From Interstate to International

1
From Interstate to International

• Child Support
• Goes
• Global

2
Adoption of UIFSA

• 1996 PRWORA (Welfare Reform) mandated that
  states enact UIFSA
• The Goal-
• One Controlling Order
• Multiple states may enforce the order, but only
  one has the jurisdiction to modify it.

3
UIFSA Basics

• New cases will get only one order.
• States must recognize and enforce existing orders
  of other States.
• There should be only one order that is entitled
  to prospective enforcement-- the controlling
  order
• Modification is restricted to the state that has
  CEJ.

4
Interstate Defined

• An interstate case is a case in which the CP and
  NCP reside in separate states. Some states define
  interstate to include cases where the order is
  from another state.
• Historically on a national level, interstate
  cases represent about one-third of the child
  support caseload
• In FY 2006, over a million cases were sent from
  one state to another

5
Interstate Legislation

• Uniform Reciprocal Enforcement of Support Act
  (URESA)
• Revised Uniform Reciprocal Enforcement of Support
  Act (RURESA)
• Full Faith and Credit for Child Support Orders
  Act (FFCCSOA) October 22, 1994
• Uniform Interstate Family Support Act (UIFSA)
  all states on or before January 1, 1998

6
Key concepts to remember

• There are one-state and two-state procedures
• Both CP and NCP can use UIFSA
• Controlling Order means one order/one time/one
  place for current child support
• The state that issued the controlling order may
  modify, so long as it has CEJ
• If no CEJ, person seeking modification must play
  away

7
Key concepts to remember

• States must recognize and enforce other States
  orders
• Visitation may not be raised and is not a defense
  to nonpayment of support
• UIFSA has enhanced evidence rules
• Non-paternity is not a defense, if paternity has
  been established or acknowledged

8
Analyzing an Interstate Action

• If there is no order, an order needs to be
  established.
• If there is only one order, determine whether it
  needs enforcement or modification.
• If there are multiple orders for prospective
  support the controlling order must be determined
  before going any further.

9
Choice of Law

• In cases involving the establishment of parentage
  support obligation, the law where the case is
  heard applies.
• The jurisdiction enforcing the order determines
  how it is enforced.

10
Jurisdiction

• Jurisdiction refers to the power of a tribunal to
  decide a case.
• There are several different types of jurisdiction
• Subject-matter jurisdiction
• Personal jurisdiction
• Long-arm jurisdiction (also called extended
  personal jurisdiction)
• In rem jurisdiction

11
Paternity and Order Establishment

• Long-arm Legal provision that permits a tribunal
  to claim personal jurisdiction over someone who
  does not live in that state.
• Must be some meaningful connection between the
  person and the state or district that is
  asserting jurisdiction

12
Long Arm Jurisdiction

• Family Code 4905 In a proceeding to establish or
  enforce a support order or to determine
  parentage, a tribunal of this state may exercise
  personal jurisdiction over a non-resident if the
  individual. . .
• Is personally served with notice within this
  State
• Submits to jurisdiction in this State
• Resided with the child in this State

13
Long Arm Jurisdiction (cont.)

• Resided in this State and paid the childs
  prenatal expenses or provided support
• Caused the child to be living in this State
• Engaged in sexual intercourse in this State and
  the child may have been conceived by that act
• Filed a voluntary declaration of paternity in
  California
• Or any other constitutionally valid basis

14
Long Arm Establishment and Enforcement
Directly retain process server
Send interstate subpoenas to secure evidence
Quick locates
CSE Trans 3 to secure documents, including service of process, genetic testing, and assistance with discovery
15
Two-State Establishment

• If a state cannot exercise long-arm
  jurisdiction, an interstate case must be filed to
  that partys state of residence. This process
  includes
• Completing all UIFSA required paperwork
• Forwarding the documents to the Central Registry
  of the responding state
• Continued follow-up of case
• The laws of the tribunal that establishes the
  order apply to the support amount, and duration
  of the support obligation.

16
Determining the Controlling Order

• Since 1998 , States have been striving to
  acknowledge only one order for each parent and
  child, but there may still be cases with multiple
  orders.
• The determination of one controlling order is the
  cornerstone of UIFSA and FFCSOA.
• When multiple valid support orders exist, there
  are rules for determining which prospective
  support order governs.

17
Determining the Controlling Order

• Must give full faith and credit to valid support
  orders issued by other states
• UIFSA and FFCCSOA use the same rules for reducing
  multiple valid support orders to one controlling
  order for prospective support.
• No provision in either law invalidates any
  previously issued valid support order.

18
Determining the Controlling Order

• A controlling order determination should be made
  only once, when multiple orders exist.
• For a state to make a controlling order
  determination, all of these conditions must
  exist
• There must be multiple orders for current support
• Either the obligor or the individual obligee must
  reside in the state
• The request must be accompanied by a certified
  copy of every order in effect

19
Determining the Controlling Order

• When more than one order issued for current
  support exists
• If only one state would have CEJ, the order of
  that state controls, or
• Order of childs home state controls, or
• Most recent order controls.
• If none of the tribunals would have continuing,
  exclusive jurisdiction, this state, having
  personal jurisdiction over the parties, shall
  issue a child support order which controls.

20
Order Determining Controlling Order

• The order must include
• the basis upon which the determination was made
• and should include (required under UIFSA 2001)
• the amount of prospective support and the amount
  of arrears and interest
• Within 30 days, the requesting party must file a
  certified copy of the determination order with
  each tribunal that had issued an earlier child
  support order

21
Arrears Reconciliation

• Arrears reconciliation consolidates arrears
  accumulated under multiple orders into a single
  amount that the obligor owes at a specific point
  in time.
• The process of calculation is based on
• The periodic amount of the support order
• The number of unpaid periods
• All payments made are credited against all orders
  (orders are not cumulative)

22
Calculating Arrears

• For periods of time when multiple orders were in
  effect, the amount due is not the total of all
  orders. The total amount of support due is
  effectively the highest order that was in effect
  during that period
• Determining controlling order has nothing to do
  with calculation of arrears

23
Direct Enforcement

• Multiple states can have or acquire jurisdiction
  to enforce a support order. The jurisdiction is
  based on personal jurisdiction over the obligor
  or in rem jurisdiction over an asset.
• Direct Income Withholding
• Make sure only one State tries it
• Can use on any valid support order to any state
• Keep issuing state informed of any payments
• Options if there is a contest
• Generally, cannot be used in international cases.

24
Administrative Remedies

• IRS Tax offset
• IRS Full Collection
• Credit Reporting
• Drivers License Suspension Compact
• Interstate Lien
• Interstate Administrative Subpoenas
• AEI
• Not administrative, but sometimes helpful
  federal criminal prosecution

25
Registration Enforcement Only

• Allows the Petitioner to register the order in
  the Respondents state for the sole purposes of
  enforcement.
• Confirmed in 20 days by operation of law unless
  the non-registering party files an objection (NO
  order, NO hearing)

26
Registration Enforcement Only

• Confirmation is of the validity of the order (and
  the amount of arrears alleged)
• No objection can be made to the substantive
  provisions of the order in the registering state
• Laws of the registering state apply for
  enforcement

27
Defenses to Registration

• 1. The issuing tribunal lacked personal
  jurisdiction over the contesting party
•  2. The order was obtained by fraud
•  3. The order has been vacated, suspended, or
  modified by a later order
•  4. The issuing tribunal has stayed the order
  pending appeal
•  5. There is a defense under the law of this
  State to the remedy sought, i.e., enforcement
•  

28
Defenses to Registration

•  6. Full or partial payment has been made
•  7. The statute of limitation under Section 604
  (Choice of Law) precludes enforcement of some or
  all of the alleged arrearage
•  8. The alleged controlling order is not the
  controlling order
•  9. Nonparentage is not a defense

29
Continuing Exclusive Jurisdiction- Jurisdiction
to Modify

• Continuing Exclusive Jurisdiction (CEJ) pertains
  specifically to modification jurisdiction
• A petitioning party must file for modification in
  the state with CEJ
• If the CP, NCP and child have all left the
  issuing state, under UIFSA and FFCCSOA, the
  issuing state loses CEJ and modification must be
  filed in the state of the party that is not
  asking for the modification (Playing Away)

30
Modification

• Once the order is modified, the state that
  modified the order acquires CEJ and will continue
  to exercise CEJ as long as one of the parties or
  child continues to reside there
• The petitioner must file with the issuing
  tribunal a certified copy of the modified order
  within 30 days of its entry.

31
Important Points on CEJ

• Continuing Exclusive Jurisdiction (CEJ) is only
  relevant when one of the parties wants to modify
  the controlling order.
• Under UIFSA, only the state with CEJ has the
  right to modify an existing support order.
• As long as one individual party or the child
  resides in the state which entered the original
  order, that state retains the exclusive
  jurisdiction to modify.
• If all parties move away, but some one comes back
  before CEJ has moved (no modification), CEJ is in
  the issuing state.

32
Modification

• Only the terms that are modifiable in the
  controlling order state can be modified.
• Even if another state has CEJ to modify support,
  it may not modify terms of the original order
  that are non-modifiable

33
Resources

• OSCE website www.acf.dhhs.gov/programs/cse/
• Link to NECSRS http//ocse.acf.hhs.gov/necsrspub/
  
• IM 01-08 is the One-State and Limited Services
  Interstate Case Processing Tempo
• Administrative Subpoena and Notice of Lien forms,
  both found on the Forms link of the OCSE website

34
Resources

• List of State Lien contacts the most recent
  version is available on the on-line IRG
• Transmittal 3, and all interstate forms on the
  forms link
• UIFSA 2001 found at www.nccusl.org

35
UIFSA 2001 States

• Arizona
• California (passed, not in effect!)
• Colorado
• Connecticut
• Delaware
• District of Columbia
• Idaho
• Illinois
• Maine
• Mississippi
• Nebraska

• Nevada
• New Mexico
• Oklahoma
• Rhode Island
• South Carolina
• Texas
• Utah
• Virginia
• Washington
• West Virginia
• Wyoming

36
International

• Other countries do not have UIFSA!!!
• Each country must follow its own laws
• U.S. states must apply UIFSA

37
International Cases

• There is statutory authority for states declare
  foreign countries to be reciprocal if laws are
  substantially similar. This means only that
  there are procedures for establishing and
  enforcing support orders and all parties given
  notice and opportunity to be heard.
• Request for IV-D services received from a foreign
  country must treated as a request from another
  state.

38
International Cases

• PRWORA recognized Federal responsibility for
  international child support enforcement.
• An up-to date list of countries the United States
  maintains reciprocal agreements with can be found
  on the OCSE website.
• International cases can be complex, including
  language and currency conversion.

39
International Issues

• Currency conversion
• Translation
• Communication
• Modification of U.S. order in other jurisdiction
• Personal jurisdiction
• Time zones and dates

40
Currency Conversion

• Including the U.S. dollar equivalent on the
  registration form does not modify the underlying
  foreign order.
• Arrears collection date of breach or date of
  payment
• Be prepared to adjust the account to accommodate
  fluctuating currency exchange rates.
• WWW.Oanda.com

41
Translation

• All legal documents must be translated into the
  official language of the responding jurisdiction.
• Better response if you translate all
  correspondence.
• Cost is borne by the sending jurisdiction.

42
Communication

• Email is great, but remember that this is a
  business communication.
• Fax is also a great tool.
• Telephone is problematic due to language and time
  zone differences.
• TIMELY RESPOND TO ALL INQUIRIES!!

43
Modification by Foreign Jurisdiction

• Under their law, many FRCs can modify a U.S.
  order sent for enforcement.
• Under UIFSA, may be void, commonly ignored by
  initiating U.S. state.
• Creates confusion and imbalance of accounts.
• Consider reviewing for modification in
  appropriate U.S. jurisdiction.

44
Personal Jurisdiction

• UIFSA section 201.
• No child-based jurisdiction in U.S.
• BUT - IV-D agency does not have authority to
  refuse to register an order that is valid on its
  face only a court may refuse enforcement.
• If court refuses enforcement, establish a new
  order immediately.

45
Time Zones and Dates

• Be sure to consider the time differences when
  planning a telephone call or scheduling a court
  appearance involving a telephonic appearance.
• 05/08/07 is August 5, 2007 in most other
  jurisdictions. Spell out the month in
  correspondence and double check court dates in
  number format.

46
Other International Issues

• Service of Process
• Locate requests
• Health care costs and health insurance
• Emancipation
• Forms
• Direct applications from non-reciprocating
  jurisdictions

47
International Resources

• http//www.acf.hhs.gov/programs/cse/international/
  index.html
• Links to FRC web sites and other international
  resources
• OCSE international issuances
• Caseworkers Guide to Processing Cases with
  Foreign Reciprocating Countries
• NCSEA web site www.ncsea.org
• Information for non-FRCs Overview, Addresses,
  Bilingual forms, Relevant laws

48
More International Resources

• The Hague Conference on Private International Law
  web site http//www.hcch.net
• http//travel.state.gov/law/info/info_608.htmlsta
  te
• http//www.state.gov/countries/
• http//travel.state.gov/family/
• services/support/support_582.html