Presentation on theme: "INTERNATIONAL CHILD SUPPORT ISSUES Presenter: Randy Barker Kansas Child Support Chief of Litigation."— Presentation transcript:
INTERNATIONAL CHILD SUPPORT ISSUES Presenter: Randy Barker Kansas Child Support Chief of Litigation
History Babylon 1790 B.C.,, The Code of Hammurabi (Code 137): If a man wish to separate from a woman who has borne him children, or from his wife who has borne him children: then he shall give that wife her dowry, and a part of the usufruct of field, garden, and property, so that she can rear her children. When she has brought up her children, a portion of all that is given to the children, equal as that of one son, shall be given to her. She may then marry the man of her heart.
INTERNATIONAL CHILD SUPPORT ENFORCEMENT UIFSA - We all have it ??? 1996 / 2001 / 2008 HAGUE CONVENTION #38 - Ratified Sept. 30, 2010 42 U.S.C.A. § 659a Fed requirements on International Reciprocating Countries AT-10-06: Final Rule: Intergovernmental Child Support http://www.acf.hhs.gov/programs/cse/pol/AT/2010/at-10-06.htm http://www.acf.hhs.gov/programs/cse/pol/AT/2010/at-10-06.htm 45 CFR 303.7 - See also, changes to 301, 302, 303 and 308 COMITY - Common Law
UIFSA - 1996 - all states required to adopt http://www.ncsea.org/files/UIFSA_1996.pdf UIFSA – 2001 Revisions to UIFSA - requires a federal wavier to adopt http://www.law.upenn.edu/bll/archives/ulc/uifsa/final2001.htm http://www.acf.hhs.gov/programs/cse/pol/IM/2003/im-03- 01a.htm Incorporates the principal of Comity Adopted by: Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, daho, Illinois, Maine, Mississippi, Nebraska, Nevada, New Mexico, Oklahoma, Rhode Island, South Carolina, Texas, Utah, Virginia, Washington, West Virginia, Wyoming.
UIFSA – 2008 Model Act - no federal wavier required to adopt http://www.law.upenn.edu/bll/archives/ulc/uifsa/2008final.htm Incorporates the Hague Convention Passed in: Maine, Nevada, North Dakota Introduced: Missouri, Tennessee*, Wisconsin*, Oklahoma.
UIFSA - 1996 Model Act §101 - Definitions (s) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes: (1) An Indian tribe; and (2) a foreign jurisdiction that has enacted a law or established procedures for issuance and enforcement of support orders which are substantially similar to the procedures under this act, the uniform reciprocal enforcement of support act or the revised uniform reciprocal enforcement of support act.
UIFSA - 2001 § 102 Model Act - Definitions 21) “State”... (B) a foreign country or political subdivision jurisdiction that: (i) has been declared to be a foreign reciprocating country or political subdivision under federal law; (ii) has established a reciprocal arrangement for child support with this State as provided in Section 308; or (iii) has enacted a law or established procedures for the issuance and enforcement of support orders which are substantially similar to the procedures under this [Act]., the Uniform Reciprocal Enforcement of Support Act, or the Revised Uniform Reciprocal Enforcement of Support Act.
UIFSA – 2008 Model Act § 102 - Definitions (5) “Foreign country” means a country, including a political subdivision thereof, other than the United States, that authorizes the issuance of support orders and: (A) which has been declared under the law of the United States to be a foreign reciprocating country; (B) which has established a reciprocal arrangement for child support with this state as provided in Section 308; (C) which has enacted a law or established procedures for the issuance and enforcement of support orders which are substantially similar to the procedures under this [act]; or (D) in which the Convention is in force with respect to the United States.
UIFSA – 2008 Model Act § 102 - Definitions (continued) (6) “Foreign support order” means a support order of a foreign tribunal. (7) “Foreign tribunal” means a court, administrative agency, or quasi-judicial entity of a foreign country which is authorized to establish, enforce, or modify support orders or to determine parentage of a child. The term includes a competent authority under the Convention. (8) “Home state” means the state or foreign country in which a child lived with a parent or a person acting as parent for at 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 or foreign country in which the child lived from birth with any of them. A period of temporary absence of any of them is counted as part of the six-month or other period.
UIFSA 2008 Article 6 Part 4 REGISTRATION AND MODIFICATION OF FOREIGN CHILD-SUPPORT ORDER § 615. JURISDICTION TO MODIFY CHILD-SUPPORT ORDER OF FOREIGN COUNTRY OR POLITICAL SUBDIVISION. (a) Except as otherwise provided in Section 711, If if a foreign country or political subdivision that is a State will not or may not modify its order lacks or refuses to exercise jurisdiction to modify its child-support order pursuant to its laws, a tribunal of this State state may assume jurisdiction to modify the child- support order and bind all individuals subject to the personal jurisdiction of the tribunal whether or not the consent to modification of a child-support order otherwise required of the individual pursuant to Section 611 has been given or whether the individual seeking modification is a resident of this State state or of the foreign country or political subdivision. (b) An order issued by a tribunal of this state modifying a foreign child- support order pursuant to this section is the controlling order.
UIFSA - 2008 ARTICLE 7 SUPPORT PROCEEDING UNDER THE CONVENTION Introductory Comment - This article contains provisions adapted from the Convention that could not be readily integrated into the existing body of Articles 1 through 6. For the most part, extending the coverage of UIFSA (2008) to foreign countries was a satisfactory solution to merge the appropriate Convention terms into this act. In understanding this process, it must be clearly stated that the terms of the Convention are not substantive law.... Thus, the ultimate enforcement of the treaty in the United States will be dependent on the enactment of both federal and state legislation. This act is predicated on the principle that the enactment of UIFSA (2008) will effectively implement the Convention through state law by amending Articles 1 through 6, plus the addition of this article. This will encourage international cooperation by emulating the interstate effect of UIFSA for international cases, especially those affected by the Convention.
UIFSA - 2008 ARTICLE 7 SUPPORT PROCEEDING UNDER CONVENTION SECTION 701. DEFINITIONS SECTION 702. APPLICABILITY SECTION 703. RELATIONSHIP OF [GOVERNMENTAL ENTITY] TO UNITED STATES CENTRAL AUTHORITY SECTION 704. INITIATION BY [GOVERNMENTAL ENTITY] OF SUPPORT PROCEEDING UNDER CONVENTION SECTION 705. DIRECT REQUEST SECTION 706. REGISTRATION OF CONVENTION SUPPORT ORDER SECTION 707. CONTEST OF REGISTERED CONVENTION SUPPORT ORDER SECTION 708. RECOGNITION AND ENFORCEMENT OF REGISTERED CONVENTION SUPPORT ORDER SECTION 709. PARTIAL ENFORCEMENT SECTION 710. FOREIGN SUPPORT AGREEMENT SECTION 711. MODIFICATION OF CONVENTION CHILD-SUPPORT ORDER SECTION 712. PERSONAL INFORMATION; LIMIT ON USE SECTION 713. RECORD IN ORIGINAL LANGUAGE; ENGLISH TRANSLATION
Contest of registration or enforcement – DEFENSES UIFSA 1996 § 607 a)A party contesting the validity or enforcement of a registered order or seeking to vacate the registration has the burden of proving one or more of the following defenses: (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; (6) full or partial payment has been made; or (7) the statute of limitations under section 604 and amendments thereto (choice of law) precludes enforcement of some or all of the arre Contest of registration or enforcement – DEFENSE UIFSA 2001 § 607 The same as 1996 but amended (7) and added (8): (7) the statute of limitation under Section 604 (Choice of Law) precludes enforcement of some or all of the alleged arrearages; or (8) the alleged controlling order is not the controlling order.
Contest of registration or enforcement – DEFENSES (FOR CONVENTION SUPORT ORDERS) UIFSA 2008 § 708 a)Except as otherwise provided in subsection (b), a tribunal of this state shall recognize and enforce a registered Convention support order. (b) The following grounds are the only grounds on which a tribunal of this state may refuse recognition and enforcement of a registered Convention support order: (1) recognition and enforcement of the order is manifestly incompatible with public policy, including the failure of the issuing tribunal to observe minimum standards of due process, which include notice and an opportunity to be heard; (2) the issuing tribunal lacked personal jurisdiction consistent with Section 201; (3) the order is not enforceable in the issuing country;
(4) the order was obtained by fraud in connection with a matter of procedure; (5) a record transmitted in accordance with Section 706 lacks authenticity or integrity; (6) a proceeding between the same parties and having the same purpose is pending before a tribunal of this state and that proceeding was the first to be filed; (7) the order is incompatible with a more recent support order involving the same parties and having the same purpose if the more recent support order is entitled to recognition and enforcement under this [act] in this state; (8) payment, to the extent alleged arrears have been paid in whole or in part;
(9) in a case in which the respondent neither appeared nor was represented in the proceeding in the issuing foreign country: (A) if the law of that country provides for prior notice of proceedings, the respondent did not have proper notice of the proceedings and an opportunity to be heard; or (B) if the law of that country does not provide for prior notice of the proceedings, the respondent did not have proper notice of the order and an opportunity to be heard in a challenge or appeal on fact or law before a tribunal; or (10) the order was made in violation of Section 711 (the Modification section)
CONFIRMED ORDER UIFSA 1996 / 2001 and 2008 § 608 Confirmation of a registered order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration. UIFSA 2008 - § 708 not quite the same Combine § 708(a) and § 707(e).
Hague Convention: Controls certain issues of International Law #38: Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance: Ratified by the USA on September 30, 2010 (see full text at) www.hcch.netindex_en.phpact=conventions.text&cid=131
Hague Convention Article 1 Object The object of the present Convention is to ensure the effective international recovery of child support and other forms of family maintenance, in particular by – a)establishing a comprehensive system of co-operation between the authorities of the Contracting States; b) making available applications for the establishment of maintenance decisions; c) providing for the recognition and enforcement of maintenance decisions; and d) requiring effective measures for the prompt enforcement of maintenance decisions.
Hague Convention (continued) You will need to read it carefully it is very similar to the provisions of UIFSA. Under the language of the Convention our UIFSA forms should provide all the information required by Convention # 38 in transmitting documents to a Reciprocating Country. But: NEW 45 CFR 303.7 (a)(4) Use federally approved forms unless a country has provided alternative forms as part of its chapter in a Caseworker’s Guide to Processing Cases with Foreign Reciprocating Countries. When using paper version, provide the number of copies required by the responding. Also: Translate the documents before sending and include a copy of your states UIFSA code. To prove your law is similar to theirs.
Countries that have ratified the Convention: Norway Countries that are signatories to the Convention Albaina, Bosnia and Herzegovian, European Union, Ukraine, and U.S.A. Non-Member states: Burkina Faso
42 U.S.C.A. § 659a International support enforcement (1) Declaration The Secretary of State, with the concurrence of the Secretary of Health and Human Services, is authorized to declare any foreign country (or a political subdivision thereof) to be a foreign reciprocating country if the foreign country has established, or undertakes to establish, procedures for the establishment and enforcement of duties of support owed to obligees who are residents of the United States, and such procedures are substantially in conformity with the standards prescribed under subsection (b) of this section.
42 U.S.C.A. § 659a (continued) (2) Revocation A declaration with respect to a foreign country made pursuant to paragraph (1) may be revoked if the Secretaries of State and Health and Human Services determine that-- (A) the procedures established by the foreign country regarding the establishment and enforcement of duties of support have been so changed, or the foreign country's implementation of such procedures is so unsatisfactory, that such procedures do not meet the criteria for such a declaration; or (B) continued operation of the declaration is not consistent with the purposes of this part
42 U.S.C.A. § 659a (continued) (3) Form of declaration A declaration under paragraph (1) may be made in the form of an international agreement, in connection with an international agreement or corresponding foreign declaration, or on a unilateral basis.
42 U.S.C.A. § 659a (continued) (b) Standards for foreign support enforcement procedures (1) Mandatory elements Support enforcement procedures of a foreign country which may be the subject of a declaration pursuant to subsection (a)(1) of this section shall include the following elements:
(A)The foreign country (or political subdivision thereof) has in effect procedures, available to residents of the United States-- (i) for establishment of paternity, and for establishment of orders of support for children and custodial parents; and (ii) for enforcement of orders to provide support to children and custodial parents, including procedures for collection and appropriate distribution of support payments under such orders.
42 U.S.C.A. § 659a (continued) (B) The procedures described in subparagraph (A), including legal and administrative assistance, are provided to residents of the United States at no cost. (C) An agency of the foreign country is designated as a Central Authority responsible for (i) facilitating support enforcement in cases involving residents of the foreign country and residents of the United States; and (ii) ensuring compliance with the standards established pursuant to this subsection.
(c) Designation of United States Central Authority It shall be the responsibility of the Secretary of Health and Human Services to facilitate support enforcement in cases involving residents of the United States and residents of foreign countries that are the subject of a declaration under this section, by activities including-- (1)development of uniform forms and procedures for use in such cases; (2) notification of foreign reciprocating countries of the State of residence of individuals sought for support enforcement purposes, on the basis of information provided by the Federal Parent Locator Service; and (3) such other oversight, assistance, and coordination activities as the Secretary may find necessary and appropriate.
(42 USCS 659a continued) (d) Effect on other laws States may enter into reciprocal arrangements for the establishment and enforcement of support obligations with foreign countries that are not the subject of a declaration pursuant to subsection (a) of this section, to the extent consistent with Federal law.
Foreign Reciprocating Countries - as of 2012 http://www.acf.hhs.gov/programs/cse/international/ Australia Canada Czech Republic El Salvador Finland Hungary Ireland Israel Netherlands Norway Poland Portugal Slovak Republic Switzerland The United Kingdom of Great Britain and Northern Ireland
Intergovernmental Child Support - Final Rule Changes to 45 CFR 301, 302, 303, 305 and 308 Comprehensive intergovernmental regulation (states, tribes, foreign countries) Replaces 1988 interstate regulation 45 CFR 303.7 Applies only to state IV-D programs Effective date: January 3, 2011
45 CFR sections with important changes: (§301.1) General Definitions (§302.36) State Plan Requirements for the provision of services in intergovernmental cases (§303.7) Standards for Program Operations for the provision of services in intergovernmental cases (§303.11) Case Closure Criteria (§305.63) Standards for Determining Substantial Compliance with IV-D Requirements (§308.2) Required Program Compliance Criteria
Requires that each state’s child support state plan provides that the full range of child support services be provided to any: (a)(1) State IV-D program (a)(2) Tribal IV-D program (a)(3) “Country” as defined in §303.1 Foreign Reciprocating Countries (FRCs) and Countries with State-level agreements
State Plan Amendments: States are required to resubmit 2 state plan preprint pages to certify compliance with the Intergovernmental Child Support Final Rule. 1.Preprint page 2.6 is revised and now titled Provision of Services in Intergovernmental IV-D Cases 2.Preprint page 2.15, Annual State Self-Assessment Review and Report, has not been revised State plan amendments were completed by March 31, 2011.
TWO CHANGES TO NOTE: One fixes a problem and one creates a problem: 1)§ 303.7(e)(1) The Responding IV-D agency must pay for the costs of Genetic Testing. 2)§ 303.7(d)(6)(iii) Moves the responsibility for reporting arrears to Credit Reporting Agencies to the Responding State.
INTERGOVERNMENTAL CHILD SUPPORT - FINAL RULE websites AT-08-02: Distribution of Federally Approved Standard Intergovernmental Child Support Enforcement (CSE) Forms http://www.acf.hhs.gov/programs/cse/pol/AT/2008/at-08-02.htm AT-10-06: Final Rule: Intergovernmental Child Support http://www.acf.hhs.gov/programs/cse/pol/AT/2010/at-10-06.htm
COMITY When no statutory law applies, common law might: “Courtesy, Respect, or deference to the judgment of a court from another sovereignty.” “Although the determination by the U.S. State Department that a foreign nation is a reciprocating county is binging on all states, recognition of foreign support orders through comity is dependent on the law of each UIFSA state.” UIFSA 2001 comments § 104
Office of Child Support v. Sholan, 172 Vt. 619, 783 A.2d 1199 (2001) It is uncontested by the parties that no formal declaration by the Secretary of State has been made under the authority of 42 U.S.C. § 659a recognizing the Federal Republic of Germany as a foreign reciprocating country. Nor is it contested that Vermont has not entered into a reciprocal arrangement, pursuant to 42 U.S.C. § 659a, with that country. This does not, however, preclude Vermont from giving effect to foreign child support orders under the doctrine of comity.
COMITY (continued) Sholan further states: “As a general matter, under principles of comity, final judgments of courts of foreign nations which concern recovery of sums of money, the status of a person, or determine interests in property, are conclusive between the parties to the action and are entitled to recognition in United States courts.”
Restatement (Third) of Foreign Relations Law of the United States § 481 (1987). The Restatement further refines the principle of comity, providing that “[a] foreign judgment is generally entitled to recognition by courts in the United States to the same extent as a judgment of a court of one State in the courts of another State.”
... For a court to recognize and give effect to a foreign order, the judgment must have been: - rendered under a judicial system which provides impartial tribunals - procedures compatible with due process of law, - have had personal jurisdiction over the defendant,
-have had subject matter jurisdiction over the action; - the defendant must have been given adequate notice of the proceeding; - the judgment was obtained without fraud; - the original action or judgment must be in accord with state or federal public policy; Restatement (Third) of Foreign Relations Law of the United States § 482(2) (1987d.)
CASE LAW This case law relates specifically to Germany, because they are a good example of the non-reciprocating Country (state), which has laws which are substantially similar ours. Research has shown several states have considered whether a German court’s support order was enforceable under UIFSA., all the recorded decisions found have held that German court orders are enforceable under UIFSA or URESA. No decisions to the contrary have been found. Willmer v. Willmer, 144 Cal.App.4th 951, 956; 51 Cal.Rptr.3d 10, 13, (2006) (Cal.App. 1 Dist. Oct 18, 2006) (NO. A108621), as modified (Nov 13, 2006). A well reasoned decision describing why a German support order can be enforced in California (and any where else the United States).
Lunceford v. Lunceford, 204 S.W.3d 699 (Mo.App. W.D. Nov 07, 2006) (NO. WD65338). An interesting case where Kansas recognized a German divorce decree that lacked a support order, entered a support order there on, and Missouri recognized that Kansas retained continuing jurisdiction over child support thereafter. Office of Child Support Enforcement v. Gauvey, 96 Ark.App. 342, 241 S.W.3d 771 (Ark.App. Oct 25, 2006) (NO. CA06-103). Where Arkansas recognized that it could enforce not only a German child support order, but also spousal maintenance under UIFSA. Liuksila v. Stoll, 887 A.2d 501 (D.C. Dec 08, 2005) (NO. 03-FM-1226). In the District of Columbia, the respondent failed to follow the proper procedure, and his challenge to personal jurisdiction by the German court was res judicata and barred from consideration by the appellate court. The German order was enforceable.
Salles v. Salles, 928 So.2d 1, 2004-1449 (La.App. 1 Cir. 12/2/05) (La.App. 1 Cir. Dec 02, 2005) (NO. 2004 CA 1449). Louisiana recognized the German support order as enforceable, but found authority to modify the amount under state law. Pfeifer v. Cutshall, 851 A.2d 983, 2004 PA Super 206 (Pa.Super. Jun 03, 2004) (NO. 1400 WDA 2003) The Pennsylvania court recognized the German child support order but disallowed arrears that were not part of the order and which predated the order. Lang v. Lang, 157 N.C.App. 703, 579 S.E.2d 919 (N.C.App. May 20, 2003) (NO. COA02-1064). The North Carolina courts recognized the German order but the issue was whether North Carolina could exercise personal jurisdiction to enforce the order.
STUFF TO KNOW ABOUT KANSAS 1.Dormancy and Extinction of Child Support Judgments 2.Common Law principal of “Laches” 3. Effect of age of emancipation 4.Interstate Issues Unique to Kansas
K.S.A. 60-2403 Judgment, when dormant (NEW LANGUAGE) (b) Except for those judgments which have become void as of July 1, 2007, no judgment for the support of a child shall be or become dormant for any purpose except as provided in this subsection. If a judgment would have become dormant under the conditions set forth in subsection (a), the judgment shall cease to operate as a lien on the real estate of the judgment debtor as of the date the judgment would have become dormant, but the judgment shall not be released of record pursuant to subsection (a). Essentially if your judgment was not extinct on July 1, 2007 It will remain alive forever…
Child Support Judgments can still be in danger K.S.A. 60-260 Relief from Judgment (same as federal rule) One year limitation: 1) Mistake, inadvertence, surprise or excusable neglect; 2) Newly discovered evidence, which with reasonable diligence, could not have been discovered it time to request a new trial. 3) fraud, intrinsic or extrinsic, misrepresentation or misconduct by opposing party. No Time Limitation: 4) Judgment is void 5) Judgment has been satisfied, reversed or vacated; or applying it prospectively in no longer equitable; 6) Any other reason the justifies relief.
Laches - equitable principal designed to bar stale claims - Only applies to arrears owed to an emancipated child - and then only based on special circumstances. -Never applies to arrears owed to a minor child. Matter of the Marriage of Jones, 22 Kan.App.2d 753, 921 P.2d 839 (1996) parties colluded in obtaining order. two children – one emancipated, one still a minor. Court could apply laches to emancipated child’s arrears as now only a reimbursement action. Court could not apply laches to minor child’s arrears as they are for the support of a child.
Emancipation When does child support stop? Controlling statute, K.S.A. 60-1610 (a) Age 18 unless: - Parents agree in writing; or - Child still in High School, then duty to support continues to end of the school year. (June) - If the child still in a ‘bona fide’ high school program support can continue through child’s 19 th year, only by motion to the court and both parents jointly or knowingly acquiesced in holding the child back in school.
INTERSTATE ISSUES UNIQUE TO KANSAS In the Matter of the Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989) Existing Father & Child relationship should not be disturbed unless the court first determines that a paternity action is in the child’s best interest. Applied to incoming interstate cases. (our law imposed on you) State of Florida, on behalf of Petit v. Breedon, 21 Kan.App.2 nd 490, 901 P.2d 1357(1995) The best interest hearing can only be held in the home state of the child.