|
return to Related
Information
ARTICLE 3. CHILDREN'S ADVOCATE.
§48A-3-1. Purposes; how article to be construed.
(a) The purposes of this article are:
(1) To enumerate and describe the functions and duties of the children's advocate as an
employee of the child advocate office;
(2) To ensure that procedures followed by the children's advocate will protect the best
interests of children in domestic relations matters; and
(3) To compel the enforcement of support orders, thereby ensuring that persons legally
responsible for the care and support of children assume their legal obligations and reduce the
financial cost to this state of providing public assistance funds for the care of children.
(b) This article shall be construed to facilitate the resolution of domestic relations matters.
§48A-3-2. Placement of children's advocates throughout the state; supervision; office
procedures.
(a) The child advocate office shall employ twenty-one employees in the position of children's
advocate, and the offices of the children's advocates shall be distributed geographically so as to
provide an office for each of the following areas of the state:
(1) The counties of Brooke, Hancock and Ohio;
(2) The counties of Marshall, Tyler and Wetzel;
(3) The counties of Pleasants, Ritchie, Wirt and Wood;
(4) The counties of Calhoun, Jackson and Roane;
(5) The counties of Mason and Putnam;
(6) The county of Cabell;
(7) The counties of McDowell and Wyoming;
(8) The counties of Logan and Mingo;
(9) The county of Kanawha;
(10) The county of Raleigh;
(11) The counties of Mercer, Monroe and Summers;
(12) The counties of Fayette and Nicholas;
(13) The counties of Greenbrier and Pocahontas;
(14) The counties of Braxton, Clay, Gilmer and Webster;
(15) The counties of Doddridge, Harrison, Lewis and Upshur;
(16) The counties of Marion and Taylor;
(17) The counties of Monongalia and Preston;
(18) The counties of Barbour, Randolph and Tucker;
(19) The counties of Grant, Hampshire, Hardy, Mineral and Pendleton;
(20) The counties of Berkeley, Jefferson and Morgan; and
(21) The counties of Boone, Lincoln and Wayne.
(b) Each children's advocate shall be appointed by the director of the child advocate office.
The children's advocates shall be duly qualified attorneys licensed to practice in the courts of this
state. Children's advocates shall be exempted from the appointments in the indigent cases which
would otherwise be required pursuant to article twenty-one, chapter twenty-nine of this code.
(c) Nothing contained herein shall prohibit the director from temporarily assigning, from time
to time as caseload may dictate, a children's advocate from one geographical area to another
geographical area.
(d) The children's advocate is an employee of the child advocate office.
§48A-3-3. Duties of the children’s advocate.
Subject to the control and supervision of the director:
(a) The children’s advocate shall supervise and direct the secretarial, clerical and other
employees in his or her office in the performance of their duties as such performance affects the
delivery of legal services. The children’s advocate will provide appropriate instruction and
supervision to employees of his or her office who are nonlawyers, concerning matters of legal
ethics and matters of law, in accordance with applicable state and federal statutes, rules and
regulations.
(b) In accordance with the requirements of rule 5.4(c) of the rules of professional conduct as
promulgated and adopted by the supreme court of appeals, the children’s advocate shall not
permit a nonlawyer who is employed by the department of health and human resources in a
supervisory position over the children’s advocate to direct or regulate the advocate’s professional
judgment in rendering legal services to recipients of services in accordance with the provisions of
this chapter; nor shall any nonlawyer employee of the department attempt to direct or regulate the
advocate’s professional judgment.
(c) The children’s advocate shall make available to the public an informational pamphlet,
designed in consultation with the director. The informational pamphlet shall explain the
procedures of the court and the children’s advocate; the duties of the children’s advocate; the
rights and responsibilities of the parties; and the availability of human services in the community.
The informational pamphlet shall be provided as soon as possible after the filing of a complaint or
other initiating pleading. Upon request, a party to a domestic relations proceeding shall receive an
oral explanation of the informational pamphlet from the office of the children’s advocate.
(d) The children’s advocate shall act to establish the paternity of every child born out of
wedlock for whom paternity has not been established, when such child’s primary caretaker is an
applicant for or recipient of aid to families with dependent children, and when such primary
caretaker has assigned to the division of human services any rights to support for the child which
might be forthcoming from the putative father: Provided, That if the children’s advocate is
informed by the secretary of the department of health and human resources or his or her
authorized employee that it has been determined that it is against the best interest of the child to
establish paternity, the children’s advocate shall decline to so act. The children’s advocate, upon
the request of any primary caretaker of a child born out of wedlock, regardless of whether such
primary caretaker is an applicant or recipient of aid to families with dependent children, shall
undertake to establish the paternity of such child.
(e) The children’s advocate shall undertake to secure support for any individual who is
receiving aid to families with dependent children when such individual has assigned to the division
of human services any rights to support from any other person such individual may have:
Provided, That if the children’s advocate is informed by the secretary of the department of health
and human resources or his or her authorized employee that it has been determined that it is
against the best interests of a child to secure support on the child’s behalf, the children’s advocate
shall decline to so act. The children’s advocate, upon the request of any individual, regardless of
whether such individual is an applicant or recipient of aid to families with dependent children, shall
undertake to secure support for the individual. If circumstances require, the children’s advocate
shall utilize the provisions of chapter forty-eight-b of this code and any other reciprocal
arrangements which may be adopted with other states for the establishment and enforcement of
support obligations, and if such arrangements and other means have proven ineffective, the
children’s advocate may utilize the federal courts to obtain and enforce court orders for support.
(f) The children’s advocate shall pursue the enforcement of support orders through the
withholding from income of amounts payable as support:
(1) Without the necessity of an application from the obligee in the case of a support obligation
owed to an obligee to whom services are already being provided under the provisions of this
chapter; and
(2) On the basis of an application for services in the case of any other support obligation
arising from a support order entered by a court of competent jurisdiction.
(g) The children’s advocate may decline to commence an action to obtain an order of
support under the provisions of section one, article five of this chapter if an action for divorce,
annulment or separate maintenance is pending, or the filing of such action is imminent, and such
action will determine the issue of support for the child: Provided, That such action shall be
deemed to be imminent if it is proposed by the obligee to be commenced within the twenty-eight
days next following a decision by the children’s advocate that an action should properly be
brought to obtain an order for support.
(h) If the child advocate office, through the children’s advocate, shall undertake paternity
determination services, child support collection or support collection services for a spouse or
former spouse upon the written request of an individual who is not an applicant or recipient of
assistance from the division of human services, the office may impose an application fee for
furnishing such services. Such application fee shall be in a reasonable amount, not to exceed
twenty-five dollars, as determined by the director: Provided, That the director may fix such
amount at a higher or lower rate which is uniform for this state and all other states if the secretary
of the federal department of health and human services determines that a uniform rate is
appropriate for any fiscal year to reflect increases or decreases in administrative costs. Any cost
in excess of the application fee so imposed may be collected from the obligor who owes the child
or spousal support obligation involved.
§48A-3-3a.
Repealed.
Acts, 1995 Reg. Sess., Ch. 88.
§48A-3-4.
Repealed.
Acts, 1995 Reg. Sess., Ch. 88.
§48A-3-5.
Repealed.
Acts, 1990 Reg. Sess., Ch. 40.
§48A-3-6.
Repealed.
Acts, 1995 Reg. Sess., Ch. 88.
§48A-3-7. Vacancies; interim childrens' advocate.
(a) If the position of childrens' advocate becomes vacant for any reason, the director shall
appoint a person to the position of childrens' advocate not later than six months after the vacancy
occurs.
(b) If necessary, the director may appoint an interim childrens' advocate to serve for not
longer than six months until a childrens' advocate is appointed pursuant to this section.
§48A-3-8. Compensation; expenses.
The salary of a children's advocate shall be not less than thirty-five thousand dollars per year,
and shall be fixed by the director, who shall take into consideration ability, performance of duty
and experience. The compensation and expenses of the employees of the office and all operating
expenses incurred by the office shall be fixed by the director and paid by the child advocate
office.
§48A-3-9.
Repealed.
Acts, 1995 Reg. Sess., Ch. 88.
§48A-3-10.
Repealed.
Acts, 1995 Reg. Sess., Ch. 88.
§48A-3-11. Repeal of article.
All procedures and requirements established in the previous enactment of sections one, two,
three, seven and eight of this article shall continue in effect until the promulgation of an emergency
rule by the commission regarding the duties of child support enforcement division, their salary and
their location throughout the state. Upon promulgation of this rule and the filing of such rule with
the secretary of state in accord with section fifteen, article three, chapter twenty-nine-a of this
code, this article and any rule promulgated pursuant to those sections of this article shall be
repealed.
continue
return to Related
Information
|
