Presentation on theme: "FLOW CHART 1 Foreign Reciprocating Country (FRC) Seeks Paternity Establishment Through State IV-D Agency When Noncustodial Parent (NCP) is Living on a."— Presentation transcript:
FLOW CHART 1 Foreign Reciprocating Country (FRC) Seeks Paternity Establishment Through State IV-D Agency When Noncustodial Parent (NCP) is Living on a Military Base 1 l January 2008 Paternity has not been previously established and FRC seeks paternity to be established in the U.S. FRC sends petition to NCP domiciliary State IV-D agency. IV-D agency serves the NCP as required by State law to obtain personal jurisdiction over NCP. Did the NCP respond after being served with the paternity petition? 5 NOYES Submit case to the tribunal for adjudication 9 that will either establish paternity or determine that the servicemember is not the legal father. 10 IV-D agency may seek entry of a default order but must file an affidavit of military status. Tribunal must appoint an attorney to represent the servicemember’s interests under the Servicemembers Civil Relief Act (SCRA). 2 Attorney contacts service- member. Counsel requests or court on own motion stays proceedings for minimum of 90 days if it makes appropriate finding. 3 Is the attorney able to provide notice of the action of filing to the servicemember and advise servicemember of his rights under the SCRA? IV-D agency may proceed to request a default order; however, default order may be challenged in the future. (Counsel may request additional stay.) NCP admits paternity. NCP requests a stay (minimum of 90 days). 6 Stay is granted. After stay period ends, proceed with case. 8 The IV-D agency (or tribunal) orders and coordinates genetic testing. Waive SCRA and execute voluntary acknowledgment or obtain a consent order from the appropriate tribunal. 7 YES NO NCP denies paternity and/or requests genetic testing to confirm paternity. After stay, proceed with case with servicemember participating in person, via teleconference or through attorney or person granted power of attorney by service-member. (Additional stay may be requested.) 4
FLOW CHART 2 Foreign Reciprocating Country (FRC) Sends Request Through State IV-D Agency Requiring Service of Process When Noncustodial Parent (NCP) is Living on a Military Base 11 l A support order has not been established in the FRC. A support order has been established in the FRC. To obtain responsibility, IV-D agency gets verification that the NCP is a self- declared, continuing resident of that State (therefore, the State’s tribunal may obtain jurisdiction) even though NCP is temporarily located elsewhere. IV-D agency makes determination whether service of process is needed. IV-D agency finds that there already is a support order entered in U.S. (Support order may be in another jurisdiction). NO YES IV-D agency uses the Federal Parent Locate Service to find out where the NCP is currently stationed and/or requests the NCP’s domiciliary State to get information from the Department of Defense. IV-D agency completes service of process abiding by local rules. IV-D agency may be able to serve process via proof of delivery/receipt. If local rules do not allow for this, personal service may be necessary. For assistance, each military base has a legal office that can advise the IV-D agency on how to best serve process on their military base. 13 FRC registers the foreign order by sending to NCP’s domiciliary State IV-D agency. Notice to nonregistering party is generally given by mail. May need to use Department of Defense information to find where NCP is currently stationed to serve notice. 12/13 Enter order.
1 Members residing out-of-state can be served by registered mail through FPO (Fleet Post Office) and APO (Army Post Office) addresses. Most members do not reside at military installations and can be served in the normal manner. Commands generally allow service of process to proceed on members residing at in-state military installations, except in the most unusual circumstances. Marines or Navy members stationed at out-of-state military installations have the discretion to accept service there. See 32 CFR § (2). Service of process is allowed on Army members residing at out-of-state military installations, except in the most unusual circumstances. Army members located at military installations in foreign countries have the discretion to accept service there. Service of process may be difficult or impossible on deployed members. 32 CFR § (2) declares that Navy members are not required to accept service of process from an out-of-state jurisdiction. 2 Servicemembers Civil Relief Act (SCRA), 50 USC App. §§ 501 to 596. States must follow the requirements of SCRA. The affidavit must indicate whether the respondent is in the military, not in the military, or the petitioner doesn’t know whether the respondent is in the military. The Department of Defense has developed a website to which IV-D agency employees can make a request providing the respondent’s name and social security number; within seconds a certificate is generated. When seeking the entry of a default order against a servicemember the tribunal (court or administrative agency) may not enter a judgment until after it appoints an attorney to represent the defendant’s interests. If the tribunal fails to appoint an attorney, then the judgment or decree is voidable. 3 SRCA §201 requires an automatic stay of proceedings will be granted (minimum of 90 days) in default proceedings in which the defendant is in the military service and, upon application of counsel or on the court’s own motion, the court determines that: there may be a defense to the action and a defense cannot be presented without the presence of the defendant; or after due diligence, counsel has been unable to contact the servicemember or otherwise determine if a meritorious defense exists. Actions by the attorney do not waive any defense the servicemember has or otherwise bind the servicemember. The request for a stay does not constitute an appearance for jurisdictional purposes and does not constitute a waiver of any substantive or procedural defense. 4 Tribunal must find that the servicemember’s ability to prosecute or defend the action is “materially affected” by reason of his or her active duty service. The servicemember generally will be required to submit an affidavit setting out the necessary facts supporting the stay request. (See below.) 5 At any point in the proceeding the servicemember may waive their rights under the SCRA. The waiver must be in writing. The servicemember’s legal representative has the authority to sign the waiver on the servicemember’s behalf. 6 SRCA §202: At any stage before final judgment the tribunal may on its own motion and shall, upon application by the servicemember, stay the action for a period of not less than 90 days. An application for a stay must include: a letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect the servicemember’s ability to appear and stating a date when the servicemember will be available to appear; and a letter or other communication from the servicemember’s commanding officer stating that the servicemember’s current military duty prevents appearance and that military leave is not authorized for the servicemember at the time of the letter. Application for a stay does not constitute an appearance for jurisdictional purposes and does not constitute a waiver of any substantive or procedural defense (including a defense relating to lack of personal jurisdiction). 7 If the servicemember is overseas, it may be more streamlined to obtain a consent order than meet State requirements for a voluntary acknowledgment of paternity. 8 The SCRA allows for additional stay periods. If the tribunal denies a properly requested stay, it must appoint counsel to represent the servicemember in the action or proceeding. 9 If genetic test results exclude the alleged father as the parent, the case should still be submitted for a formal finding of non-paternity. 10 If a child support order is requested, wherever possible it should be established when paternity is determined. 11 The provisions of the SRCA described above regarding appointment of counsel, stay of proceedings and written waiver apply to support establishment and enforcement proceedings. The specific requirements are detailed on Flow Chart The registering tribunal must provide notice to the NCP. Per UIFSA §605, the notice to the NCP must include a copy of the registered order and any accompanying documents. It must advise the party: 1) that the registered order is enforceable as of the date registered; 2) that a hearing to contest the validity or enforceability of the registered order must be requested within a specified number of days; 3) that any contest to the alleged arrears amount must be made in a timely manner or the arrears will be confirmed as part of the registration process and will preclude further contest; and 4) that the petitioner has alleged arrears totaling $ (insert sum) [UIFSA 2001 also requires the notice to identify which of multiple orders has been determined to be controlling.] 13 Servicemember can request a stay of not less than 90 days. Servicemember must also submit a supporting letter from their commander.