HB1913: Child support; court shall recalculate obligation of obligor who is incarcerated.

HOUSE BILL NO. 1913
Offered January 14, 2009
Prefiled January 13, 2009
A BILL to amend and reenact 20-108.1, 20-108.2, 53.1-41, 63.2-1921, 63.2-1952, and 63.2-1960 of the Code of Virginia and to amend the Code of Virginia by adding a section numbered 20-108.3 and by adding in Article 10 of Chapter 19 of Title 63.2 a section numbered 63.2-1961, relating to prisoners' responsibility for child support.
Patron-- BaCote

Committee Referral Pending

Be it enacted by the General Assembly of Virginia:

1. That 20-108.1, 20-108.2, 53.1-41, 63.2-1921, 63.2-1952, and 63.2-1960 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding a section numbered 20-108.3 and by adding in Article 10 of Chapter 19 of Title 63.2 a section numbered 63.2-1961 as follows:

20-108.1. Determination of child or spousal support.

A. In any proceeding on the issue of determining spousal support, the court shall consider all evidence presented relevant to any issues joined in that proceeding. The court's decision shall be rendered based upon the evidence relevant to each individual case.

B. In any proceeding on the issue of determining child support under this title or Title 16.1 or Title 63.2, the court shall consider all evidence presented relevant to any issues joined in that proceeding. The court's decision in any such proceeding shall be rendered upon the evidence relevant to each individual case. However, there shall be a rebuttable presumption in any judicial or administrative proceeding for child support, including cases involving split custody or shared custody, that the amount of the award which would result from the application of the guidelines set out in 20-108.2 is the correct amount of child support to be awarded. Liability for support shall be determined retroactively for the period measured from the date that the proceeding was commenced by the filing of an action with any court provided the complainant exercised due diligence in the service of the respondent or, if earlier, the date an order of the Department of Social Services entered pursuant to Title 63.2 and directing payment of support was delivered to the sheriff or process server for service on the obligor.

In order to rebut the presumption, the court shall make written findings in the order, which findings may be incorporated by reference, that the application of such guidelines would be unjust or inappropriate in a particular case. The finding that rebuts the guidelines shall state the amount of support that would have been required under the guidelines, shall give a justification of why the order varies from the guidelines, and shall be determined by relevant evidence pertaining to the following factors affecting the obligation, the ability of each party to provide child support, and the best interests of the child:

1. Actual monetary support for other family members or former family members;

2. Arrangements regarding custody of the children, including the cost of visitation travel;

3. Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to the custodial parent when a child is not in school, child care services are not available and the cost of such child care services are not included in the computation and provided further, that any consideration of imputed income based on a change in a party's employment shall be evaluated with consideration of the good faith and reasonableness of employment decisions made by the party;

4. Debts of either party arising during the marriage for the benefit of the child;

5. Direct payments ordered by the court for maintaining life insurance coverage pursuant to subsection D, education expenses, or other court-ordered direct payments for the benefit of the child;

6. Extraordinary capital gains such as capital gains resulting from the sale of the marital abode;

7. Any special needs of a child resulting from any physical, emotional, or medical condition;

8. Independent financial resources of the child or children;

9. Standard of living for the child or children established during the marriage;

10. Earning capacity, obligations, financial resources, and special needs of each parent;

11. Provisions made with regard to the marital property under 20-107.3, where said property earns income or has an income-earning potential;

12. Tax consequences to the parties including claims for exemptions, child tax credit, and child care credit for dependent children;

13. A written agreement, stipulation, consent order, or decree between the parties which includes the amount of child support; and

14. Such other factors as are necessary to consider the equities for the parents and children.

C. In any proceeding under this title or Title 16.1 or Title 63.2 on the issue of determining child support, the court shall have the authority to order a party to provide health care coverage, as defined in 63.2-1900, for dependent children if reasonable under all the circumstances and health care coverage for a spouse or former spouse.

D. In any proceeding under this title, Title 16.1 or Title 63.2 on the issue of determining child support, the court shall have the authority to order a party to (i) maintain any existing life insurance policy on the life of either party provided the party so ordered has the right to designate a beneficiary and (ii) designate a child or children of the parties as the beneficiary of all or a portion of such life insurance for so long as the party so ordered has a statutory obligation to pay child support for the child or children.

E. Except when the parties have otherwise agreed, in any proceeding under this title, Title 16.1 or Title 63.2 on the issue of determining child support, the court shall have the authority to and may, in its discretion, order one party to execute all appropriate tax forms or waivers to grant to the other party the right to take the income tax dependency exemption for any tax year or future years, for any child or children of the parties for federal and state income tax purposes.

F. In any proceeding under this title, Title 16.1, or Title 63.2 on the issue of determining child support, the court or, in the case of an administrative support order entered pursuant to Chapter 19 ( 63.2-1900 et seq.) of Title 63.2, the Department of Social Services shall order that, for any party who is sentenced to a term of incarceration during the period he is obligated to pay support, the amount of the award be modified in order to reflect the amount calculated under the child support guidelines set forth in 20-108.2. The modification may be made from the date the party is sentenced to a term of incarceration. The court or the Department of Social Services shall also order that the party's support obligation be tolled pursuant to 20-108.3.

G. Notwithstanding any other provision of law, any amendments to this section shall not be retroactive to a date before the effective date of the amendment, and shall not be the basis for a material change in circumstances upon which a modification of child support may be based.

GH. Child support payments, whether current or arrears, received by a parent for the benefit of and owed to a child in the parent's custody, whether the payments were ordered under this title, Title 16.1, or Title 63.2, shall not be subject to garnishment. A depository wherein child support payments have been deposited on behalf of and traceable to an individual shall not be required to determine the portion of deposits which are subject to garnishment.

20-108.2. Guideline for determination of child support; quadrennial review by Child Support Guidelines Review Panel; executive summary.

A. There shall be a rebuttable presumption in any judicial or administrative proceeding for child support under this title or Title 16.1 or 63.2, including cases involving split custody or shared custody, that the amount of the award which would result from the application of the guidelines set forth in this section is the correct amount of child support to be awarded. In order to rebut the presumption, the court shall make written findings in the order as set out in 20-108.1, which findings may be incorporated by reference, that the application of the guidelines would be unjust or inappropriate in a particular case as determined by relevant evidence pertaining to the factors set out in 20-108.1. The Department of Social Services shall set child support at the amount resulting from computations using the guidelines set out in this section pursuant to the authority granted to it in Chapter 19 ( 63.2-1900 et seq.) of Title 63.2 and subject to the provisions of 63.2-1918.

B. For purposes of application of the guideline, a basic child support obligation shall be computed using the schedule set out below. For combined monthly gross income amounts falling between amounts shown in the schedule, basic child support obligation amounts shall be extrapolated. However, unless one of the following exemptions applies where the sole custody child support obligation as computed pursuant to subdivision G 1 is less than $65 per month, there shall be a presumptive minimum child support obligation of $65 per month payable by the payor parent. Exemptions from this presumptive minimum monthly child support obligation shall include: parents unable to pay child support because they lack sufficient assets from which to pay child support and who, in addition, are institutionalized in a psychiatric facility; are imprisoned for life with no chance of parole; are imprisoned with no opportunity for an institutional work assignment; are medically verified to be totally and permanently disabled with no evidence of potential for paying child support, including recipients of Supplemental Security Income (SSI); or are otherwise involuntarily unable to produce income. "Number of children" means the number of children for whom the parents share joint legal responsibility and for whom support is being sought.

SCHEDULE OF MONTHLY BASIC CHILD SUPPORT OBLIGATIONS


COMBINED
MONTHLY
GROSSONETWOTHREEFOURFIVESIX
INCOMECHILDCHILDRENCHILDRENCHILDRENCHILDRENCHILDREN
0-599656565656565
600110111113114115116
650138140142143145146
700153169170172174176
750160197199202204206
800168226228231233236
850175254257260263266
900182281286289292295
950189292315318322325
1000196304344348351355
1050203315373377381385
1100210326402406410415
1150217337422435440445
1200225348436465470475
1250232360451497502507
1300241373467526536542
1350249386483545570576
1400257398499563605611
1450265411515581633645
1500274426533602656680
1550282436547617672714
1600289447560632689737
1650295458573647705754
1700302468587662721772
1750309479600676738789
1800315488612690752805
1850321497623702766819
1900326506634714779834
1950332514645727793848
2000338523655739806862
2050343532666751819877
2100349540677763833891
2150355549688776846905
2200360558699788860920
2250366567710800873934
2300371575721812886948
2350377584732825900963
2400383593743837913977
2450388601754849927991
25003946107658629401006
25503996197768749541020
26004056277878869671034
26504106357978979791048
27004156438069089911060
275042065181691910031073
280042565882693010151085
285043066783694110271098
290043567584695310391112
295044068385696410521125
300044569186697510641138
305045069987698710761152
310045670788699810891165
3150461715896101011011178
3200466723906102111141191
3250471732917103211261205
3300476740927104411391218
3350481748937105511511231
3400486756947106711641245
3450492764957107811761258
3500497772967108911891271
3550502780977110112011285
3600507788987111212131298
3650512797997112412261311
37005188061009113712401326
37505248151020115012541342
38005308241032116312681357
38505368341043117612831372
39005428431055118912971387
39505478521066120213111402
40005538611078121413251417
40505598711089122713391432
41005658801101124013531448
41505718891112125313671463
42005778981124126613821478
42505839071135127913961493
43005899171147129214101508
43505949261158130514241523
44006009351170131814381538
44506069441181133114521553
45006129541193134414671569
45506189631204135714811584
46006249721216137014951599
46506309811227138315091614
47006359891237139515221627
47506419971247140615341641
480064610051257141715461654
485065110131267142815581667
490065610211277143915701679
495066110281286145015821692
500066610361295146015931704
505067110431305147116051716
510067510511314148116161728
515068010581323149216281741
520068510661333150216401753
525069010731342151316511765
530069510811351152416631778
535070010881361153416741790
540070510961370154516861802
545071011031379155516971815
550071411111389156617091827
555071911181398157617201839
560072411261407158717321851
565072911331417159817431864
570073411411426160817551876
575073911481435161917661888
580074411561445162917781901
585074911631454164017901913
590075311711463165018011925
595075811781473166118131937
600076311861482167218241950
605076811931491168218361962
610077312011501169318471974
615077812081510170318591987
620078312161519171418701999
625078812231529172418822011
630079212311538173518932023
635079712381547174519052036
640080212461557175619162048
645080712531566176719282060
650081212611575177719402073
655081612671583178619492083
660082012721590179419572092
665082312771597180119652100
670082712831604180919742109
675083012881610181719822118
680083412931617182419902127
685083712991624183219992136
690084113041631183920072145
695084513091637184720162154
700084813151644185520242163
705085213201651186220322172
710085513251658187020412181
715085913311665187820492190
720086213361671188520572199
725086613411678189320662207
730087013471685190020742216
735087313521692190820822225
740087713581698191620912234
745088013631705192320992243
750088413681712193121082252
755088713741719193821162261
760089113791725194621242270
765089513841732195421332279
770089813901739196121412288
775090213951746196921492297
780090514001753197721582305
785090814051758198321642313
790091014091764198921712320
795091314141770199521782328
800091614181776200121852335
805091814231781200721922343
810092114281787201421982350
815092414321793202022052357
820092714371799202622122365
825092914411804203222192372
830093214461810203822262380
835093514501816204522322387
840093714551822205122392395
845094014591827205722462402
850094314641833206322532410
855094514681839206922602417
860094814731845207622662425
865095114781850208222732432
870095414821856208822802440
875095614871862209422872447
880095914911868210022942455
885096214961873210723002462
890096415001879211323072470
895096715051885211923142477
900097015091891212523212484
905097315141896213123282492
910097515171901213723342498
915097715211905214123392503
920097915241909214623442509
925098215271914215123492514
930098415311918215623542520
935098615341922216023592525
940098815371926216523652531
945099015411930217023702536
950099315441935217523752541
955099515471939217923802547
960099715511943218423852552
965099915541947218923902558
9700100115571951219423962563
9750100315611956219824012569
9800100615641960220324062574
9850100815671964220824112580
9900101015711968221324162585
9950101215741972221824212590
10000101415771977222224272596

For gross monthly income between $10,000 and $20,000, add the amount of child support for $10,000 to the following percentages of gross income above $10,000:


ONETWOTHREEFOURFIVESIX
CHILDCHILDRENCHILDRENCHILDRENCHILDRENCHILDREN
3.1%5.1%6.8%7.8%8.8%9.5%

For gross monthly income between $20,000 and $50,000, add the amount of child support for $20,000 to the following percentages of gross income above $20,000:


ONETWOTHREEFOURFIVESIX
CHILDCHILDRENCHILDRENCHILDRENCHILDRENCHILDREN
2%3.5%5%6%6.9%7.8%

For gross monthly income over $50,000, add the amount of child support for $50,000 to the following percentages of gross income above $50,000:


ONETWOTHREEFOURFIVESIX
CHILDCHILDRENCHILDRENCHILDRENCHILDRENCHILDREN
1%2%3%4%5%6%

C. For purposes of this section, "gross income" means all income from all sources, and shall include, but not be limited to, income from salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits except as listed below, workers' compensation benefits, unemployment insurance benefits, disability insurance benefits, veterans' benefits, spousal support, rental income, gifts, prizes or awards.

If a parent's gross income includes disability insurance benefits, it shall also include any amounts paid to or for the child who is the subject of the order and derived by the child from the parent's entitlement to disability insurance benefits. To the extent that such derivative benefits are included in a parent's gross income, that parent shall be entitled to a credit against his or her ongoing basic child support obligation for any such amounts, and, if the amount of the credit exceeds the parent's basic child support obligations, the credit may be used to reduce arrearages.

Gross income shall be subject to deduction of reasonable business expenses for persons with income from self-employment, a partnership, or a closely held business. "Gross income" shall not include:

1. Benefits from public assistance and social services programs as defined in 63.2-100;

2. Federal supplemental security income benefits;

3. Child support received; or

4. Income received by the payor from secondary employment income not previously included in "gross income," where the payor obtained the income to discharge a child support arrearage established by a court or administrative order and the payor is paying the arrearage pursuant to the order. "Secondary employment income" includes but is not limited to income from an additional job, from self-employment, or from overtime employment. The cessation of such secondary income upon the payment of the arrearage shall not be the basis for a material change in circumstances upon which a modification of child support may be based.

For purposes of this subsection: (i) spousal support received shall be included in gross income and spousal support paid shall be deducted from gross income when paid pursuant to an order or written agreement and (ii) one-half of any self-employment tax paid shall be deducted from gross income.

Where there is an existing court or administrative order or written agreement relating to the child or children of a party to the proceeding, who are not the child or children who are the subject of the present proceeding, then there is a presumption that there shall be deducted from the gross income of the party subject to such order or written agreement, the amount that the party is actually paying for the support of a child or children pursuant to such order or agreement.

Where a party to the proceeding has a natural or adopted child or children in the party's household or primary physical custody, and the child or children are not the subject of the present proceeding, there is a presumption that there shall be deducted from the gross income of that party the amount as shown on the Schedule of Monthly Basic Child Support Obligations contained in subsection B that represents that party's support obligation based solely on that party's income as being the total income available for the natural or adopted child or children in the party's household or primary physical custody, who are not the subject of the present proceeding. Provided, however, that the existence of a party's financial responsibility for such a child or children shall not of itself constitute a material change in circumstances for modifying a previous order of child support in any modification proceeding. Any adjustment to gross income under this subsection shall not create or reduce a support obligation to an amount which seriously impairs the custodial parent's ability to maintain minimal adequate housing and provide other basic necessities for the child, as determined by the court.

In cases in which retroactive liability for support is being determined, the court or administrative agency may use the gross monthly income of the parties averaged over the period of retroactivity.

D. Except for good cause shown or the agreement of the parties, in addition to any other child support obligations established pursuant to this section, any child support order shall provide that the parents pay in proportion to their gross incomes, as used for calculating the monthly support obligation, any reasonable and necessary unreimbursed medical or dental expenses that are in excess of $250 for any calendar year for each child who is the subject of the obligation. The method of payment of those expenses shall be contained in the support order. Each parent shall pay his respective share of expenses as those expenses are incurred. Any amount paid under this subsection shall not be adjusted by, nor added to, the child support calculated in accordance with subsection G. For the purposes of this section, medical or dental expenses shall include but not be limited to eyeglasses, prescription medication, prosthetics, orthodontics, and mental health or developmental disabilities services, including but not limited to services provided by a social worker, psychologist, psychiatrist, counselor, or therapist.

E. Any costs for healthcare coverage as defined in 63.2-1900 and dental care coverage, when actually being paid by a parent, to the extent such costs are directly allocable to the child or children, and which are the extra costs of covering the child or children beyond whatever coverage the parent providing the coverage would otherwise have, shall be added to the basic child support obligation.

F. Any child-care costs incurred on behalf of the child or children due to employment of the custodial parent shall be added to the basic child support obligation. Child-care costs shall not exceed the amount required to provide quality care from a licensed source. When requested by the noncustodial parent, the court may require the custodial parent to present documentation to verify the costs incurred for child care under this subsection. Where appropriate, the court shall consider the willingness and availability of the noncustodial parent to provide child care personally in determining whether child-care costs are necessary or excessive. Upon the request of either party, and upon a showing of the tax savings a party derives from child-care cost deductions or credits, the court shall factor actual tax consequences into its calculation of the child-care costs to be added to the basic child support obligation.

G. 1. Sole custody support. The sole custody total monthly child support obligation shall be established by adding (i) the monthly basic child support obligation, as determined from the schedule contained in subsection B, (ii) costs for health care coverage to the extent allowable by subsection E, and (iii) work-related child-care costs and taking into consideration all the factors set forth in subsection B of 20-108.1. The total monthly child support obligation shall be divided between the parents in the same proportion as their monthly gross incomes bear to their monthly combined gross income. The monthly obligation of each parent shall be computed by multiplying each parent's percentage of the parents' monthly combined gross income by the total monthly child support obligation.

However, the monthly obligation of the noncustodial parent shall be reduced by the cost for health care coverage to the extent allowable by subsection E when paid directly by the noncustodial parent. Unreimbursed medical and dental expenses shall be calculated and allocated in accordance with subsection D.

2. Split custody support. In cases involving split custody, the amount of child support to be paid shall be the difference between the amounts owed by each parent as a noncustodial parent, computed in accordance with subdivision 1, with the noncustodial parent owing the larger amount paying the difference to the other parent. Unreimbursed medical and dental expenses shall be calculated and allocated in accordance with subsection D.

For the purpose of this section and 20-108.1, split custody shall be limited to those situations where each parent has physical custody of a child or children born of the parents, born of either parent and adopted by the other parent or adopted by both parents. For the purposes of calculating a child support obligation where split custody exists, a separate family unit exists for each parent, and child support for that family unit shall be calculated upon the number of children in that family unit who are born of the parents, born of either parent and adopted by the other parent or adopted by both parents. Where split custody exists, a parent is a custodial parent to the children in that parent's family unit and is a noncustodial parent to the children in the other parent's family unit.

3. Shared custody support.

(a) Where a party has custody or visitation of a child or children for more than 90 days of the year, as such days are defined in subdivision G 3 (c), a shared custody child support amount based on the ratio in which the parents share the custody and visitation of any child or children shall be calculated in accordance with this subdivision. The presumptive support to be paid shall be the shared custody support amount, unless a party affirmatively shows that the sole custody support amount calculated as provided in subdivision G 1 is less than the shared custody support amount. If so, the lesser amount shall be the support to be paid. For the purposes of this subsection, the following shall apply:

(i) Income share. "Income share" means a parent's percentage of the combined monthly gross income of both parents. The income share of a parent is that parent's gross income divided by the combined gross incomes of the parties.

(ii) Custody share. "Custody share" means the number of days that a parent has physical custody, whether by sole custody, joint legal or joint residential custody, or visitation, of a shared child per year divided by the number of days in the year. The actual or anticipated "custody share" of the parent who has or will have fewer days of physical custody shall be calculated for a one-year period. The "custody share" of the other parent shall be presumed to be the number of days in the year less the number of days calculated as the first parent's "custody share." For purposes of this calculation, the year may begin on such date as is determined in the discretion of the court, and the day may begin at such time as is determined in the discretion of the court. For purposes of this calculation, a day shall be as defined in subdivision G 3 (c).

(iii) Shared support need. "Shared support need" means the presumptive guideline amount of needed support for the shared child or children calculated pursuant to subsection B of this section, for the combined gross income of the parties and the number of shared children, multiplied by 1.4.

(iv) Sole custody support. "Sole custody support" means the support amount determined in accordance with subdivision G 1.

(b) Support to be paid. The shared support need of the shared child or children shall be calculated pursuant to subdivision G 3 (a) (iii). This amount shall then be multiplied by the other parent's custody share. To that sum for each parent shall be added the other parent's cost of health care coverage to the extent allowable by subsection E, plus the other parent's work-related child-care costs to the extent allowable by subsection F. This total for each parent shall be multiplied by that parent's income share. The support amounts thereby calculated that each parent owes the other shall be subtracted one from the other and the difference shall be the shared custody support one parent owes to the other, with the payor parent being the one whose shared support is the larger. Unreimbursed medical and dental expenses shall be calculated and allocated in accordance with subsection D.

(c) Definition of a day. For the purposes of this section, "day" means a period of 24 hours; however, where the parent who has the fewer number of overnight periods during the year has an overnight period with a child, but has physical custody of the shared child for less than 24 hours during such overnight period, there is a presumption that each parent shall be allocated one-half of a day of custody for that period.

(d) Minimum standards. Any calculation under this subdivision shall not create or reduce a support obligation to an amount which seriously impairs the custodial parent's ability to maintain minimal adequate housing and provide other basic necessities for the child. If the gross income of either party is equal to or less than 150 percent of the federal poverty level promulgated by the U.S. Department of Health and Human Services from time to time, then the shared custody support calculated pursuant to this subsection shall not be the presumptively correct support and the court may consider whether the sole custody support or the shared custody support is more just and appropriate.

(e) Support modification. When there has been an award of child support based on the shared custody formula and one parent consistently fails to exercise custody or visitation in accordance with the parent's custody share upon which the award was based, there shall be a rebuttable presumption that the support award should be modified.

(f) In the event that the shared custody support calculation indicates that the net support is to be paid to the parent who would not be the parent receiving support pursuant to the sole custody calculation, then the shared support shall be deemed to be the lesser support.

H. The Secretary of Health and Human Resources shall ensure that the guideline set out in this section is reviewed by October 31, 2001, and every four years thereafter, by the Child Support Guidelines Review Panel, consisting of 15 members comprised of four legislative members and 11 nonlegislative citizen members. Members shall be appointed as follows: three members of the House Committee for Courts of Justice, upon the recommendation of the chairman of such committee, to be appointed by the Speaker of the House of Delegates in accordance with the principles of proportional representation contained in the Rules of the House of Delegates; one member of the Senate Committee for Courts of Justice, upon the recommendation of the chairman of such committee, to be appointed by the Senate Committee on Rules; and one representative of a juvenile and domestic relations district court, one representative of a circuit court, one representative of the Department of Social Services' Division of Child Support Enforcement, three members of the Virginia State Bar, two custodial parents, two noncustodial parents, and one child advocate, upon the recommendation of the Secretary of Health and Human Resources, to be appointed by the Governor. The Panel shall determine the adequacy of the guideline for the determination of appropriate awards for the support of children by considering current research and data on the cost of and expenditures necessary for rearing children, and any other resources it deems relevant to such review. The Panel shall report its findings to the General Assembly as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents and reports before the General Assembly next convenes following such review.

Legislative members shall serve terms coincident with their terms of office. Nonlegislative citizen members shall serve at the pleasure of the Governor. All members may be reappointed. Appointments to fill vacancies, other than by expiration of a term, shall be made for the unexpired terms. Vacancies shall be filled in the same manner as the original appointments.

Legislative members shall receive such compensation as provided in 30-19.12, and nonlegislative citizen members shall receive such compensation for the performance of their duties as provided in 2.2-2813. All members shall be reimbursed for all reasonable and necessary expenses incurred in the performance of their duties as provided in 2.2-2813 and 2.2-2825. Funding for the costs of compensation and expenses of the members shall be provided by the Department of Social Services.

The Department of Social Services shall provide staff support to the Panel. All agencies of the Commonwealth shall provide assistance to the Panel, upon request.

The chairman of the Panel shall submit to the Governor and the General Assembly a quadrennial executive summary of the interim activity and work of the Panel no later than the first day of 2006 regular session of the General Assembly and every four years thereafter. The executive summary shall be submitted as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents and reports and shall be posted on the General Assembly's website.

20-108.3. Tolling of child support for incarcerated parents.

A. In any proceeding under this title, Title 16.1, or Title 63.2 on the issue of determining child support, the court or, in the case of an administrative support order entered pursuant to Chapter 19 ( 63.2-1900 et seq.) of Title 63.2, the Department of Social Services shall order that, for any party who is sentenced to a term of incarceration during the period he is obligated to pay support, his obligation to make support payments be tolled during the term of his incarceration, unless the court or the Department determines that the party has the present financial ability to pay his child support obligation.

B. Nothing in this section shall preclude a court or the Department of Social Services from establishing the support obligation of a party who is sentenced to a term of incarceration for whom no support order has previously been entered. Any order establishing such support obligation of a party sentenced to a term of incarceration shall be tolled pursuant to subsection A.

C. A party whose child support payments have been tolled pursuant to subsection A shall remain liable for any support arrearages that accrue while his support payments have been tolled. No sooner than 90 days after the party is released from incarceration, the court or the Department of Social Services shall order the resumption of his child support payments and shall determine the amount of his support arrearage. The order of the court or the Department shall include a plan for the payment of the party's support arrearage. Any such order shall provide that all payments are to be credited to current child support obligations first, with any payment in excess of the current obligation applied to arrearages.

D. No interest, costs, fees, or other penalties shall accrue to a party whose child support payments have been tolled pursuant to subsection A for the period during which child support payments were tolled.

E. Nothing in this section shall preclude a party whose child support payments have been tolled pursuant to subsection A from seeking a modification of his child support obligation based on a material change in circumstances upon which a modification of child support may be based that is unrelated to his incarceration.

53.1-41. Opportunities for work and career and technical education.

To the extent feasible, it shall be the duty of the Director to provide persons sentenced to the Department with opportunities to work and to participate in career and technical education programs as operated by the Department of Correctional Education in accordance with 22.1-339 et seq. Such work opportunities may include business, industrial, agricultural, highway maintenance and construction, and work release programs as hereafter specified in this article. In addition, prisoners may be employed to improve, repair, work on or cultivate public property or buildings.

In addition to meeting the qualifications for work performance and security compatibility, preference for placement in work programs shall be given to any prisoner who requests a work assignment and assigns a minimum of 50% percent of his earnings to his child support obligation.

Preference for placement in work programs shall be given to prisoners who, in addition to meeting the qualifications for work performance and security compatibility, have child support obligations.

63.2-1921. Authority to initiate reviews of certain orders.

A. The Department may, pursuant to this chapter and in accordance with 20-108.2, initiate a review of the amount of support ordered by any court. If a material change in circumstances has occurred, the Department shall report its findings and a proposed modified order to the court which entered the order or the court having current jurisdiction. Notice of the review shall be served for each review on both parties (i) in accordance with the provisions of 8.01-296, 8.01-327 or 8.01-329, or (ii) by certified mail, with proof of actual receipt by the addressee, or (iii) by the nonrequesting party executing a waiver. Either party may request a hearing on the proposed modified order by filing a request with such court within thirty 30 days of receipt of notice by the requesting party. Unless a hearing is requested within the time limits, no hearing shall be required and the court shall enter the modified order, which shall be effective from the date that notice of such review was served on the nonrequesting party. The court shall modify any prior court order, or schedule a hearing on its motion and so notify the parties and the Department. If a hearing is held, the Department shall have the burden of proof.

B. However, if the order being reviewed by the Department deviated from the guidelines, when entered, based on one or more of the deviating factors set out in 20-108.1 and the Department determines that there has been a material change in circumstances, the procedure set forth in subsection A shall not apply and the Department shall schedule a hearing with the court which entered the order or the court having current jurisdiction.

C. A material change in circumstances shall be deemed to have occurred if the difference between the existing child support award and the amount whichthat would result from application of the guidelines is at least ten 10 percent of the existing child support award but not less than twenty-five dollars $25 per month.

D. The Department shall, pursuant to this chapter and in accordance with 20-108.2, initiate a review of the amount of support ordered by any court if it determines that an obligor has been sentenced to a term of incarceration during the period he is obligated to pay support.

63.2-1952. Interest on debts due.

Interest at the judgment interest rate as established by 6.1-330.54 on any arrearage pursuant to an order being enforced by the Department pursuant to this chapter shall be collected by the Commissioner except in the case of a minor obligor during the period of his minority or a prisoner during the period of his incarceration. The Commissioner shall maintain interest balance due accounts.

63.2-1960. Recovery of certain fees and costs.

The Department shall have the authority to assess and recover from the noncustodial parent in proceedings to enforce child support obligations against the noncustodial parent, reasonable attorneys' fees, except in the case of a minor obligor during the period of his minority or a prisoner during the period of his incarceration. All such fees recovered in proceedings to collect child support arrearages shall be retained by the Department in a special fund for the support of the Division of Support Enforcement. The Department shall also have the authority to assess and recover costs in such cases. However, the Department shall not be entitled to recover attorneys' fees or costs in any case in which the noncustodial parent prevails.

The Department shall have the authority to assess and recover the actual costs of genetic testing against the noncustodial parent if paternity is established, except in the case of a minor obligor during the period of his minority or a prisoner during the period of his incarceration. Where an original test is contested and additional testing is requested, the Department may require advance payment by the contestant. The genetic testing costs shall be set at the rate charged the Department by the provider of genetic testing services.

The Department shall have the authority to assess and recover the actual costs of intercept programs from the noncustodial parent, except in the case of a minor obligor during the period of his minority or a prisoner during the period of his incarceration. The intercept programs' costs shall be set at the rate actually charged the Department.

The Department shall have the authority to assess and recover the actual costs of fees for service of process, and seizure and sale pursuant to a levy on a judgment in enforcement actions from the noncustodial parent, except in the case of a minor obligor during the period of his minority or a prisoner during the period of his incarceration.

The fees and costs that may be recovered pursuant to this section may be collected using any mechanism provided by this chapter.

63.2-1961. Reduction for timely payment of arrearages.

In the case of a minor obligor after the period of his minority has ended or an imprisoned obligor after the period of his incarceration has ended, the Department shall reduce the total amount of arrearages due on child support obligations as follows:

1. A reduction of 5 percent of the total arrearages for six months of continued timely payments;

2. A reduction of 10 percent of the total arrearages for 12 months of continued timely payments;

3. A reduction of 15 percent of the total arrearages for 18 months of continued timely payments; and

4. A reduction of 25 percent of the total arrearages for 24 months of continued timely payments.