2UIFSA What does the future of UIFSA Look like for CA? Presenters:Alisha Griffin, Director - DCSSKristen Erickson Donadee, Attorney - DCSSElizabeth Pak, Attorney - Los Angeles LCSA
3UIFSA 2008 - Background UIFSA 1996 (CA presently operates under this) UIFSA 2001 (CA adopted this but it’s not operative)11/23/2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family MaintenanceUIFSA 2008 (basically UIFSA Convention)
4UIFSA MandateOn September 19, 2014, President Obama signed HR4980 the Preventing Sex Trafficking and Strengthening Families Act which requires all states to enact UIFSA 2008 no later than:“…the first day of the first calendar quarter beginning after the close of the first regular session of the State Legislature that begins after the date of the enactment of this Act.”If a State has a 2-year legislative session, “each year of the session shall be deemed to be a separate regular session of the State Legislature.”
5Where are we now?CA has introduced legislation (Senate Bill 646) to comply with HR 4980UIFSA 2008 will have its own Part in the Family CodeFamily Code §4900 et seq. will be repealedUIFSA will fall under Family Code 5700 et seq.Sections will be renumbered to match UIFSA 2008Example FC § will correspond with UIFSA §101
6Where are we going? Once all states enact UIFSA 2008 … President must sign the instrument of ratificationThen US must deposit its instrument of ratification with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, the depository for the Hague ConferenceTreaty will be effective for the US on the 1st day of the 1st month that is not less than 3 months after the date of the deposit.
7UIFSA 2008 ChangesUIFSA builds on UIFSA 2001 & Implements the HagueArticle I – General ProvisionsArticle II – JurisdictionArticle III – Civil Provisions of General ApplicationArticle IV – Establishment of Support Order or Determination of ParentageArticle V – Enforcement of Support Order without RegistrationArticle VI – Registration, Enforcement & Modification of Support OrderArticle VII – Support Proceeding Under ConventionDifferences in documents, timeframes and defenses -Non-Hague orders: Articles I through VIHague orders: Article VII
8UIFSA 2008: Changes Section 102: “State” now means a U.S. state, territory, or Indian nation or tribe.But remember that in terms of the Convention, a “state” is a country“Foreign country” means:Bi-Lateral agreement for Federal reciprocityState-level agreement for reciprocityEnacted law or established procedures which are substantially similar to UIFSA; orConvention CountryCourts can recognize foreign orders under Comity § 204(a).
9UIFSA 2008: Changes Modification Provisions: Order-issuing state can modify if no party lives there but parties consent. (UIFSA § 205 (a)(2))US tribunal can modify a US order if one person resides in another US state and the other person resides outside the US. (UIFSA § 611)US can modify a foreign order if the foreign country cannot or will not modify its order (UIFSA § 615)
10UIFSA 2008 ChangesSection 312Judicial Non-Disclosure Order no longer needed.Party must allege in an affidavit or declaration that the health, safety or liberty of a party or child would be jeopardized by disclosure of specific identifying information, for information to be sealed and not disclosed.May be disclosed after hearing after considering health, safety or liberty of party or child if in the interest of justice.
11UIFSA 2008: ChangesSection 316: Physical presence of nonresident partyCourts now must allow for the telephonic or other electronic testimony of non-resident party.UIFSA 1996 language indicated the court may permit.*Keep time difference in mind when setting hearings, particularly for international cases
12UIFSA 2008: Changes Section 316: Affidavit “Under oath” replaced with “under penalty of perjury” requirement for documents and affidavits.
13UIFSA 2008: ChangesSection 319: Redirection of Payments and Change of PayeeWhere parties no longer live in the order-issuing state, the IV-D agency where CP resides and receives services may request that the issuing state obtain orders which redirect payment to their SDU.Redirection by IWO or administrative notice of change of payee
14UIFSA 2008 Changes Section 501: Direct Income Withholding Employers do not have to honor Direct Income Withholding orders from foreign countries; no change in that they must honor them for orders issued in another state.
15UIFSA 2008: ChangesSection 506: Contest by Obligor of Out-of-State IWOClarifies that Obligor may register to challenge direct IWO
16UIFSA 2008: Changes Section 602: Registration “Support order…may be registered in this state by sending the following records to the appropriate tribunal…”The word “document” changed to “record” expands meaning to include electronic transmission of documents.
17UIFSA 2008: Changes Section 604: Choice of Law Issuing state’s law governs:nature, extent, amount, duration of current payments,computation and payment of arrearages and accrual of interest on arrearages,existence & satisfaction of other obligationsResponding state’s law governs: enforcementAfter a state has determined Controlling Order Determination, that state’s laws prospectively applies, including its law on interest, current and future support and on consolidated arrears
18UIFSA 2008: Changes Section 307: Convert currency at registration. Example of currency conversion recommended wording for Notice of Registration of Foreign Order:The amount of the alleged arrearages is 900 Euros as of date having a United States of America Dollar equivalence of $___ as of date.
19Hague Maintenance Convention Background 71 countries participated in the negotiationsDifferent legal traditionsDiverse approaches to delivery of child support (maintenance) servicesResult: One convention document, forms, and caseworker practice handbook
20Hague Convention Background United States participated in negotiations and is a signatory to the treaty.Senate gave advice and consent to ratify on September 29, 2010, and the President signed the treatyPublic Law Number (HR 4980): Congress approved implementing legislation on September 29, 2014All states must adopt UIFSA 2008 prior to ratification by President
21Hague Convention Status 32 countries have ratified:NorwayAlbaniaBosnia and HerzegovinaUkraineEuropean Union countries (except Denmark) (as of 8/1/2014)See HCCH.net for updated status, recommended forms, Country Profiles, and Caseworker’s Guide
22Countries Slated to Ratify United StatesAnticipated Summer 2016BrazilBelarusKazakhstanNew ZealandRecent new movementAll ratifications by a state (country) are dependent on each country’s passage of state-level legislation
23Potential Impact of the Convention International Case Research 2013Compared international caseloads in 9 jurisdictionsDiverse jurisdictions; diverse sizesSome conclusions:Caseloads highest with states in close geographic proximityInternational cases have longer lives than domestic casesThe cases look similar to domestic cases
24International Cases & the Hague Convention Non-Hague Foreign Support OrderHague Foreign Support orderTransmittal letter2 copies of order (1 certified)Complete text of order or abstract by issuing tribunalSworn or certified arrears statementRecord: order is enforceable in issuing countryCertain obligor/obligee infoFor a default order, record attesting to due processName/address of person to whom support payments will be sentRecord: arrears and automatic adjustment of supportRequest for Determining Controlling Order, if appropriateRecord of receipt of free legal assistance in issuing country (if necessary)
25International Cases & the Hague Convention Timeline to Contest RegistrationNon-Hague Foreign Support Order (Section 605): within 20 days after notice of registrationHague Foreign Support Order (Section 707)Not later than 30 days after notice of registrationNot later than 60 days after notice if contesting party does not reside in US
26International Cases & the Hague Convention Acceptable Contests to Hague Foreign Support OrdersProcedural fraudProceeding between same parties with same purpose is pending before a tribunal of state and that proceeding was filed first.Issuing tribunal lacked personal jurisdiction consistent with § 201.Order is not enforceable in issuing countryIf an order was obtained by default, it lacked due process re: notice and opportunity to be heardRegistration manifestly incompatible with public policy, including the failure of the issuing tribunal to observe minimum standards of due process
27Non-Recognition of Hague Order If a tribunal does not recognize a Hague order because of:Lack of personal jurisdiction,Procedural fraud, orThe order is a default order in which Respondent neither appeared nor was represented, thenCourt must allow a reasonable time for a party to request establishment of a new Convention order, andDCSS shall take all appropriate measures to facilitate that request.
28Role of Central Authority Entity under the Hague Convention which performs specific functionsThe Central Authority in the US is the Secretary of Health and Human ServicesHHS will designate CA IV-D agency to perform many of the CA functions
29Forms 2014 Intergovernmental Forms Revision Project (OCSE): Addresses sensitive/confidential information (PII)Forms adjusted for UIFSA 2008The Hague Conference website has the mandatory and recommended forms for the Convention, Country Profiles, and a Caseworker’s Guide
30Practical Handbook Practical Handbook for Caseworkers Contains procedures, flowchartsand guidesAvailable on HccH website(http://www.hcch.net/index_en.php?act=publications.details&pid=6095&dtid=3 )
31iSupportCase management application to assist Central Authorities in processing Convention applications and EU regulation casesExpected implementation: Summer, 2016See iSupport page on HccH website (http://www.hcch.net/index_en.php?act=text.display&tid=192)
32iSupport Key Functionality Ability to generate required and recommended Forms in multiple languagesSecure transmission of messages and documents between Central AuthoritiesAllows case managers to track cases and complete required Convention tasksMay be able to handle payment transmissions and exchange in the future
33DCSS Efforts to Implement UIFSA 2008 DCSS Project Management TeamExecutives, Legal, Policy, Intergovernmental Services, TrainingEstablished UIFSA 2008 ForumCA CS CentralWorkgroup with LCSA Volunteers (Feb-March)Reviewed RFCs to Update CSEReviewed DCSS, Judicial Council, OCSE FormsDiscussed Impact to LCSA proceduresDiscussed Training Approach
34Impact on LCSADCSS is developing training to address multiple groups: LCSA, Court, Private barSection 319: Redirection of Payment and Change of PayeeDCSS will receive incoming redirect requestsLCSA training will focus on when and how to request redirect from other statesTelephonic appearance mandatoryNon-Disclosure Declaration or AffidavitJudicial Council and OCSE Forms Updates to comeInternational Cases: Training will focus on long-term impacts and increase in cases