Senate Bill sb1638
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Florida Senate - 2003 SB 1638
By Senator Lynn
7-1118A-03
1 A bill to be entitled
2 An act relating to child support; amending s.
3 61.046, F.S.; redefining the term "support
4 order" for purposes of ch. 61, F.S., to include
5 an order of an administrative agency; amending
6 s. 61.13, F.S.; deleting the requirement that a
7 child support order include the minor's social
8 security number; amending s. 61.181, F.S.;
9 requiring the clerk of the court to establish
10 an account for interstate cases; amending s.
11 120.80, F.S.; providing for the location of an
12 administrative hearing; amending ss. 382.013
13 and 382.016, F.S.; permitting voluntary
14 acknowledgments of paternity which are
15 witnessed; amending s. 409.2557, F.S.;
16 authorizing the Department of Revenue to adopt
17 rules to administer the withholding of
18 insurance payments; amending s. 409.2558, F.S.;
19 providing for a notice to the noncustodial
20 parent in applying an undistributable support
21 collection to another support order; amending
22 s. 409.2561, F.S.; providing for the Department
23 of Revenue to establish the obligation of
24 support; amending s. 409.2563, F.S.; providing
25 for the noncustodial parent to request that the
26 Department of Revenue proceed in circuit court
27 to determine the support obligation; revising
28 the requirements under which a noncustodial
29 parent may petition the circuit court to
30 determine the support obligation; providing
31 that the Department of Revenue is a party to
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1 court action only with respect to issues of
2 support; amending s. 409.25656, F.S.; providing
3 for the recovery of fees in liquidating
4 securities for the support owed; creating s.
5 409.25659, F.S.; providing for withholding
6 insurance payments for unpaid support;
7 providing definitions; specifying the duties of
8 the insurer; providing that unpaid support
9 constitutes a lien against an insurance claim;
10 providing for notice to the obligor; providing
11 for payment to the Department of Revenue;
12 providing for an exemption for certain fees and
13 expenses; providing rulemaking authority;
14 amending s. 409.257, F.S.; permitting the use
15 of any means of service of process under ch.
16 48, F.S.; amending s. 409.2572, F.S.; revising
17 the definition of noncooperation or failure to
18 cooperate as applied to an applicant for or a
19 recipient of public assistance; amending s.
20 409.259, F.S.; revising the manner of
21 reimbursement to the clerk of the court for
22 court filings in Title IV-D cases; creating s.
23 440.123, F.S.; requiring an insurer paying
24 workers' compensation insurance to inquire
25 about unpaid child support; amending s. 440.20,
26 F.S.; requiring the judge of compensation
27 claims to obtain information on the support
28 owed; amending s. 742.10, F.S.; permitting
29 voluntary acknowledgments of paternity which
30 are witnessed; deleting the rebuttable
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1 presumption of a voluntary acknowledgment of
2 paternity; providing effective dates.
3
4 Be It Enacted by the Legislature of the State of Florida:
5
6 Section 1. Subsection (19) of section 61.046, Florida
7 Statutes, is amended to read:
8 61.046 Definitions.--As used in this chapter:
9 (19) "Support order" means a judgment, decree, or
10 order, whether temporary or final, issued by a court or
11 administrative agency of competent jurisdiction for the
12 support and maintenance of a child which provides for monetary
13 support, health care, arrearages, or past support. When the
14 child support obligation is being enforced by the Department
15 of Revenue, the term "support order" also means a judgment,
16 decree, or order, whether temporary or final, issued by a
17 court of competent jurisdiction for the support and
18 maintenance of a child and the spouse or former spouse of the
19 obligor with whom the child is living which provides for
20 monetary support, health care, arrearages, or past support.
21 Section 2. Paragraph (d) of subsection (1) of section
22 61.13, Florida Statutes, is amended to read:
23 61.13 Custody and support of children; visitation
24 rights; power of court in making orders.--
25 (1)
26 (d)1. Unless the provisions of subparagraph 3. apply,
27 all child support orders entered on or after January 1, 1985,
28 shall direct that the payments of child support be made as
29 provided in s. 61.181 through the depository in the county
30 where the court is located. All child support orders shall
31 provide the full name and, date of birth, and social security
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1 number of each minor child who is the subject of the child
2 support order.
3 2. Unless the provisions of subparagraph 3. apply, all
4 child support orders entered before January 1, 1985, shall be
5 modified by the court to direct that payments of child support
6 shall be made through the depository in the county where the
7 court is located upon the subsequent appearance of either or
8 both parents to modify or enforce the order, or in any related
9 proceeding.
10 3. If both parties request and the court finds that it
11 is in the best interest of the child, support payments need
12 not be directed through the depository. The order of support
13 shall provide, or shall be deemed to provide, that either
14 party may subsequently apply to the depository to require
15 direction of the payments through the depository. The court
16 shall provide a copy of the order to the depository.
17 4. If the parties elect not to require that support
18 payments be made through the depository, any party may
19 subsequently file an affidavit with the depository alleging a
20 default in payment of child support and stating that the party
21 wishes to require that payments be made through the
22 depository. The party shall provide copies of the affidavit to
23 the court and to each other party. Fifteen days after receipt
24 of the affidavit, the depository shall notify both parties
25 that future payments shall be paid through the depository.
26 5. In IV-D cases, the IV-D agency shall have the same
27 rights as the obligee in requesting that payments be made
28 through the depository.
29 Section 3. Effective July 1, 2003, subsection (1) of
30 section 61.181, Florida Statutes, is amended to read:
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1 61.181 Depository for alimony transactions, support,
2 maintenance, and support payments; fees.--
3 (1)(a) The office of the clerk of the court shall
4 operate a depository unless the depository is otherwise
5 created by special act of the Legislature or unless, prior to
6 June 1, 1985, a different entity was established to perform
7 such functions. The department shall, no later than July 1,
8 1998, extend participation in the federal child support cost
9 reimbursement program to the central depository in each
10 county, to the maximum extent possible under existing federal
11 law. The depository shall receive reimbursement for services
12 provided under a cooperative agreement with the department
13 pursuant to s. 61.1826. Each depository shall participate in
14 the State Disbursement Unit and shall implement all statutory
15 and contractual duties imposed on the State Disbursement Unit.
16 Each depository shall receive from and transmit to the State
17 Disbursement Unit required data through the Clerk of Court
18 Child Support Enforcement Collection System. Payments on
19 non-Title IV-D cases without income deduction orders shall not
20 be sent to the State Disbursement Unit.
21 (b) Upon request by the IV-D agency, the depository
22 created pursuant to paragraph (a) shall establish an account
23 for the receipt and disbursement of support payments for IV-D
24 interstate cases. The IV-D agency shall provide a copy of the
25 other state's order with the request, and the depository shall
26 advise the IV-D agency of the account number in writing within
27 4 business days after receipt of the request.
28 Section 4. Paragraph (c) of subsection (14) of section
29 120.80, Florida Statutes, is amended to read:
30 120.80 Exceptions and special requirements;
31 agencies.--
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1 (14) DEPARTMENT OF REVENUE.--
2 (c) Proceedings for administrative support orders.--In
3 proceedings for the establishment of administrative support
4 orders pursuant to s. 409.2563, final orders in cases referred
5 by the Department of Revenue to the Division of Administrative
6 Hearings shall be entered by the division's administrative law
7 judge and transmitted to the Department of Revenue for filing
8 and rendering. The Department of Revenue has the right to seek
9 judicial review under s. 120.68 of a final order entered by an
10 administrative law judge. Administrative support orders
11 rendered pursuant to s. 409.2563 may be enforced pursuant to
12 s. 120.69 or, alternatively, by any method prescribed by law
13 for the enforcement of judicial support orders, except
14 contempt. Whenever practicable, hearings held by the Division
15 of Administrative Hearings pursuant to s. 409.2563 shall be
16 held in the judicial circuit where the person receiving
17 services under Title IV-D resides or, if the person receiving
18 services under Title IV-D does not reside in this state, in
19 the judicial circuit where the respondent resides. If the
20 department and the respondent agree, the hearing may be held
21 in another location.
22 Section 5. Effective July 1, 2003, paragraph (c) of
23 subsection (2) of section 382.013, Florida Statutes, is
24 amended to read:
25 382.013 Birth registration.--A certificate for each
26 live birth that occurs in this state shall be filed within 5
27 days after such birth with the local registrar of the district
28 in which the birth occurred and shall be registered by the
29 local registrar if the certificate has been completed and
30 filed in accordance with this chapter and adopted rules. The
31 information regarding registered births shall be used for
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1 comparison with information in the state case registry, as
2 defined in chapter 61.
3 (2) PATERNITY.--
4 (c) If the mother is not married at the time of the
5 birth, the name of the father may not be entered on the birth
6 certificate without the execution of an affidavit signed by
7 both the mother and the person to be named as the father. The
8 facility shall give notice orally or through the use of video
9 or audio equipment, and in writing, of the alternatives to,
10 the legal consequences of, and the rights, including, if one
11 parent is a minor, any rights afforded due to minority status,
12 and responsibilities that arise from signing an acknowledgment
13 of paternity, as well as information provided by the Title
14 IV-D agency established pursuant to s. 409.2557, regarding the
15 benefits of voluntary establishment of paternity. Upon request
16 of the mother and the person to be named as the father, the
17 facility shall assist in the execution of the affidavit or a
18 notarized voluntary acknowledgment of paternity or a voluntary
19 acknowledgement of paternity that is witnessed and signed
20 under penalty of perjury as specified by s. 92.525(2).
21 Section 6. Effective July 1, 2003, paragraph (b) of
22 subsection (1) of section 382.016, Florida Statutes, is
23 amended to read:
24 382.016 Amendment of records.--The department, upon
25 receipt of the fee prescribed in s. 382.0255; documentary
26 evidence, as specified by rule, of any misstatement, error, or
27 omission occurring in any birth, death, or fetal death record;
28 and an affidavit setting forth the changes to be made, shall
29 amend or replace the original certificate as necessary.
30 (1) CERTIFICATE OF LIVE BIRTH AMENDMENT.--
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1 (b) Upon written request and receipt of an affidavit
2 or notarized voluntary acknowledgment of paternity signed by
3 the mother and father acknowledging the paternity of a
4 registrant born out of wedlock, or a voluntary acknowledgement
5 of paternity that is witnessed and signed under penalty of
6 perjury as specified by s. 92.525(2), together with sufficient
7 information to identify the original certificate of live
8 birth, the department shall prepare a new birth certificate,
9 which shall bear the same file number as the original birth
10 certificate. The names and identifying information of the
11 parents shall be entered as of the date of the registrant's
12 birth. The surname of the registrant may be changed from that
13 shown on the original birth certificate at the request of the
14 mother and father of the registrant, or the registrant if of
15 legal age. If the mother and father marry each other at any
16 time after the registrant's birth, the department shall, upon
17 the request of the mother and father or registrant if of legal
18 age and proof of the marriage, amend the certificate with
19 regard to the parents' marital status as though the parents
20 were married at the time of birth. The department shall
21 substitute the new certificate of birth for the original
22 certificate on file. All copies of the original certificate of
23 live birth in the custody of a local registrar or other state
24 custodian of vital records shall be forwarded to the State
25 Registrar. Thereafter, when a certified copy of the
26 certificate of birth or portion thereof is issued, it shall be
27 a copy of the new certificate of birth or portion thereof,
28 except when a court order requires issuance of a certified
29 copy of the original certificate of birth. The department
30 shall place the original certificate of birth and all papers
31 pertaining thereto under seal, not to be broken except by
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1 order of a court of competent jurisdiction or as otherwise
2 provided by law.
3 Section 7. Effective July 1, 2003, subsection (3) of
4 section 409.2557, Florida Statutes, is amended to read:
5 409.2557 State agency for administering child support
6 enforcement program.--
7 (3) SPECIFIC RULEMAKING AUTHORITY.--The department has
8 the authority to adopt rules pursuant to ss. 120.536(1) and
9 120.54 to implement all laws administered by the department in
10 its capacity as the Title IV-D agency for this state
11 including, but not limited to, the following:
12 (a) Background screening of department employees and
13 applicants, including criminal records checks;
14 (b) Confidentiality and retention of department
15 records; access to records; record requests;
16 (c) Department trust funds;
17 (d) Federal funding procedures;
18 (e) Agreements with law enforcement and other state
19 agencies; National Crime Information Center (NCIC) access;
20 Parent Locator Service access;
21 (f) Written agreements entered into between the
22 department and support obligors in establishment, enforcement,
23 and modification proceedings;
24 (g) Procurement of services by the department, pilot
25 programs, and demonstration projects;
26 (h) Management of cases by the department involving
27 any documentation or procedures required by federal or state
28 law, including but not limited to, cooperation; review and
29 adjustment; audits; interstate actions; diligent efforts for
30 service of process;
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1 (i) Department procedures for orders for genetic
2 testing; subpoenas to establish, enforce, or modify orders;
3 increasing the amount of monthly obligations to secure
4 delinquent support; suspending or denying driver's and
5 professional licenses and certificates; fishing and hunting
6 license suspensions; suspending vehicle and vessel
7 registrations; screening applicants for new or renewal
8 licenses, registrations, or certificates; income deduction;
9 credit reporting and accessing; tax refund intercepts;
10 passport denials; liens; financial institution data matches;
11 expedited procedures; medical support; and all other
12 responsibilities of the department as required by state or
13 federal law;
14 (j) Collection and disbursement of support and alimony
15 payments by the department as required by federal law;
16 collection of genetic testing costs and other costs awarded by
17 the court;
18 (k) Report information to and receive information from
19 other agencies and entities;
20 (l) Provide location services, including accessing
21 from and reporting to federal and state agencies;
22 (m) Privatizing location, establishment, enforcement,
23 modification, and other functions;
24 (n) State case registry;
25 (o) State disbursement unit;
26 (p) Administrative proceedings to establish
27 child-support obligations; and
28 (q) Insurer reporting of liability claims, withholding
29 of insurance payments for unpaid support, and reporting of
30 weekly workers' compensation; and
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1 (r)(q) All other responsibilities of the department as
2 required by state or federal law.
3 Section 8. Paragraph (b) of subsection (2) of section
4 409.2558, Florida Statutes, is amended to read:
5 409.2558 Support distribution and disbursement.--
6 (2) UNDISTRIBUTABLE COLLECTIONS.--
7 (b) Collections that are determined to be
8 undistributable shall be processed in the following order of
9 priority:
10 1. Apply the payment to any assigned arrears on the
11 custodial parent's case; then
12 2. Apply the payment to any administrative costs
13 ordered by the court pursuant to s. 409.2567 associated with
14 the custodial parent's case; then
15 3. When the noncustodial parent is subject to a valid
16 order to support another child other children in a another
17 case with a different custodial parent and the obligation is
18 being enforced by the department, the department shall mail a
19 notice to the noncustodial parent at the most recent known
20 address in the department's records, stating the department's
21 intention to apply the payment pursuant to this subparagraph,
22 and advising the noncustodial parent of the right to contest
23 the department's proposed action in the circuit court by
24 filing and serving a petition on the department within 20 days
25 after the mailing date of the department's notice. If the
26 noncustodial parent does not file and serve a petition within
27 the 20 days, or upon a disposition of the judicial action
28 favorable to the department, the department shall, with the
29 noncustodial parent's permission, apply the payment towards
30 his or her other support obligation. If there is more than one
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1 such other case, the department shall allocate the remaining
2 undistributable amount as specified by s. 61.1301(4)(c); then
3 4. Return the payment to the noncustodial parent; then
4 5. If the noncustodial parent cannot be located after
5 diligent efforts by the department, the federal share of the
6 payment shall be credited to the Federal Government and the
7 state share shall be transferred to the General Revenue Fund.
8 Section 9. Subsection (1) of section 409.2561, Florida
9 Statutes, is amended to read:
10 409.2561 Support obligations when public assistance is
11 paid; assignment of rights; subrogation; medical and health
12 insurance information.--
13 (1) Any payment of temporary cash or Title IV-E
14 assistance made to, or for the benefit of, any dependent child
15 creates an obligation in an amount determined pursuant to the
16 child support guidelines. In accordance with 42 U.S.C. s. 657,
17 the state shall retain amounts collected only to the extent
18 necessary to reimburse amounts paid to the family as
19 assistance by the state. Such amounts collected shall be
20 deposited into the General Revenue Fund up to the level
21 specified in s. 61.1812. If there has been a prior support
22 court order or final judgment of dissolution of marriage
23 establishing an obligation of support, the obligation is
24 limited to the amount provided by such support court order or
25 decree. The extraordinary remedy of contempt is applicable in
26 child support enforcement cases because of the public
27 necessity for ensuring that dependent children be maintained
28 from the resources of their parents, thereby relieving, at
29 least in part, the burden presently borne by the general
30 citizenry through the public assistance program. If there is
31 no prior support court order establishing an obligation of
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1 support, the court, or the department as provided by s.
2 409.2563, shall establish the liability of the obligor, if
3 any, by applying the child support guidelines. The department
4 may apply for modification of a court order on the same
5 grounds as either party to the cause and shall have the right
6 to settle and compromise actions brought pursuant to law.
7 Section 10. Subsection (4) of section 409.2563,
8 Florida Statutes, is amended to read:
9 409.2563 Administrative establishment of child support
10 obligations.--
11 (4) NOTICE OF PROCEEDING TO ESTABLISH ADMINISTRATIVE
12 SUPPORT ORDER.--To commence a proceeding under this section,
13 the department shall provide to the custodial parent and serve
14 the noncustodial parent with a notice of proceeding to
15 establish administrative support order and a blank financial
16 affidavit form. The notice must state:
17 (a) The names of both parents, the name of the
18 caretaker relative, if any, and the name and date of birth of
19 the child or children;
20 (b) That the department intends to establish an
21 administrative support order as defined in this section;
22 (c) That both parents must submit a completed
23 financial affidavit to the department within 20 days after
24 receiving the notice, as provided by paragraph (13)(a);
25 (d) That both parents, or parent and caretaker
26 relative if applicable, are required to furnish to the
27 department information regarding their identities and
28 locations, as provided by paragraph (13)(b);
29 (e) That both parents, or parent and caretaker
30 relative if applicable, are required to promptly notify the
31 department of any change in their mailing addresses to ensure
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1 receipt of all subsequent pleadings, notices, and orders, as
2 provided by paragraph (13)(c);
3 (f) That the department will calculate support
4 obligations based on the child support guidelines in s. 61.30
5 and using all available information, as provided by paragraph
6 (5)(a), and will incorporate such obligations into a proposed
7 administrative support order;
8 (g) That the department will send by regular mail to
9 both parents, or parent and caretaker relative if applicable,
10 a copy of the proposed administrative support order, the
11 department's child support worksheet, and any financial
12 affidavits submitted by a parent or prepared by the
13 department;
14 (h) That the noncustodial parent may file a request
15 for a hearing in writing within 20 days after the date of
16 mailing or other service of the proposed administrative
17 support order or will be deemed to have waived the right to
18 request a hearing;
19 (i) That if the noncustodial parent does not file a
20 timely request for hearing after service of the proposed
21 administrative support order, the department will issue an
22 administrative support order that incorporates the findings of
23 the proposed administrative support order, and will send by
24 regular mail a copy of the administrative support order to
25 both parents, or parent and caretaker relative if applicable;
26 (j) That after an administrative support order is
27 rendered, the department will file a copy of the order with
28 the clerk of the circuit court;
29 (k) That after an administrative support order is
30 rendered, the department may enforce the administrative
31 support order by any lawful means;
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1 (l) That either parent, or caretaker relative if
2 applicable, may file at any time a civil action in a circuit
3 court having jurisdiction and proper venue to determine the
4 noncustodial parent's child support obligations, if any, and
5 that a support order issued by a circuit court supersedes an
6 administrative support order rendered by the department;
7 (m) That, neither the department nor the Division of
8 Administrative Hearings has jurisdiction to award or change
9 child custody or rights of parental contact and these issues
10 may only be addressed in circuit court.
11 1. The noncustodial parent may request in writing that
12 the department proceed in circuit court to determine his or
13 her support obligations.
14 2. The noncustodial parent may state in writing to the
15 department his or her intention to address issues concerning
16 custody or rights to parental contact in circuit court.
17 3. If the noncustodial parent submits the request
18 authorized in subparagraph 1., or the statement authorized in
19 subparagraph 2. to the department within 20 days after the
20 receipt of the initial notice, the department shall file a
21 petition in circuit court for the determination of the
22 noncustodial parent's child support obligations, and shall
23 send to the noncustodial parent a copy of its petition, a
24 notice of commencement of action, and a request for waiver of
25 service of process provided in the Rules of Civil Procedure.
26 4. If, within 10 days after receipt of the
27 department's petition and waiver of service, the noncustodial
28 parent signs and returns the waiver of service form to the
29 department, the department shall terminate the administrative
30 proceeding without prejudice and proceed in circuit court.
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1 5. In any circuit court action brought by the
2 department pursuant to this paragraph or brought by a
3 noncustodial parent or other person pursuant to paragraph (l)
4 or paragraph (n), the department shall be a party only with
5 respect to those issues of support allowed and reimbursable
6 under Title IV-D of the Social Security Act. It is the
7 responsibility of the noncustodial parent or other person to
8 take the necessary steps to present other issues for the court
9 to consider; That if the noncustodial parent has issues
10 regarding child custody or right of parental contact or
11 requests to proceed in circuit court, the noncustodial parent
12 may request in writing that the department proceed in circuit
13 court to determine support. That the noncustodial parent must
14 make such request in writing within 20 days after receipt of
15 the initial notice. That upon such request, the department
16 shall send the noncustodial parent by regular mail a copy of
17 the department's petition and waiver of service form. That the
18 noncustodial parent must sign and return the waiver of service
19 form, within 10 days of receipt of the petition, at which time
20 the department shall terminate the administrative proceeding
21 and file an action in circuit court to determine support;
22 (n) That if the noncustodial parent files an action in
23 circuit court and serves the department with a copy of the
24 petition within 20 days after being served notice under this
25 subsection, the administrative process ends without prejudice
26 and the action must proceed in circuit court;
27 (o) Information provided by the Office of State Courts
28 Administrator concerning the availability and location of
29 self-help programs for those who wish to file an action in
30 circuit court but who cannot afford an attorney.
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1 The department may serve the notice of proceeding to establish
2 administrative support order by certified mail, restricted
3 delivery, return receipt requested. Alternatively, the
4 department may serve the notice by any means permitted for
5 service of process in a civil action. For purposes of this
6 section, an authorized employee of the department may serve
7 the notice and execute an affidavit of service. Service by
8 certified mail is completed when the certified mail is
9 received or refused by the addressee or by an authorized agent
10 as designated by the addressee in writing. If a person other
11 than the addressee signs the return receipt, the department
12 shall attempt to reach the addressee by telephone to confirm
13 whether the notice was received, and the department shall
14 document any telephonic communications. If someone other than
15 the addressee signs the return receipt, the addressee does not
16 respond to the notice, and the department is unable to confirm
17 that the addressee has received the notice, service is not
18 completed and the department shall attempt to have the
19 addressee served personally. The department shall provide the
20 custodial parent or caretaker relative with a copy of the
21 notice by regular mail to the last known address of the
22 custodial parent or caretaker.
23 Section 11. Subsection (3) of section 409.25656,
24 Florida Statutes, is amended to read:
25 409.25656 Garnishment.--
26 (3) During the last 30 days of the 60-day period set
27 forth in subsection (1), the executive director or his or her
28 designee may levy upon such credits, personal property, or
29 debts. The levy must be accomplished by delivery of a notice
30 of levy by registered mail, upon receipt of which the person
31 possessing the credits, other personal property, or debts
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1 shall transfer them to the department or pay to the department
2 the amount owed by the obligor. If the department levies upon
3 securities and the value of the securities is less than the
4 total amount of past due or overdue support, the person who
5 possesses or controls the securities shall liquidate the
6 securities in a commercially reasonable manner. After
7 liquidation, the person shall transfer to the department the
8 proceeds, less any applicable commissions or fees, or both,
9 which are charged in the normal course of business. If the
10 value of the securities exceeds the total amount of past due
11 or overdue support, the obligor may, within 7 days after
12 receipt of the department's notice of levy, instruct the
13 person who possesses or controls the securities which
14 securities are to be sold to satisfy the obligation for past
15 due or overdue support. If the obligor does not provide
16 instructions for liquidation, the person who possesses or
17 controls the securities shall liquidate the securities in a
18 commercially reasonable manner and in an amount sufficient to
19 cover the obligation for past due or overdue support and, less
20 any applicable commissions or fees, or both, which are charged
21 in the normal course of business, beginning with the
22 securities purchased most recently. After liquidation, the
23 person who possesses or controls the securities shall transfer
24 to the department the total amount of past due or overdue
25 support.
26 Section 12. Effective July 1, 2003, section 409.25659,
27 Florida Statutes, is created to read:
28 409.25659 Withholding of insurance payment for unpaid
29 support.--
30 (1) DEFINITIONS.--As used in this section, the term:
31
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1 (a) "Insurer" means an entity that is responsible for
2 paying a claim on liability coverage in an insurance contract
3 and that is:
4 1. An insurer, as defined in s. 624.03, authorized to
5 transact insurance in this state;
6 2. An eligible surplus lines insurer pursuant to part
7 VIII of chapter 626;
8 3. A joint underwriter or joint reinsurer created by
9 law or otherwise operating pursuant to s. 627.311; or
10 4. An insurance risk apportionment plan operating
11 pursuant to s. 627.351.
12 (b) "Claim" means a claim on liability coverage in an
13 insurance contract payable to an individual, or to a third
14 party, for the benefit of an individual who is a resident of
15 this state or who had an accident or loss that occurred in
16 this state.
17 (2) INDIVIDUALS WHO OWE UNPAID SUPPORT; INSURER DUTY
18 TO INQUIRE; DUTY TO WITHHOLD PAYMENT.--
19 (a) The department shall periodically make available
20 from a secure Internet-enabled database or other centralized
21 source to insurers who are subject to this section information
22 concerning obligors in Title IV-D cases who owe unpaid support
23 in excess of $500. For each obligor, the department shall
24 provide, at a minimum, the obligor's name, social security
25 number, last known address, and the amount of unpaid support
26 owed.
27 (b) Not more than 30 days before paying a claim, the
28 insurer shall inquire of the department pursuant to paragraph
29 (a) whether the claimant is an individual who owes unpaid
30 support by providing the department with the individual's
31 name, date of birth, social security number, and last known
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1 address according to the insurer's records; the claim number;
2 the date of claim; the name of the insurer; and how the
3 insurer may be contacted. Within 30 days after the inquiry,
4 the department shall notify the insurer whether the individual
5 owes unpaid support and, if so, the amount owed. An insurer
6 shall withhold payment on a claim until the department
7 notifies the insurer that the individual does not owe unpaid
8 support or otherwise releases the insurer in writing from the
9 duty to withhold.
10 (3) NOTICE OF DEMAND FOR PAYMENT; LIEN FOR AMOUNT OF
11 UNPAID SUPPORT.--If the department determines pursuant to
12 subsection (2) that the individual owes unpaid support, the
13 department shall issue a written demand for payment to the
14 insurer, which may be transmitted electronically. A demand for
15 payment issued under this subsection constitutes a lien
16 against the obligor's claim for the amount of unpaid support
17 stated in the demand and any unpaid support that accrues
18 subsequent to the date of the demand. The lien becomes
19 effective when the demand for payment is received by the
20 insurer and is in addition to any preexisting lien for unpaid
21 support. Upon receipt of a demand for payment, the insurer
22 shall provide the department with the name and address of the
23 obligor's attorney or agent, if known, the amount withheld,
24 the date payment was withheld, and other known information
25 concerning the location, earnings, and assets of the obligor.
26 An insurer who is subject to a demand for payment on a claim
27 may not pay over, release, encumber, assign, or otherwise
28 transfer payment subject to the demand without written
29 authorization by the department or an order of the court.
30 (4) NOTICE TO OBLIGOR; ADMINISTRATIVE HEARING;
31 JUDICIAL REVIEW.--
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1 (a) Upon issuing a demand for payment, the department
2 shall promptly provide a copy to the obligor and notify the
3 obligor in writing of the right to contest the demand for
4 payment by filing a written request for an administrative
5 hearing with the department within 21 days after the date of
6 mailing or personal delivery of the notice. Mailing of the
7 notice to the obligor's last known address is deemed adequate
8 notice. Failure to make a timely written request for a hearing
9 is deemed a waiver of the right to hearing. The department
10 also shall provide a copy of the demand for payment and notice
11 to the obligor's attorney or agent, if known.
12 (b) Any person whose substantial interests are
13 affected by the department's demand for payment may request an
14 administrative hearing as provided by chapter 120. Chapter 120
15 and the Uniform Rules of Procedure govern how administrative
16 hearings are conducted and the entry of final orders. Final
17 orders rendered under this section are subject to judicial
18 review as provided by s. 120.68.
19 (5) PAYMENT TO THE DEPARTMENT.--If the obligor does
20 not file a timely written request for an administrative
21 hearing or consents to the department's demand or the
22 department prevails after hearing, the department shall notify
23 the insurer to send to the department the full amount of the
24 withheld payment, not to exceed the amount of unpaid support,
25 less any amounts payable to the obligor or other entities as
26 specified by subsection (7). Payments due the department must
27 be made payable solely to the department.
28 (6) FULL OR PARTIAL RELEASE.--An insurer may be
29 released from the duty to withhold payment only upon written
30 notice by the department or by order of the court. The
31 department shall execute and deliver a release of the lien for
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1 unpaid support to the obligor and the insurer upon payment in
2 full of the unpaid support and any costs due. The department
3 may release a lien fully or in part without liability as
4 needed to correctly reflect the amount of unpaid support owed,
5 if assurance of payment is considered adequate, or to
6 facilitate collection of the unpaid support.
7 (7) PRIORITY OF LIENS; ATTORNEYS FEES; MEDICAL
8 PROVIDERS; EXEMPTION FOR FUTURE MEDICAL EXPENSES.--
9 (a) A lien for unpaid support created by this section
10 is superior to all subsequent liens and security interests.
11 Liens perfected prior to creation of a lien under this
12 section, prior written notices of health care providers, and
13 attorney's fees payable from insurance proceeds are not
14 subject to a lien created by this section.
15 (b) An amount not to exceed the lesser of 15 percent
16 of the total payment or $5,000 for the obligor's future
17 medical expenses is exempt from a demand for payment under
18 this section if the expenses are due to a condition that gave
19 rise to the claim and are documented by a licensed physician.
20 The department shall notify the obligor of the exemption and
21 how to claim it when providing notice of the right to contest
22 a demand for payment under subsection (4). The obligor has the
23 burden of proving a claim for an exemption.
24 (8) INSURER IMMUNITY.--An insurer, its directors,
25 agents, or employees, and any central reporting organization
26 and its agents and employees authorized by an insurer to act
27 on its behalf who act in conformity with the requirements of
28 this section are immune from any liability to the claimant or
29 other payees, lienholders, or affected entities for any
30 alleged or actual damages that occur as a result of compliance
31 with these requirements.
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1 (9) FAILURE TO COMPLY; REMEDIES.--An insurer who does
2 not inquire, withhold, or remit payments as required by this
3 section is liable to the department for the amount the insurer
4 should have withheld or remitted, plus costs, interest, and
5 reasonable attorney's fees. The department may bring an action
6 in circuit court to enforce any provision of this section.
7 (10) RULEMAKING AUTHORITY.--The department may adopt
8 rules to administer or enforce the requirements of this
9 section.
10 Section 13. Effective July 1, 2003, section 409.257,
11 Florida Statutes, is amended to read:
12 409.257 Service of process.--The service of initial
13 process and orders in lawsuits filed by the department, under
14 this act, shall be served by the sheriff in the county where
15 the person to be served may be found or, if determined more
16 effective by the department, by any means permitted under
17 chapter 48 for service of process in a civil action. The
18 sheriff shall be reimbursed at the prevailing rate of federal
19 financial participation for service of process and orders as
20 allowed by law. The sheriff shall bill the department monthly
21 as provided for in s. 30.51(2). In addition, process and
22 orders may be served or executed by authorized agents of the
23 department at the department's discretion; provided that the
24 agent of the department does not take any action against
25 personal property, real property, or persons. Notices and
26 other intermediate process, except witness subpoenas, shall be
27 served by the department as provided for in the Florida Rules
28 of Civil Procedure. Witness subpoenas shall be served by the
29 department by certified mail as provided for in s. 48.031(3).
30 Section 14. Subsections (1) and (2) of section
31 409.2572, Florida Statutes, are amended to read:
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1 409.2572 Cooperation.--
2 (1) An applicant for, or recipient of, public
3 assistance for a dependent child shall cooperate in good faith
4 with the department or a program attorney in:
5 (a) Identifying and helping to locate the alleged
6 parent or obligor.
7 (b) Assisting in establishing the paternity of a child
8 born out of wedlock.
9 (c) Assisting in obtaining support payments from the
10 obligor.
11 (d) Assisting in obtaining any other payments or
12 property due from the obligor.
13 (e) Identifying another putative father when an
14 earlier named putative father has been excluded by DNA, Human
15 Leukocyte Antigen, or other scientific test.
16 (f) Appearing at an office of the department, or
17 another designated office, as necessary to provide verbal or
18 written information, or documentary or physical evidence,
19 known to, possessed by, or reasonably obtainable by the
20 applicant or recipient.
21 (g) Appearing as a witness at judicial or other
22 hearings or proceedings.
23 (h) Providing information under oath regarding the
24 identity or location of the alleged father of the child or
25 attesting to the lack of information.
26 (i) Paying to the department any support received from
27 the obligor after the assignment is effective.
28 (2) Noncooperation, or failure to cooperate in good
29 faith, is defined to include, but is not limited to, the
30 following conduct:
31
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1 (a) Failing or Refusing to identify the father of the
2 child, or where more than one man could be the father of the
3 child, refusing to identify all such persons. If the mother
4 identifies one or more persons as the possible father of the
5 child and asserts that there are no others who could be the
6 father of the child, but the DNA test, Human Leukocyte Antigen
7 test, or other scientific test indicates that none of the
8 persons identified could in fact have been the father of the
9 child, the mother shall be deemed noncooperative. If she
10 subsequently identifies another person as the possible father
11 of the child, she shall still be deemed noncooperative until
12 that person has been given the DNA test, Human Leukocyte
13 Antigen test, or other scientific test and is not excluded as
14 the father by the test.
15 (b) Failing to appear for two appointments at the
16 department or other designated office without justification
17 and notice.
18 (c) Providing false information regarding the
19 paternity of the child or the obligation of the obligor.
20 (d) All actions of the obligee which interfere with
21 the state's efforts to proceed to establish paternity, the
22 obligation of support, or to enforce or collect support.
23 (e) Failure to appear at the laboratory for drawing of
24 blood samples, or leaving the laboratory prior to the drawing
25 of blood samples without compelling reasons.
26 (f) Failure to assist in the recovery of third-party
27 payment for medical services.
28 Section 15. Section 409.259, Florida Statutes, is
29 amended to read:
30 409.259 Partial payment of Filing fees in Title IV-D
31 cases.--
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1 (1) Notwithstanding s. 28.241, each clerk of the
2 circuit court shall accept petitions, complaints, and motions
3 in Title IV-D cases submitted for filing by the department
4 without billing separately for each such filing, since the
5 clerk is being reimbursed in a different manner for expenses
6 incurred in such filings under the cooperative agreement with
7 the department pursuant to ss. 61.181(1) and 61.1826(2) and
8 (4). only be reimbursed at the prevailing rate of federal
9 financial participation on the amount of $40 for each civil
10 action, suit, or proceeding for support instituted in the
11 circuit court in which the parent is not receiving temporary
12 cash assistance. The prevailing rate of the state match shall
13 be paid by the local government in the form of a certified
14 public expenditure. The clerk of the circuit court shall bill
15 the department monthly. The clerk of the circuit court and
16 the department shall maintain a monthly log of the number of
17 civil actions, suits, or proceedings filed in which the parent
18 does not receive temporary assistance. These monthly logs
19 will be used to determine the number of $40 filings the clerk
20 of court may submit for reimbursement at the prevailing rate
21 of federal financial participation.
22 (2) Notwithstanding subsection (1), the department
23 shall continue to be entitled to the other necessary services
24 of the clerk of court in any proceedings under the IV-D
25 program as authorized under s. 409.2571.
26 Section 16. Effective July 1, 2003, section 440.123,
27 Florida Statutes, is created to read:
28 440.123 Insurer paying periodic compensation; duty to
29 inquire about unpaid child support.--When the Internet-enabled
30 database specified by s. 409.25659 becomes operational, upon
31 determining that a claimant shall be paid weekly compensation,
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1 an insurer as defined by s. 440.02(39) shall access the
2 database promptly to inquire whether the claimant owes unpaid
3 support. If it is determined after inquiry that a claimant
4 owes unpaid support, the insurer shall notify the Department
5 of Revenue at that time, through the Internet-enabled
6 database, by providing the individual's name, date of birth,
7 social security number, last known address according to the
8 insurer's records, and employer; the claim number; the weekly
9 compensation amount; the date of first payment; the name of
10 the insurer and how the insurer may be contacted; the name and
11 contact information of the payor of weekly compensation, if
12 different from the insurer; and the name and address of the
13 agent or attorney for the claimant, if any.
14 Section 17. Effective July 1, 2003, paragraph (d) of
15 subsection (11) of section 440.20, Florida Statutes, is
16 amended to read:
17 440.20 Time for payment of compensation; penalties for
18 late payment.--
19 (11)
20 (d)1. With respect to any lump-sum settlement under
21 this subsection, a judge of compensation claims must consider
22 at the time of the settlement, whether the settlement
23 allocation provides for the appropriate recovery of child
24 support arrearages.
25 2. When reviewing any settlement of lump-sum payment
26 pursuant to this subsection, judges of compensation claims
27 shall consider the interests of the worker and the worker's
28 family when approving the settlement, which must consider and
29 provide for appropriate recovery of past due support.
30 3. Before approving a settlement, the judge of
31 compensation claims shall require a party to obtain a written
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1 statement from the Department of Revenue as to whether the
2 worker owes unpaid support and, if so, the amount owed. In
3 addition, the judge of compensation claims may require a party
4 to obtain a similar statement from a local depository
5 established under s. 61.181.
6 Section 18. Effective July 1, 2003, subsection (1) of
7 section 742.10, Florida Statutes, is amended to read:
8 742.10 Establishment of paternity for children born
9 out of wedlock.--
10 (1) This chapter provides the primary jurisdiction and
11 procedures for the determination of paternity for children
12 born out of wedlock. When the establishment of paternity has
13 been raised and determined within an adjudicatory hearing
14 brought under the statutes governing inheritance, or
15 dependency under workers' compensation or similar compensation
16 programs, or when an affidavit acknowledging paternity or a
17 stipulation of paternity is executed by both parties and filed
18 with the clerk of the court, or when an affidavit, a or
19 notarized voluntary acknowledgment of paternity, or a
20 voluntary acknowledgement of paternity that is witnessed and
21 signed under penalty of perjury as provided for in s. 382.013
22 or s. 382.016 is executed by both parties, it shall constitute
23 the establishment of paternity for purposes of this chapter.
24 If no adjudicatory proceeding was held, a notarized voluntary
25 acknowledgment of paternity or voluntary acknowledgement of
26 paternity that is witnessed and signed under penalty of
27 perjury as specified by s. 92.525(2) shall create a rebuttable
28 presumption, as defined by s. 90.304, of paternity and is
29 subject to the right of any signatory to rescind the
30 acknowledgment within 60 days after of the date the
31 acknowledgment was signed or the date of an administrative or
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1 judicial proceeding relating to the child, including a
2 proceeding to establish a support order, in which the
3 signatory is a party, whichever is earlier. Both parents are
4 required to provide their social security numbers on any
5 acknowledgment of paternity, consent affidavit, or stipulation
6 of paternity. Except for affidavits under seal pursuant to ss.
7 382.015 and 382.016, the Office of Vital Statistics shall
8 provide certified copies of affidavits to the Title IV-D
9 agency upon request.
10 Section 19. Except as otherwise expressly provided in
11 this act, this act shall take effect upon becoming a law.
12
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14 SENATE SUMMARY
15 Revises various provisions governing the payment and
collection of child support. Provides that the term
16 "support order" for purposes of ch. 61, F.S., includes an
order by an administrative agency. Provides for a court
17 account for interstate support cases. Provides for
voluntary, witnessed acknowledgments of paternity.
18 Provides for the Department of Revenue to establish the
obligation of support. Provides procedures under which a
19 noncustodial parent may petition the circuit court to
determine a support obligation. Requires that insurance
20 payments be withheld for payment of unpaid support.
Requires notice and provides duties of the insurer.
21 Requires that an insurer paying workers' compensation
insurance and a judge of compensation claims obtain
22 information on the support owed. (See bill for details.)
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