REPORT TITLE:
Child Support Enforcement


DESCRIPTION:
Brings state statutes into compliance with Title IV-D of the
Social Security Act so that the state can continue to receive
funding for the Child Support Enforcement Agency.  (HB2417 HD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        2417
HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 1
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
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                   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
 
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.  The assignment of
 
15 the amounts shall be to the clerk of the court where the order is
 
16 entered if for the support or maintenance of a spouse or former
 
17 spouse, or to the child support enforcement agency if for the
 
18 support[, maintenance, or education] of a child of if child
 

 
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                                     H.B. NO.           H.D. 1
                                                        
                                                        

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

 
 
 
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                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1 may be, whether or not the employer has withheld the correct
 
 2 amount.  The term "employer" as used in this section includes the
 
 3 United States government, the State, any political subdivision
 
 4 thereof and any person who is or shall become obligated to the
 
 5 obligor for payment of income.
 
 6      (b)  Notwithstanding [the provisions of] subsection (a),
 
 7 whenever a court has ordered any person (hereinafter "obligor")
 
 8 to make periodic payments toward the support of a child and, upon
 
 9 petition of the person to whom such payments are ordered to be
 
10 made, or that person's assignee, the court finds the obligor to
 
11 be delinquent in payments in an amount equal to or greater than
 
12 the sum of payments which would become due over a one-month
 
13 period under the order, judgment, or decree providing for child
 
14 support, the court shall order an assignment of future income, or
 
15 a portion thereof, of the obligor in an amount adequate to insure
 
16 that past due payments and payments which will become due in the
 
17 future under the terms of the support order will be paid.  Such
 
18 an order shall operate as an assignment by the obligor to the
 
19 child support enforcement agency and shall be binding upon any
 
20 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.  For each payment made pursuant to an
 
23 assignment order, the person making such payment may deduct and
 

 
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                                     H.B. NO.           H.D. 1
                                                        
                                                        

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

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

 
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                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1 or the clerk of the court or the child support enforcement
 
 2 agency; provided that payment of all overdue support shall not be
 
 3 the sole basis for terminating the assignment.  An employer
 
 4 withholding income for payment to the child support enforcement
 
 5 agency shall terminate the withholding upon receipt of a notice
 
 6 from the child support enforcement agency to terminate income
 
 7 withholding.  In the event that the obligee retains private
 
 8 counsel or proceeds pro se, the obligee shall have primary
 
 9 responsibility for terminating the assignment.  If the obligee
 
10 fails to terminate the assignment when appropriate, the obligee
 
11 shall reimburse the obligor to the extent of any overpayment.  If
 
12 the assignment is not terminated when appropriate, the obligor
 
13 may seek reimbursement for any overpayment from the obligee or
 
14 from the child support enforcement agency, to the extent the
 
15 overpayment was disbursed to the department of human services.
 
16 The child support enforcement agency shall establish procedures
 
17 by rule in accordance with chapter 91 for the prompt
 
18 reimbursement for any overpayment to the obligor."
 
19      SECTION 3.  Section 576B-101, Hawaii Revised Statutes, is
 
20 amended by amending the definition of "income withholding order"
 
21 to read as follows:
 
22      ""Income withholding order" means an order or other legal
 
23 process directed to an obligor's employer, as defined by sections
 

 
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                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1 571-52, 571-52.2, [and] 571-52.3, 576D-14, and 576E-16, to
 
 2 withhold support from the income of the obligor."
 
 3      SECTION 4.  Section 576B-501, Hawaii Revised Statutes, is
 
 4 amended to read as follows:
 
 5      "[[]576B-501[[]  Employer's receipt of income withholding
 
 6 order of another state.  An income withholding order issued in
 
 7 another state may be sent to the person or entity defined as the
 
 8 obligor's employer under sections 571-52, 571-52.2, [and]
 
 9 571-52.3, and 576E-16, without first filing a petition or
 
10 comparable pleading or registering the order with a tribunal of
 
11 this State."
 
12      SECTION 5.  Section 576D-14, Hawaii Revised Statutes, is
 
13 amended to read as follows:
 
14      "576D-14  Implementation of income withholding.(a)  For
 
15 cases being enforced under the Title IV-D state plan or for those
 
16 parents applying to the agency for services, the income of an
 
17 obligor who receives income on a periodic basis and who has a
 
18 support obligation imposed by a support order issued or modified
 
19 in the State before October 1, 1996, if not otherwise subject to
 
20 withholding, shall become subject to withholding as provided in
 
21 subsection (b) if arrearages or delinquency occur, without the
 
22 need for a judicial or administrative hearing.  The agency shall
 
23 implement such withholding without the necessity of any
 

 
Page 8                                                     2417
                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1 application in the case of a child with respect to whom services
 
 2 are already being provided under Title IV-D and shall implement
 
 3 such withholding on the basis of an application for services
 
 4 under Title IV-D in the case of any other child on whose behalf a
 
 5 support order has been issued or modified.  In either case, such
 
 6 withholding shall occur without the need for any amendment to the
 
 7 support order involved or for any further action by the court or
 
 8 other entity which issued such order.
 
 9      (b)  If the obligor who receives income on a periodic basis
 
10 becomes delinquent in making payments under a support order in an
 
11 amount at least equal to the support payable for one month, the
 
12 agency shall issue an income withholding order that shall include
 
13 an amount to be paid towards the delinquency.  The income
 
14 withholding order shall be in the standard format prescribed by
 
15 Title IV-D of the Social Security Act, as amended by the child
 
16 support enforcement agency.  The order shall be served upon the
 
17 employer by [certified] regular mail [or], by personal [service,]
 
18 delivery, or [transmitted] by transmission to the employer
 
19 through electronic means.
 
20      (c)  Upon the agency's receipt of an interstate income
 
21 withholding request from another jurisdiction, the agency may
 
22 issue an income withholding order to collect the support imposed
 
23 upon the obligor by a support order issued or modified by the
 

 
Page 9                                                     2417
                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1 other state.  The order shall include an amount adequate to
 
 2 ensure that past due payments and payments which will become due
 
 3 in the future under the terms of the support order will be paid.
 
 4      (d)  A copy of the order shall be filed in the office of the
 
 5 clerk of the circuit court in the circuit where the order was
 
 6 issued.
 
 7      (e)  Upon sending the order of income withholding to the
 
 8 employer, the agency shall send a notice of the withholding by
 
 9 regular mail to each obligor to whom subsections (b) and (c)
 
10 apply.  The notice shall inform the obligor:
 
11      (1)  That the withholding has commenced;
 
12      (2)  That the obligor may request a hearing in writing
 
13           within fourteen days of the date of the notice;
 
14      (3)  That, unless the obligor files a written request for a
 
15           hearing within fourteen days of the date of the notice,
 
16           the money received from the income withholding will be
 
17           distributed to the custodial parent or, in an
 
18           interstate case, the obligee in the other jurisdiction,
 
19           or in the case where the children are receiving public
 
20           assistance, to the State;
 
21      (4)  That the only defense to income withholding is a
 
22           mistake of fact; and
 

 
 
 
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                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1      (5)  Of the information that was provided to the employer
 
 2           with respect to the employer's duties pursuant to
 
 3           section 576E-16.
 
 4      (f)  The agency may delay the distribution of collections
 
 5 toward arrearages or delinquency until the resolution of any
 
 6 requested hearing regarding the arrearages or delinquency.
 
 7      (g)  Upon timely receipt of a request for a hearing from the
 
 8 obligor[,] pursuant to the notice provided under subsection (e),
 
 9 the agency shall refer the matter to the office and a hearing
 
10 shall be conducted pursuant to chapters 91 and 576E.
 
11      (h)  Upon receiving an order of income withholding from the
 
12 agency, the employer is subject to the requirements of section
 
13 576E-16(b) through (h).
 
14      (i)  In a case being enforced under the Title IV-D state
 
15 plan or for those parents applying to the agency for services,
 
16 the agency may terminate income withholding by sending a notice
 
17 to the employer by regular mail or transmission by electronic
 
18 means.  The notice may be issued upon determination by the agency
 
19 that the obligor no longer owes the child support or that the
 
20 obligation is being satisfied through withholding by another
 
21 employer."
 
22      SECTION 6.  Section 576E-16, Hawaii Revised Statutes, is
 
23 amended by amending subsections (a) and (b) to read as follows:
 

 
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                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1      "(a)  Whenever an administrative order is entered
 
 2 establishing, modifying, or enforcing support, establishing an
 
 3 arrearage that has accrued under a previous judicial or
 
 4 administrative order for support, or establishing a public
 
 5 assistance debt, there shall concurrently be issued an order
 
 6 which shall operate as an assignment to the agency for the
 
 7 benefit of the child or in the case of spousal support, for the
 
 8 benefit of a spouse or former spouse, of such amounts at such
 
 9 times as may be specified in the order, from the responsible
 
10 parent's income due or to become due in the future from the
 
11 responsible parent's employer, or successor employers, [until
 
12 further court or administrative order;] except when alternative
 
13 arrangements are ordered pursuant to section 576D-10.  The income
 
14 withholding order shall be in the standard format prescribed by
 
15 Title IV-D of the Social Security Act, as amended by the child
 
16 support enforcement agency.  A copy of the income withholding
 
17 order shall be filed in the office of the clerk of the circuit
 
18 court in the circuit where the order was issued along with the
 
19 copy of the support order as provided in section 576E-12.
 
20      (b)  The income withholding order issued pursuant to
 
21 subsection (a) or section 576D-14 shall be effective immediately
 
22 after service upon an employer of a copy of the order, which
 
23 service may be effected by [certified or registered] regular
 

 
Page 12                                                    2417
                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1 mail, by personal delivery, or by transmission through electronic
 
 2 means.  Thereafter, the employer shall for each pay period,
 
 3 withhold from the income due to the responsible parent from the
 
 4 employer, and not required to be withheld by any other provision
 
 5 of federal or state law, and transmit to the designated obligee,
 
 6 or upon request, to the child support enforcement agency of this
 
 7 State, as much as may remain payable to the responsible parent
 
 8 for such pay period up to the amount specified in the order as
 
 9 being payable during the same period.  The employer shall
 
10 immediately inform the agency of any change that would affect the
 
11 income withholding order or the disbursement thereof."
 
12      SECTION 7.  Section 576E-16, Hawaii Revised Statutes, is
 
13 amended by amending subsection (d) to read as follows:
 
14      "(d)  An income withholding order shall remain in effect
 
15 until terminated when appropriate by court or administrative
 
16 order[.], except that an employer withholding income for payment
 
17 to the child support enforcement agency shall terminate the
 
18 withholding upon receipt of a notice from the child support
 
19 enforcement agency to terminate income withholding.  Payment by
 
20 the responsible parent of any delinquency shall not in and of
 
21 itself warrant termination of the income withholding order.  The
 
22 agency shall promptly refund any amount withheld in error to the
 
23 responsible parent."
 

 
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 1      SECTION 8.  Statutory material to be repealed is bracketed.
 
 2 New statutory material is underscored.
 
 3      SECTION 9.  This Act shall take effect upon its approval.