GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION LAW 2005-389
HOUSE BILL 1375
AN ACT amending the laws relating to child support enforcement in order to clarify and enhance those laws.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 50‑13.9 reads as rewritten:
"§ 50‑13.9. Procedure to insure payment of child support.
(a) Upon its own motion or upon motion of either party, the court may order at any time that support payments be made to the State Child Support Collection and Disbursement Unit for remittance to the party entitled to receive the payments. For child support orders initially entered on or after January 1, 1994, the immediate income withholding provisions of G.S. 110‑136.5(c1) apply.
(b) After entry of an order by the court under subsection (a) of this section, the State Child Support Collection and Disbursement Unit shall transmit child support payments that are made to it to the custodial parent or other party entitled to receive them, unless a court order requires otherwise.
(b1) In a IV‑D case:
(1) The designated child support enforcement agency shall have the sole responsibility and authority for monitoring the obligor's compliance with all child support orders in the case and for initiating any enforcement procedures that it considers appropriate.
(2) The clerk of court shall maintain all official records in the case.
(3) The designated child support enforcement agency shall maintain any other records needed to monitor the obligor's compliance with or to enforce the child support orders in the case, including records showing the amount of each payment of child support received from or on behalf of the obligor, along with the dates on which each payment was received. In any action establishing, enforcing, or modifying a child support order, the payment records maintained by the designated child support agency shall be admissible evidence, and the court shall permit the designated representative to authenticate those records.
(b2) In a non‑IV‑D case:
(1) The clerk of court shall have the
responsibility and authority for monitoring the obligor's compliance with all
child support orders in the case and for initiating any enforcement procedures
that it considers appropriate. The State Child Support Collection and
Disbursement Unit shall notify the clerk of court of all payments made in non‑IV‑D
cases so that the clerk of court can initiate enforcement proceedings as
provided in subsection (d) of this section.
(2) The clerk of court shall maintain all official
in the case.and all case data concerning child support
matters previously enforced by the clerk of court. (3) The clerk of court shall maintain any
other records needed to monitor the obligor's compliance with or to enforce the
child support orders in the case, including records showing the amount of each
payment of child support received from or on behalf of the obligor, along with
the dates on which each payment was received.
In a non‑IV‑D case, the parties
affected by the order shall inform the clerk of court of any change of address
or of other condition that may affect the administration of the order. In a
IV‑D case, the parties affected by the order shall inform the designated
child support enforcement agency of any change of address or other condition
that may affect the administration of the order. The court may provide in the
order that a party failing to inform the court or, as appropriate, the
designated child support enforcement agency, of a change of address within a
reasonable period of time may be held in civil contempt.
In a non‑IV‑D case, when the clerk
of superior court is notified by the State Child Support Collection and
Disbursement Unit that an obligor has failed to make a required payment of
child support and is in arrears, the clerk of superior court shall mail by
regular mail to the last known address of the obligor a notice of delinquency.
The notice shall set out the amount of child support currently due and shall
demand immediate payment of that amount. The notice shall also state that
failure to make immediate payment will result in the issuance by the court of
an enforcement order requiring the obligor to appear before a district court
judge and show cause why the support obligation should not be enforced by
income withholding, contempt of court, revocation of licensing privileges, or
other appropriate means. Failure to receive the delinquency notice is not a
defense in any subsequent proceeding. Sending the notice of delinquency is in
the discretion of the clerk if the clerk has, during the previous 12 months,
sent a notice or notices of delinquency to the obligor for nonpayment, or if
income withholding has been implemented against the obligor or the obligor has
been previously found in contempt for nonpayment under the same child support
order. If the arrearage is not paid in full within 21 days after
the mailing of the delinquency notice, or without waiting the 21 days if the
clerk has elected not to mail a delinquency notice for any of the reasons
provided in this subsection, the clerk shall cause an enforcement order to be
issued and shall issue a notice of hearing before a district court judge. Upon
affidavit of an obligee, the clerk or a district court judge may order the
obligor to appear and show cause why the obligor should not be subjected to
income withholding or adjudged in contempt of court, or both. The enforcement
order shall order require the obligor to appear and show
cause why the obligor should not be subjected to income withholding or adjudged
in contempt of court, or both, and shall order the obligor to bring to the
hearing records and information relating to the obligor's employment, the
obligor's licensing privileges, and the amount and sources of the obligor's
disposable income. The enforcement order shall state:
(1) That the obligor is under a court order to provide child support, the name of each child for whose benefit support is due, and information sufficient to identify the order;
(2) That the obligor is delinquent and the amount of overdue support;
(2a) That the court may order the revocation of some or all of the obligor's licensing privileges if the obligor is delinquent in an amount equal to the support due for one month;
(3) That the court may order income withholding if the obligor is delinquent in an amount equal to the support due for one month;
(4) That income withholding, if implemented, will apply to the obligor's current payors and all subsequent payors and will be continued until terminated pursuant to G.S. 110‑136.10;
(5) That failure to bring to the hearing records and information relating to his employment and the amount and sources of his disposable income will be grounds for contempt;
(6) That if income withholding is not an available or appropriate remedy, the court may determine whether the obligor is in contempt or whether any other enforcement remedy is appropriate.
enforcement order may be signed by the clerk or a
district court judge, and shall be served on the obligor pursuant to
G.S. 1A‑1, Rule 4, Rules of Civil Procedure. The clerk shall also
notify the party to whom support is owed of the pending hearing. The clerk may
withdraw the order to the supporting party upon receipt of the delinquent
payment. On motion of the person to whom support is owed, owed in
a non‑IV‑D case, with the approval of the district court judge,
if the district court judge finds it is in the best interest of the child, no enforcement
order shall be issued. When the matter comes before the court, the court shall
proceed as in the case of a motion for income withholding under G.S. 110‑136.5.
If income withholding is not an available or adequate remedy, the court may
proceed with contempt, imposition of a lien, or other available, appropriate
enforcement remedies. This subsection shall apply only to non‑IV‑D
cases, except that the clerk shall issue an enforcement order in a IV‑D
case when requested to do so by an IV‑D obligee. (e) The clerk of court shall maintain and
make available to the district court judge a list of attorneys who are willing
to undertake representation, pursuant to this section, of persons to whom child
support is owed. No attorney shall be placed on such list without his
permission. (f) At least seven days prior to an
enforcement hearing as set forth in subsection (d), the clerk must notify the
district court judge of all cases to be heard for enforcement at the next term,
and the judge shall appoint an attorney from the list described in subsection
(e) to represent each party to whom support payments are owed if the judge
deems it to be in the best interest of the child for whom support is being
paid, unless: (1) The attorney of record for the party to
whom support payments are owed has notified the clerk of court that he will
appear for said party; or (2) The party to whom support payments are
owed requests the judge not to appoint an attorney; or (3) An attorney for the enforcement of child
support obligations pursuant to Title IV, Part D, of the Social Security Act as
amended is available. The judge may order payment of reasonable attorney's fees
as provided in G.S. 50‑13.6.
(g) Nothing in this section shall preclude the independent initiation by a party of proceedings for civil contempt or for income withholding."
SECTION 2. G.S. 110‑135 reads as rewritten:
"§ 110‑135. Debt to State created.
Acceptance of public assistance by or on behalf of a dependent child creates a debt, in the amount of public assistance paid, due and owing the State by the responsible parent or parents of the child. Provided, however, that in those cases in which child support was required to be paid incident to a court order during the time of receipt of public assistance, the debt shall be limited to the amount specified in such court order. This liability shall attach only to public assistance granted subsequent to June 30, 1975, and only with respect to the period of time during which public assistance is granted, and only if the responsible parent or parents were financially able to furnish support during this period.
The United States, the State of North Carolina, and any county within the State which has provided public assistance to or on behalf of a dependent child shall be entitled to share in any sum collected under this section, and their proportionate parts of such sum shall be determined in accordance with the matching formulas in use during the period for which assistance was paid.
No action to collect such debt shall be commenced after the expiration of five years subsequent to the receipt of the last grant of public assistance. The county attorney or an attorney retained by the county and/or State shall represent the State in all proceedings brought under this section.
A past‑due public assistance debt as described in this section may be deemed negotiable and subject to reduction if the public assistance debt is not less than fifteen thousand dollars ($15,000) and the responsible parent continues to be obligated to pay current child support. Upon agreement between the State and the responsible parent, and upon approval of the court upon an inquiry into the financial status of the obligor, the responsible parent shall pay all child support payments, including payments due on child support arrears, entered by a valid court order for a 24‑month period of time. Upon the timely payment of each court‑ordered child support obligation during the full 24‑month period, including payments due on child support arrears, the State shall reduce the responsible parent's public assistance debt by two‑thirds. If the responsible parent is late or defaults on any single payment during the 24‑month period, no portion of the public assistance debt shall be reduced. The responsible parent may attempt to achieve 24 consecutive months of child support payments as often as possible in order to reduce his or her public assistance debt. However, once the responsible parent's public assistance debt has been reduced by two‑thirds because of the successful completion of this agreement, the responsible parent shall no longer be eligible for this program. The reduction of public assistance debt as set forth in this section shall be in addition to all other remedies available to the State for the retirement of the debt. This program shall not prevent the State from taking any and all other measures available by law.
Upon the termination of a child support obligation due to the death of the obligor, the Department shall determine whether the obligor's estate contains sufficient assets to satisfy any child support arrearages. If sufficient assets are available, the Department shall attempt to collect the arrearage."
SECTION 3. G.S. 49‑14(a) reads as rewritten:
"(a) The paternity of a child born out of wedlock
may be established by civil action at any time prior to such child's eighteenth
certified copy of a certificate of birth of the child shall
be attached to the complaint. The establishment of paternity shall not have the
effect of legitimation. The social security numbers, if known, of the minor
child's parents shall be placed in the record of the proceeding."
SECTION 4. G.S. 130A‑101(f) reads as rewritten:
"(f) If the mother was unmarried at all times from date of conception through date of birth, the name of the father shall not be entered on the certificate unless the child's mother and father complete an affidavit acknowledging paternity which contains the following:
(1) A sworn statement by the mother consenting to the assertion of paternity by the father and declaring that the father is the child's natural father;
(2) A sworn statement by the father declaring that he believes he is the natural father of the child;
(3) Information explaining in plain language the effect of signing the affidavit, including a statement of parental rights and responsibilities and an acknowledgment of the receipt of this information; and
(4) The social security numbers of both parents.
The State Registrar, in consultation with the Child Support Enforcement Section of the Division of Social Services, shall develop and disseminate a form affidavit for use in compliance with this section, together with an information sheet that contains all the information required to be disclosed by subdivision (3) of this subsection.
Upon the execution of the affidavit, the declaring father
shall be listed as the father on the birth
certificate and shall be presumed
to be the natural father of the child,certificate, subject to the
declaring father's right to rescind under G.S. 110‑132. The executed
affidavit shall be filed with the registrar along with the birth certificate. A
In the event paternity is properly placed at issue, a certified copy
of the affidavit shall be admissible in any action to establish paternity. The
surname of the child shall be determined by the mother, except if the father's
name is entered on the certificate, the mother and father shall agree upon the
child's surname. If there is no agreement, the child's surname shall be the
same as that of the mother.
The execution and filing of this affidavit with the registrar does not affect rights of inheritance unless the affidavit is also filed with the clerk of court in accordance with G.S. 29‑19(b)(2)."
SECTION 5. G.S. 110‑139.2(b1) reads as rewritten:
"(b1) The Department of Health and Human Services
Child Support Enforcement Agency may notify any financial institution doing
business in this State that an obligor who maintains an identified account with
the financial institution has a
delinquent child support obligation that
may be eligible for levy on the account in an amount that satisfies some or all
of the delinquency.amount of unpaid support owed. In order to be
able to attach a lien on and levy an obligor's account, the obligor's child
support obligationamount of unpaid support owed shall be in
arrears in an amount not less than the amount of support owed for six
months or one thousand dollars ($1,000), whichever is less.
Upon certification of the
arrears amountamount of
unpaid support owed in accordance with G.S. 44‑86(c), the Child
Support Agency shall serve or cause to be served upon the obligor obligor,
and when the matched account is owned jointly, any other nonliable owner of the
account, and the financial institution a notice as provided by this
subsection. The notice shall be served in any manner provided in Rule 4 of
the North Carolina Rules of Civil Procedure, except that a notice may be served
on a financial institution in any other manner that the financial institution
has agreed to in writing at any time prior to the time the notice is sent.
The notice shall include the name of the obligor, the financial institution
where the account is located, the account number of the account to be levied to
satisfy the lien, the certified arrears amount,amount of unpaid
support, information for the obligor or account owner on how to
remove the lien or contest the lien in order to avoid the levy, and a copy of
the applicable law, G.S. 110‑139.2. The notice shall be served on
the obligor, and any nonliable account owner, in any manner provided in Rule 4
of the North Carolina Rules of Civil Procedure. The financial institution shall
be served notice in accordance with Rule 5 of the North Carolina Rules of Civil
Procedure. Upon service of the notice, the financial institution shall
proceed in the following manner:
(1) Immediately attach a lien to the identified account.
(2) Notify the Child Support Agency of the balance of the account and date of the lien or that the account does not meet the requirement for levy under this subsection.
In order for an obligor or account owner to contest
the lien, within 10 days after the obligor or account owner is served
with the notice, the obligor or account owner shall send written notice
of the basis of the
obligor's contest to the Child Support Agency and
shall request a hearing before the district court in the county where the
support order was entered. The lien may be contestedobligor account
holder may contest the lien only on the basis that the arrearage amount
owed is an amount less than the amount of support owed for six months, or
is less than one thousand dollars ($1,000), whichever is less, or the obligor
contesting party is not the person subject to the court order of
support. The district court may assess court costs against the nonprevailing
party. If no response is received from the obligor or account owner within
10 days of the service of the notice, the Child Support Agency shall notify the
financial institution to submit payment, up to the total amount of the child
support arrears, if available. This amount is to be applied to the debt of the delinquent
A financial institution shall not be liable to any person for complying in good faith with this subsection. The remedy set forth in this section shall be in addition to all other remedies available to the State for the reduction of the obligor's child support arrears. This remedy shall not prevent the State from taking any and all other concurrent measures available by law.
This levy procedure is to be available for direct use by all
states' child support programs to financial institutions in this
without involvement of the Department."
SECTION 6. Section 1 of this act becomes effective July 1, 2007. The remainder of the act is effective 90 days after it becomes law.
In the General Assembly read three times and ratified this the 23rd day of August, 2005.
s/ Beverly E. Perdue
President of the Senate
s/ James B. Black
Speaker of the House of Representatives
s/ Michael F. Easley
Approved 3:29 p.m. this 13th day of September, 2005