SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR

SENATE BILL 48

46th legislature - STATE OF NEW MEXICO - second session, 2004

AN ACT

RELATING TO CHILD SUPPORT ENFORCEMENT; ELIMINATING THE ATTORNEY-CLIENT RELATIONSHIP BETWEEN A CHILD SUPPORT ENFORCEMENT ATTORNEY AND ANOTHER PARTY; REDUCING THE INTEREST RATE FOR DELINQUENT CHILD SUPPORT; CHANGING JUDGMENTS AND ORDERS FOR RETROACTIVE CHILD SUPPORT; ESTABLISHING AN ARREARS MANAGEMENT PROGRAM FOR UNPAID CHILD SUPPORT INTEREST AMNESTY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     Section 1. Section 27-2-27 NMSA 1978 (being Laws 1981, Chapter 90, Section 1, as amended) is amended to read:

     "27-2-27. SINGLE STATE AGENCY--POWERS AND DUTIES.--

          A. The department is designated as the single state agency for the enforcement of child and spousal support obligations pursuant to Title IV D of the federal act with the following duties and powers to:

                (1) establish the paternity of a child in the case of the child born out of wedlock with respect to whom an assignment of support rights has been executed in favor of the department;

                (2) establish an order of support for children receiving aid to families with dependent children and, at the option of the department, for the spouse or former spouse with whom such children are living, but only if a support obligation has been established with respect to such spouse or former spouse, for whom no order of support currently exists and seek modification, based upon the noncustodial parent's ability to pay, of existing orders in which the support order is inadequate to properly care for the child and the spouse or former spouse with whom the child is living;

                (3) enforce as the real party in interest any existing order for the support of children who are receiving aid to families with dependent children or of the spouse or former spouse with whom such children are living;

                (4) provide services to non-aid families with dependent children in the establishment and enforcement of paternity and child support obligations, including locating the absent parent. For these services, the department is authorized to establish and collect fees, costs and charges permitted or required by federal law or by regulations adopted pursuant to that federal law; and

                (5) adopt regulations for the disposition of unclaimed child, spousal or medical support payments.

          B. In all cases handled by the department pursuant to the provisions of this section, the child support enforcement division [of the department and any] or an attorney employed by the division represent the department, to the exclusion of any other party, in establishing, modifying and enforcing support obligations.

          C. An attorney employed to provide the Title IV D services represents only the department's interests and no attorney-client relationship shall exist between the attorney and another party.

          D. The department shall, at the time an application for child support services is made, inform the applicant that neither the Title IV D agency nor the attorney who provides services under this section is the applicant's attorney and that the attorney who provides services under this section shall not provide legal representation to the applicant.

          E. The department may initiate an action or may intervene in an action involving child support.

          F. The attorney employed by the department pursuant to this section shall not act as a guardian ad litem for the applicant.

          G. A court shall not disqualify the department in a legal action filed pursuant to the Support Enforcement Act of the federal Social Security Act because the department has previously provided services to a party whose interests are now adverse to the relief requested."

     Section 2. Section 40-4-7.3 NMSA 1978 (being Laws 1999, Chapter 299, Section 1) is amended to read:

     "40-4-7.3. ACCRUAL OF INTEREST--DELINQUENT CHILD AND SPOUSAL SUPPORT.--

          A. Interest shall accrue on delinquent child support at the rate of four percent and spousal support at the rate set forth in Section 56-8-4 NMSA 1978 in effect when the support payment becomes due and shall accrue from the date the support is delinquent until the date the support is paid [or consolidated in a judgment].

          B. Interest shall accrue on a consolidated judgment for delinquent child support at the rate [provided in Section 56-8-4 NMSA 1978 in effect] of four percent when the consolidated judgment is entered until the judgment is satisfied.

          C. Unless the order, judgment, decree or wage withholding order specifies a due date other than the first day of the month, support shall be due on the first day of each month and, if not paid by that date, shall be delinquent.

          D. In calculation of support arrears, payments of support shall be first applied to the current support obligation, next to any delinquent support, next to any consolidated judgment of delinquent support, next to any accrued interest on delinquent support and next to any interest accrued on a consolidated judgment of delinquent support.

          E. The human services department shall have the authority to forgive accrued interest on delinquent child support assigned to the state not otherwise specified in an order, judgment, decree or income withholding order if, in the judgment of the secretary of human services, forgiveness will likely result in the collection of more child support, spousal support or other support and will likely result in the satisfaction of the judgment, decree or wage withholding order. This authority shall include the ability to authorize the return of suspended licenses."

     Section 3. A new section of the Support Enforcement Act is enacted to read:

     "[NEW MATERIAL] UNPAID CHILD SUPPORT INTEREST ARREARS MANAGEMENT PROGRAM.--The department shall designate an arrears management program starting on or after December 15, 2004 to provide amnesty for child support arrears, pursuant to procedures adopted by the department. The arrears management program shall not exceed more than twelve months and shall only be authorized thereafter every two years. The department shall, before renewing the next arrears management program, provide to the interim welfare reform oversight committee a report on the previous arrears management program."

     Section 4. Section 40-11-15 NMSA 1978 (being Laws 1986, Chapter 47, Section 15, as amended) is amended to read:

     "40-11-15. JUDGMENT OR ORDER.--

          A. The judgment or order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes.

          B. If the judgment or order of the court is at variance with the child's birth certificate, the court shall order that a new birth certificate be issued.

          C. The judgment or order may contain any other provision directed against or on behalf of the appropriate party to the proceeding concerning the duty of past and future support, the custody and guardianship of the child, visitation with the child, the furnishing of bond or other security for the payment of the judgment or any other matter within the jurisdiction of the court. The judgment or order may direct the father to pay the reasonable expenses of the mother's pregnancy, birth and confinement. The court shall order child support retroactive to the date of the child's birth, but not to exceed twelve years unless there is a substantial showing that paternity could not have been established and an action for child support could not have been brought within twelve years of the child's birth pursuant to the provisions of Sections 40-4-11 through 40-4-11.3 NMSA 1978; provided that, in deciding whether or how long to order retroactive support, the court shall consider:

                (1) whether the alleged or presumed father has absconded or could not be located; and

                (2) whether equitable defenses are applicable.

          D. A determination of parentage and adjudication of support is binding on:

                (1) a signatory on an acknowledgment of paternity;

                (2) a nonresident party subject to the court's jurisdiction pursuant to Section 40-6A-201 NMSA 1978; and

                (3) the child, if:

                     (a) the determination was based on an acknowledgment of paternity and the acknowledgment is consistent with the results of genetic testing;

                     (b) the child was a party or was represented in the proceeding by a guardian ad litem;

                     (c) there is a stipulation or admission in the final order that the parties are the parents of the child; or

                     (d) in a proceeding to dissolve a marriage or establish support, a final order expressly identified the child as a "child of the marriage", "issue of the marriage", "child of the parties" or similar words that indicate the parties are the parents of the child and, if applicable, the court had personal jurisdiction over any nonresident party pursuant to Section 40-6A-201 NMSA 1978.

          E. Support judgments or orders ordinarily shall be for periodic payments which may vary in amount. In the best interest of the child, a lump-sum payment or the purchase of an annuity may be ordered in lieu of periodic payments of support; provided, however, nothing in this section shall deprive a state agency of its right to reimbursement from an appropriate party should the child be a past or future recipient of public assistance.

          F. In determining the amount to be paid by a parent for support of the child, a court, child support hearing officer or master shall make such determination in accordance with the provisions of the child support guidelines of Section 40-4-11.1 NMSA 1978.

          G. Bills for pregnancy, childbirth and genetic testing are admissible as evidence without requiring

third-party foundation testimony and constitute prima facie evidence of amounts incurred."

     Section 5. Section 40-11-16 NMSA 1978 (being Laws 1986, Chapter 47, Section 16, as amended) is amended to read:

     "40-11-16. COSTS.--The court may order reasonable fees of counsel, experts and the child's guardian and other costs of the action and pretrial proceedings, including blood or genetic tests, to be paid by any party in proportions and at times determined by the court, but not to exceed twelve years unless there is a substantial showing that paternity could not have been established and an action for child support could not have been brought within twelve years of the child's birth. The court may order the proportion of any indigent party to be paid from court funds."

     Section 6. Section 40-11-23 NMSA 1978 (being Laws 1986, Chapter 47, Section 23, as amended) is amended to read:

     "40-11-23. LIMITATION.--[A.] An action to determine a parent and child relationship under the Uniform Parentage Act shall be brought no later than three years after the child has reached the age of majority.

          [B. The action to establish paternity under that act shall be available for any child for whom a paternity action was brought and dismissed on or after August 16, 1984 because of the application of a statute of limitations of less than eighteen years.]"

     Section 7. Section 56-8-4 NMSA 1978 (being Laws 1851-1852, p. 255, as amended) is amended to read:

     "56-8-4. JUDGMENTS AND DECREES--BASIS OF COMPUTING INTEREST.--

          A. Interest shall be allowed on judgments and decrees for the payment of money from entry and shall be calculated at the rate of eight and [three-quarters] three-fourths percent per year, unless:

                (1) the judgment is rendered on a written instrument having a different rate of interest, in which case interest shall be computed at a rate no higher than specified in the instrument; or

                (2) the judgment is based on tortious conduct, bad faith or intentional or willful acts, in which case interest shall be computed at the rate of fifteen percent.           B. Unless the judgment is based on unpaid child support, the court in its discretion may allow interest of up to ten percent from the date the complaint is served upon the defendant after considering, among other things:

                (1) if the plaintiff was the cause of unreasonable delay in the adjudication of the plaintiff's claims; and

                (2) if the defendant had previously made a reasonable and timely offer of settlement to the plaintiff.

          C. Nothing contained in this section shall affect the award of interest or the time from which interest is computed as otherwise permitted by statute or common law.

          D. The state and its political subdivisions are exempt from the provisions of this section except as otherwise provided by statute or common law."

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