Dear Colleague DC-95-01
UIFSA Retreat Notes
January 4, 1994
DC-95-01
TO ALL STATE IV-D DIRECTORS
Dear Colleague:
Attached are notes from the Uniform Interstate Family Support Act
(UIFSA) Retreat held in Fairfax, Virginia on November 16 and 17,
1994. This working meeting brought together major UIFSA players and
attempted to develop consensus on many of the issues and questions
regarding UIFSA.
We would like to thank those of you who attended or sent
representatives to the meeting. All of the participants were
actively involved and provided valuable information and insight. We
realize that State resources are scarce and appreciate the commitment
that you made to the retreat.
If your State is implementing UIFSA or will implement UIFSA in the
future, we hope the attached notes will be useful in helping to
resolve many issues. Even if your State is a URESA State, the notes
address issues that may arise as you process interstate cases
received from UIFSA States or send cases to responding UIFSA States.
We hope that these notes will help States develop and agree upon a
uniform interpretation of UIFSA, which will ultimately lead to
greater standardization in interstate case processing.
Sincerely,
David Gray Ross
Deputy Director
Office of Child Support
Enforcement
Attachment
cc: ACF Regional Administrators
CSE Program Managers
UIFSA Retreat
Fairfax, Virginia
November 16 and 17, 1994
The UIFSA Retreat, held November 16 and 17, 1994 in Fairfax,
Virginia, was a collaborative effort of the Office of Child Support
Enforcement, the American Bar Association, and the National Child
Support Enforcement Association. Approximately 60 representatives
from State IV-D programs, the Federal OCSE, employer/payroll groups,
and other entities attended the retreat.
The purpose of the retreat was to bring together major UIFSA players
and to develop consensus on many of the issues and questions
regarding UIFSA. In order to address as many issues as possible,
participants were divided into four groups, each addressing a
different topic. The four groups were: direct wage withholding,
modification, enforcement, and general provisions.
The attached notes summarize the discussions of each of the four
groups. The consensus reached by group participants does not
represent Federal policy and is not binding on other States.
However, these notes may help States develop and agree upon a uniform
interpretation of UIFSA, which will ultimately lead to greater
standardization in interstate case processing.
UIFSA Retreat Participants
Modification
Leader: David Stillman, Policy & Program Development Manager,
Washington IV-D
Facilitator: Vince Herberholt, Administration for Children &
Families, OCSE, Region X
Recorders: Marilyn Cohen, Program Specialist, Federal OCSE
Andrew Williams, Program Specialist, Federal OCSE
Participants: Mark Close, Program Specialist, South Dakota IV-D
Jarnice Johnson, Human Services Program Consultant,
Virginia IV-D
Sally McKenzie, Executive, Illinois IV-D
Dorinda Morris, Attorney, Oklahoma IV-D
Barbara Morris-Williams, Attorney, Arkansas IV-D
Barbara Paulin, IV-D Director, Delaware
Rhonda A. Pressley, Assistant Attorney General, Texas IV-D
Marianne Upton, Policy Branch Chief, Federal OCSE
Carol Ann White, Statewide Support Coordinator, California
Attorney General's Office
Direct Withholding
Leader: Barry Brooks, Attorney Trainer, Texas IV-D
Facilitator: Donna Bonar, Director of Program Operations Division,
Federal OCSE
Recorders: Pat Hagen, Program Specialist, Federal OCSE
Dianne Offett, Program Specialist, Federal OCSE
Participants: Jeff Ball, Assistant to the Deputy Director, Federal
OCSE
Susie Becker, Administrative Program Specialist, Colorado
IV-D
Laura Begley, Regional Manager, Arizona IV-D
Amy Bryant, City of Houston, representing the American
Payroll Association (APA)
Kay Dunkelberger, Central Registry/Interstate Manager,
Minnesota IV-D
Christine Garcia, Policy Coordinator, New Mexico IV-D
Mike Goeddeke, Chrysler Corporation, representing American
Society for Payroll Management
Mary Jane Hamilton, Deputy Attorney General, California
Attorney General's Office
Margaret (Meg) Lawless, Deputy Attorney General, Idaho IV-D
Debera Salam, Payroll Support Associates, representing
American Society for Payroll Management
Mary E. Smith, Acting Program Coordinator, Arkansas IV-D
Vikki Williams, Vice President, Policy Studies Inc.
Enforcement
Leader: Meg Haynes, Director, American Bar Association Child
Support Project
Facilitator: Linda Deimeke, Program Specialist, Federal OCSE
Recorders: Steve Cesar, Program Specialist, Federal OCSE
Mae Rowlett, Program Specialist, Federal OCSE
Participants: Karen Anderson, Attorney, Nebraska IV-D
Randy M. Barker, Attorney, Kansas IV-D
H. Van Beggarly, Vice President, National Comprehensive
Services
Corporation; CSENet Subcontractor
Christine Brogdon, Assistant Project Administrator, South
Carolina IV-D
Betsy S. Elliott, Senior Special Counsel, Virginia IV-D
Judi Johnson, Programs Supervisor, Oklahoma IV-D
Alicia Key, Assistant Attorney General, Texas IV-D
Thomas Mato, Legal Counsel, Maine IV-D
Diane Pietrzak, Manager, Oregon IV-D
Tom Spahr, Regional Attorney, New Mexico IV-D
Mary Ann Wellbank, IV-D Director, Montana
General Provisions
Leader: Marilyn Ray Smith, Chief Legal Counsel, Massachusetts IV-D
Facilitator: Karen Bartlett, Program Specialist, Federal OCSE
Recorders: Hope Butler, Program Specialist, Federal OCSE
Tom Killmurray, Program Specialist, Federal OCSE
Participants: The Honorable Ellen Brantley, Judge, Chancery and
Probate Court,
Arkansas
John Cheng, Child Support Systems, Administration for
Children and
Families
Nancy J. Crawford, Special Counsel, Virginia IV-D
Doretha Smith Henderson, Assistant Attorney General, Texas
IV-D
Ann Hunter, Special Assistant to the Director,
Washington, D.C. IV-D
Eleanor Landstreet, Executive Director, NCSEA
Dan Radin, Washington Association of Prosecuting Attorneys
Paula Roberts, Senior Attorney, Center for Law and Social
Policy
John Sadlouskos, Program Development Specialist, Arizona
IV-D
John J. Sampson, Professor, University of Texas Law School,
NCCUSL Co-Reporter
MODIFICATION
Determining the Controlling Order
Section 207 of UIFSA provides a priority scheme for determining which
order to recognize for purposes of continuing, exclusive
jurisdiction.
Issue: When multiple orders exist in a case, at which point should
a UIFSA state make a determination about which order is
controlling?
ù Upon confirmation of registration?
ù Upon registration for enforcement?
ù Upon registration for modification?
ù Before taking any new administrative enforcement
action?
ù Or should the state conduct a complete census of its
entire caseload and determine the controlling order
for each case?
Conclusion: No participant thought a IV-D agency should do a
complete census of its entire caseload and determine
the controlling order for each case. It would be
prohibitive to assess all orders that are out there.
This is a resource issue; it is not so simple to
gather and analyze orders.
In the ongoing caseload, where an interstate case already
exists, this matter should be left to state policy; the
answer may depend on the particular case circumstances.
Participants did not think it was possible to develop
uniform consensus in this area. However, participants
generally agreed that a controlling order determination
should be made when a request for new action comes in on
ongoing cases. Some states make a determination whenever
they "pick a case up to work it". Other states only make
the determination when they have to take a UIFSA action
(have to take to court or send off to another state).
In new cases (when registering or confirming an order for
the first time in the responding jurisdiction), a
determination of the controlling order needs to be made
when enforcing the order prospectively or modifying the
order. No determination is necessary if a responding
jurisdiction is registering/confirming an order for
enforcement of arrears only. Texas makes a determination
on the date that the tribunal issues an order for
prospective support. Region X states have developed
similar policy. In new cases, a determination can be made
at any of the following points: upon confirmation of
registration, upon registration for enforcement, or upon
registration for modification.
In cases where an order is registered with no contest,
UIFSA provides that the registered order is confirmed by
operation of state law without issuance of a confirming
order by the responding tribunal. In this case, will it be
unclear that a controlling order determination has been
made? One participant indicated that there should be no
confusion if the initiating state clearly indicated which
order it wanted registered. Another participant said that
even when a registered order is confirmed by operation of
law it may be necessary for the responding jurisdiction to
issue some type of written confirmation so that the case
file or record will indicate that a determination of
controlling order has been made and so that other states
with orders can be notified of this determination.
Should a determination of the controlling order be made
before taking any new administrative enforcement action?
There was no consensus on this issue. Washington views
certain requests for administrative enforcement (such as a
request for income assignment in a new case or request for
enforcement in an ongoing case) as non-UIFSA requests.
Section 103 of UIFSA says that remedies provided by UIFSA
are cumulative and do not affect the availability of
remedies under other law. Some states, such as Washington,
have administrative enforcement remedies and an
administrative registration process governed by state law
other than UIFSA. Section 207 of UIFSA says that the
priority scheme for determining the controlling order
applies "if a proceeding is brought under this Act". If a
proceeding is not a UIFSA proceeding, then no determination
of the controlling order is necessary. On the other hand,
other states say a controlling order determination should
be made when administrative enforcement action is taken so
that a one-order system can be reached more quickly--the
goal of UIFSA.
The form (currently being designed by a committee of
federal and state representatives) for requesting
registration of an order in another state should provide
sufficient space to accommodate multiple orders. Federal
forms should allow the initiating state to indicate whether
registration is requested or not (since under section 502
of UIFSA a responding state may use administrative
enforcement remedies without registering the order), and to
clearly indicate whether a request is a UIFSA request or a
non-UIFSA request.
Initiating states need to be more conscious of what they
are asking for when initiating a case. They also need to
be more conscious about how the responding state will
perceive and respond to requests. Communication between
states is important. State processes should be
standardized and uniform to the extent possible. Perhaps
more information about state practices is needed in the IRG
(Interstate Roster and Referral Guide). We also need to
look for new ways to disseminate information about state
practices (e.g., electronic bulletin boards).
Issue: What is the best way to ascertain the existence of all
orders that may have been established for a particular
child/obligee/obligor?
Conclusion: The IV-D agency should make a "best effort" to
identify all existing orders in a case. Identifying
all orders is an important step in determining the
controlling order and reconciling the debt amount.
However, it is also a resource issue. From a
practical standpoint, in some instances it may be
prohibitive to track down all orders, depending on
factors such as a state's level of automation and the
ability of CSENet to transfer information between
states.
Suggested "best practices" for identifying controlling
orders include:
183 Ask the moving party (usually the custodial parent).
183 Check state databases. New statewide systems in 10/95
will assist.
183 Act quickly to serve the non-moving party (usually the
obligor). The non-moving party may bring orders to
the IV-D agency's or tribunal's attention
(particularly orders that are for a lower amount).
183 Establish and use a central registry of orders
(state/national).
183 Have access to clerk's records.
183 Include questions, as part of the intake process, on
AFDC referral questionnaires and applications for IV-D
services. Ask for a copy of any order, or the
location of the order if the applicant does not have a
copy.
183 Inquire about where the custodial parent has been on
public assistance; she may have an order in that
state.
183 Examine FAMIS (Family Assistance Management
Information Systems) data requirements.
183 Train state staff to be responsive to other state's
requests for information on and copies of orders;
states need to agree to help each other.
183 Send a certified copy of an order if available, but do
not hold up the entire case waiting for a certified
copy--go ahead and send a regular copy and send the
certified copy when available.
Issue: Who can make a determination about which order is
controlling?
ù A tribunal?
ù The IV-D agency?
Conclusion: The responding tribunal should make the determination
(can be an administrative agency or the IV-D agency if
defined to be and functioning as the tribunal).
As a best practice, orders issued by a tribunal determining
the controlling order should list which orders were
considered (in case a question later arises regarding
whether all relevant orders were considered).
Issue: Does the controlling order determination require a formal
hearing or proceeding, or can an informal analysis be done?
Conclusion: Caseworkers can make preliminary, informal
determinations--for example, to decide which order to
bring before the tribunal. The tribunal will make a
formal decision once a proceeding is brought before
it.
In a UIFSA action, in order for the decision regarding
controlling order to be binding, there must be a formal
proceeding with advance notice and an opportunity to be
heard/object. The parties must have a right to a hearing,
but there does not necessarily have to be a hearing (e.g.,
if none is requested).
Issue: Where there are multiple orders, should parties be notified
before either a formal or informal determination of a
controlling order is made?
Conclusion: Yes, in order for the determination to mean
something/be binding in a UIFSA state.
Issue: Can the decision regarding which order is controlling be
appealed? If the decision can be appealed, how is this
accomplished? What if the decision is made in the context
of an administrative proceeding?
Conclusion: Yes, the decision can be appealed if allowed under
local law. Local law applies to all three of these
questions.
Issue: Which state should/could make a determination about which
order is the controlling order?
ù Should the initiating state make a preliminary
determination prior to referring a case for
enforcement, and inform the responding state of its
decision?
ù Should the initiating state refer all relevant
information about known orders to the responding state
and allow the responding State to make a
determination?
Conclusion: The responding/registering tribunal makes the ultimate
determination regarding which order is controlling.
Before referring an interstate case where multiple orders
exist, the initiating state should make a preliminary
decision regarding which order is controlling (if for no
other reason than to do an arrears calculation; input
information into the billing system). If the initiating
state is requesting registration of an order, it will need
to make a preliminary determination regarding which order
is controlling so that it can request registration of the
controlling order. The initiating state, regardless of
whether it is a URESA state or UIFSA state, should send to
the responding state all orders in a case, with a
preliminary determination of which is controlling.
Some initiating states, particularly URESA states, may not
have the knowledge or training to make an initial
determination. Therefore, it is particularly important
that the initiating state send the responding state a copy
of all known orders. Some participants expressed concern
about devoting resources to a preliminary determination in
the initiating state if the responding state was going to
make the final determination anyway. Other participants
felt that an initial determination of the controlling order
by the initiating state may not be as important as a clear
statement of what the initiating state is asking for. It
is important for the initiating state to do an analysis
about what it really wants in a case, and to realize the
consequences of its request. For example, if an initiating
state requests registration for enforcement or
modification, the responding state may determine that the
controlling order is an order for a lesser amount than the
order that is currently being enforced.
Issue: Once the controlling order is determined, should other
states be notified? Note that UIFSA does not require
notification in the enforcement context of a UIFSA state's
determination of the controlling order.
ù If notification occurs, how should it be given and who
should receive it?
ù How should states distinguish between controlling
orders determined in a modification action and
controlling orders in an enforcement action?
Conclusion: Tribunals in other states with orders should be
notified when a determination regarding a controlling
order is made. The notice should be sent to the IV-D
central registry in those states with orders.
How should notice be given? The UIFSA forms subcommittee
is developing a standard form/notice. (This form could be
used in non-IV-D cases as well).
It is unnecessary to send an actual copy of the
order/pleadings. It will be less burdensome (both for the
state sending notice and the State receiving notice) to
just use a notice/order abstract. If an actual copy of the
order is needed at a later date, then a state could request
a copy.
Issue: Upon receipt of notification, what should the court, child
support agency, or parties do to reflect what has been
determined to be the controlling ongoing support amount?
Conclusion: Change records and recognize/abide by the controlling
order.
Issue: What should URESA states do when they receive notice of a
determination of controlling order?
Conclusion: The Full Faith and Credit for Child Support Orders Act
(P.L. 103-383) may have an impact. Hopefully, the
URESA state would recognize the determination; but the
URESA state is not required to do so.
Issue: Will the determination of the controlling order be binding
on other states? What is the purpose of notifying other
states if the determination is not binding, and the
controlling order may change whenever a party moves to
another state?
Conclusion: In another UIFSA state, the determination should be
binding (unless some error was made regarding
jurisdiction, notice, etc).
IV-D should not be interested in overturning another
state's controlling order determination given the workload
and resources required to make such determinations.
Issue: If State X is notified that a determination of the
controlling order has been made, and the State X order is
not the controlling order, what should occur in State X?
ù Should the controlling order be registered in State X
for enforcement?
ù Should the current support provisions in the State X
order be vacated or suspended?
ù What if the State X order is in a IV-D case that has
been closed?
Conclusion: There is no need to register the controlling order for
enforcement in State X unless this is requested.
For workload reasons, there should not be proceedings in
individual cases to vacate or suspend orders. However, it
may be a good idea to have the orders vacated or suspended
by operation of state law. Regardless, the State X order
should not be enforced prospectively once another order has
been determined to be controlling.
If the IV-D case is closed, IV-D case records and court
records should be updated since the case might be
reactivated.
Issue: What if a determination of the controlling order is made
prior to modification, and the parties movement makes the
determination inaccurate?
Conclusion: The determination was right when it was made. A
modification of the order that was determined to be
controlling can be made if allowed under the
continuing exclusive jurisdiction (CEJ) provisions of
UIFSA.
Issue: Is there any difference between a section 207 CEJ
determination, an enforcement determination, and a "lame
duck CEJ" in expectation of modification determination?
Conclusion: There is no difference; the rules are the same for
determining the controlling order--see section 207 of
UIFSA.
Recognizing Order Modifications Made by Other States
Section 612 of UIFSA provides that a tribunal of a UIFSA state shall
recognize a modification of its earlier child support order by a
tribunal of another state which assumed jurisdiction pursuant to a
law substantially similar to UIFSA.
Issue: When a IV-D agency in State A receives notification that
its tribunal's order has been modified by a UIFSA tribunal
in State B, what action should the IV-D agency in State A
take?
ù Should State A's IV-D agency move to suspend its order
for prospective enforcement purposes?
ù What if the IV-D case in State A has previously been
closed?
Conclusion: State A's IV-D agency should file a copy of the
notification/controlling order with its tribunal; it
does not need to take legal action to vacate or
suspend the old order. Financial records should be
updated to reflect the new order, and the old order
should no longer be prospectively enforced. But no
legal action to vacate or suspend the old order should
be necessary. The same answer applies if the IV-D
case has been closed; records should be updated since
the case might be reactivated.
Issue: Does a UIFSA state with a prior order have to recognize a
modification by a URESA state (e.g., under RURESA Part IV)
if under UIFSA the URESA state would lack jurisdiction to
modify the order?
Conclusion: The Full Faith and Credit for Child Support Orders Act
(P.L. 103-383) has voided this as an issue in the
future--a URESA state now has no authority to modify
an order unless it has continuing, exclusive
jurisdiction under UIFSA principles.
However, concerning modifications made by URESA states
prior to the effective date (October 20, 1994) of the Full
Faith and Credit for Child Support Orders Act, a UIFSA
state must recognize such modifications if the URESA state
had jurisdiction to modify under URESA, regardless of
whether the URESA state had continuing, exclusive
jurisdiction under UIFSA principles. Sections 205(c) and
612 of UIFSA require this recognition since UIFSA and URESA
are substantially similar laws. The Prefatory Note to
UIFSA says "URESA, RURESA and all substantially similar
state laws are deemed equivalent to UIFSA for purposes of
interstate actions". Also see sections 101(7) and (16) of
UIFSA.
Even if an order is recognized, it is subject to a section
207 determination of the controlling order and may not be
the controlling order that is enforced prospectively.
Note also that under section 31 of RURESA, a support order
made by a responding URESA tribunal does not modify a
support order made by a tribunal of another state unless
specifically provided for (e.g., specifically stated in the
order) by the responding URESA tribunal.
In any case, if the URESA state did not have jurisdiction
(under URESA and the Full Faith and Credit for Child
Support Orders Act) to modify, then a UIFSA state should
not recognize the modification and would consider the
modifying order to be void.
If the URESA state did not have jurisdiction to modify, but
the URESA state sends the UIFSA state money from the newly
modified order (which contains a higher support amount than
the original order), what should the UIFSA state do? Take
the money and distribute it to the custodial parent?
"Recognize" the URESA order subject to a later section 207
determination? We did not reach complete consensus on this
last point.
Divorce Order that is Silent or Reserves Support Issue
Issue: If a divorce order is silent on the issue of support, is
that considered an establishment case or a modification
case? What if the divorce order reserves the issue of
support?
Conclusion: If the order is for a zero amount (e.g., finding of
inability to pay), it is a modification case.
If the order is silent, it is an establishment case.
If the support issue is reserved, the answer depends on the
reason why it was reserved. If the support issue was
reserved because of lack of personal jurisdiction, then it
is an establishment case. If there was jurisdiction, but
the support issue was reserved for some other reason (e.g.,
lack of income information), it is a best practice to seek
an order locally via long-arm jurisdiction, regardless of
whether the action is considered a modification or
enforcement. If that does not work, note the reason that
the case could not be worked locally in the case record,
and the case becomes an interstate referral establishment
case. (Potential problem: research may be required to
determine why the support issue was reserved, and the order
and case records may not say why).
Modifiable Aspects of Orders
Section 611(c) of UIFSA requires that a tribunal may not modify any
aspect of a child support order that may not be modified under the
law of the issuing state.
Issue: How will the forum tribunal determine which aspects of an
order are not modifiable under the law of the issuing
state?
ù Should the initiating state provide with each request
for review and adjustment an analysis of the
modifiable and nonmodifiable aspects of the order?
ù Should the responding tribunal conduct this analysis?
ù Should there be a nationally recognized list of
nonmodifiable terms?
Conclusion: If the forum tribunal is unfamiliar with the issuing
state's law, then the forum tribunal is going to end
up applying its own state law. Therefore, the
initiating state should provide analysis, cites, and
information regarding the issuing state's law if it
does not want the forum tribunal to revert back to
forum state law.
The IRG (Interstate Roster and Referral Guide) needs to
contain information about nonmodifiable aspects under each
state's law. We need to think of ways that this
information can be updated more quickly/timely and is more
accessible--an automated system or on bulletin board. We
could possibly allow States to input/update their own IRG
information through an automated system. We also need to
examine what new elements/data should be in the IRG; for
example, a telephone/fax/contact number.
Possible best practice: A point of contact for each state
(e.g., central registry staff) that can answer questions
and maintain/provide copies of case law that apply to
non-modifiable aspects of orders.
Multiple Orders Without CEJ
Section 207(a)(4) of UIFSA provides that when there are multiple
orders and no tribunal would have CEJ, the responding tribunal may
issue a new support order which must be enforced.
Issue: Should responding states enter a new order when there are
multiple orders and no tribunal would have CEJ?
ù Does that state's duration of support govern
henceforth?
ù Are rules as section 611(e) regarding notification
relevant?
ù Must other states recognize the new order and treat it
as a de facto modification?
Conclusion: Yes, a state should establish a new order when there
are multiple orders without CEJ. Establishment of a
new order is clearly allowed by UIFSA at section
207(a)(4). The statute does not provide any guidance
regarding which order would be modified if a
modification were attempted. The support amount would
be the same regardless of whether a modification is
made or a new order established. But it may be easier
to establish a new order; it is not necessary to prove
"material change in circumstances", as might be
required for a modification. When establishing a new
order, a best practice would be to attach all existing
orders to the petition so that the tribunal can see
there is no controlling order and that it is free to
enter new order.
If there are two or more orders, the tribunal should
determine the arrears under the highest order and then
determine the prospective support amount by establishing a
new order. Two steps: 1) reconcile the arrears and do a
CEJ analysis; and 2) establish new prospective order.
The law of the state that establishes the new order governs
duration of support henceforth.
Notification requirements at section 611(e) do not apply
under a strict reading of UIFSA. However, it would be a
best practice for the state establishing the new order to
notify other states with orders. Otherwise, the multiple
order problem will remain.
Other states must recognize the new order and treat it as a
de facto modification.
What is a Modification?
Issue: Can a responding state without CEJ make any
changes/clarifications to an order (not related to the
support amount) or would such change be considered a
modification and thus require CEJ?
ù Would adding a medical support provision to an
existing order constitute a modification under UIFSA?
ù Would a change of payee from custodial parent to
grandparent constitute a modification of the support
order?
ù If a foreign order is to be enforced in a responding
jurisdiction but does not include provisions required
under local law (e.g. absent parent to keep IV-D
agency apprised of address; payment processing fees),
can the enforcing state add these local requirements
to the order at the time of registration for
enforcement, or would this be considered a
modification?
Conclusion: 1. A responding state without CEJ cannot add a
medical support provision--this constitutes a
modification. Section 101(21) of UIFSA defines a
support order to include health care provisions;
this implies that adding a medical support
provision would be a modification of the support
order.
2. This is really the initiating state's problem--how
will the initiating state distribute the money; money
is still be paid to the initiating state. But a
change of payee should be treated as a modification,
particularly if it requires changing the support
order. State law varies on the issue regarding
whether there is an administrative way to change the
payee or if an actual modification of the order is
required. A new action may be appropriate
particularly in a state with "income shares"
guidelines where the support amount is based on the
income of both the caretaker and the obligor.
3. A responding state without CEJ can add (e.g., through
the confirmation of the order) local procedural
requirements if it is not tampering with the
substantive provisions of the underlying order. The
addition of such local requirements should not be
considered a modification.
Modification Problems
Issue: What if the only state that can do a modification refuses
(e.g., refuses requests by obligors)? For example, the
custodial parent and child and order are in Kansas; the
non-custodial parent is in Oklahoma. Kansas only refers
the obligor to a pro se process.
Conclusion: Refusal to do review at request of obligor is not
legitimate--should not refuse review for that reason.
A IV-D agency cannot just refer obligor to court
without doing a review.
The initiating state IV-D agency can help get all the
information/testimony out and before the responding
tribunal by using UIFSA's evidentiary provisions. Federal
regulations require that an initiating jurisdiction provide
necessary information.
Issue: What if both parties have left the issuing state and reside
in the same other state? How do you modify the order if
you cannot register under UIFSA?
Conclusion: Federal legislation (such as the proposal in the
Administration's welfare reform bill) should modify
UIFSA to allow registration under UIFSA despite
residency of parents (even if both parties live in the
same state). Need to examine the Full Faith and
Credit for Child Support Orders Act (P.L. 103-383) to
see if it has already solved this problem. (Does the
Full Faith and Credit for Child Support Orders Act
supersede section 611 of UIFSA?) Participants support
welfare reform changes that would allow registration
without meeting the UIFSA test.
In the meantime, if UIFSA's registration provision cannot
be used, register the order under some other state law if
available, or establish a de novo order.
UIFSA
DIRECT WITHHOLDING
Section 501 of UIFSA allows an income withholding order issued in
another state to be sent by first class mail to the obligor's
employer in a UIFSA state. Upon receipt of the order, the employer
must treat an order which appears regular on its face as if it had
been issued by a tribunal of the employer's state.
The Direct Withholding meeting began with a review and discussion of
a form which was recently developed (as of November, 1994) by a
workgroup comprised of federal and state child support specialists as
well as representatives from payroll associations and employers
associations. The following summarizes the discussion:
The form as presented will not be acceptable to employers, according
to a participant. The percentage order from Wisconsin is not
"programmable" for employer. Chrysler has to calculate percentage
amount by hand, then enter into system. Chrysler bases its
application using the laws of the state which issued the order. The
American Society for Payroll Managers (ASPM) wants sum certain
orders. UIFSA states must agree to a certain level of
standardization prior to implementation of direct withholding.
There was also a discussion of the precepts of the standardized wage
withholding form, the most critical being that when faced with a
substantive issue, look to the law of the issuing state; for
procedural issues, look to the law of state where obligor is employed
(employee work state). These form issues will be examined further by
the workgroup developing the form.
With the completion of discussion on the newly designed form, Retreat
participants then addressed a series of direct withholding related
issues.
Overall question--When direct withholding is used, which state's (the
issuing or the employer's) law applies regarding each of the
following?
Issue: CCPA (Consumer Credit Protection Act) limits?
Conclusion: CCPA/Aggregate Disposable Weekly Earnings(ADWE) -
Agreed to the principal of using the law of the
issuing state for substantive issues and the law of
the state where the obligor is employed for procedural
issues. However, participants preferred the term
"employee's work-state" rather than "obligor's
employer's state."
Issue: Which law determines the fees employers may charge for
withholding?
Conclusion: Use the limits set by the employee's work-state.
Issue: Which law determines the amount or percentage of arrearage
to be added to current support amount (if not specified in
order)?
Conclusion: State issuing order must reduce to sum certain.
Employer will then follow as the order amount.
Issue: Which state law is used to determine the period after
payday within which to remit withheld sums (some states are
more restrictive than Federal requirements)?
Conclusion: Use the period of time allowed by the employee's
work-state laws.
Issue: Which state law is used to determine the period within
which to commence withholding after receiving order (some
states are more restrictive than Federal requirements)?
Conclusion: Use the period of time allowed by the employee's
work-state laws.
Issue: Which state law should be used to determine the amount of
fines and other punishment for failure to withhold?
Conclusion: Adhere to the limits allowed by the employee's
work-state. Motion to enforce would have to be
brought by the issuing state in the employer's state
court.
Issue: Which state's definition of income and disposable earnings
for income withholding purposes?
Conclusion: Follow the employee's work-state laws. For the
Definition and treatment of other income/other asset,
also look to the employee's work-state laws. For the
definition of disposable earnings - see CCPA.
Issue: Which state law prevails in the treatment of lump-sum
payments?
Conclusion: Follow the employee's work-state laws. The group also
agreed that there is a need for standardization.
Issue: Which state law should be applied for reasons for
terminating income withholding?
Conclusion: Some employer representatives among the participants
indicated they would prefer to have a "stop date" put
on the order. State representatives did not think
this was possible due to the potential accrual of
interest and lack of "date specificity" in underlying
order. Decision was that the employer should continue
to withhold until notified by issuing state.
Issue: Which state law prevails in the treatment of health
insurance premium payments (some states include them in
child support definition, some include them in withholding
orders)?
Conclusion: Group members determined that this issue also needs to
be presented to the wage-withholding work group. If a
health insurance premium is included in a child
support order, it must be sum certain. Insurance
payments are subject to CCPA limit under Federal law.
Such payments are to be considered as child support.
Issue: Which state law should be used for hearing procedures in
contested cases?
Conclusion: The group had a lengthy discussion on contested cases.
The group decided to present this issue, and the issue
of who will provide instructions for contested cases,
to the IV-D Directors work group. The group will also
request a clear definition of "regular on it's face".
Issue: Which state law is used for considering the inclusion of
interest on child support and its calculation and
collection?
Conclusion: Look to the law of the issuing state to determine the
sum certain. Employer should not be involved in
calculating.
Issue: Which state law determines the inclusion of a Child Support
Enforcement handling fee?
Conclusion: UNRESOLVED. Sum-certain should be determined by
issuing State. If handling fee is separately
itemized, employee work-State rules would govern.
Several questions surfaced, such as would this
handling fee be considered a child support payment?
This varies from state-to-state, similar to the issue
of attorneys' fees. Texas calls attorneys' fees a
child support payment. In some states, withholding of
attorneys' fees and handling fees may be considered
unlawful garnishment.
Contest to Direct Withholding
Section 501(b) states that "an obligor may contest the validity or
enforcement of an income-withholding order issued in another state in
the same manner as if the order had been issued by a tribunal of this
state. Section 604 (Choice of Law) applies to the contest. The
obligor shall give notice of the contest to any support enforcement
agency providing services to the obligee and to: (1) the person or
agency designated to receive payments in the income-withholding
order; or (2) if no person or agency is designated, the obligee.
Issue: What is the role of the employee's work-state if a contest
is made? How is the employer's state tribunal or IV-D
agency informed of the existence of the contest, since it
presumably has had no previous involvement in the case?
Conclusion: Employer will follow the order and treat it as an
intra-state order if it's normal on it's face. The
standardized form must inform obligors of their rights
and responsibilities, including procedures for
contesting and the process for informal resolution.
Informal resolution procedures should be available in
all states.
Procedure - Obligor returns copy to issuing state notifying
that he/she wishes to contest. Issuing state will attempt
to resolve informally. If this cannot be accomplished - or
obligor chooses not to go through the informal process -
the issuing state would request the employee's work-state
to register the order. Employee's work-state would treat
an order thus registered as a contested order and
immediately proceed to resolution through a hearing or
other available remedy in that State.
Alternatively, the obligor can contest in his/her
work-state, following the employee's work-state's
procedures, providing his/her state has sufficient
information to contact the issuing state.
Issues: Should there be a hearing? If so, should the hearing be in
the initiating or employer's state? Or, when a contest is
made, should the initiating state file an interstate action
transmittal requesting interstate income withholding in the
second state or to file a UIFSA registration for
enforcement request?
Conclusion: The obligor has choice of where to contest, but would
be expected to contest in employee work-state. UIFSA
does not provide a remedy for employers that wish to
contest.
Implementation Issues
Issue: What if the employer either stops or fails to comply with
the notice of withholding? Who initiates enforcement
action against an employer?
Conclusion: The issuing state will need to initiate enforcement
action against the employer by contacting the
employee's work-state where the action will be
brought. The employee's work-state rules will govern
the actions to be taken against the employer.
Issue: Whom should the employer notify when an employee with a
withholding order has left?
Conclusion: The issuing state should be notified.
Issue: Who is responsible for transferring the notice to the new
employee/employer?
Conclusion: The issuing state should be responsible for the
transference.
Issue: Should direct withholding be used in cases where other
enforcement remedies are required (e.g., medical coverage
enforcement)? Can medical support be a part of direct
withholding? In what type cases should direct withholding
not be used?
Discussion The Region X UIFSA Task Group position is to not use
direct withholding in existing two-state cases. New
employer information should not trigger direct income
withholding if there is a current two-state case. In
other words, if a state has filed an interstate case,
that state should not begin direct withholding upon
receiving employment information. Direct wage
withholding may be done in two-state cases only after
notifying the responding state to close the original
referral. Direct withholding should be used more as
the exception rather than the rule.
It is advisable not to use direct withholding when there
is: knowledge of bankruptcy; a question regarding
arrearage; a need for other enforcement activities; more
than one order for the same obligor; a statute of
limitation problem; or a request for a two-state process
from employer State.
In cases of direct withholding, the laws of the employee's
work-state govern, not those of the state in which the
employee/obligor lives. An issuing state may also want to
register for other enforcement activities (such as liens)
in the state in which the employee/obligor lives.
Issue: Should direct withholding be used in multiple order
situations?
Conclusion: Again, direct withholding should not be used in
multiple order cases.
Issue: Should direct withholding be used when other issues are in
question, i.e., disputed arrears, bankruptcy, etc?
Conclusion: It is probably not advisable to use direct withholding
in such cases (see above).
Interaction with Federal Policy
Section 501 of UIFSA provides the obligor the opportunity to contest
after the employer receives the withholding notice. In immediate
withholding cases, federal policy does not explicitly provide an
opportunity for the obligor to contest withholding once the support
order is entered. Yet federal law provides that advance notice must
be sent to the obligor before the an initiated income withholding
order is sent to the employer. [An initiated income withholding case
is a case not subject to immediate withholding because the support
order was issued before, and not modified after, November 1, 1990, or
because of a finding of good cause or written agreement.]
Issue: Does the obligor get two opportunities to contest in
initiated withholding cases if direct withholding is used?
Conclusion: If the noncustodial parent wants to contest a direct
withholding order, s/he should follow the procedures
for contesting an order. The group suggested
presenting this issue, as well as issue of reconciling
these provisions, to the IV-D Directors work group.
The following is a list items for standardization and unresolved
issues.
(1) Establish sum-certain dollar amounts - not percentages, either
for current support or arrearage.
(2) Attorneys' fees - a standard decision is needed on whether these
fees should be considered part of the order.
(3) Date specific on orders - when orders end, change. Need to put
onus on CSE agency to notify employer if events overtake initial
termination date. It is not the employer's responsibility to
terminate an order. Clarify to obligor that he/she is
responsible for contacting issuing State to change order if
circumstances no longer require child support. ASPM requests
that child support agencies give the employer a date to call the
CSE agency to see how close the order is to the end.
(4) Calculation procedure for amount to be withheld for arrears.
(5) Definition of income for income withholding purposes.
(6) Reason for terminating income withholding - not-Employee's work
state.
(7) Establish remedy and site for employer wishing to contest.
Provide information to employee on right and way to contest. If
employer does not consider order to be regular on its face,
employer as a practical matter goes back to issuing state.
ENFORCEMENT
Determining the Controlling Order for Prospective Enforcement
Section 207 of UIFSA provides a priority scheme for determining which
order to recognize for purposes of continuing, exclusive jurisdiction
(CEJ). According to the Official comments to Section 207, the rules
for determining CEJ for modification also apply to determining the
controlling order for purposes of enforcement of current support.
Assuming multiple support orders:
Registration for Enforcement
Issue: In the area of registration for enforcement, which state
should make the determination about which order is
controlling? Should the initiating state make the
determination and only register (in the responding state)
the order that it determines is controlling? Should the
initiating state make a preliminary determination prior to
referring a case for enforcement, and inform the responding
state of its decision (perhaps through an allegation in the
pleading or a statement in the cover letter)? In such
case, should the initiating state register all existing
orders in the responding state, or simply refer all
relevant information about known orders to the responding
State and allow the responding State to make a
determination? In such case, should the initiating state
register all existing orders in the responding state?
Conclusion: The initiating state should make an initial
determination of CEJ, send copies of all orders to the
responding state, and the responding state is then
responsible for making the final CEJ decision. The
responding state would register the controlling order
and any order(s) used to determine the arrears.
Issue: At what point is the decision about the controlling order
effective? Upon initiation of the case in the initiating
state? Upon registration of the order in the responding
state? Upon confirmation of the order by the responding
state, pursuant to law or after an unsuccessful challenge?
Conclusion: The effective date would be the confirmation date.
The confirmation date would be either the end of the
time period to contest (if no contest) or the date the
contest is settled. (There was a significant number
of people who would use the registration date as the
effective date). The notice of registration should
include a statement of the controlling order
determination.
Issue: Should the enforcement notice include information about the
controlling order's current support amount and prospective
enforceability date? Should a confirming order be entered?
Conclusion: Even in administrative states, most people are in
favor of an order (or notice) of confirmation but this
can include a computer generated notice which spells
out the resolution; it doesn't have to be something
signed by a judge or administrative law judge(ALJ),
but it does have to provide the non-moving party with
adequate notice and an opportunity to be heard.
Issue: Who can make a determination about which order is
controlling? Any tribunal as defined by the state statute?
An administrative hearing officer? A court or
quasi-judicial decision-maker?
Conclusion: Once an order is registered, the registering tribunal
(administrative or judicial, as defined by state law)
makes the determination about the controlling order.
The non-moving party must be provided adequate notice
and an opportunity to be heard.
Issue: With regard to prospective enforcement of current support,
which state's duration of support applies? The law of the
state that issued the first order? The law of the state
that issued the controlling order?
Conclusion: Use the law of the state that issued the controlling
order (see section 604). We do recognize that this
will present collateral problems, but we agree that
this is the law under the Act.
Administrative Enforcement Without Registration
Issue: Who can make a determination about which order is
controlling? (A caseworker? An administrative hearing
officer?) Does the determination require a formal hearing
or proceeding, or can an informal analysis be done? At
what point is the decision about the controlling order
effective?
Conclusion: In the administrative setting, the decision about the
controlling order may be made by the caseworker. The
decision should be included in a notice served upon
the noncustodial parent. The parent should be able to
challenge the decision. Only in case of contest is an
administrative hearing officer involved. The
effective date in case of no contest is the date the
administrative notice is served. However, the
enforceability date is after the time period to
contest has run.
One State Administrative Enforcement Remedies (e.g., direct income
withholding, federal income tax refund intercept)
Issue: Does UIFSA apply in these cases (i.e., choosing controlling
order)?
Conclusion: When using automated enforcement remedies (such as
batch tax intercept or withholding), it is appropriate
for a UIFSA state to use general state laws (enforcing
the highest order) and not look to UIFSA principles
unless one of the parties raises the issue.
When doing more individualized enforcement, there is
agreement that if a state discovers that it is not
enforcing the controlling order and is actively pursuing
formal enforcement remedies (judicial or administrative),
it has a duty to go through the section 207 process to
determine the controlling order.
Notification of Controlling Order
UIFSA does not include a provision requiring a UIFSA state to notify
other states when it has determined what is the controlling order as
far as prospective enforcement of current support.
Issue: Should a UIFSA state notify other states? If so, whom
should it notify? How should it notify other states?
Conclusion: There was general agreement that (in a UIFSA world)
the decision of controlling order by one state should
bind all other states at least as regards prospective
support.
Issue: Would a state have to notify other appropriate states
whenever it makes a CEJ determination, even when this
decision is made pursuant to an administrative enforcement
action? Or should the duty to provide such notice be
limited to formal CEJ determination under UIFSA?
Conclusion: It doesn't matter how the CEJ determination is made,
whenever the CEJ decision is made, some type of
standard notification should be sent to other states.
Issue: Upon receipt of notification, is the decision binding upon
another state? If so, what should the court, child support
agency, or parties in the other states do to reflect what
has been determined to be the controlling ongoing support
amount? If the state X order is not the controlling order,
what should occur in State X? Should the controlling
amount be registered in State X for enforcement? Should
the current support provisions in the State X order be
vacated or suspended? What if the State X order is in a
IV-D case that has been closed? If the decision is not
binding, what has UIFSA accomplished?
Conclusion: What a state will do with this information depends
upon whether the case is a IV-D case. Formal action
would not necessarily be taken upon receipt of this
notice, but suspension of prospective enforcement of
the existing local order should occur.
Multiple Orders But No CEJ
According to Section 207, if there are multiple orders but no CEJ,
the responding state "may" issue a new order.
Issue: When should tribunals issue a new order as opposed to
enforcing one of the existing orders?
Conclusion: If there is no CEJ order, most members in our
workgroup stated that their state would enter a new
order. (Assuming the responding state receives
sufficient financial information from the initiating
state).
Issue: If a responding state issues a new order, does it acquire
CEJ status, assuming the noncustodial party resides there?
Or is the decision treated as an enforcement determination,
not establishment of an order? If a responding state
decides not to issue a new order, which existing order
should it enforce (the most recent, the first, or the one
with the highest child support amount)?
Conclusion: If the responding state issues a new order, it
acquires CEJ. If a responding state decides not to
issue a new order but to enforce an existing order,
the majority within our workgroup thought that it
would be most appropriate to use the most recent
order. (A minority thought it would be most
appropriate to use the highest order). However, if
the state registers one of the non-CEJ orders, this
does not make the registered order a controlling
order.
Enforcement of Arrears Under Existing Orders
Issue: Which state can/should calculate the arrearage when there
are multiple orders (the initiating, the responding, or the
controlling order state)?
Conclusion: The initiating state is responsible for making the
initial determination of arrears, but the responding
state has authority for making the final decision.
Issue: At what point can an arrearage determination take place?
(As part of a registration for enforcement action; as part
of an administrative enforcement action, in the responding
state; as part of a one-state administrative enforcement
action (e.g., direct income withholding, federal income tax
refund intercept)?
Conclusion: The arrears determination takes place at differing
times depending upon the specific enforcement action
undertaken.
Issue: Does the calculation of arrears require a formal hearing or
proceeding?
Conclusion: If there is no challenge to the arrears claimed, then
it is not necessary to hold a formal hearing. If
there is a challenge, then the final decision would be
the decision of the tribunal addressing the challenge.
Issue: Is an arrearage calculation binding on other states? Does
the answer depend upon the context in which the decision is
made?
Conclusion: Once there has been an arrearage determination by a
tribunal (where the noncustodial parent (NCP) has
received notice and an opportunity to contest), this
determination is binding upon other states in line
with res judicata principles.
Issue: Once an arrearage calculation is made, and there are
arrears owed to multiple states (due to an assignment of
support rights), how should collections in excess of the
current support amount be distributed? Who is responsible
for making that decision and for distributing that money?
How will lump sum judgments for prior periods be
distributed?
Conclusion: In most states, issues as to competing assignments do
not come into play when arrears are determined. The
responding tribunal simply sets a fixed-dollar amount
for the total arrears. Generally, the responding
state pays the arrears owed to its state first, then
sends payments to the initiating state for
distribution to other states.
Issue: Do you want federal laws or regulations to specifically
spell out a uniform scheme of distribution?
Conclusion: A consensus was not reached on this issue. Most
people saw a need for standardization but most did not
want the feds to get involved for fear of making the
distribution area even more confusing. (The "date of
payment" was offered as an example of federal
involvement in the area of distribution). A vocal
minority called for federal law or regulations to
expressly address the issue (IV-D distribution and
direct income withholding-employer distribution)
because the need for uniformity is too compelling to
allow the states to address these issues
independently.
Contest to Registration for Enforcement
Section 502(b) of UIFSA provides that a responding state may attempt
to administratively enforce an order without first registering the
order with the appropriate tribunal. Upon a contest, however, the
order must be registered.
Issue: Does the section mean that as soon as the obligor contests
administrative enforcement, the order must be registered
with the court (or tribunal)? Or can the provision be
interpreted to require registration with the circuit court
only upon the exhaustion of the administrative appeal
process?
Conclusion: We had two administrative process states in our
workgroup using this process: Virginia and Maine.
Virginia will first pursue administrative enforcement
remedies. Any contest can be heard by the
administrative hearing officer. If the decision of
the administrative law judge is appealed, then
Virginia will register the order with the court.
Maine has not adopted this wording of UIFSA. Maine's
equivalent section states "if the order cannot be
enforced using available administrative procedures,
the department may register the support order... with
the appropriate court".
Transition from URESA to UIFSA Issues
Issue: If a UIFSA state was enforcing a local URESA order prior to
the enactment of UIFSA, and the order is not the
controlling order under UIFSA, how should the state proceed
upon receiving a request for enforcement?
Conclusion: When using automated enforcement remedies (such as
batch tax intercept or withholding), it is appropriate
for a UIFSA state to use general state laws (enforcing
the highest order) and not look to UIFSA principles,
unless one of the parties raises the issue.
When doing more individualized enforcement, there is
agreement that if you discover that you are not enforcing
the controlling order and you are actively pursuing formal
enforcement remedies (judicial or administrative), you have
a duty to go through the section 207 process to determine
the controlling order.
Issue: If a URESA state does not recognize a UIFSA state's
determination of controlling order, and subsequently seeks
to register a judgment for arrears using a higher order,
what should a UIFSA state do?
Conclusion: No resolution was determined by the group.
Issue: What should a UIFSA state do if a URESA state will not
limit registration to enforcement only?
Conclusion: The Full Faith and Credit for Child Support Orders Act
(P.L. 103-383) likely resolves this issue.
Customer Service
Issue: If a state determines that the controlling order is an
order less than the current order upon which the person is
receiving support payments, how will a IV-D agency explain
this to the obligee?
Conclusion: The IV-D agency should try to give the parties the
best information concerning UIFSA and advise them of
their ability to seek a modification. Also, IV-D
agencies need to train IV-D workers to consider
modification prior to seeking enforcement.
Additional Issues Submitted by Participants
Issue: Minnesota has a cost of living increase in its orders and
sends notice of the increase to the responding state. If
the responding state previously registered the Minnesota
order for enforcement, must the full registration procedure
be used before the COLA (cost of living adjustment) can be
enforced in the responding state? (Assume that Minnesota
still had CEJ when it issued its COLA increase).
Conclusion: The COLA would be treated as a modification to the
order. Minnesota would need to register the dollar
amount increased.
GENERAL PROVISIONS
Confidentiality or Identification of Litigant
Section 311 of UIFSA requires that the petition or accompanying
documents must provide, so far as known, the name, residential
address, and social security numbers of the obligor and obligee, and
the name, sex, residential address, social security number, and date
of birth of each child for whom support is sought. However, section
312 provides that upon a finding, which may be made ex parte, that
the health, safety, or liberty of a party or child would be
unreasonably put at risk by the disclosure of identifying
information, or if an existing order so provides, a tribunal shall
order that the address of the child or party or other identifying
information not be disclosed in a pleading or other document filed in
a proceeding under this Act.
Issue: Should an initiating UIFSA state include the custodial
parent's and child's residential address on the petition?
Conclusion: Yes. Initiating UIFSA state should include the
custodial parent's and child's residential address on
the petition -- unless there is a finding by a
tribunal that non-disclosure is necessary to protect
the safety of a party or child.
OCSE should request that information which is the basis for
non-disclosure of address be included in the application
for child support services; questions to identify cases
where non-disclosure may be appropriate to be included in
intake process for both AFDC and non-AFDC cases.
Suggest that non-disclosure determination be made part of
the initiating petition, so that it is included in
initiating tribunal's action on case. Unlike routine UIFSA
initiating petitions, this will probably require a hearing.
Issue: What is the extent of a state's (or IV-D agency's)
responsibility in determining if a non-disclosure order has
been or needs to be entered?
Conclusion: IV-D agency has the responsibility to determine
whether disclosure is inappropriately (inform client
as to any process required to establish non-disclosure
during in-take process).
OCSE should issue regulations that require this as part of
in-take process.
Issue: If a IV-D agency determines that a non-disclosure order has
not been entered but such an order is needed, should the
IV-D agency seek entry of such an order?
Conclusion: Leave to state procedure whether IV-D agency
coordinates obtaining finding of non-disclosure, or
custodial parent obtains it on her own. Process will
depend upon organizational structure of individual
states. In some states it may be easier for IV-D
agency to include request in regular part of business;
in other states, custodial parent should obtain it.
Include place on UIFSA petition to check off
non-disclosure.
Recommendation: OCSE to issue regulations indicating that
administrative process states can include finding
of non-disclosure of information as part of
responsibilities of initiating tribunal.
Sending Notices and Orders to the Petitioner
Section 305(a) of UIFSA requires that, upon receipt of a petition, a
responding tribunal file the petition and notify the petitioner by
first class mail where and when it was filed.
Section 305(e) requires the responding tribunal, upon issuing an
order, to send a copy by first class mail to the petitioner,
respondent, and the initiating tribunal.
Section 306 requires that if a petition is received by an
inappropriate tribunal, the tribunal shall forward it to an
appropriate tribunal and notify the petitioner by first class mail.
Section 307(b) requires the responding support enforcement agency
shall notify the petitioner by first class mail: (1) within [2] days
of receipt of a written notice from an initiating, responding, or
registering tribunal; (2) within [2] days of receipt of written
communication from the respondent or the respondent's attorney; and
(3) if jurisdiction over the respondent cannot be obtained.
Federal policy (53 FR 5255) provides that it is not the responding
State's responsibility to be in direct contact with the custodial
parent and it would be overly burdensome to require them to do so.
The initiating State IV-D agency is representing the custodial parent
and should keep the custodial parent apprised of significant actions
taken in the case.
Issue: What entity in a responding UIFSA state will send the
orders and notices to the petitioner? The responding
tribunal or the responding IV-D agency? Both?
Conclusion: Responding "tribunal" is responsible for ensuring that
orders/notices are sent to petitioner and initiating
state agency, in accordance with any existing state
procedures.
Recommendation: Suggest OCSE rescind policy saying that
responding state not have contact with custodial
parent (53 FR 5255). Suggest interagency
agreements between IV-D and courts, if
appropriate, for IV-D agency to actually send the
notice upon delegation from the tribunal.
Depending on allocation of functions between IV-D
agency and tribunal, this may reduce duplication
of efforts.
Issue: Who is the petitioner? The individual obligee/obligor, or
the initiating IV-D agency?
Conclusion: Both obligor/obligee and initiating IV-D agency are
"petitioner."
Issue: Does UIFSA's language regarding "by first class mail"
preclude communication via CSENet or electronic means?
Conclusion: First class mail must be used.
Non-UIFSA Remedies
Issue: Does an initiating UIFSA state have to ask only for
remedies available under UIFSA, or can it ask a responding
URESA state to use URESA remedies? For example can the
initiating UIFSA state ask for establishment of a de novo
URESA order (when another order exists) or enforcement of a
non-controlling order?
Conclusion: Initiating UIFSA state must ask for UIFSA remedies,
not URESA law in responding state. URESA state should
treat a UIFSA request under its law as a request to
register or request to establish, depending on what
its law provides.
OCSE should state in regulation/policy. UIFSA state should
not ask for de novo order, but that may be the only order
that a URESA state can issue.
Long-Arm
Section 201 of UIFSA contains a broad provision for asserting
long-arm jurisdiction over a non-resident obligor for the purpose of
establishing, enforcing, or modifying a support order or establishing
paternity.
Issue: Many states report that asserting long-arm jurisdiction is
too time-consuming given the caseload, and service of
process is problematic (particularly if the nonresident
party's State is under contract with a private process
server). How can we increase the use of long-arm
jurisdiction?
Conclusion: Training on use of long arm jurisdiction would
increase its use.
CS workers, judges and attorneys should be targeted.
Affidavits, process and discovery would be covered in
training, as well as encourage states not to use long arm
where there is complex financial information to be obtained
from responding state. Also, better rules on imputing of
income are needed. Current regulations (opening a case,
etc.) discourage states from helping each other.
Regulations should provide for opening case for limited
purpose of assisting other state with discovery, and then
be closed.
Issue: Is it appropriate and reasonable to use multi-state private
process servers to circumvent problems with states?
Conclusion: Yes, multi-state process servers may be easier than
sheriffs, etc.
Representation of Obligee
Section 38 of RURESA required the prosecuting attorney to represent
the obligee. UIFSA does not contain a similar provision.
Issue: Without "power of attorney", must the individual petitioner
participate via telephone in order for the for the UIFSA
tribunal to act?
Conclusion: UIFSA does not address representation. UIFSA Sec.
316(f) permits party or witness to testify by
telephone.
Certificate and Order
Section 14 of RURESA provides that if the initiating court finds that
the petition sets forth facts from which it may be determined that
the obligor owes a duty of support and that a court of the responding
state may obtain jurisdiction of the obligor or his property it shall
so certify and send 3 copies of the petition and its certificate to
the responding court. UIFSA does not contain a certification
provision.
Issue: How can a UIFSA state generate a Certificate and Order when
sending a case to a URESA state?
Conclusion: UIFSA state does not have to generate a certificate
and order when sending a case to a URESA state.
However, initiating state has the ability to do under
UIFSA; Sec. 304 authorizes initiating tribunal to
send "accompanying documents," thus authorizing the
tribunal to send a certificate and order. See Sec.
206(a) authorizes a tribunal to request a tribunal of
another state to take action; this includes providing
the other state with any necessary documents.
Cost Recovery
Section 313 of UIFSA prohibits the tribunal from assessing fees,
costs, or other expenses against the obligee or the support
enforcement agency of either the initiating or responding State,
except as provided by other law. However, costs and fees may be
assessed against the obligor if the obligee prevails.
Issue: Does the phrase "except as provided by other law" allow
cost recovery from the obligee if State law allows?
Conclusion: Yes. But there is disagreement about what kind of
state law on taxing of costs (general or specific)
applies.
Issue: Can a UIFSA tribunal recover costs from an obligor even in
cases where the obligor prevails?
Conclusion: Majority of group answers no. Minority says costs may
be recovered if State law allows.
Tribal Issues
Section 101 of UIFSA defines "state" to include an Indian tribe.
Issue: What are the implications of this provision?
Conclusion: Congress/OCSE needs to address this. What is the
federal requirement for tribes? Can they handle parts
of IV-D cases? Do timelines apply? Do they have to
have a formal schedule? Do they want to bring the
tribes into this process, if so, they should address
it directly. Or maybe this could be handled at the
state level?? (Refer to monograph on subject by Meg
Haynes and June Mickens). UIFSA doesn't change
implications of tribes being defined as "state,"
because of the enactment of S.922.
Additional Issues:
The definition of state in section 101 of UIFSA includes "a foreign
jurisdiction that has established procedures for issuance and
enforcement of support orders which are substantially similar to the
procedures under this Act."
Issue: Is a reciprocal agreement between a UIFSA state and a
foreign jurisdiction necessary in order to work cases
referred by that foreign jurisdiction or to refer cases to
the foreign jurisdiction? What about documentation or
confirmation that the procedures are "substantially
similar"?
Conclusion: No. You don't need a reciprocal agreement if the UIFSA
is not reciprocal, but that does not get to the
problems of what the foreign jurisdiction might
require in the other direction.
A reciprocal agreement between a UIFSA state and a foreign
jurisdiction is not necessary to work cases from foreign
jurisdiction or refer to foreign jurisdiction.
UIFSA doesn't speak to "substantially similar." OCSE or
state by state determination could be made. It does not
describe what is "substantially similar" and why or who
makes that decision. A practical answer would be to have
OCSE offer technical assistance by determining which
countries' laws are substantially similar and send a letter
to Attorneys General to that effect. Please let us know if
you have any questions. Otherwise, put them on the
list...the work is done.
OCSE should make determinations on what countries have
substantially similar laws and disseminate to states.
Arkansas proposes to add language to section 201 as follows: "the
individual signed an acknowledgment of paternity in regard to the
child and the acknowledgment is filed with the Division of Vital
Records of the Department of Health."
Issue: How do we change UIFSA and maintain uniformity?
Conclusion: As with all uniform laws, there is no complete
uniformity, but only substantial uniformity among the
states. Minor additions are permissible unless
Congress requires absolute uniformity, so long as the
change does not otherwise alter the purpose of UIFSA.
(Thus, Arkansas proposal would be permissible.)
Uniform acts are not uniform and are not intended to be
uniform. They are intended to be substantially uniform.
Actually, in this context there would be an easy way for AR
to do what they want. Most states have a separate long-arm
jurisdiction statute. In Washington, there are two
statutes: the UIFSA long-arm and generic long arm. So one
could put this provision in the original long-arm.
Under URESA, the parent residing in the initiating jurisdiction was
rarely served with legal process as part of an establishment or
paternity case. However, at least 17 States have enacted the Uniform
Parentage Act (UPA). The UPA requires that the parent and child be
made parties to any action. Section 307(c) of UIFSA provides that
UIFSA neither creates or negates an attorney-client relationship
between the support enforcement agency/its attorney and the
individual receiving services.
Issue: Since the child support enforcement agency does not
represent any party (unless other state law provides for
representation), does the UPA require the forum state to
serve process on the initiating parent and child in a
paternity proceeding?
In an interstate case, the initiating parent will reside in
another State. How will the forum state serve process,
particularly if the only address provided is for the
initiating IV-D agency?
Conclusion: The first question is an Uniform Parentage Act
question, and is not governed by UIFSA.
If service of process is required, the responding state
must attempt to serve process, and should ask for
assistance from the initiating state. If service cannot be
obtained, the case cannot be completed.
NEXT STEPS: CLOSING SESSION OF THE UIFSA RETREAT
At the conclusion of the UIFSA Retreat, participants discussed "next
steps" for implementing UIFSA. As more states adopt and implement
UIFSA, it is important to develop mechanisms for sharing the
experience of "older" UIFSA States so that new UIFSA States will not
have to "reinvent the wheel" and to encourage national uniformity to
the extent possible. Participants discussed the role of states, the
Federal OCSE Central Office, Federal Regional Offices, and other
entities (such as the American Bar Association and the National Child
Support Enforcement Association).
1. Regional workgroups are one way for states in a Region to address
UIFSA issues, agree on common practices, and address problems.
States in a Region are likely send a large number of interstate cases
to each other; therefore, resolving interstate issues among states in
a Region is particularly important.
Region X's UIFSA workgroup includes both policy staff and
field/implementation staff from the Region X states. State staff
defined the agenda, goals, and participants, while Federal Regional
office facilitated. The group has defined, discussed, and reached
consensus on a number of UIFSA policy and implementation issues.
Such workgroups are also an effective means for providing OCSE with
input and guidance for policy development.
Region IX planning a similar workgroup. Region V states have also
had meetings on interstate issues. Other states would like to see
Regional Offices facilitate interstate workgroups. Participants
agreed that it would be valuable to include employer groups and other
stakeholders in these workgroups.
2. OCSE's UIFSA Committee is also working to facilitate the
implementation of UIFSA. The Committee consists of five
subcommittees:
Forms and Instructions. Developing new interstate forms in
light of UIFSA.
Automation. Considering issues related to automating these
forms and data elements contained in them, keeping CSENet and
statewide system requirements in mind.
Handbook. Developing a comprehensive handbook that gives
background information on UIFSA, shows how UIFSA differs from
URESA, discusses "sticky" UIFSA issues, and provides detailed
information on how to complete the forms for most case
scenarios.
IRG/Matrix. Considering what UIFSA information needs to be
included in the Interstate Roster and Referral Guide.
Training and Implementation. Working on UIFSA training.
Participants suggested that a guide for employers on UIFSA would also
be useful.
3. New technology can also be used to share information and
facilitate the implementation of UIFSA. There is a need to examine
CSENet and its role in implementing UIFSA. Internet offers an
effective way of communicating with people in other states or
agencies. OCSE is adding information about UIFSA to its electronic
bulletin board; a Dear Colleague Letter will be issued shortly, with
instructions.
4. The American Bar Association has an 18 month grant to develop
training curriculum for judges on UIFSA, including two regional
conferences and a national conference. The ABA also has a fax
service which provides subscribers with information on UIFSA.
5. The National Child Support Enforcement Association is seeking
funding from the State Justice Institute to establish a UIFSA
clearinghouse. The clearinghouse would receive requests/questions on
how to interpret UIFSA from all over the country (from judges,
attorneys, caseworkers). Clearinghouse staff would fax out the
questions to a panel of experts, collect the answers, and report back
the answer within two weeks. The questions and answers would be
included on OCSE and NCSEA's bulletin boards, the NCSEA newsletter,
and other places. Every question and answer would be included in a
notebook by topic. Participants suggested that a system for tracking
case law on UIFSA would also be useful.
6. Participants discussed the need to involve IV-D directors. The
notes from the UIFSA retreat will be distributed to all IV-D
directors.
7. Several participants suggested holding another UIFSA retreat in
several months as more States implement UIFSA and new issues develop.
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