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UIFSA – Today & Tomorrow

UIFSA – Today & Tomorrow. UIFSA? Tell me more!. Controlling Order The order that governs your case “Which” order is the enforceable order Continuing, Exclusive Jurisdiction (CEJ) “Which” jurisdiction has authority to modify the order. Which State Has CEJ?.

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UIFSA – Today & Tomorrow

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  1. UIFSA – Today & Tomorrow

  2. UIFSA? Tell me more! Controlling Order • The order that governs your case • “Which” order is the enforceable order Continuing, Exclusive Jurisdiction (CEJ) • “Which” jurisdiction has authority to modify the order

  3. Which State Has CEJ? CEJ rules very clear in UIFSA, section 205 CEJ = + Individual Party or Child

  4. What if there is only one order? If there is only ONE order for current support and Obligor, obligee, or child lives in the state with the order then That is the controlling order and that issuing tribunal has CEJ .

  5. What if only one order exists but all the parties have left the state? That is still the controlling order BUT the issuing tribunal does NOT have CEJ to modify the order. If there is only ONE order for current support and No party or child lives in the state with the order, then

  6. What if there are multiple orders? Section 207 of UIFSA has rules for determining the controlling order. The State that issued the controlling order has modification jurisdiction. If there is no controlling order, a state with jurisdiction over the non-requesting party must establish a new order.

  7. Changes from 1996 to 2001 UIFSA • Determination of Controlling Order • Jurisdiction • Who can request and when it can occur • Notice • Findings – consolidation of arrears

  8. Modification jurisdiction • Telephone hearings • International provisions

  9. Why UIFSA 2008? • Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance • Negotiated from 2003 – 2007

  10. US Goals during Hague Negotiation • Minimal burden on IV-D agencies • Procedures that produce results and are accessible, prompt, efficient, cost-effective, responsive, and fair • Cost-free services in international child support cases

  11. Current Status of Ratification • Convention is in Effect! • Norway • Albania • Bosnia and Herzegovina

  12. US Ratification in 2015? One can only hope!

  13. What Needs to Happen? • The Senate gave advice and consent to ratify the Convention on September 29, 2010. • Congress must approve the implementing legislation. • States must adopt UIFSA 2008. • The President must deposit documentation with the Hague Conference on Private International Law ratifying the Convention.

  14. Goals of UIFSA 2008 • Implement the Hague Convention • Address international cases in general • Build upon UIFSA 2001

  15. UIFSA 2008 Drafting Committee • Hague Convention is not exclusive remedy for international case processing. • UIFSA 2001 already contained provisions re: bilateral agreements

  16. Status of Bilateral Agreements The U.S. currently has bilateral reciprocity agreements with 14 countries and 12 Canadian Provinces.

  17. Foreign Reciprocating Countries • Australia • Canadian Provinces/Territories • Alberta, British Columbia, Manitoba, New Brunswick, Northwest Territories, Nunavut, Newfoundland/Labrador, Nova Scotia, Ontario, Prince Edward Island, Saskatchewan, Yukon • Czech Republic • El Salvador • Finland

  18. Foreign Reciprocating Countries (cont’d) • Hungary • Ireland • Israel • Netherlands • Norway • Poland • Portugalnited

  19. Foreign Reciprocating Countries (cont’d) • Slovak Republic • Switzerland • The United Kingdom of Great Britain and Northern Ireland

  20. UIFSA 2008 Drafting Committee • With regard to international case processing -- • UIFSA 1996 & 2001 also already contained provisions re: state reciprocity arrangements. • AND a tribunal may recognize a foreign order on basis of comity. • Some concepts – CEJ and DCO – do not fit neatly in international arena.

  21. New Definition of Foreign Country • UIFSA 2001 incl. “qualified” foreign countries within definition of State • UIFSA 2008 has separate definition that incl. many, but not all, foreign nations:

  22. A country, including a political subdivision thereof, other than the United States, that authorizes the issuance of support orders and: (A) has been declared under US law to be a foreign reciprocating country; (B) Has established a state reciprocal arrangement for child support; (C) Has law or procedures for the issuance and enforcement of support orders which are substantially similar to UIFSA procedures; or (D) In which the Convention is in force with respect to the United States.

  23. Other Definitions • “State” – a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession under US jurisdiction. Term includes an Indian nation or tribe.

  24. Road Map for International Cases • Articles 1 thru 6 (UIFSA 2001+) apply to a support proceeding involving: • A foreign support order; • A foreign tribunal; or • An obligee, obligor, or child residing in a foreign country. • Articles 1 thru 6 may be applied by a tribunal recognizing and enforcing a foreign support order on basis of comity • New Article 7 applies only to Convention proceedings.

  25. Establishment under UIFSA 2008 • “Business as usual”

  26. Enforcement under UIFSA 2008 • Direct income withholding only for support orders issued by a state. No longer requires US employers to honor DIWs from foreign countries. • Registration for enforcement is different if request for enforcement comes from a Hague country.

  27. Registration for Enforcement Procedure for non-Hague Foreign Support Orders UIFSA 2001 Procedure for Hague Foreign Support Orders New Article 7 Major difference Documents Time frames Defenses

  28. Hague Foreign Support Orders Required Documents Non-Hague Foreign Support Orders Transmittal letter Two copies of order, including 1 certified copy Sworn or certified statement of arrears Certain obligor & obligee information Name/address of person to whom support payments to be sent (if applicable) Request for DCO, if appropriate Transmittal letter Complete text of order (or abstract by issuing tribunal) Record: order is enforceable in issuing country Record attesting to due process (if default order) Record: arrears and automatic adjustment of support Record of receipt of free legal assistance in issuing country (if necessary)

  29. Time Frame to Contest Non-Hague Foreign Support Orders Within [20] days after notice of registration Hague Foreign Support Orders Not later than 30 days after notice of registration Not later than 60days after notice if contesting party does not reside in US

  30. “New” Defenses Hague Foreign Support Orders Recognition and enforcement of order is manifestly incompatible with public policy, including failure of issuing tribunal to observe minimum standards of due process; Issuing tribunal lacked personal jurisdiction consistent with Section 201; Order is not enforceable in issuing country; If default order, there was a lack of due process re: notice & opportunity to be heard

  31. Non-Recognition of Hague Order If a tribunal does not recognize a Convention support order because There was a lack of personal jurisdiction There was procedural fraud A proceeding between same parties with same purpose is pending before a tribunal of that state and that proceeding was filed first The order is a default order but the notice and opportunity to challenge did not satisfy due process

  32. Non-Recognition of Hague Order (cont’d) THEN • the tribunal may not dismiss the proceeding without allowing a reasonable time for a party to request the establishment of a new Convention support order. • and the [governmental entity] must take all appropriate measures to request a child-support order for the obligee if the application for recognition and enforcement was received through the Central Authority system.

  33. Modification under UIFSA 2008 • Adds provisions related to modification of order issued by a “state“ • NC order, one party remains in US and other party is in a foreign country • Includes provision related to modification of order issued by a foreign country • Adds provision related to modification of order from a Hague country

  34. Resources Related to UIFSA • TEMPO on DCO (IM-01-02) • TEMPO on UIFSA 2001 (IM-03-01) www.acf.hhs.gov/programs/css • Official Act with Commentary • Status of State Enactment www.uniformlaws.org

  35. Resources-International Child Support OCSE has published Caseworker Guides for specific FCR countries. http://www.acf.hhs.gov/programs/css/international/ State Department has information on enforcing child support orders abroad. http://travel.state.gov/law/family_issues/support_issues/support_issues_582.html NCSEA has FAQs on international child support enforcement. http://www.ncsea.org/resources-info/international-child-support/ The Hague Conference website has recommended forms for the Convention, Country Profiles, and a Caseworker’s Guide www.hcch.net

  36. Contact Information • Margaret Campbell Haynes, Esq. Senior Associate Center for the Support of Families Charlotte, NC 240-743-8007 202-258-2303 mhaynes@csfmail.org

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