39-7,149. Same; hearing.
39-7,149
39-7,149. Same; hearing.(a) Theresponsible parent may request: (1) An administrative hearing pursuant toK.S.A. 75-3306, and amendments thereto, for review of a notice of intent toinitiateincomewithholding served pursuant to K.S.A. 39-7,147 and amendmentsthereto by complyingwith procedures established by the secretary within seven days after serviceof the notice of intent; or (2) a de novo court review pursuant to K.S.A.39-7,139, and amendments thereto. If the notice is served by mail, thetimefor requesting review shall be extended by three days. The requestfor review shall specify the mistake of fact alleged to be the basis for thestay or any applicable defense under this section. If the amount of thecurrent support order or the amount of arrearages is challenged, the requestshall specify the amount that is uncontested.
(b) The issues on review shall be limited to whether a mistake of factexisted at the time the notice to the responsible parent was prepared or, ifspecified in the request for review, whether a defense exists under thissection. As used in this section, "mistake of fact" means an incorrectstatement of the amount of current support due, the amount of arrearages, theamount of income to be withheld or the identity of the responsible parent.
(c) Except as otherwise provided in this subsection, thepresiding officer shall immediately authorize issuance of an income withholdingorder upon request of the secretary if the identity of the responsible parentis not contested and theuncontested facts in the case show that the requirements of subsection (d) ofK.S.A. 39-7,147 and amendments thereto have been met. If a defenseunder subsection(g) has been alleged, the presiding officer shall authorizeimmediate issuance of an income withholding order only if the uncontestedarrearagesequal or exceed the amount of support due for one month. A copy of the requestshall be served on the responsible parent.The income withholding order authorized by this subsection shall specifyanamount sufficient to satisfy the order for current support and to defray anyarrearages, but only to the extent that each amount is not contested. Anyincome withholding order issued pursuant to this subsection shall be effectiveuntil modified or terminated.
(d) Entry of the income withholding order may be stayed only to the extentpermitted by the income withholding act, and amendments thereto, or thissection. A request for review under this section shall stay issuance of theadministrative income withholding order until further order of the presidingofficer.
(e) Within 45 days of the date the notice of intent to initiate incomewithholding was served on the responsible parent, the presiding officer shallprovide the responsible parent an opportunity to present the responsibleparent's case, determine if an income withholding order may be issued andnotify the responsible parent and the secretary whether or notwithholding is to occur.
(f) In addition to any other circumstances warranting issuance of an incomewithholding order under this section and notwithstanding any claim madepursuant to subsection (g), if the presiding officer finds that a notice ofintent to initiate income withholding was served on the responsible parent andthat there were arrearages, as of the date the notice was prepared, in anamount equal to or greater than the amount of support payable for one month,the presiding officer shall authorize issuance of an income withholding order. Subsequent payments to defray arrearages shall not prevent issuance of anincome withholding order under this subsection unless there is no currentsupport due and all arrearages are satisfied.
(g) If an income withholding order was not entered at the time the supportorder was entered because the tribunal found that there was good cause not toorder immediate income withholding or that the parties had entered into anagreement for an alternative arrangement, the responsible parent may requestthat income withholding be stayed pursuant to this subsection.
If the responsible parent shows that the tribunal issuing the support orderfound good cause not to require immediate income withholding and that the basisfor the finding of good cause still exists, the presiding officer shall stayissuance of the income withholding order unless subsection (f) applies.
If the responsible parent shows that the tribunal issuing the support orderdid not require immediate income withholding based upon an agreement of theinterested parties for an alternative arrangement, the presiding officer maystay issuance of the income withholding order unless the presiding officerfinds that: (1) Subsection (f) applies; (2) the agreement was not in writing;(3) the agreement was not approved by all interested parties, including anyIV-D agency involved in the case at the time of the agreement; (4) the terms ofthe agreement or alternative arrangement are not being met; (5) the agreementor alternative arrangement is not in the best interests of the child; or (6)the agreement or alternative arrangement places an unnecessary burden upon thecustodial parent, the responsible parent, or a public office.
(h) If the proposed administrative income withholding order specifies aperiodic amount to defray arrearages, the presiding officer may order areduction in the periodic amount to defray arrearages only if the totalarrearages owed are less than the periodic amount to defray arrearages.
History: L. 1997, ch. 182, § 18; July 3.