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OVERVIEW

OVERVIEW. History of Interjurisdictional Law URESA/RURESA FFACCSOA UIFSA CEJ, DCO, ROA Federal Intergovernmental Regulations International Cases The New Hague Convention. LEGISLATION. Uniform Reciprocal Enforcement of Support Act (URESA)

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OVERVIEW

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  1. OVERVIEW • History of Interjurisdictional Law • URESA/RURESA • FFACCSOA • UIFSA • CEJ, DCO, ROA • Federal Intergovernmental Regulations • International Cases • The New Hague Convention

  2. LEGISLATION Uniform Reciprocal Enforcement of Support Act (URESA) Revised Uniform Reciprocal Enforcement of Support Act (RURESA) Full Faith and Credit for Child Support Orders Act (FFACCSOA) – October 22, 1994 Uniform Interstate Family Support Act (UIFSA) – all states on or before January 1, 1998 (UIFSA 1996, 2001, 2008)

  3. INTERGOVERNMENTAL DESK AID

  4. URESA/RURESA Uniform Reciprocal Enforcement of Support Act and Revised version Promulgated by NCCUSL in 1950, original version adopted by all states. Revised version adopted by all but 13 states. Created a two-state process for establishing and enforcing support orders. Registration introduced for first time in revised version (1968 and after).

  5. URESA/RURESA Usually resulted in de novo order in second (or third or fourth) state. Modified original order only if specific language included. Result: support orders in differing amounts in every jurisdiction in which obligor resided long enough to be served process. All orders valid and enforceable. Payments credited to all orders – amount of obligation was not compounded.

  6. FFACCSOA Full Faith and Credit of Child Support Orders Act • 28 U.S.C. § 1738B, effective October 22, 1994 • First introduced concept of continuing exclusive jurisdiction • Intended to force all states to recognize the concept, even those that had not enacted UIFSA • Should be read in harmony with UIFSA • But, see Draper v. Burke, (Mass. 2008) 881 N.E.2d 122, 450 Mass. 676

  7. ADOPTION OF UIFSA • 1996 PRWORA (Welfare Reform) mandated that states enact UIFSA • The Goal- One Controlling Order Multiple states may enforce the order, but only one has the jurisdiction to modify it.

  8. UIFSA BASICS New cases will get only one order. States must recognize and enforce existing orders of other States. There should be only one order that is entitled to prospective enforcement-- the controlling order Modification is restricted to the state that has CEJ.

  9. KEY CONCEPTS There are one-state and two-state procedures Both CP and NCP can use UIFSA Controlling Order means one order/one time/one place for current child support The state that issued the controlling order may modify, so long as it has CEJ If no CEJ, person seeking modification must play away

  10. KEY CONCEPTS States must recognize and enforce other States’ orders Visitation may not be raised and is not a defense to nonpayment of support UIFSA has enhanced evidence rules Non-paternity is not a defense, if paternity has been established or acknowledged CEJ and controlling order only apply to current – prospective – support

  11. ANALYZING A CASE • If there is no order, an order needs to be established. • If there is only one order, determine whether it needs enforcement or modification. • If there are multiple orders for prospective support, the controlling order must be determined before going any further.

  12. CHOICE OF LAW In cases involving the establishment of parentage or a support obligation, the law where the case is heard applies. The jurisdiction enforcing the order determines how it is enforced. The laws of the state that issued the order determine if the order is satisfied

  13. JURISDICTION • Jurisdiction refers to the power of a tribunal to decide a case. • There are several different types of jurisdiction • Subject-matter jurisdiction • Personal jurisdiction • Long-arm jurisdiction (also called extended personal jurisdiction) • In rem jurisdiction

  14. CONTINUING EXCLUSIVE JURISDICTION Continuing Exclusive Jurisdiction (CEJ) pertains specifically to modification jurisdiction A petitioning party must file for modification in the state with CEJ If the CP, NCP and child have all left the issuing state, under UIFSA and FFACCSOA, the issuing state loses CEJ and modification must be filed in the state of the party that is not asking for the modification (Playing Away)

  15. CEJ INFORMATION IN CSE

  16. MODIFICATION Once the order is modified, the state that modified the order acquires CEJ and will continue to exercise CEJ as long as one of the parties or child continues to reside there The petitioner must file with the issuing tribunal a certified copy of the modified order within 30 days of its entry.

  17. IMPORTANT POINTS ON CEJ CEJ is only relevant when one of the parties wants to modify the controlling order. Under UIFSA, only one state can modify an existing order – the one with CEJ or that can obtain CEJ under the facts As long as one individual party or the child resides in the issuing state, that state retains the exclusive jurisdiction to modify. If all parties move away, but some one comes back before CEJ has moved CEJ remains in the issuing state.

  18. MODIFICATION Only the terms that are modifiable in the controlling order state can be modified. Even if another state has CEJ to modify support, it may not modify terms of the original order that are non-modifiable

  19. DETERMINING THE CONTROLLING ORDER Since 1998 , States have been striving to acknowledge only one order for each parent and child, but there may still be cases with multiple orders. The determination of one controlling order is the cornerstone of UIFSA and FFACCSOA. When multiple valid support orders exist, there are rules for determining which prospective support order governs.

  20. DETERMINING CONTROLLING ORDER (DCO)

  21. DCO • Must give full faith and credit to valid support orders issued by other states • UIFSA and FFACCSOA use the same rules for reducing multiple valid support orders to one controlling order for prospective support. • No provision in either law invalidates any previously issued valid support order.

  22. DCO • A controlling order determination should be made only once, when multiple orders exist. • For a state to make a controlling order determination, all of these conditions must exist: • There must be multiple orders for current support • Either the obligor or the individual obligee must reside in the state • The request must be accompanied by a certified copy of every order in effect

  23. DCO • When more than one order issued for current support exists: • If only one state would have CEJ, the order of that state controls, or • Order of child’s home state controls, or • Most recent order controls. If none of the tribunals would have continuing, exclusive jurisdiction, this state, having personal jurisdiction over the parties, shall issue a child support order which controls.

  24. ORDER DETERMINING THE CONTROLLING ORDER The order must include: the basis upon which the determination was made and should include (required under UIFSA 2001) the amount of prospective support and the amount of arrears and interest Within 30 days, the requesting party must file a certified copy of the determination order with each tribunal that had issued an earlier child support order

  25. RECONCILIATION OF ARREARS • Arrears reconciliation consolidates arrears accumulated under multiple orders into a single amount that the obligor owes at a specific point in time. • The process of calculation is based on: • The periodic amount of the support order • The number of unpaid periods • All payments made are credited against all orders (orders are not cumulative)

  26. CALCULATING ARREARS For periods of time when multiple orders were in effect, the amount due is not the total of all orders. The total amount of support due is effectively the highest order that was in effect during that period Determining controlling order has nothing to do with calculation of arrears

  27. FEDERAL INTERGOVERNMENTAL REGS

  28. INTERNATIONAL ISSUES • Other countries do not have UIFSA!!! • Each country must follow its own laws • U.S. states must apply UIFSA

  29. REGISTRATION Registration is used for enforcement or modification (when appropriate, see CEJ discussion) of order from reciprocating country For orders issued by a nonreciprocating country, registration can be used if you are prepared to show laws are similar, otherwise use comity.

  30. REGISTRATION • An LCSA does not have authority to determine if order is enforceable if it is regular on its face, i.e. when obligor states he has never been in the other jurisdiction claiming no personal jurisdiction. • LCSA must register the order and leave it for the court to determine • However, if other parent cannot provide evidence of facts sufficient to satisfy California’s notion of due process and personal jurisdiction, the LCSA should be prepared to file a summons and complaint to establish support.

  31. MORE ON REGISTRATION Since we collect in U.S. Dollars, include language on registration statement regarding the U.S. Dollar equivalent. • Including U.S. Dollar equivalent does not modify order – obligor still owes support in the amount, and in the currency, of the original order.

  32. CURRENCY CONVERSION Including the U.S. dollar equivalent on the registration form does not modify the underlying foreign order. Arrears collection: “date of breach” or “date of payment” Be prepared to adjust the account to accommodate fluctuating currency exchange rates. WWW.Oanda.com

  33. UIFSA 2008 • Coming soon – UIFSA 2008 • Includes all the current provisions in UIFSA 2001 • Note that this means all the other provisions of UIFSA 2001 will be part of UIFSA 2008, so states like California, with UIFSA 1996, will have to make the changes for interstate cases to comply with UIFSA 2001 in addition to the changes for international cases to comply with UIFSA 2008 • Adds Article 7 to cover provisions of the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (the Hague Convention on Child Support) • Amends other provisions relating to international support enforcement as appropriate

  34. KEY PROVISIONS IN UIFSA 2008 Country Profiles Forms “Simplified” processing in some Countries. Elimination of exequatur. If a responding State cannot enforce the requesting State’s judgment, the responding state must enter a new judgment of support. Contracting States must have a Central Authority.

  35. INTERNATIONAL CASES AFTER UIFSA 2008 • THREE TYPES OF INTERNATIONAL CASES: • Convention cases – between two contracting States • Non-convention, reciprocity cases – between two jurisdictions with reciprocity but one or both have not ratified the Convention. • Non-convention, non-reciprocity cases – direct applications, or enforcement of orders, from a non-convention, non-reciprocating jurisdiction.

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