Presentation on theme: "UIFSA: Uniform Interstate Family Support Act. Joseph W. Booth, JD, M.Div, FAAML Nelson & Booth 10990 Quivira Rd. Suite 160 Overland."— Presentation transcript:
UIFSA: Uniform Interstate Family Support Act. Joseph W. Booth, JD, M.Div, FAAML Nelson & Booth Quivira Rd. Suite 160 Overland Park, KS ABA Advisor to the 2001 NCUSL Drafting Committee of UIFSA
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.
UIFSA 1996 to UIFSA : 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.
Jurisdictions with UIFSA 2001 ArizonaCaliforniaColoradoIllinois MainMississippiNebraskaNew Mexico OklahomaTexasUtahVirginia WashingtonWest VirginiaWyoming 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.
Agenda Determine the scope of the act. Use of the act in Establishment of support Enforcement of this states support order Enforcement of another states support order Modification of a child support order Determination of a controlling order. Establishment of Parentage
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).
Enforcement Portability Establish support The overarching goal of UIFSA was to create a one order system. Conflict Resolution Modification Efficiency
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 states order directly. UIFSA does not allow a tribunal to decline jurisdiction as it can under child custody law. (See official comment to §611).
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).
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: StateRegister Home StateRegistering Tribunal Initiating State & TribunalResponding State Issuing State & TribunalResponding Tribunal Obligee & ObligorIncome-withholding order
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
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.
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.
Issuing state & tribunal (101.9 & ) 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.
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.
To register a support order: Means to record or file a support order or judgment determining parentage. (§101.14) 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.
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.
§301 provides a roadmap to the act.
Where do support orders come from: Divorce 10 years after the wedding the probability of a 1 st marriage having ended by divorce is 33% Probability of 2 nd 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
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.
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 states order. (§206).
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.
§201 long arm jurisdiction elements: 1)Personal service ; 2)Consent, by entering a general appearance, or by filing a representative document having the effect of waiving any contest to personal jurisdiction; 3)Residence within the state; 4)The individual resided in this state and provided prenatal expenses or support for the child; 5)The child resides in this state as a result of the acts or directives of the individual; 6)The individual engaged in sexual intercourse in this state & the child may have been conceived by that act of intercourse; or, 7)Theres any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction.
§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.
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).
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.
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.
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 childs 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).
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.
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 employers 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 courts 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 employers state. §505 Of obligor has reason to contest withholding order they may do it in the employers state. §506.
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 obligors principal place of employment for the limits on garnishment amounts & employers 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 tribunals limit is not relevant.
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).
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 dont become a judgment until a month after they come due). Registration of another states order makes that order as enforceable in that state as it wouldve been had the order been made by a tribunal in that state. §603.
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  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).
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)).
Tribunals 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.
Choice of law §604 The local tribunal applies its familiar procedures to enforce support, but it is enforcing another states 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 childs 21 st 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 states law for duration. The law of the issuing state also governs whether a support obligation has been satisfied, for example by third-party payments.
Choice of law for modification: If the issuing tribunal no longer has continuing exclusive jurisdiction (CEJ), then you use the new states 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).
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 childs 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.
Survey of College Students In a recent survey: 61% of all college students whose parents have divorced experienced a move of more than one hours drive by at least one parent during childhood.
US Census Data: % of population moving by age. Source: U.S. Census Bureau, Current Population Survey, 2004 Annual Social and Economic Supplement Internet Release Date: June 23, 2005
Modification of a child support order from another state. §§611, 612 & 613. 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 states 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: 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.
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 states 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 states procedure and child-support worksheet apply.
Modification of a child support order of another state when the parties both dont 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.
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.
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.
Scenario 1: divorce in Oregon; Mom still lives in Oregon; Dad & Daughter move to S. Carolina. All modifications must be made in Oregon
Scenario 2: Original orders in California: Mom and son live in Kansas, Dad lives in The Netherlands. Mom wants to modify support. Answer: Mom must play an away game and go to the Netherlands for modification Issuing State
Joseph W. Booth, JD, M.Div, FAAML Nelson & Booth Quivira Rd. Suite 160 Overland Park, KS ABA Advisor to the 2001 NCUSL Drafting Committee of UIFSA