Child Support Enforcement

The federal Child Support Enforcement Amendment of 1984, Public Law 98-378, mandated that the
states enact “proven child support enforcement techniques” as a condition of continued state
eligibility to participate in the Aid to Family with Dependent Children (AFDC) program, which is
now known as Temporary Assistance to Needy Families (TANF). Congress determined that
the money returned to the TANF program from the existing federal

state child support enforcement program was woefully inadequate. The use of proven enforcement
techniques would bolster the monetary return to the federal government when families receive TANF
benefits and, by requiring states to provide equal services to families not receiving TANF
benefits, would prevent families from later becoming public charges.
In response to this federal legislation, the State of West

Virginia enacted the Family Obligation Enforcement Act, Chapter

48A of the Code of West Virginia. The Act created the quasi judicial system of Family Law Masters
to hear domestic relations cases. The Family Law Master served as a commissioner to hear all
domestic relations matters and made written recommendations to the Circuit Court as to the
disposition of such matters, with final orders being entered by the Circuit Court Judge. The Act
also created the Child Support Enforcement Division, later renamed the Bureau for Child Support
Enforcement (BCSE), to administer the state plan for child support and spousal support under 42 U.S.C. §654(3).

The proven collection techniques required of states were income withholding, real and personal
property liens, interception of state and federal income tax refunds, bonds to
insure payment of support arrearages, establishment of paternity, reporting of child support
arrearages to credit reporting agencies, and an expedited process to establish and enforce child
support orders.
In 2001, the West Virginia Legislature recodified the

State’s domestic relations law, with Chapter 48 of the Code replacing Chapter 48A as the repository
of the State’s domestic relations provisions. In conjunction with the changes made to the domestic
relations section of the Code, the Legislature replaced the Family Law Master system with the
Family Court system, effective January 1, 2002. West Virginia Code Section
51-2A-2 grants the Family Court Judges jurisdiction to hear and

enter final orders in (among others) divorce cases, child support cases, paternity cases, parenting
plan cases, and domestic violence cases.
The purpose of this chapter is to discuss the functions of

the BCSE and explain the means by which it accomplishes those functions. The child support field
has its own distinctive language; and since child support is intertwined with the federal government, acronyms abound. Child support language and acronyms are used throughout by necessity, and a glossary of these terms is provided at the end of this chapter.
II. ORGANIZATION OF THE BCSE
The BCSE, as the state entity receiving federal funds for the establishment and enforcement of
child support orders, is known as the state’s IV-0 agency. This term is derived from Title IV,
Part 0 of the Federal Social Security Act (42 U.S.C.
§651, et seq.), which contains the provision of the state-federal child support program. The BCSE
receives federal funding of a portion of its IV-0 expenses, including salary and operational costs.
The amount of funding received each year from the federal government is determined by the BCSE’s
performance in several areas of establishment and enforcement. The one activity which
is subsidized entirely by state funds is “spousal support only” enforcement.
The IV-0 federal funding percentage applies to the BCSE’s child support activities for not only PA
(Public Assistance) individuals but also NPA (Non-Public Assistance) individuals who apply for the
BCSE’s IV-0 services.
The BCSE is headed by a commissioner, appointed by the OHHR secretary. It administers legal
services statewide through attorneys known as BCSE Attorneys. In addition to the traditional functions of a state administrator, the BCSE Commissioner has the responsibility to work with the federal agency, the Office of Child Support Enforcement (OCSE) of the Department of Health and Human Services, which supervises the federal-state IV-D program.

III. APPLICATION PROCESS AND FEES
TANF recipients are automatically referred to the BCSE for services, as are adult individuals who
receive Medicaid benefits for both themselves and the child(ren) in his/her custody.
Persons who do not receive assistance may also apply for services from the BCSE. Services provided
by the BCSE include:

(1) location of obligor and obligees;

(2) establishment of paternity:

(3) establishment of child support orders;

(4) enforcement of child and spousal support orders; (5) interstate support establishment and
enforcement; (6) medical support establishment and enforcement;
(7) payment to and distribution of support through the BCSE; (8) investigation and modification,
when warranted, of a
child support order;

(9) income withholding; and

(10) federal and state tax refund intercepts.

Currently, no fee is charged to NPA applicants for these services.
NPA applications are made at the local BCSE office in the

county where the applicant currently resides. If the applicant has moved since receiving a West
Virginia divorce, this procedure removes the inconvenience of the applicant hav ng to travel to
the county in which the divorce was entered. The BCSE tailors the remedy as best it can to deal
with the mobility of our society. There may be situations, however, where travel to hearings is
mandated.

IV. THE BCSE AND THE PRIVATE BAR
The legislature, in creating the BCSE, did not intend for the agency to replace the private bar in
domestic relations practice. The BCSE was created to eliminate the confusion of dealing separately
with the county prosecutor, private counsel, or OCSE, each of which could handle only certain
actions. The BCSE provides for the same child support establishment and enforcement services for
TANF as well as non-public assistance applicants.
There are several services which only the BCSE can provide.

These are:

(1) location of obligors through the state and federal parent locator service;

(2) intercepting child support arrearages from state and federal tax refunds;
(3) withholding of support from income 1n both intrastate and interstate cases;
(4) license suspension;

(5) withholding from Social Security and Workers’ Compensation benefits;
(6) referral of a case for possible passport suspension or denial.

Since the BCSE is a creature of statute, its authority, duties, powers, and responsibilities extend
only to those which are specifically enumerated. The BCSE cannot represent parties in divorce
cases, post-divorce enforcement of equitable distribution, adoption proceedings, or custody and
visitation matters. West Virginia Code §48-18-110 clarifies that the BCSE Attorneys represent the
“interest of the state or the bureau and not the interest of any other party.”
Several BCSE statutory duties are at odds with well

understood ethical principles preventing multiple representation. The BCSE can enforce an obligee’s
support order against the obligor and yet petition for a reduction in the support obligor’s order
based upon a change of circumstances. The Ethics Committee opinion and West Virginia statutes allow the BCSE to fulfill its mandatory duties despite the apparent conflict.

V. WHEN THE OBLIGEE RECEIVES TANF BENEFITS
An individual who applies for and receives TANF assistance is deemed by statute (W.Va. Code §9-3-4)
to have assigned to the State all rights, title, and interest of any past, present, and future
support monies which may be due the individual. The support monies include both child and spousal
support owed for the persons receiving assistance.
In cases where support is owed for a child receiving

assistance, the DHHR is empowered to collect and retain the support obligation. The amount the
State can retain is limited
by the amount of the court order or the amount of assistance paid

to the family which has not been reimbursed, whichever is less.

If no support order exists, the BCSE will seek to establish a current support order and to recover
support retroactively for benefits based upon the obligor’s ability to pay according to the
guidelines for child support awards.

VI. LOCATION OF OBLIGEES AND OBLIGORS
West Virginia Code §48-18-111 requires the BCSE to establish a parent locator service (SPLS) to
locate individuals for the

purposes of establishing paternity and for the purposes of establishing, modifying, and enforcing
child support obligations.
The same section also authorizes the BCSE to enter into an agreement with the federal Department of
Health and Human Services for the use of the federal parent locator service (FPLS). Only the BCSE;
a family or circuit court judge; or a parent, legal guardian, attorney, or agent for a child may
request information from the FPLS. Any information obtained from

the FPLS may be used for establishing paternity or for establishing, modifying, and enforcing child
support obligations. Information from the FPLS may also be provided to a family or circuit court
judge, an attorney for the United States, or an attorney for any state in cases involving the
unlawful taking or restraint of a child or in the making or enforcement of a child custody or
visitation determination.

VII. ESTABLISHMENT OF CHILD SUPPORT ORDERS
Establishment of child support is an automatic service for TANF recipients and is available to
non-TANF applicants as well. The child support action is initiated by the filing of a petition with
the Family Court, pursuant to West Virginia Code §48-11-101 et seq. Prior to the final hearing in
the matter, the BCSE will attempt to ascertain the gross incomes of both parents for presentation to the Court, as well as ascertain other factors which may affect the amount of child support (such as the child’s medical insurance premiums, other support obligations owed by the parents, daycare expenses for the child, etc.) The Family Court Judge will establish a support obligation based on the guidelines found in West Virginia Code Section 48-13-201 et seq. If the obligor has been properly served but does not enter an appearance, income may be attributed to him/her in the amount of the federal minimum wage for a forty-hour week.

The BCSE also petitions for orders of health and hospitalization insurance coverage (known as
medical support) for children. West Virginia Code §48-12-102 requires the Court to address medical
support in any temporary or final order which establishes a child support obligation or which
modifies a child support obligation. Based on the statute, the BCSE is required
to petition for medical support when seeking an initial monetary support order or when seeking a
modification of a support order. When the medical support is ordered, the BCSE must take steps to
ensure it is obtained. Medicaid is not considered health and hospitalization insurance.

VIII. MODIFICATION OF CHILD SUPPORT ORDERS
A review of the existing order commences upon written request by either the obligee or obligor for
investigation of whether a modification is warranted. If the BCSE deems the modification justified by the facts, both the obligor and obligee are notified of the report and recommendation before the filing of a petition seeking a modification.

There are several situations in which the BCSE will pursue a modification: (1) when the time since
the last review or order
has been three (3) years and there appears to be a 10% difference between the existing support
amount and a new formula
calculation; or (2) a substantial change of circumstances has

occurred, e.g. the obligor or obligee loses his/her job, a change of custody takes place, or there
is a 15% difference between the existing support amount and the new formula calculation.

IX. ENFORCEMENT OF SUPPORT ORDERS IN GENERAL
The BCSE has available numerous remedies to enforce delinquent support orders. These include:

(1) sale of real property pursuant to judgment liens (W.Va.

Code §§38-3-1 et seq. and 48-14-308);

(2) writs of execution (W.Va. Code §§ 38-4-1 et seq. and 48-

14-201);

(3) suggestion (W.Va. Code§§ 38-4-1 et seq. and 48-14-204); (4) suggestee execution (W. Va. Code §§
38-5A-1 et seq. and
48-14-204);

(5) attachment (W.Va. Code§§ 38-7-1 et seq.);

(6) contempt (W.Va. Code §48-14-501);

(7) liens (W.Va. Code§§ 48-14-201 and 48-14-301);

(8) license suspension (W.Va. Code §48-15-101 et seq.);

(9) federal and state tax intercepts (W.Va. Code §§ 48-18-

117 and 48-18-118);

(10) report to OCSE of arrearages of $5,000.00 or more for passport denial or revocation (§42
U.S.C. 652(k)).

By statute, each unpaid installment of a child support order stands as an enforceable decretal
judgment against the obligor which cannot be compromised or retroactively modified. This statutory
provision, again the result of a federal mandate, codified existing West Virginia case law. The
statute neither refers to, nor applies to, spousal support, even though matured, unpaid spousal
support installments, by case law, stand as decretal judgments. Since the interest of a child is
not involved, agreements compromising or altering spousal support arrearages should be permitted
between consenting adults.
The BCSE can utilize writs of execution, suggestion, or

suggestee execution for support arrearages only. Enforcement through these methods is initiated by
filing an affidavit when
the obligor is behind in support payments. This affidavit can be filed in the county where the
obligee or obligor lives or where the obligor’s source of income is located. The Circuit Court
Clerk is to issue the writ and mail a copy of the affidavit, along with a notice of filing to the obligor. The notice advises the obligor that the affidavit can be contested for a mistake in the arrearage computation or certain other enumerated mistakes of fact at a meeting with the BCSE _if the obligor advises the BCSEin writing of the contest within fourteen (14) days of the date of the notice. If the obligor contests the affidavit, the BCSE is to inform the Court and obtain a court order requiring theobligor to post an adequate security bond. If the outcome of the meeting with the BCSE does not satisfy the obligor, the case proceeds to the Family Court Judge for a hearing. An obligee can obtain a writ of execution pursuant to West Virginia Code §48-14-204 as a self-help remedy. The forms for the affidavit and notice are available at the Circuit Court Clerk’s office. The obligee can secure an appropriate writ without private counsel or the BCSE.

If the obligor is behind in support payments and income withholding or a suggestee execution is not appropriate, the BCSE can petition the Court for the obligor to post a bond or security to ensure the payment of the arrearage. A child support bond is similar to a bond in a criminal case which is to ensure the defendant’s appearance at the proceedings. Such a bond may be issued by an insurance agent or a bail bondsman. A security is created by placing something of value with a third party, e.g. certificates of deposit, stocks, or motor vehicle titles. After the bond or security is established, the BCSE will then petition the Court for a forfeiture of the bond or security if the obligor fails to repay the arrearage as ordered.

The suspension of an obligor’s license is authorized by West Virginia Code §48-15-101 et seq. Before suspension can be initiated, the statute requires that an obligor owe arrearages 1n excess of six (6) months of child support, fail to pay medical support for six (6) months, or fail to comply with subpoenas or warrants relating to paternity or child support proceedings.

Upon receipt of the notice of the action against license, the obligor has the choice of paying in
full the amounts owed by him/her, requesting a meeting with the BCSE, or requesting a hearing with
the Family Court Judge. Failure to act following receipt of the notice may result in the entry of
an order suspending the obligor’s license without further notice to the obligor.

X. INCOME WITHHOLDING
Universal withholding of support from income, which became law in January 1994, requires that
immediate income withholding language be included in all support orders, regardless of whether
there is an arrearage. Unless one of the exceptions is met, support is deducted directly from an
obligor’s paycheck, just as federal and state tax deductions. The two exceptions are: (17) when the parties agree in writing on an alternative payment arrangement which is sanction by the court; and (2) when the court finds good cause as to why immediate income withholding should not be implemented. The BCSE enforces support orders via both intrastate and interstate income withholding.

All orders which do not contain an income withholding provision are considered by operation of law to contain such language. Since West Virginia support orders contain an income withholding provision, the BCSE can initiate income withholding against an obligor’s income in any case which is receiving BCSE services and has a court order for child support.

The amounts to be withheld from the obligor’s wages or other

income are specified in West Virginia Code §48-14-108. In broad terms, the limitations are
forty-five percent (45%) of disposable earnings for an obligor who is supporting a spouse or
dependent child and fifty-five percent (55%) of disposable earnings for an obligor who is not
supporting a spouse or dependent child. If
the BCSE is collecting both current child support and arrearages,

income withholding for arrearages may not exceed twenty-five percent (25%) of the current
obligation. However, if the obligor owes arrearages in an amount that exceeds six (6) months of
the current obligation, the BCSE may withhold up to an additional

$100.00 per month from the obligor’s wages or other income(See. W.Va. Code §48-14-801.)

XI. FEDERAL AND STATE TAX REFUND INTERCEPTS
Recovery of child support arrearages through interception of an obligor’s income tax refund(s) has
proved an efficient, invaluable enforcement tool. The federal refund interception program began in
1982 to recover child support arrearages
assigned to states by obligees receiving AFDC (now TANF)

benefits. The child support enforcement amendments of 1984 opened the federal interception program
to NPA obligees and required the states with income taxes to have the same program at the state
level. The federal NPA interception program began with refunds payable after December 31, 1985.
The West Virginia state tax interception program commenced with refund payable after December 31,
1985. The United States Supreme Court has ruled
that federal refunds which are attributable to excess earned income credits are subject to
interception for child support arrearages.
Only IV-D cases can be submitted for tax offset. All cases

(PA and NPA) meeting the eligibility criteria are automatically submitted to the federal OCSE and
the West Virginia Department of Tax and Revenue for offset. The arrearage amount requested for
interception must have been verified by the BCSE, but it need not have been reduced to a judgment.
Obligors may be submitted for tax offset even if they are located in a different state than the obligee. Only the state where the obligee resides or which has an assignment for support can submit for the federal interception.

The obligor is notified of the potential interception by “pre-offset notices”, sent by the BCSE.
The notices advise the obligor of how and by what date the interception/offset can be challenged.
Obligors also receive a notice when the refund has been intercepted. In the case of federal
offsets, this notice comes from the federal government. For state tax refunds, the notice is sent
by the Department of Tax and Revenue.
The obligor may request either an informal review with the local BCSE or a formal hearing before
the DHHR Board of Review. With an interstate case, the obligor may choose to have the
administrative review in either the submitting state or the state in which the order was entered.
The BCSE will accommodate an obligor who cannot personally appear for the administrative hearing by
arranging a telephone hearing, if appropriate.
Joint tax returns create particular problems. The BCSE can legally hold all refunds intercepted
from joint returns for six (6) months after receiving the money before disbursing it to the
obligee. This allows the obligor’s spouse to recover his/her portion of the refund through an
injured spouse claim, which must be sent by the taxpayer to the appropriate tax department.

XII. INTERSTATE PROCEDURES – UIFSA
For many years, interstate child support enforcement was subject to provisions of the Uniform
Reciprocal Enforcement of Support Act (URESA) or the Revised Uniform Reciprocal Enforcement of
Support Act (RURESA). States adopted different versions of URESA, and multiple support orders in
one case were not uncommon. In 1992, the National Conference of Commissioners on Uniform Support
Laws approved and recommended the Uniform Interstate Family Support Act (UIFSA) for enactment in
all states. Under UIFSA, only one support order can be in effect in a case at any one time.
Federal law required that all states adopt UIFSA by January 1, 1998.
West Virginia’s UIFSA law became effective January 1, 1998,

and is now contained in W.Va. Code §48-16-101, et seq. The previous URESA law was repealed.
Actions which may be brought under the UIFSA statute include establishment of paternity,
establishment of child or spousal support, enforcement of a support order, and modification of a
support order issued by a court of this state.
IV-0 regulations allow enforcement and collection of spousal

support and spousal support arrearages as long as the IV-0 agency is collecting child support and
child support arrearages. The
law in West Virginia also allows non-IV-0 spousal support (i.e. cases in which only spousal support
is owed) to be collected.

However, all states do not permit the local IV-D agencies to pursue establishment or enforcement of
spousal support alone.
UIFSA is designed to provide for only one support order at a

time (called the “controlling order”). If multiple orders exist in a case, a determination of
which state has continuing exclusive jurisdiction (CEJ) must be made. UIFSA provides rules to
determine which order is the controlling order. Briefly, a state that has issued an order retains
CEJ as long as the
custodial parent, noncustodial parent, or child continues to live

in that state. If the custodial parent, noncustodial parent, and child no longer reside in the
state that issued the support
order, the order remains enforceable. However, for modification purposes, the support order must
be registered in the state with personal jurisdiction over the other party.

XIII. PATERNITY ESTABLISHMENT
As with the establishment of child support, establishment of paternity is an automatic service for
TANF recipients and is available to non-TANF applicants as well. Paternity may be established
either voluntarily by executing a written acknowledgment that the man is the father of the child or
through judicial means. The BCSE can assist in both situations.
The execution by the mother and father of a declaration of paternity affidavit is controlled by
West Virginia Code §16-5-lO(h).

The same code section also provides for the rescission of a declaration of paternity

affidavit under certain circumstances. The forms for the declaration of paternity affidavit may be
obtained at most birthing hospitals or from the local BCSE
office.

If the mother and father do not sign a declaration of paternity affidavit, the BCSE will proceed to
establish paternity through the Family Court. West Virginia Code §48-24-101 creates
a civil action to establish the paternity of a child and to obtain an order of support for the
child. Because paternity proceedings are civil action, an alleged father does not have any right
to court-appointed counsel.
A paternity action may be brought by any person who has the

legal or physical custody of a child, the State of West Virginia, or a man who believes himself to
be the father of a child for
whom paternity has not been previously established. West Virginia Code §48-24-lOl(e)(7) allows the
child to bring a paternity action after his/her eighteenth (18th) birthday but prior to his/her
twentieth (20th) birthday.
If a man engages in sexual intercourse in the State of West Virginia which may have resulted in the
conception of a child, the paternity action may be brought in this state, regardless of where the
alleged father resides. This use of the long-arm procedure is authorized by West Virginia Code
§48-24-lOl(h).

An alleged father does have the right to DNA paternity testing. The costs of the testing will
initially be borne by the state, subject to possible recoupment if the alleged father is shown to
be the actual biological father of the child.
Undisputed DNA test results which show a statistical probability

of paternity of more than 98% legally establish the man as the father of the child.
With the establishment of paternity, the father has the duty to support his child, and the Court
will generally establish a support obligation. The Court may also require the father to pay
reimbursement support for the child. Reimbursement is generally limited to the thirty-six (36)
months prior to service of the paternity petition upon the obligor. However, the Court may exceed
the thirty-six (36) month limit if it finds that the obligor had actual knowledge of paternity or
took certain actions which delayed the commencement of the paternity suit. The
thirty-six (36) month limit does not apply to the award of

medical expenses incurred, including birthing expenses. (See

W.Va. Code §48-24-104)

Along with the duty of support, a man who is determined to be the father of a child also has the
right to petition for visitation with or custody of the child. An appropriate petition must be
filed with the Family Court. However, the BCSE has no authority to litigate matters of custody or
visitation in any case.

In a UIFSA paternity proceeding, it is not appropriate for the Court to consider a father’s

custody or visitation rights. Generally, the Court establishing paternity under UIFSA is not
the child’s home state under the Uniform Child Custody

Jurisdiction and Enforcement Act (UCCJEA) and, therefore, lacks jurisdiction to address custody or
visitation issues.

XIV. SUPPORT PAYMENTS THROUGH THE BCSE
All support payments are required by statute to be paid to the BCSE for distribution. This
benefits the obligor by establishing an official payment record, thereby reducing the
risk of misplaced receipts. The BCSE payment record also reduces

the instances of an obligee failing to report payments to the

DHHR and fraudulently receiving TANF benefits.

All payments, whether made by an obligor or by his/her employer, are to be sent to the BCSE, PO Box
247, Charleston WV
25321. The checks or money orders are deposited, and the BCSE

then makes a direct deposit to the obligee’s bank account or has the payment loaded on to the
obligee’s debit card.
If an obligee receives TANF benefits, all or a portion of a child support payment may be retained
by the State for reimbursement of the assistance benefits.

XV. CONCLUSION
This chapter provides a brief review of West Virginia’s child support enforcement program, its
basic legal foundation, and its procedures. Further information on the issues relating
to child support and paternity may be found in West Virginia Code

Chapter 48 and in Chapter 45 of the Code of Federal Regulations.

In addition, the attorneys, supervisors, and child support specialists in the local BCSE offices
can provide helpful information regarding the BCSE’s policy and procedures.

XVI. GLOSSARY OF TERMS AND ACRONYMS

AFDC Aid to Families with Dependent Children; commonly known as “welfare”. Also known as
the IV-A program because it is found in Title IV, Part A, of the Federal Social Security Act (42
U.S.C.
§601, et seq.). This program has been replaced by
TANF.

Arrearage The total of an obligor’s unpaid support; also termed arrears.

BCSE Bureau for Child Support Enforcement; the West Virginia child support agency; West
Virginia’s IV D agency.

DHHR The West Virginia Department of Health and Human Resources; the executive department
of which the BCSE is a part.

FCJ Family Court Judge. The judge who presides over domestic relations actions. See
Article 2A, Chapter 51, of the West Virginia Code.

Initiating
Jurisdiction

IV-A, IV-0 Agency, IV-0 Services, NPA, Obligee, Obligor OCSE OSCAR, PA,
Responding, Jurisdiction, TANF

The jurisdiction where a support action is commenced when the parties reside in different
jurisdictions; the jurisdiction where the obligee lives.

See TANF.

The BCSE in West Virginia; the state child support agency required by the federal Social Security
Act, Title IV, Part 0 (42 U.S.C. §651, et seq.) to administer state IV-0 services.

A range of support enforcement programs available mandatorily to all IV-A recipients and
voluntarily upon application to all other citizens; services provided by the BCSE for which the
BCSE receives federal reimbursement. See Non-IV-0 services.

Non-public assistance. A BCSE case is termed an NPA case if the person involved does not receive
TANF; an NPA individual, upon application with the BCSE, receives IV-0 services.

One to whom child support is owed (by the obligor).

One who owes child support (to the obligee).
The federal Office of Child Support Enforcement. Online Support collection and Reporting system;
the BCSE’s central computer system which contains all date regarding each child support case.

Public Assistance; TANF; commonly referred to as “welfare”. A PA case involves an individual who
receives TANF benefits.

The jurisdiction where the support action
commenced by the initiating jurisdiction is heard; the jurisdiction where the obligor lives or has
assets.

Temporary Assistance to Needy Families; the cash assistance program for families with children.

UIFSA
Uniform Interstate Family Support Act; an
interstate support law adopted in all states (and
in several foreign countries). UIFSA has replaced
the old URESA law in most states.

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