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UIFSA: Uniform Interstate Family Support Act.

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Presentation on theme: "UIFSA: Uniform Interstate Family Support Act."— Presentation transcript:

1 UIFSA: Uniform Interstate Family Support Act.
Joseph W. Booth, JD, M.Div, FAAML Nelson & Booth 10990 Quivira Rd. Suite 160 Overland Park, KS 66216 ABA Advisor to the 2001 NCUSL Drafting Committee of UIFSA Joseph W. Booth is a partner in the firm of Nelson & Booth of Overland Park Kansas. Nelson & Booth as a firm specializes in family law and appellate practice. Mr. Booth was the ABA advisor to the 2001 NCUSL drafting committee of UIFSA. Joe is also the chair of the ABA Family Law Section, Child-Support Committee. Mr. Booth holds a Masters of Divinity degree from St. Paul School of Theology with honors and practiced as a United Methodist Minister for a few years before going to Washburn School of Law where he graduated cum laude in Joe is a Fellow of the American Academy of Matrimonial Lawyers. Joseph W. Booth -- Nelson & Booth Overland Park, KS

2 Over this hour: The uniform act (both 1996 and 2001) versions.
The goal of this session is to provide a practical introduction into the act and its use interstate and internationally. Joseph W. Booth -- Nelson & Booth Overland Park, KS

3 Joseph W. Booth -- Nelson & Booth Overland Park, KS 913-469-5300

4 UIFSA 1996 to UIFSA 2001 1996: Pursuant to the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) every state had to pass the 1996 version of UIFSA in order to be eligible for federal funding of child-support enforcement. (P.L , §321, 110 Stat. 2221). 2001: The National Conference of Commissioners on Uniform State Laws (NCCUSL), at the request the child-support community, made certain modifications which were finally approved in the NCCUSL annual meeting of August 2001. Joseph W. Booth -- Nelson & Booth Overland Park, KS

5 Jurisdictions with UIFSA 2001
Arizona California Colorado Illinois Main Mississippi Nebraska New Mexico Oklahoma Texas Utah Virginia Washington West Virginia Wyoming The District of Columbia, Indiana & South Carolina are currently considering the act and the last word was that the chances of it passing soon in the District of Columbia & South Carolina are very good. Congress is also considering legislation to mandate the passage of UIFSA 2001 in every state. is the hyperlink to NCCUSL committee resources. For the legislative fact sheet, states adopted and in process: Joseph W. Booth -- Nelson & Booth Overland Park, KS

6 Agenda Determine the scope of the act. Use of the act in
Establishment of support Enforcement of this state’s support order Enforcement of another state’s support order Modification of a child support order Determination of a controlling order. Establishment of Parentage Joseph W. Booth -- Nelson & Booth Overland Park, KS

7 Scope The purpose of UIFSA is regulate a one order system for the establishment of and maintenance of support orders. Establishes and limits jurisdiction Creation of a support order and parentage orders Modification of a support order Enforcement of a support order out of state Enforcement of a support order of another state by this state Obtain assistance from foreign states in discovery etc. Not an exclusive remedy. (§104 Remedies Cumulative). Enforce a support order as a foreign judgment Comity Private counsel has the same access to the act as do tribunals and support enforcement authorities. (§309). The 2001 amendments made several changes to §104 trying to clarify the 1992 version and its intent. The modifications are more to clear up previous ambiguities than they are to change the law. In fact, it would be a reasonable to refer to the amendments found in §104 (2001) in trying to point out that the remedies are indeed cumulative and the court can recognize a foreign child support order on the basis of comity. New section 104 reads: Remedies provided by this [act] are cumulative and do not affect the availability of remedies under other law, including the recognition of a support order of of a foreign country or political subdivision on the basis of comity. (b) this [act] does not: (1) provide the exclusive method of establishing or enforcing a child support order under the law of this state; or (2) grant a tribunal of this state jurisdiction to render judgment or issue an order relating to [child custody or visitation] in a proceeding under this [act]. The issue of controlling and recognizing parentage orders is an often unrecognized component of UIFSA. Article 7 §701 allows a court of this state that’s authorized to determine parentage of a child to serve as a responding tribunal in a proceeding to determine parentage of requested to do so by another court in another state. §315 will not allow a obligor of support to use non-parentage as a defense if parentage has been established. Joseph W. Booth -- Nelson & Booth Overland Park, KS

8 The overarching goal of UIFSA was to create a one order system.
Establish support The overarching goal of UIFSA was to create a one order system. Portability Enforcement Efficiency Modification Conflict Resolution Joseph W. Booth -- Nelson & Booth Overland Park, KS

9 UIFSA controls jurisdiction
UIFSA sets out different jurisdictional requirements depending on the context: The establishment of a support order The modification of a support order issued by another state. The enforcement of an order by this state. The enforcement of another state’s order directly. UIFSA does not allow a tribunal to decline jurisdiction as it can under child custody law. (See official comment to §611). Joseph W. Booth -- Nelson & Booth Overland Park, KS

10 UIFSA is unique in that it allows the parties to create subject matter jurisdiction by agreement.
UIFSA does allow very unique circumstances where parties can agree to subject matter jurisdiction. §611 (a) (2) allows the parties to agree to modification jurisdiction of this state which is the residence of the child, or an individual party is subject to the personal jurisdiction of that state; and, written consents by all parties were filed in the original issuing tribunal transferring jurisdiction to the new state. UIFSA (2001) also allows an issuing state to continue to have modification jurisdiction by joint consent of the parties even after all of the parties and the child moved out of the state. §205(a)(2) UIFSA (2001). Joseph W. Booth -- Nelson & Booth Overland Park, KS

11 Vocabulary: Key concepts of support enforcement.
§ 101 of the uniform act provides a comprehensive lexicon of key terms. 22 term are defined specifically for the support community. Key terms with more unique meanings are as follows: State Register Home State Registering Tribunal Initiating State & Tribunal Responding State Issuing State & Tribunal Responding Tribunal Obligee & Obligor Income-withholding order Section 101 contains statutory definitions of 22 terns. These terms are the ones that seem to merit specific attention. Joseph W. Booth -- Nelson & Booth Overland Park, KS

12 State Any “state” stands equal to any other “state”.
UIFSA offers a broad definition of a state. All 50 states plus Washington DC, Puerto Rico, the US Virgin Islands, any other US territory or insular possession. American Indian tribes A foreign jurisdiction that has enacted a law or established procedure for insurance of enforcement of support orders which are substantially similar to the procedures under this act. Australia Canada Czech Republic Ireland Netherlands Norway Poland Portugal Slovak Republic Switzerland The latest Federal Register to publish reciprocity agreements was Vol. 69 No. 193, Oct. 6, 2004 p , currently on line at: And link to the register pages. This U.S. Department of health & Human Services, Office of Support Enforcement cite also has other links of use to keep up on the latest on international support, UIFSA and the exact text to agreements. The 2001 version of UIFSA modifies state even further to allow for a more generous application of reciprocity. The state definition, in reference to a foreign country or political subdivision, has been expanded to include the following: A foreign country or political subdivision that: has been declared to be a foreign reciprocating country or political subdivision under federal law; has established a reciprocal arrangement for child support with this state as provided in §308. There are effectively three ways the foreign jurisdiction (such as a state of a foreign country or foreign country itself) can have their orders and forced under UIFSA: 1) declaration by the US State Department of a reciprocity agreement; 2) an individual state has made an arrangement with that foreign country or their state for reciprocal enforcement of child support; 3) court itself can simply find that the foreign jurisdiction has or procedure substantially similar to UIFSA. Making reciprocity “the law of the case” in particular situations. Joseph W. Booth -- Nelson & Booth Overland Park, KS

13 Home state (101.4) The state in which a child lived with a parent or a person acting as a parent for least six consecutive months immediately preceding the time of filing of a petition or comparable pleading for support and, if a child is less than six months old, the state in which the child lived from birth with any of them. A period of temporary absence from any of them is counted as part of the six-month or other period. The primary use of “home state” is for establishment of an initial support order, or the choice of more than one possible jurisdiction. “Home state” has a limited purpose in child support enforcement. “Home state” is identical to the Federal Parental Kidnapping Prevention Act 42 U.S.C. 7738 (PKPA); as well as the UCCJA and UCCJEA . The home state concept one that is often misunderstood in both child-support and child custody jurisdiction. In both contexts “home state” is a concept dealing with the living circumstances of the child before a petition is filed. One of the more common mistakes that people make in UIFSA analysis is to assume that home state is disproportionately important. In child-support, the focus is usually more on the payor and payee and how the court can obtain jurisdiction over either of them then it is on the child who’s the most common beneficiary of support. Once a support obligation is established the location of the child is important in only a few contexts. One of which is when both parties and the child have left the original state, than modification needs to be reanalyzed and a new form must be found. (See §611 & §613 for discussions on jurisdiction to modify child support orders of other states). For example: under §207 if there are more than one controlling order and both tribunals issuing those orders for child support have CEJ than the tribunal that had home state jurisdiction controls, but only if the child still resides in that state. Otherwise, the most recent order controls. (§207 (b) (2)). Again, home state becomes important, although not called home state, in §611(a)(2) where parties who have all vacated the issue in state are allowed to consent to jurisdiction for modification purposes if the new state is the residents of the child or of a party who is an individual subject to the personal jurisdiction of this state. Home state has one area where it certainly can throw its weight around. Pursuant to §204 if there are simultaneous pleadings in two or more states, home state is the most important criteria for the court to consider. Joseph W. Booth -- Nelson & Booth Overland Park, KS

14 Initiating state and Initiating tribunal. (§§101.7 & 101.8)
The “initiating” state & tribunal is the place from which a proceeding is filed and sent out to a foreign state. An initiating tribunal acts as a ministerial agent to forward pleadings to a responding state. (§304). An example would be a parentage action. (§701). An initiating tribunal may or may not issue a support order. Joseph W. Booth -- Nelson & Booth Overland Park, KS

15 Issuing state & tribunal (101.9 & 101.10)
This is the place where a support order is issued or a parentage judgment is issued, some examples include: Medical support order. Child support order Maintenance or Alimony Parentage judgment. Joseph W. Booth -- Nelson & Booth Overland Park, KS

16 Obligee vs. Obligor. Obligee “give Me (obligeeee) the money!”
In the context of alimony, the obligee and the beneficiary is almost always the same person. Any individual who is asserting a claim for support, not yet a recipient. In child support the obligee is rarely the beneficiary, usually a parent taking care of the child Other legal custodian (foster parent, grandparent, etc.) Can be a support agency or the state having a statutory authority to get reimbursement of support (TANF 42 U.S.C. §601 et seq.). Obligor, the one who owes a duty of support. Any one liable under a support order. Could also be an individual defending a claim against support. Joseph W. Booth -- Nelson & Booth Overland Park, KS

17 To register a support order:
Means to record or file a support order or judgment determining parentage. (§ ) Of the “Registering tribunal” is simply the tribunal in which a support order is registered. (§101.15) Registration is a detailed process initializing enforcement jurisdiction. An order does not have to be registered to have effect in foreign jurisdiction, for example an income-withholding order issued in state A is enforceable in state B. Joseph W. Booth -- Nelson & Booth Overland Park, KS

18 Responding State or Tribunal
A responding state or tribunal is the place in which an order, already existing, is registered or where a proceeding is initiated. The order may be for support. The action may be to modify support or start a new action. For example, in a parentage action a sister-state may request a state to establish parentage over a person, but not support. Joseph W. Booth -- Nelson & Booth Overland Park, KS

19 §301 provides a roadmap to the act.
Revisions of 2001 completely eliminate the “roadmap” which is originally put in place because the large number of bureaucratic administrators employed by child-support enforcement agencies to manage the statute. It was thought the statute would be so complex child-support authorities needed some kind of guidance within the statute itself in order to understand its use. This provision is now seen as worldly unnecessary. While the provision itself may be relegated to historical obscurity, its outline still provides helpful guidance in moments of need. The flow chart above is simply a further distillation of the road map created by the 1992 Drafting Committee. Joseph W. Booth -- Nelson & Booth Overland Park, KS

20 Where do support orders come from:
Divorce 10 years after the wedding the probability of a 1st marriage having ended by divorce is 33% Probability of 2nd marriage having ended by divorce 10 years after that second wedding is 39%. Paternity suits After 10 years the probability of cohabitants separating is 62%. Across demographic lines about 1/3 of us are born out of wedlock In certain economic and racial groups that ratio is as high as 2/3. Marital Separation 91% of white women divorce after 3 yr separation. 77% of Hispanic women 67% of black women CDC, Cohabitation, Marriage, Divorce and remarriage in the U.S., Series Rpt. 23, No. 22 (PHS) CDC, Sutton, Mathews, Trends in Characteristic of Births by State: US 1990, 1995, & , Div. of Vital Stats, Vol. 52, No. 19 (May 10, 2004). 2002 Statistics for USA of children born out of wedlock. All races: 34% Non-Hispanic white: 23% Hon-Hispanic black: 68.4 American Indian total: 59.7 Asian or Pacific Islander: 14.9% Hispanic: 43.5% Joseph W. Booth -- Nelson & Booth Overland Park, KS

21 Establishment of support by a non-resident of a resident
Establishment of support by a non-resident of a resident. Actions under article 2. Remember: were talking about establishing an original support order, not to modify one that has already been made. §201 is essentially a “long arm statute” (more on this in a minute). Once jurisdiction is established for an order, the issuing state has “continuing exclusive jurisdiction” (CEJ) to modify or enforce its orders. Joseph W. Booth -- Nelson & Booth Overland Park, KS

22 Continuing Exclusive Jurisdiction §205 (CEJ)
Continuing Exclusive Jurisdiction is one of the central concepts involved in UIFSA. As long as any of the individual parties or the child continue to reside in the state, that state/tribunal has the sole authority to modify its own order. It does not matter whether it is one of the individual parties or the child that remain in the state. Individual parties is intended to exclude support enforcement authorities. Even if all the parties and the child no longer reside in the state the orders are still effective & fully enforceable until modified pursuant to article 6. The CEJ of a spousal support order is permanent. Once established, the court with CEJ may request other courts to enforce its orders, if necessary modify its orders, or respond to the request of other states attempting to enforce this state’s order. (§206). UIFSA 2001 involves significant changes to the statutory language in §205; however, its effect remains essentially unchanged, the changes were more editorial in nature intended to clarify the meaning of the statute. It is sometimes more difficult to state things that are legal truisms, then it is to state things that are unusual in nature under the law. What is new under UIFSA (2001) is the provision that would allow the parties to consent on the record to continuing jurisdiction of the original issuing state. The exact language is: “even if this State is not the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued, the parties consent in a record or in open court that the tribunal of this State may continue to exercise jurisdiction to modify its order.” (§205). Especially in border communities, it is common for the parties to move across state lines and lose jurisdiction when no one longer resides in the issuing court’s jurisdiction. Consider the following hypothetical: the Kansas City Metropolitan area is bisected by the Kansas-Missouri State line. The parties are divorced in Kansas, and Kansas has said spousal support and child-support orders. Father has left Kansas. Mother and the children moved to Missouri. The move was only a few blocks. The Kansas court continues to have CEJ over spousal support but has lost CEJ over child support. The parties would prefer to make necessary adjustments to modify spousal support and child support in the same court. Under UIFSA (2001) the parties can consent to Kansas jurisdiction and not be required to handle the child-support in Missouri and spousal support in Kansas. Joseph W. Booth -- Nelson & Booth Overland Park, KS

23 Simultaneous proceedings §204
This state may exercise jurisdiction to establish a support order after a pleading in any other state has been filed only if: This pleading is filed before the expiration of time in the other state challenge jurisdiction The contesting party timely challenges the exercise of jurisdiction in the other state If relevant, this state is the home state of the child For the same reasons, the state shall not establish a child support order if the above procedure has been followed in the petition was followed in a sister state. If there are essentially simultaneous proceedings going on, one of the two states with competent jurisdiction must defer to the other. This statute essentially sets up a scenario that the home state is preferred. In addition jurisdiction over the contesting party resolves itself because there are the one who files the second petition. By choosing home state as the preferable location, UIFSA eliminates the “first filing” rule. If the child has no home state, then the first to file rule applies. Obviously if one of the two competing states is found to not have competent jurisdiction for other reasons, the survivor wins. Joseph W. Booth -- Nelson & Booth Overland Park, KS

24 §201 long arm jurisdiction elements:
Personal service; Consent, by entering a general appearance, or by filing a representative document having the effect of waiving any contest to personal jurisdiction; Residence within the state; The individual resided in this state and provided prenatal expenses or support for the child; The child resides in this state as a result of the acts or directives of the individual; The individual engaged in sexual intercourse in this state & the child may have been conceived by that act of intercourse; or, There’s any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction. The long arm jurisdiction of UIFSA is designed to be as permissive as possible in extending jurisdiction of the state attempting to establish support. The pre-factory note to UIFSA 2001 states the one reason for this broad provision for long-arm jurisdiction is to provide the tribunal of the state of residence of the spouse or a child entitled to support with a maximum possible opportunities to secure personal jurisdiction over an absent respondent. The note goes on to state, that the intention was to create a one step, one order system instead of two state proceedings. Joseph W. Booth -- Nelson & Booth Overland Park, KS

25 §201 use for the establishment of support only.
§201 (2001) added the following element: (b) The basis of personal jurisdiction set forth in subsection (a) or in any other law of this State may not be used to acquire personal jurisdiction for a tribunal of the State to modify a child support order of another State unless the requirements of Section 611 or 615 are met. Joseph W. Booth -- Nelson & Booth Overland Park, KS

26 Extended discovery rules.
§210, all assist in providing “remote control” of interstate enforcement of support. The statutes provide a way for the court to obtain evidence, provide for discovery, and hear testimony from more than one location. The nonresident party, may appear by and present evidence on telephone and telecopier as a matter of right. (§316). The courts may discuss issues directly with one another. (§317). Courts of the various states assist one another in discovery. (§318). Joseph W. Booth -- Nelson & Booth Overland Park, KS

27 The process of registration (Article 6 of the act).
A registered order is a foreign support order or an income withholding order enforceable in this state. (§601). UIFSA divides registration into two concepts: Registration for enforcement Registration for modification. The procedure for the registration of a foreign support order is streamlined. A formal filing need not be made, a simple letter will do. The person seeking enforcement only needs to use a certified copy, enforcement of a foreign judgment may require more sophisticated authentication and certification, and can generally only be filed by a licensed attorney in this state. Under UIFSA, one does not had a license to practice law in this state where the order is to be registered. §312 In both versions of the act provide for the nondisclosure of identifying information, including address, if such information is likely to place a party, or the child, in harm’s way. UIFSA (2001) significantly redrafted the language in this section been the intent remains the same. The new language is primarily to make the uniform acts consistent with one another. Joseph W. Booth -- Nelson & Booth Overland Park, KS

28 Conflicting child-support orders. §207
UIFSA requires that orders issued pursuant to competent jurisdiction by other states be recognized. UIFSA does not allow a state to create multiple orders. §207 is a cornerstone of the one-order-system. This is in accordance with federal law: Full Faith and Credit for Child Support Orders (FFCCSOA) 28 USC 1738B. Several amendments to §207 made under UIFSA (2001) were designed to assist the support enforcement authorities in managing jurisdiction cases, establishing a control in order, calculating payments, and computing interest. Joseph W. Booth -- Nelson & Booth Overland Park, KS

29 Duties of tribunal to resolve conflicting support orders:
If a particular tribunal, or state, is confronted with multiple child-support orders with regard to the same obligor and the same child it must determine the controling order pursuant to the rules set out in §207(b). If tribunal has CEJ If more than one state has CEJ: of the order was issued by the child’s “home state” controls; but only if the child still resides there, otherwise the most recent order controls. Courts cannot give preference to their order over support orders for others by other states. (§208). The court must also credit all payments made by an individual obligor for the an individual beneficiary in all orders and jurisdictions as well. (§209). Demanding an one-order-system simply isn’t good enough! UIFSA also had to solve the inevitable conflicts of different people attempting to establish support in different places. Conflicts are bound to arise. The original draft of UIFSA rightfully presumed that previous versions of the statute resulted in multiple orders. While multiple orders are more rare today, pursuant to the universal enactment of UIFSA, they still occur and must be dealt with. Additionally, as more and more “states” are added to the potential list of candidates under UIFSA pursuant to reciprocity agreements on the federal and on the state level these rules will continue to be useful. Joseph W. Booth -- Nelson & Booth Overland Park, KS

30 Establishment of support over a resident by a resident. Article 4.
Empowers the state to initiate proceedings over a resident as a responding tribunal. Individual seeking the support order resides in another state or a support enforcement agency is located in another state that wishes to seek enforcement. Also allows for temporary orders if the resident/party is a parent. Joseph W. Booth -- Nelson & Booth Overland Park, KS

31 Enforcement without registration
Essentially this is the process of using income-withholding orders from other states. And tribunal may issue an income withholding order that is effective in other states, because UIFSA mandates an employer’s compliance with income withholding orders from other states. §502. An employer would apply the law of its own state in determining rules of priority between more than one income withholding order against any single person. §503. Employers are immune from civil liability for following the foreign court’s order. §504. The punishments for failure to comply with the legitimate income withholding order from a foreign state are the same as those for failing to comply with an income withholding order of the employer’s state. §505 Of obligor has reason to contest withholding order they may do it in the employer’s state. §506. Simply put, an enforcement agency or a private practice attorney can get an income withholding order issued by a court in one state and directly enforce a support order (alimony or child support) in a distant state. The employer simply treats it as though the income withholding order was issued by its own state. The obligor essentially does the same. This means that in income withholding order can be issued in any “state” by any other state without registration or without the filing of any documents before the court of that foreign state. Eliminates the need to have attorneys retained in more than one state for routine income withholding enforcement. The only time a party would really need to register an order is if they wanted it enforced, for nonpayment or – in some circumstances – to modify the order. Joseph W. Booth -- Nelson & Booth Overland Park, KS

32 Limits for Income Withholding orders.
The income withholding order may mandate a larger amount than the employer can withhold. Child support > legal limit imposed on employer = legal limit Federal limits: 15 USC 1673 sets limits in various contexts on garnishments. The employer would look to the law of the state of the obligor’s principal place of employment for the limits on garnishment amounts & employer’s process fees. The employer limits the withholdings to the lower of the state or federal restriction on garnishment regardless of the order amount. The issuing tribunal’s limit is not relevant. 15 USC § 1673. Restriction on garnishment (a) Maximum allowable garnishment Except as provided in subsection (b) of this section and in section 1675 of this title, the maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment may not exceed (1) 25 per centum of his disposable earnings for that week, or (2) the amount by which his disposable earnings for that week exceed thirty times the Federal minimum hourly wage prescribed by section 206 (a)(1) of title 29 in effect at the time the earnings are payable, whichever is less. In the case of earnings for any pay period other than a week, the Secretary of Labor shall by regulation prescribe a multiple of the Federal minimum hourly wage equivalent in effect to that set forth in paragraph (2). (b) Exceptions (1) The restrictions of subsection (a) of this section do not apply in the case of (A) any order for the support of any person issued by a court of competent jurisdiction or in accordance with an administrative procedure, which is established by State law, which affords substantial due process, and which is subject to judicial review. (B) any order of any court of the United States having jurisdiction over cases under chapter 13 of title 11. (C) any debt due for any State or Federal tax. (2) The maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment to enforce any order for the support of any person shall not exceed— (A) where such individual is supporting his spouse or dependent child (other than a spouse or child with respect to whose support such order is used), 50 per centum of such individual’s disposable earnings for that week; and (B) where such individual is not supporting such a spouse or dependent child described in clause (A), 60 per centum of such individual’s disposable earnings for that week; except that, with respect to the disposable earnings of any individual for any workweek, the 50 per centum specified in clause (A) shall be deemed to be 55 per centum and the 60 per centum specified in clause (B) shall be deemed to be 65 per centum, if and to the extent that such earnings are subject to garnishment to enforce a support order with respect to a period which is prior to the twelve-week period which ends with the beginning of such workweek. Joseph W. Booth -- Nelson & Booth Overland Park, KS

33 Procedure (§602) to register an order
A letter of transmittal to this tribunal requesting registration and enforcement Two copies, including one certified copy, of all orders to be registered, including any modification of an order. A sworn statement by the party seeking registration, or a certified statement by the custodian of the record showing the amount of any arrearage The name and another identifying characteristics (social security #) of the obligor. The name and address of the obligee. (May be omitted in some circumstances). On receipt, the registering tribunal shall cause the order to be filed as a foreign judgment, together with one copy of the documents and information, regardless of form. Other pleadings may be included No fees or costs involved. (§313). To register for modificatioin: use the same procedure but you may add your motion to modify to the packet. (§609). Joseph W. Booth -- Nelson & Booth Overland Park, KS

34 Registration of a support order
You register an order in a different state in order to enforce that order (eg, a contempt proceeding) or because that new state has jurisdiction to modify the order. Registration of a support order is like enforcing a foreign judgment, only the support order does not have to have become a judgment. (Support orders don’t become a judgment until a month after they come due). Registration of another state’s order makes that order as enforceable in that state as it would’ve been had the order been made by a tribunal in that state. §603. Joseph W. Booth -- Nelson & Booth Overland Park, KS

35 Due process requirements for registration.
The non-registering party has a right to notice. (§605) Copies of the order as well as any allegation of arrearages That a registered order is enforceable as of the date of registration in the same manner as though it were issued by this State. That to contest the validity or enforcement of the registered order a hearing must be requested within [20] days after notice; Failure to contest the validity or enforceability of the registered order will result in confirmation of the order and any alleged arrearages. If the non-registering party contest the validity or enforcement of registered order or its arrearages alleged they are entitled to a hearing. (§606). Joseph W. Booth -- Nelson & Booth Overland Park, KS

36 Defenses to the registration for enforcement §607
The issuing tribunal lacked personal jurisdiction over the contesting party. Order was obtained by fraud Invalid order: vacated, suspended, or modified by a later order. The issuing tribunal has stayed the order pending appeal; There is a defense under the law of this state to the remedy sought; Full or partial payment has been made; The statute of limitation under §604 has lapsed for all or some of the arrearages New for UIFSA (2001) the alleged controlling order is not the controlling order. (§607(8)(2001)). Joseph W. Booth -- Nelson & Booth Overland Park, KS

37 Tribunal’s response to contest of registration
The tribunal may stay any portion under dispute. §607 (b) The tribunal may continue to enforce any undisputed portion of the order. §607 (b) Determine that no valid defense was established and enforce the order in whole. §607 (c) The order may be confirmed §608. If confirmed whether by operation of law (no contest to the registration) or after notice and hearing a final order is issued, of all further contests of the order are precluded with respect to any matter that could have been asserted at the time of registration. For example: if child support order is registered with an allegation of arrearages and then the non-registering party believes of the arrearages no longer exist and have been paid, they can challenge the arrearages and litigate that issue while the enforcement of the current child support order carries forward without interruption. If they fail to challenge the registration as to arrearages, then all alleged arrearages are enforceable in that state. Joseph W. Booth -- Nelson & Booth Overland Park, KS

38 Choice of law §604 The local tribunal applies its familiar procedures to enforce support, but it is enforcing another state’s order. Absent the loss of continuing exclusive jurisdiction (CEJ) the order never becomes an order of the responding state. The nature extent amount and duration of current support payments. Duration: the duration of child-support is set by the law of the issuing state in the original order. Even if the order is modified, you still look to the law of the original child-support order to find the duration of the support. For example a child support order issued originally in New York State will be in effect until the child’s 21st birthday even if all parties move to a new state where child support would have ended at 18 years of age. Conversely, the original child-support order was issued in a jurisdiction where support inns at 18 years of age and then everybody moves to a new jurisdiction were support into 21 years of age, the new court does not have jurisdiction to extend child-support pass the original age of majority. Practice Tip: if you know you are dealing with an interstate case, the original child-support order should include that state’s law for duration. The law of the issuing state also governs whether a support obligation has been satisfied, for example by third-party payments. The duration question has been addressed in a number of cases. And the results, while not universal, have been on the overall consistent. In order to clear up any inconsistencies UIFSA (2001) also has modified §611 (c) limiting the authority of the state with modification jurisdiction by clearly stating that it may not modify the duration of the obligation of the child-support originally set by that first issuing state. Also, (d) In a proceeding to modify a child support order, the law of the state that is determined to have issued the initial controlling order governs the duration of the obligation of support. The obligor’s fulfillment of the duty of support established by that order precludes imposition of any further obligation of support by tribunal of this state. (§611 UIFSA (2001)). Joseph W. Booth -- Nelson & Booth Overland Park, KS

39 Choice of law for modification:
If the issuing tribunal no longer has continuing exclusive jurisdiction (CEJ), then you use the new state’s requirements, procedures, and defenses for those modifiable aspects. The state has modification jurisdiction uses its own child support guidelines. You use the longer of the two statute of limitation rules. §604 (b). Joseph W. Booth -- Nelson & Booth Overland Park, KS

40 UIFSA is designed to deal with a mobile society
A child support order can last for two decades Child support orders are often modified several times in a child’s life. Spousal support orders can last a lifetime. Children are particularly effected by parents moving. It is likely (if not probable) that a support order will have to have interstate enforcement and modification. Joseph W. Booth -- Nelson & Booth Overland Park, KS

41 Survey of College Students
In a recent survey: 61% of all college students whose parents have divorced experienced a move of more than one hour’s drive by at least one parent during childhood. Braver, Sanford; Ellman, Ira; Fabricius, William; Relocation of Children After Divorce & Children’s Best Interests: New Evidence and Legal Considerations., Journal of Family Psychology (June 2003) Vol 17(2) P Joseph W. Booth -- Nelson & Booth Overland Park, KS

42 US Census Data: % of population moving by age.
There are two populations that move with great regularity, children and adults 20 to 40 years of age – the age group adults have minor children. Source: U.S. Census Bureau, Current Population Survey, 2004 Annual Social and Economic Supplement Internet Release Date: June 23, 2005 Joseph W. Booth -- Nelson & Booth Overland Park, KS

43 Modification of a child support order from another state
Can only apply to child-support orders. Modification of the child-support order from another state necessarily means that the original state has lost continuing exclusive jurisdiction (CEJ). Again, this can only happen when the child and all the parties have left the issuing state. Once modification jurisdiction is assumed, the new state is the one with CEJ over all modifiable aspects. If this state’s order has been modified it may still enforce its own order as to arrears and interest occurring before the modification, enforce the non-modifiable aspects of the order and provide relief for violations of its own orders that occurred before the effective date of the new modification. §612. UIFSA mandates that a state whose order has been modified must recognize – upon registration – the modified elements for enforcement. §612. Modification jurisdiction is a very unique and narrow concept. In analyzing jurisdictional issues for child support the first question is always whether or not the issuing tribunal has lost continuing exclusive jurisdiction. If they have, then a new state with appropriate jurisdictional foundation can issue a new controlling order. Joseph W. Booth -- Nelson & Booth Overland Park, KS

44 Modification jurisdiction: Initial determination on where the parties live.
If both parties have exited the state that issued the last order, and the child no longer resides in that state the modifiable aspects of that order can be changed. The first step is to determine if both parties now live in the same state. If so, §613 prevails. If neither the child nor the individual obligee and the obligor reside in the issuing state, but the obligee and the obligor each reside in different states then §611 controls. Joseph W. Booth -- Nelson & Booth Overland Park, KS

45 Modification of support orders of another state when all of the parties reside in this state. §613
All the parties in the child no longer reside in the issuing state. Both parties (or all the parties) reside in this state. The only place the child cannot reside is in the issuing state. If so, the state’s law applies for everything and it is no longer an interstate issue except for those original nonmodifiable aspects of the child support order. Duration, for example, remains unaffected from the original order. This state’s procedure and child-support worksheet apply. Joseph W. Booth -- Nelson & Booth Overland Park, KS

46 Modification of a child support order of another state when the parties both don’t reside in this state. §611 applies when §613 does not. A child support order may be modified by this state under §611 by the joint consent of the parties to jurisdiction: All parties have filed a consent in the issuing tribunal for a tribunal of this state to modify the support order and assume CEJ and this is the residence of the child, or the state has personal jurisdiction over one of the parties. Joseph W. Booth -- Nelson & Booth Overland Park, KS

47 Modification when both parties have left the original state, cont:
The “Away Game Rule” When neither the child, nor the individual obligee, nor the obligor reside in the issuing state. The petitioner [movant] is a nonresident. The respondent is subject to personal jurisdiction of the tribunal of this State. Can only modify the “modifiable terms” not duration but can modify the payee or the amount. Use your own child support guidelines. This new state now has CEJ until the “respondent” moves away. Joseph W. Booth -- Nelson & Booth Overland Park, KS

48 Notice to issuing tribunal of modification.
§614 mandates that the party who obtains a modification order must, within 30 days of modifying a child support order originally issued by another state, register that order in that earlier tribunal which had continuing, exclusive jurisdiction over the earlier order. The party must also notify each tribunal it goes the order has been registered in. Failure to notify prior tribunals of modifications can result in sanctions against the party who obtained the modification. Joseph W. Booth -- Nelson & Booth Overland Park, KS

49 Final Exam! Joseph W. Booth -- Nelson & Booth Overland Park, KS

50 All modifications must be made in Oregon
Scenario 1: divorce in Oregon; Mom still lives in Oregon; Dad & Daughter move to S. Carolina. All modifications must be made in Oregon Joseph W. Booth -- Nelson & Booth Overland Park, KS

51 Scenario 2: Original orders in California: Mom and son live in Kansas, Dad lives in The Netherlands. Mom wants to modify support. Issuing State Answer: Mom must “play an away game” and go to the Netherlands for modification Joseph W. Booth -- Nelson & Booth Overland Park, KS

52 Joseph W. Booth, JD, M.Div, FAAML Nelson & Booth
10990 Quivira Rd. Suite 160 Overland Park, KS 66216 ABA Advisor to the 2001 NCUSL Drafting Committee of UIFSA Joseph W. Booth -- Nelson & Booth Overland Park, KS

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