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 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.
B. Interest shall accrue on a consolidated
judgment for delinquent child support at the rate 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:
"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.--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."
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-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."