Child Support Enforcement
Clarifies that all income withholding payments be sent through the Child Support Enforcement Agency; allows the agency to disburse support by electronic deposit or debit card; allows for electronic copy or facsimile of a signature as proof of service for certified mail; clarifies lien payment and enforcement.
HOUSE OF REPRESENTATIVES
TWENTY-FIFTH LEGISLATURE, 2009
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. Section 571-52.2, Hawaii Revised Statutes, is amended by amending subsection (e) to read as follows:
"(e) An employer receiving an assignment
order shall send the amounts withheld to [
the designated obligee or, if
requested, to] this State's child support enforcement agency within five
working days after the obligor is paid. The employer shall begin withholding
no later than the first pay period occurring within seven business days
following the date a copy of the order is mailed to the employer. As used in
this subsection, the term "business day" means a day on which the
employer's office is open for regular business. The employer shall withhold
funds as directed in the order, except that when an employer receives an income
withholding order issued by another state, the employer shall send the
amounts withheld to that state's agency administering a program
under Title IV-D and apply the income withholding law of the state of the
obligor's principal place of employment in determining:
(1) The employer's fee for processing an income assignment order;
(2) The maximum amount permitted to be withheld from the obligor's income under section 303(b) of the Consumer Credit Protection Act (15 U.S.C. §1673(b));
(3) The time periods within which the employer must implement the income withholding order and forward the child support payment;
(4) The priorities for withholding and allocating income withheld for multiple child support obligees; and
(5) Any withholding terms or conditions not specified in the order.
An employer who complies with an income assignment order that is regular on its face shall not be subject to civil liability to any person or agency for conduct in compliance with the order.
An employer who is required to withhold amounts from the income of more than one obligor may remit a sum total of the amounts in one check, with a listing of the amounts applicable to each obligor.
Within two working days after receipt of the amounts withheld by the employer, the child support enforcement agency shall disburse those amounts to the obligee for the benefit of the child, except that the child support enforcement agency may delay the distribution of collections toward arrearages until the resolution of any timely request for a hearing with respect to such arrearages."
SECTION 2. Section 576D-10, Hawaii Revised Statutes, is amended to read as follows:
"§576D-10 Collection and disbursal of child support; direct payment exception. (a) The agency shall collect and disburse child support payments when an order requires the collection and disbursal. In the event of any default by the obligor, upon notification of the default by the custodial parent, the agency shall proceed against the obligor for the arrearage and the agency shall have jurisdiction over future child support payments. Notwithstanding any other law to the contrary, the agency shall maintain a special interest bearing account for child support payments. Moneys collected by the agency for child support payments shall not be deposited into the state treasury, but shall be deposited into this account. Moneys to be disbursed by the agency for child support payments shall be disbursed from this account without appropriation or allotment. The interest realized from this account shall be used:
(1) For related costs of the maintenance and operation of the account; and
(2) To improve the child support enforcement agency's ability to promptly disburse payments to the custodial parent.
The balance shall be deposited into the state treasury to the credit of the general fund.
(b) Any child support payments required by a court order effective on June 30, 1986, to be made to a court or clerk of the court and disbursed to a custodial parent shall be made to the agency after June 30, 1986. The agency shall disburse the payments as appropriate under the court order.
(c) Other than for child support payments disbursed to the department of human services or to another agency administering a program under Title IV-D, the custodial parent shall elect to receive child support payments from the agency by means of an electronic benefits transfer system or by directly depositing the amount into an account designated by the custodial parent. If an election is not made, the agency shall determine whether the disbursement of child support payments shall be by means of an electronic benefits transfer system or by an alternate method of disbursement that complies with the time frame required under Title IV-D.
(c)] (d) At the time a child
support obligation is first established or at any time thereafter, the court
may approve an alternative arrangement for the direct payment of child support
from the obligor to the custodial parent as an exception to the provisions for
income withholding through the agency, as required by sections 571-52.2(a)(1),
571-52.3, and 576E-16(a).
(d)] (e) The court may approve
an alternative arrangement for the direct payment of child support where either:
(1) The obligor or custodial parent demonstrates and the court finds that there is good cause not to require immediate withholding; or
(2) A written agreement is reached between the obligor and the custodial parent and signed by both parties;
provided that in either case where child support has been ordered previously, an alternative arrangement for direct payment shall be approved only where the obligor provides proof of the timely payment of previously ordered support. For purposes of this section, good cause to approve an alternative arrangement shall be based upon a determination by the court, either in writing or on the record, that implementing income withholding would not be in the best interests of the child. Such a determination shall include a statement setting forth the basis of the court's conclusion.
(e)] (f) Any alternative
arrangement for direct payment shall provide that either parent may void the
arrangement at any time and apply for services from the agency to act as agent
to receive payments from the obligor parent. The alternative arrangement for
direct payment also shall provide that, if the subject dependents of the
obligor parent commence receiving public assistance, including but not limited
to public assistance from the department of human services under chapter 346,
foster care under section 571-48, Title IV-E or Title XIX of the federal Social
Security Act (42 U.S.C. §1396), or if either parent applies for services from
the agency, the agency may immediately void the direct payment arrangement by
sending written notice by regular mail to the custodial and obligor parents at
their last known addresses, as disclosed in the alternative arrangement
(f)] (g) The alternative
arrangement for direct payment agreement shall include the most recent
addresses of the custodial and obligor parent. If the obligor parent alleges
direct payment of child support to the custodial parent after the subject
dependents of the court-approved alternative arrangement become recipients of
public assistance, including but not limited to public assistance from the
department of human services under chapter 346, foster care under section
571-48, Title IV-E or Title XIX of the federal Social Security Act (42 U.S.C.
§1396), or after the custodial parent applies for services from the agency, and
after receiving proper notification of the change of payee to the agency, then
the obligor shall have the burden of proving that the child support payments
were made by presenting written evidence, including but not limited to canceled
checks or receipts.
(g)] (h) No alternative
arrangement for direct payment shall be approved where the obligor or the
custodial parent is receiving services under Title IV-D or where the dependents
of the obligor receive public assistance, including but not limited to public
assistance from the department of human services under chapter 346, foster care
under section 571-48, Title IV-E or Title XIX of the federal Social Security
Act (42 U.S.C. §1396), or where the obligor owes child support for a period
during which public assistance was provided to the child or children by the
department of human services.
(h)] (i) Any alternative
arrangement for direct payment shall pertain only to the method of payment of
child support. The amount of child support shall be determined according to
the child support guidelines pursuant to section 576D-7 and section 576E-15.
(i)] (j) The alternative
arrangement for direct payment shall become effective upon approval and filing
by the court. For any order approved pursuant to this section on or after
October 1, 1998, each party must send a certified copy of the order to the
state case registry established under section 576D-6.
(j)] (k) The agency shall not
be required to maintain records while an order obtained pursuant to this
section is in effect, except for any payments received and disbursed by the
SECTION 3. Section 576D-10.5, Hawaii Revised Statutes, is amended to read as follows:
"§576D–10.5 Liens. (a) Whenever any obligor through judicial or administrative process in this State or any other state 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 and the obligor's real and personal property shall be subject to foreclosure, distraint, seizure, and sale, or notice to withhold and deliver, which shall be executed in accordance with this section or applicable state law. No judicial notice or hearing shall be necessary prior to creation of such a lien.
(b) Upon the establishment of an order of support for a prior period, a lien shall arise on the obligor's real and personal property and the obligor's real and personal property shall be subject to foreclosure, distraint, seizure, and sale, or notice to withhold and deliver, which shall be executed in accordance with this section or applicable state law. No judicial notice or hearing shall be necessary prior to creation of such a lien.
(c) Every order or judgment regarding child support filed in judicial or administrative proceedings in this State shall be recorded in the bureau of conveyances. An order or judgment regarding child support filed in judicial or administrative proceedings of any other state may be recorded in the bureau of conveyances. This recorded lien shall be deemed, at such time, for all purposes and without any further action, to procure a lien on land registered in the land court under chapter 501. The statutory lien becomes effective when it arises under subsection (a) or (b) and shall attach to all interests in real or personal property then owned or subsequently acquired by the obligor including any interests not recorded with the bureau of conveyances or filed in the land court.
(d) No fee shall be charged the child support enforcement agency or its designated counsel for recording or filing of the liens provided for in this section or for the recording or filing of any releases requested in conjunction with the liens.
(e) A recorded order or judgment regarding child support or public assistance debt becomes effective and takes priority from the time it is recorded or the time the child support obligation described therein becomes delinquent, whichever is later. A statutory lien that is provided for by and becomes effective under this section shall take priority over any unrecorded lien whenever acquired, except tax liens previously acquired.
(f) A lien shall be enforceable by the child
support enforcement agency or its designated counsel [
or], by the
by another agency administering a program under Title IV-D in the
(1) By suit in the appropriate court;
(2) By bringing an action in an administrative tribunal;
(3) By filing and serving a notice of child support lien; or
(4) By any lawful means of collection.
A notice of child support lien shall state the name and the last four digits only of the social security number (if available) of the obligor, the child support enforcement case number, the amount of the lien and the through date (if applicable), the accruing monthly amount, and the date on which the order or judgment regarding child support or public assistance debt was recorded with the bureau of conveyances. The notice shall require that whoever is served with a notice of child support lien either satisfy the lien or obtain a release of the lien prior to disbursing any funds to the obligor. The method of service of a notice of child support lien shall be by certified mail, return receipt requested, or by personal delivery to the individual or entity referred to. A copy of the notice of child support lien shall also be sent to the obligor by regular mail at the obligor's last known address. Upon service of a notice of child support lien, the individual or entity served shall withhold the amount of the lien from the proceeds of any estate, judgment, settlement, compromise, vacation or holiday pay, or other benefits due the obligor and deliver the funds to the child support enforcement agency. For service effectuated by certified mail, an electronic copy or facsimile of the signature of the served individual or entity provided by the United States Postal Service shall constitute valid proof of service on the individual or entity. A notice of child support lien may be amended from time to time until extinguished or released, each amendment taking effect upon proper service. A notice of child support lien shall remain in effect until satisfied, extinguished, or released.
(g) A lien shall be enforceable by the child support enforcement agency or its designated counsel or by another agency administering a program under Title IV-D without the necessity of obtaining a court order in the following manner:
(1) By intercepting or seizing periodic or lump-sum payments from:
(A) A state or local agency, including unemployment compensation, and other benefits; and
(B) Judgments, settlements, and lotteries;
provided that unemployment compensation benefits may be intercepted only to the extent authorized by section 303(e) of the Social Security Act;
(2) By attaching and seizing assets of the obligor held in financial institutions;
(3) By attaching public and private retirement funds; and
(4) By imposing liens in accordance with this section and, in appropriate cases, to force the sale of property and distribution of proceeds.
These procedures shall be subject to due process safeguards, including, as appropriate, requirements for notice, opportunity to contest the action, and opportunity for an appeal on the record to an independent administrative or judicial tribunal.
(h) The child support enforcement agency, its designated counsel or the obligee, where appropriate, shall issue certificates of release upon satisfaction of the lien. Certificates of release of any real property shall be recorded in the bureau of conveyances or filed in the office of the assistant registrar of the land court. Recordation of the certificate of release shall be the responsibility of the obligor.
(i) If there is a dispute between the obligor and the child support enforcement agency concerning the amount of the child support lien, the obligor may request in writing an account review. Upon receipt of a written request, the child support enforcement agency shall conduct a review of the obligor's account balance pursuant to its administrative rules.
(j) Any person or entity failing to satisfy a notice of child support lien as required by this section, even though able to do so, shall be personally liable to the child support enforcement agency or the obligee for the full amount of all sums required to be withheld and delivered."
SECTION 4. Section 576D-15, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:
response to a notice of lien or levy, the financial institution shall surrender
to the agency or other entity seeking to enforce the lien or encumber
assets held by such institution [
to the agency] on behalf of any
noncustodial parent who is subject to a child support lien arising by operation
of law against real and personal property for delinquent support owed by the
noncustodial parent who resides in or owns property in the State and those
liens shall be accorded full faith and credit when the agency or other entity seeking
to enforce the lien has complied with the procedural rules of the State and, if
applicable, section 501-102."
SECTION 5. Section 576E-12, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) A true copy of the administrative order, along with a true copy of the return of service, shall be filed in the office of the clerk of the circuit court in the circuit where the order was issued, or in the office of the clerk of the circuit court in the circuit where a previously established support order was filed. For service effectuated by certified mail, an electronic copy or facsimile of the signature of the served individual provided by the United States Postal Service shall constitute valid proof of service on the individual. Upon filing, the order shall have all the force and effect of a final order or decree of the circuit court."
SECTION 6. Section 576E-16, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b) The income withholding order issued
pursuant to subsection (a) or the income withholding order or the notice to
withhold child support issued pursuant to section 576D-14 shall be effective
immediately after service upon an employer of a copy of the order or the notice
to withhold child support, which service may be effected by regular mail, by
personal delivery, or by transmission through electronic means. Thereafter,
the employer shall for each pay period, withhold from the income due to the
responsible parent from the employer, and not required to be withheld by any
other provision of federal or state law, and transmit to the [
obligee, or upon request, to the] child support enforcement agency of this
State, as much as may remain payable to the responsible parent for such pay
period up to the amount specified in the order or the notice to withhold child
support as being payable during the same period. The employer shall
immediately inform the agency of any change that would affect the income
withholding order or the notice to withhold child support or the disbursement
SECTION 7. Section 584-8, Hawaii Revised Statutes, is amended to read as follows:
"§584-8 Jurisdiction; venue. (a) Without limiting the jurisdiction of any other court, the family court has jurisdiction of an action brought under this chapter. The action may be joined with an action for divorce, annulment, separate maintenance, or support.
(b) A person who has sexual intercourse in this State thereby submits to the jurisdiction of the courts of this State as to an action brought under this chapter with respect to a child who may have been conceived by that act of intercourse. In addition to any other method provided by statute, personal jurisdiction may be acquired by personal service outside this State or by service by certified or registered mail, postage prepaid, with return receipt requested.
(c) In addition to any other method of service provided by statute or court rule, if the defendant is not found within the circuit, service may be effectuated by registered or certified mail, with request for a return receipt and direction to deliver to addressee only. The return receipt signed by the defendant shall be prima facie evidence that the defendant accepted delivery of the complaint and summons on the date set forth on the receipt. Actual receipt by the defendant of the complaint and summons sent by registered or certified mail shall be equivalent to personal service on the defendant by an authorized process server as of the date of the receipt.
(d) The action may be brought in the county in which the child, the mother, or the alleged father resides or is found or in which the child was born or, if the father is deceased, in which proceedings for probate of his estate have been or could be commenced.
(e) For service effectuated by registered or certified mail, an electronic copy or facsimile of the signature of the served individual provided by the United States Postal Service shall constitute valid proof of service on the individual."
SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 9. This Act shall take effect upon its approval.