09 LC
37 0823ER
House
Bill 189
By:
Representatives Butler of the
18th,
Willard of the
49th,
and Golick of the
34th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 11 of Title 19 of the Official Code of Georgia Annotated, relating
to enforcement of duty of support, so as to provide legislative intent; to
provide for child support collection options; to change provisions relating to
payment of child support held by the Child Support Enforcement Agency of the
Department of Human Resources; to provide for definitions; to provide for
contract requirements; to provide for prohibited practices of private child
support collectors; to provide for cancellation or termination of the contract;
to provide for other remedies; to provide for related matters; to provide for an
effective date; to repeal conflicting laws; and for other purposes.
SECTION
1.
The
General Assembly recognizes that private child support collectors, private
attorneys, and the Department of Human Resources are colleagues in the important
role of collecting support for the children of Georgia. The General Assembly
also finds that it is vital that they cooperate with each other to ensure the
best service to parents. It is, therefore, the intent of the General Assembly
to ensure that parents, as consumers, have options for the enforcement of child
support obligations and the ability to make well-informed decisions regarding
those options.
SECTION
2.
Chapter
11 of Title 19 of the Official Code of Georgia Annotated, relating to
enforcement of duty of support, is amended by adding a new article to read as
follows:
"ARTICLE
4
19-11-210.
As
used in this article the term:
(1)
'Child support enforcement' means the action, conduct, or practice of enforcing
a child support order issued by a court or other tribunal.
(2)
'Department' means the Department of Human Resources.
(3)
'Obligee' means a resident of this state who is identified in an order for child
support issued by a court or other tribunal as the payee to whom an obligor owes
child support.
(4)
'Obligor' means a resident of this state who is identified in an order for child
support issued by a court or other tribunal as required to make child support
payments.
(5)
'Private child support collector' means an individual or nongovernmental entity
that solicits and contracts directly with obligees to provide child support
collection services for a fee or other compensation but shall not include
attorneys licensed to practice in this state.
19-11-211.
Any
contract for the collection of child support between a private child support
collector and an obligee shall be in writing and written in simple language, in
at least ten-point type, and signed by the private child support collector and
the obligee. The contract shall include:
(1)
An explanation of the nature of the services to be provided;
(2)
An explanation of the amount to be collected by the private child support
collector;
(3)
An explanation of the fees imposed by the contract and an example of how they
are calculated and deducted;
(4)
A statement that fees shall be charged for collecting past due child support and
for collecting current child support if the collection of current child support
for a fee is one of the terms of the contract;
(5)
A statement that the private child support collector shall not retain fees from
collections that are primarily attributable to the actions of the department and
that the private child support collector is required by law to refund any fees
improperly retained;
(6)
An explanation of the opportunities available to the obligee or private child
support collector to cancel the contract or other conditions under which the
contract terminates;
(7)
The mailing address, telephone numbers, facsimile numbers, and Internet address
of the private child support collector;
(8)
A statement that the private child support collector collects only money owed to
the obligee and not support assigned to the State of Georgia;
(9)
A statement that the private child support collector is not a governmental
entity and that the department provides child support enforcement services at
little or no cost to the obligee; and
(10)
A statement that the obligee may continue to use or pursue services through the
department to collect support.
19-11-212.
A
private child support collector shall not:
(1)
Improperly retain fees from collections that are primarily attributable to the
actions of the department. The private child support collector shall refund
such fees to the obligee within seven business days of discovery of the improper
retention of fees. The private child support collector may require the obligee
to provide documentation that the collection was primarily attributable to the
actions of the department prior to issuing any refund;
(2)
Solicit obligees using marketing materials, advertisements, or representations
reasonably calculated to create a false impression or mislead an obligee into
believing the private child support collector is affiliated with the department
or any other governmental entity;
(3)
Use or threaten to use violence or other criminal means to cause harm to an
obligor or the property of the obligor;
(4)
Falsely accuse or threaten to falsely accuse an obligor of a violation of state
or federal laws;
(5)
Take or threaten to take an enforcement action against an obligor that is not
authorized by law; or
(6)
Intentionally represent to an obligor that the private child support collector
is affiliated with the department or any other governmental entity authorized to
enforce child support obligations or fail to include in any written
correspondence to an obligor the statement that 'This communication is from a
private child support collector. The purpose of this communication is to
collect a child support debt. Any information obtained will be used for that
purpose.'
19-11-213.
In
addition to any other cancellation or termination provisions provided in the
contract between a private child support collector and an obligee, the contract
shall be cancelled or terminate if:
(1)
The obligee requests cancellation in writing within 14 days of signing the
contract;
(2)
The obligee requests cancellation in writing after any 12 consecutive months in
which the private child support collector fails to make a
collection;
(3)
The private child support collector breaches any term of the contract or
violates any provision contained within this article; or
(4)
The amount to be collected pursuant to the contract has been
collected.
19-11-214.
(a)
In addition to any other remedies provided by law, an obligee or obligor may
bring an action for actual damages incurred as a result of a violation of this
article and for injunctive relief to enjoin or restrain a violation of this
article.
(b)
The prevailing party in any action pursuant to this article shall be entitled to
recover the costs of the action. Reasonable attorney's fees, which shall be
based on the time necessarily expended to enforce the liability, shall be
awarded to a prevailing party, other than the private child support collector,
asserting rights under this article. Reasonable attorney's fees may be awarded
to a prevailing private child support collector if the court finds that the
party bringing the action did not prosecute the action in good
faith.
(c)
A private child support collector shall not be in violation of this article if
the action complained of was not intentional and resulted from a bona fide error
that occurred notwithstanding the use of reasonable procedures to avoid such
error.
(d)
The remedies provided in this article shall be cumulative and shall be in
addition to any other procedures, rights, or remedies available under any other
law.
(e)
Any waiver of the rights, requirements, and remedies provided by this article
violates public policy and shall be
void."
SECTION
3.
Said
chapter is further amended by revising subsection (f) of Code Section 19-11-18,
relating to collection procedures, as follows:
"(f)(1)
As used in this subsection, the term 'private child support collector' shall
have the same meaning as provided in Code Section 19-11-210.
(2)
Notwithstanding any other provision of this title to the contrary, any child
support being held by the Child Support Enforcement Agency of the Department of
Human Resources shall be paid to the custodial parent
to any address
or bank account or in care of any person designated by such
parent within 30 days from receipt of same
by the enforcement agency.
The department
may require that the custodial parent's designation of an address, person, or
bank account be in writing but shall not charge a fee for receiving such request
or redirecting the payments as requested. The department shall provide to an
attorney representing a custodial parent, or to a private child support
collector hired by a custodial parent and acting pursuant to a power of attorney
signed by such custodial parent, any documents which such custodial parent would
be entitled to request and receive from the department. It is the intent of
this subsection that arrangements between custodial parents and private child
support collectors and attorneys shall be promoted and
facilitated."
SECTION
4.
This
Act shall become effective upon its approval by the Governor or upon its
becoming law without such approval and shall be applicable to all contracts for
private collection of child support payment entered into on or after such
effective date.
SECTION
5.
All
laws and parts of laws in conflict with this Act are repealed.