child of the amounts and at the times specified in the support order.

Under federal law (42 U.S.C. section 654b(c)), the child support enforcement agency is required to distribute all amounts payable within two business days after receipt from the employer or other source of periodic income, if sufficient information identifying the payee is provided. The date of collection for amounts collected and distributed is the date of receipt by the child support enforcement agency, except that if current support is withheld by an employer in the month when due and is received in a month other than the month when due, the date of withholding may be deemed to be the date of collection. Federal law also requires the child support enforcement agency to keep parents apprised of the balances in their child support accounts, including such information as how much money has been collected, when it was collected and disbursed, and whether it was applied to a welfare debt.

However, the legislature finds that the child support enforcement agency has failed to use all the tools available to it to properly enforce support orders, is rarely in compliance with federal requirements regarding disbursement of collected funds, and is deficient in notifying custodial and non-custodial parents of the status of their child support accounts.

The purpose of this Act is to encourage the child support enforcement agency to properly enforce support orders, comply with federal requirements regarding disbursement of collected funds, and properly notify custodial and non-custodial parents of the status of their child support accounts.

SECTION 2. Chapter 576D, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§576D-    Civil action; remedies. An individual may bring a civil action against the child support enforcement agency in a circuit court of the State whenever the agency fails to comply with any provision of chapter 576D, or with title 42 United States Code section 654b, that results in the agency's failure to:

(1) Properly enforce support orders; or

(2) Comply with state or federal requirements regarding the proper:

(A) Disbursement of collected funds; or

(B) Notification of custodial and non-custodial parents of the status of their child support accounts.

(b) In any action brought under this section, the court may order the agency to perform any other action by the agency or enjoin the agency from improper actions as the court may deem necessary and appropriate to render substantial relief.

(c) In any action brought under this section in which the court determines that the agency knowingly or intentionally violated this chapter or was in non-compliance with title 42 United States Code 654b, the agency shall be liable to the complainant in an amount equal to the sum of:

(1) Actual damages sustained by the complainant as a result of the failure of the agency to properly implement chapter 576D or comply with title 42 United States Code 654b, but in no case shall a complainant individual entitled to recovery receive less than the sum of $1,000; and

(2) The costs of the action together with reasonable attorney's fees as determined by the court.

(d) The court may assess reasonable attorney's fees and other litigation costs reasonably incurred against the agency in any case in which the complainant has substantially prevailed and against the complainant where the charges brought against the agency were not substantiated.

(e) An action may be brought in the circuit court where the complainant resides or the complainant's principal place of business is situated."

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 4. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:

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