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Giving Hope and Support to America's Children |
Essentials for Attorneys in Child Support Enforcement
T.O.C. Forward 1 2 3 4 5 6 7 8 9 10 11 12 Appendix
CHAPTER 12 - INTERSTATE CHILD SUPPORT REMEDIES
INTRODUCTION
A 1992 GAO report estimated that in 25.6 to 37 percent of all child support case, the noncustodial parents lived in a different State than their children.[1] Enforcement in these interstate cases has long posed a problem. In fact, total interstate collections in child support agency (IV-D) cases represented only slightly more than seven percent of the total distributed collections in such cases.[2] The U.S. Commission on Interstate Child Support identified the following barriers to collection across State lines:[3]
Recent Federal and State legislation has done a great deal to standardize State laws and improve interstate support enforcement. As a result, today’s Child Support Enforcement (CSE or IV-D) attorney has more tools available for interstate case processing.
HISTORY OF INTERSTATE CHILD SUPPORT
Establishment and enforcement of support for the family across State lines is not a new problem. Ever since improved means of transportation have made it possible to travel, seekers of fortune have left their families behind to find a “better life.”
Model State Laws
Historically, the resolution of family issues such as custody and support was governed by State law. In 1910, the National Conference of Commissioners on Uniform State Laws (NCCUSL) approved the Uniform Desertion and Non-Support Act. This model act made it a criminal offense to fail to support or to desert a wife and children. Unfortunately, the Act was limited in two ways. It only provided criminal penalties; when a person was jailed for nonsupport, the family was left without financial resources. It also lacked interstate remedies; the only option when the noncustodial parent lived out of State was to attempt extradition.
In response to the need for a simple, inexpensive, and consistent interstate process, NCCUSL drafted and approved the Uniform Reciprocal Enforcement of Support Act (URESA).[4] URESA provided a uniform process for a custodial parent to use the courts of another State without traveling to that State or becoming subject to the jurisdiction of that State’s courts for purposes other than the support proceeding. The URESA action began with the filing of a petition in the appropriate court of the State where the custodial parent lived. The judge in that initiating State would then review the pleadings to determine whether the allegations indicated that a duty of support existed and whether the State where the petition was being sent (the responding State) appeared to have jurisdiction over the noncustodial parent. After those elements were determined, the initiating court certified the case to the proper court in the responding State. The original version of URESA also contained a provision for criminal enforcement through “rendition” or extradition.
The Act was amended several times—in 1952, 1958, and in 1968. The 1968 amendments, which included provisions for paternity establishment, were extensive and became the Revised Uniform Reciprocal Enforcement of Support Act, or RURESA.[5] All States and U.S. territories enacted some form of URESA or similar legislation. Some States, however, modified or omitted certain provisions to comply with their own State laws on procedure and enforcement. The Uniform Act was therefore never truly uniform.
In 1989, NCCUSL reviewed RURESA and determined the need for major revisions. The result was the development of the Uniform Interstate Family Support Act (UIFSA), a new interstate Act that supercedes URESA and RURESA.[6] The most revolutionary aspects of UIFSA are the concepts of one controlling order for prospective support and limitations on modification jurisdiction. NCCUSL amended UIFSA in 1996 and 2001. UIFSA is discussed in detail below.[7]
Federal Legislation
Because of the dramatic increases in the number of public assistance cases, Congress increasingly became involved in child support. Federal law has improved the establishment and enforcement of support in interstate cases in three ways:
1. by mandating enactment of State laws as a condition of receiving Federal funds;
2. by the expansion of full faith and credit; and
3. by providing for Federal criminal remedies.
In 1984, Congress passed the Child Support Enforcement Amendments of 1984[8], in part to assist in the processing of interstate cases. States were mandated, as a condition of receiving Federal funds, to enact and implement certain enforcement techniques such as interstate wage withholding and expedited processes. The statute also provided for Federal tax refund intercepts for non assistance IV-D cases, a powerful collection method in the interstate context. The law provided Federal funds for demonstration projects on innovative interstate enforcement techniques and Federal incentive payments to both the initiating and responding States for interstate collections.
These measures failed to satisfactorily improve child support collections in interstate cases. Congress again tried to improve interstate enforcement with a provision in the Omnibus Budget Reconciliation Act of 1986. The so-called Bradley Amendment[9] required States, as a condition of receiving Federal funds, to provide that child support payments must become final judgments on the date they come due, thus eliminating the need to go to court to have arrears reduced to a sum certain judgment. States were also required to give full faith and credit to these judgments. Thus, existing orders of other States could be enforced in a State without creating a new order or recalculating the amount of support due. The Bradley Amendment also prohibited retroactive modification of a child support order before the date a petition for modification was filed and notice given to the nonrequesting party.Retroactive modification had been particularly problematic in the interstate case where the obligee was not present or able to testify about an alleged change in circumstances that the obligor raised during enforcement or registration hearings.
With passage of the Family Support Act of 1988,[10] Congress established the U.S. Commission on Interstate Child Support. Congress directed the 15-member Commission to submit a report containing recommendations for improving the interstate establishment and enforcement of child support orders and for revising URESA. The Commission held hearings and public forums across the country to formulate these recommendations. Its final report to Congress, entitled “Supporting Our Children: A Blueprint for Reform,”[11] contained 120 recommendations. Many of these recommendations provide the basis for today’s interstate child support case processing.
Among the Commission’s recommendations was one that Congress require States to pass UIFSA as it was approved by NCCUSL. Without such a mandate, States were free to enact or ignore the new model act. Not knowing how many States would enact UIFSA, or in what form, Congress passed the Federal Full Faith and Credit for Child Support Orders Act (FFCCSOA)[12] in July 1994. The Federal statute, which does not require enabling State legislation, requires courts and administrative agencies in the United States and its territories to give full faith and credit to any child support order properly issued by another State with personal jurisdiction over the parties and subject matter jurisdiction. Only the standard defenses of fraud, duress, irregularity, and mistake of fact are permitted to contest the enforcement of another State’s order. FFCCSOA also limits States’ jurisdiction to modify, consistent with UIFSA’s rules
In 1996, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act of1996 (PRWORA),[13] commonly known as welfare reform. Included in the child support title was a requirement that States, as a condition of receiving Federal funds, enact UIFSA, with its 1996 amendments, by January 1, 1998. UIFSA has now been adopted in all States and U.S. territories.[14] In addition to enacting UIFSA, PRWORA required every State, as a condition of receiving Federal funds, to grant authority to its IV-D agency to take certain enforcement actions administratively, without obtaining a judicial order.[15] These actions—income withholding, interception and seizure of lump sum payments, seizure of assets from financial institutions, attachment of retirement funds, and ordering payments on arrears—apply to interstate cases as well as intrastate cases.
PRWORA also required States to provide that child support liens arise by operation of law when there is an arrearage and that such liens are entitled to full faith and credit in every State. This requirement includes liens placed against bank accounts, stocks, Government benefits, lottery winnings, and other real and personal property. States are also required to cooperate and use high-volume and automated administrative enforcement in interstate cases (AEI). There are additional Federal remedies that apply in both interstate and intrastate cases: Administrative Offset, Federal Tax Refund Offset, and Passport Denial.[16]
PRWORA amended FFCCSOA.[17] The amendments added the same provisions as UIFSA for determining which of multiple orders is the controlling order for prospective enforcement of support.
Federal criminal prosecution is also available to enforce interstate support cases. The Child Support Recovery Act (CSRA) of 1992, and the Deadbeat Parents Punishment Act of 1998, which amends CSRA, [18] make it a Federal offense to willfully fail to pay support for a child living in another State or nation, if the unpaid amount exceeds $5,000 or remains unpaid for more than 1 year. The crime is punishable by fine and imprisonment and restitution is required. “Willfulness” has been defined as a knowing and intentional violation of a legal duty and is presumed under the 1998 amendment. Partial payment of support does not negate the criminal intent, but inability to pay does. The 1998 amendments also create a felony offense, where the parent moves to another State or country to evade the support obligation and arrears remain unpaid in excess of 2 years, or exceed $10,000. A Federal prosecution under these statutes can be brought where the non paying parent resides, where the payments are to be made, or where the child resides.[19]
Other Federal Initiatives
In 1985 the Federal Office of Child Support Enforcement (OCSE) formed a work group to develop standardized forms to be used in interstate cases. The forms were designed to simplify record keeping and the transmission of URESA cases, enhance communication between States, improve the efficiency in processing interstate cases and, ultimately, increase interstate collections. In 1997, OCSE developed new forms, which could be used in UIFSA cases. Updated interstate forms were issued in 2000. Additionally, the Secretary of HHS developed a Federal Income Withholding Order/Notice form, an Administrative Subpoena form, and a Notice of Child Support Lien form.[20]
In 1988, OCSE issued new regulations designed to expedite interstate cases. These regulations directed that States establish central registries for receiving, tracking, and monitoring interstate cases; encouraged the use of long-arm jurisdiction where available and appropriate; required responding States to meet specific timeframes in handling requests from an initiating State; and required States to treat local and interstate cases equally. Some of these regulations remain in effect today, although there have been some changes to the provisions.[21]
THE UNIFORM INTERSTATE FAMILY SUPPORT ACT
The mandate of PRWORA forced States to move toward improving interstate child support collection. With advancements in technology, the opportunity to use new methods and mechanisms to work difficult interstate cases was inviting.
Overview
From 1950 until 1998, URESA was the primary mechanism for the interstate litigation of child support. Both URESA and its 1968 revision were considered revolutionary when they were adopted, but their shortcomings become apparent. They failed to reflect important changes in child support collection— the subsequent passage of Title IV-D of the Social Security Act in 1975, which authorized the Office of Child Support Enforcement and the Federal program ; and vast technological strides, such as the use of computers and databases to obtain information. Recognizing the need to keep up with child support enforcement innovations, NCCUSL approved the Uniform Interstate Family Support Act (UIFSA) in 1992. In July 1996, amendments to the original act were adopted to clarify some provisions and resolve some omissions.[22] NCCUSL approved additional amendments to the Act in August 2001.[23]
Terminology
Although UIFSA retains much of the terminology of URESA to minimize confusion, there are notable changes in some terms that reflect the different approach to interstate child support.[24]
Petitioner. URESA was an Act that only applied to obligees. There was no authorization for an obligor to initiate an action. In contrast, UIFSA uses the term “petitioner” to refer to the moving party. Either a custodial parent or noncustodial parent can be a petitioner under UIFSA. Examples of when a noncustodial parent might be a petitioner are actions to establish paternity or to seek a downward adjustment in the support obligation.
Tribunal. Because URESA predated establishment of the Title IV-D child support program, it failed to recognize the role of the child support agency and administrative procedures. UIFSA recognizes the role of the support enforcement agency. It also recognizes the fact that many jurisdictions have created administrative entities to handle child support matters. Where URESA used a court -to -court process, UIFSA has a much broader scope. UIFSA uses the term “tribunal,” which means “a court, administrative agency, or quasi-judicial entity authorized to establish, enforce, or modify support orders or to determine parentage.”[25]
Pursuant to Section 102 of UIFSA, a State designates the tribunal in that State. Many States limit the definition of tribunal to the court. Other States, however, define tribunal to include both the court and the administrative child support agency.
State. The term “state” takes on a broader meaning in UIFSA, including in its definition both Indian tribes and “a foreign jurisdiction that has enacted a law or established procedures for issuance and enforcement of support orders which are substantially similar to the procedures in this [Act], the Uniform Reciprocal Enforcement of Support Act, or the Revised Uniform Reciprocal Enforcement of Support Act.”[26] The 2001 Amendments approved by NCCUSL expand the definition of a “State” to include a “foreign country or political subdivision that: (i) has been declared to be a foreign reciprocating country or political subdivision under federal law; (ii) has established a reciprocal arrangement for child support with this State as provided in Section 308; or (iii) has enacted a law or established procedures which are substantially similar to the procedures under this [Act].[27]
Child’s home State. UIFSA also incorporates the concept of a child’s “home State,” new to child support litigation, using the definition found in the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)[28] and the Parental Kidnapping Prevention Act (PKPA)[29]. It is defined as
the State in which a child lived with a parent or a person acting as parent for at least 6 consecutive months immediately preceding the time of filing a [petition] or comparable pleading for support and, if a child is less than 6 months old, the State in which the child lived from birth with any of them. A period of temporary absence of any of them is counted as part of the 6-month or other period.[30]
Continuing, exclusive jurisdiction. To achieve a one-order world, UIFSA introduces the concept of continuing, exclusive jurisdiction (CEJ). A tribunal has continuing, exclusive jurisdiction if it has issued an order and is the residence of the individual obligee, obligor, or child.[31]
Controlling order. UIFSA also introduces the concept of “controlling order,” which is the support order that governs prospective enforcement of support.[32] In existing cases where there are multiple support orders, a crucial step to achieve a one-order world is the determination of the controlling order.
Reciprocity. It is important to note that UIFSA has largely eliminated the reciprocity requirement of URESA. Because of the Federal mandate that States enact UIFSA, eliminating that provision has no effect within the United States and its territories. It is, however, important for the CSE attorney to know that Tribal support orders must be enforced under UIFSA even if a Tribe has not enacted support laws substantially similar to UIFSA. The only area in which there continues to be a reciprocity requirement is in international support cases. For handling a child support case involving another country, UIFSA continues to require that the foreign jurisdiction have laws that are substantially similar to UIFSA.[33]
Role of Support Enforcement Agency
Under UIFSA, a support enforcement agency must provide services to any petitioner, on request. Services include the following actions:
Private Attorneys
UIFSA explicitly authorizes individuals to employ private counsel to represent them in UIFSA proceedings.[34]
Evidentiary Provisions
Interstate cases present unique challenges for completing discovery, submitting information, and presenting testimony by the parties. UIFSA has specific provisions for transmitting and admitting evidence, as well as provisions for obtaining assistance from another State. The provisions in Sections 316[35] and 318[36] are applicable in long-arm proceedings as well as in UIFSA’s two-State proceedings. They are also expressly available to a nonresident party in a child support action heard by a tribunal with CEJ.[37]
The majority of UIFSA’s evidentiary proceedings are in Section 316:
It is interesting that although a responding tribunal maynot require a petitioner to be present physically, the Act does not contain a similar statement regarding the physical presence of witnesses. Because UIFSA allows either a nonresident petitioner or witness to be deposed or to testify by telephone, audiovisual means, or other electronic methods, however, it appears that the responding tribunal has discretion regarding the manner in which it will obtain evidence from a nonresident witness.
To make UIFSA meaningful for petitioners, States need to ensure that their tribunals have appropriate procedures and equipment to facilitate the interstate provision of testimony. For instance, the West Virginia legislature gave the State Supreme Court rulemaking authority to implement telephone hearings.[40] CSE attorneys must also ensure that if they participate in telephone hearings, they comply with ethical requirements concerning authorization to practice law in a State.[41]
UIFSA also addresses communications between tribunals. For example, Section 317 authorizes tribunals to communicate, in writing, by phone, or other means, in order to obtain information about another State’s laws, the legal effect of a judgment, decree, or order, and the status of a proceeding in the State. A tribunal in one State can also call on the tribunal in another State to provide assistance in obtaining discovery or in compelling a person to respond to a discovery order.[42]
Domestic Violence Protection
There are important privacy safeguards in UIFSA to ensure that a family does not have to choose between financial support and safety. The Act permits a tribunal to allow address and/or identifying information of a child or party to be withheld from pleadings or other documents filed in connection with the proceeding.[43] As a basis for this nondisclosure order, the tribunal must find that the health, safety, or liberty of a parent or child would be unreasonably put at risk by such a disclosure. This finding can be made in an ex parte proceeding or can be based on a pre-existing order, such as a protection order.[44]
Although separate, it is important to note that UIFSA’s nondisclosure safeguards work in tandem with the family violence protections developed for the Federal Parent Locator Service (FPLS) and State data systems.[45] Thus, tribunals should develop procedures to ensure that the existence of a UIFSA nondisclosure order is properly conveyed within the State so that the party or child also receives the benefit of these other State and Federal protection mechanisms.
Choice of Law
For most UIFSA proceedings, the law of the forum State, i.e., the State hearing the action, applies. There are, however, some additions or exceptions:
Notice Requirements
UIFSA includes many notice requirements. Most have specific timeframes for compliance. These notice requirements are further evidence of the efforts to streamline and facilitate interstate case processing.[55]
MAIN UIFSA PRINCIPLES
Basic concepts, so integral to UIFSA, are what set it apart from former laws and mechanisms set in place to collect child support. UIFSA addresses the shortcomings of previous laws and offers new solutions to the problems that beset the child support enforcement community.
One-Order World
The ultimate goal of UIFSA is the efficient processing of interstate cases. One of the major barriers to interstate collection of child support was the multiple-order world under URESA.
Prohibition against de novo orders. URESA expressly provided that a URESA order did not nullify, and was not nullified by, any other support order.[56] As a result, courts often issued de novo support orders that existed independently from any other support order involving the same parties and child(ren). Often these de novo support orders were for a different support amount. The drafters of UIFSA were determined to end this practice. Under UIFSA, if there is a support order entitled to recognition under the Act, a tribunal cannot establish a new support order.[57]
Continuing, exclusive jurisdiction. An important concept to UIFSA’s one-order world is continuing, exclusive jurisdiction (CEJ). A tribunal has CEJ to modify a support order if it has issued a support order and is the residence of the individual obligee, obligor, or child.[58] A tribunal will “lose” CEJ when all of the individual parties and child(ren) have moved away[59] or when the individual parties file a written consent with the issuing tribunal to have another State exercise modification jurisdiction and assume CEJ.[60] Keep in mind, however, that the forum tribunal will determine CEJ by looking at where the parties reside at the time the action is filed.[61] Therefore, should a party or child who had previously left the issuing State return to the State prior to modification and assumption of CEJ by another State, the issuing State will still have CEJ.[62]
The following are some case examples:
There is a distinction between “controlling order” and “continuing, exclusive jurisdiction” to modify. If there is only one support order, that is the controlling order. It is enforceable in any State where the obligor is located or has income or assets. It remains the controlling order even if no individual party or child lives in the State. If the obligor, obligee, and child have, however, left the State that issued the controlling order, the issuing State lacks CEJ to modify the order.[67]
Controlling order when multiple support orders exist. Because of URESA, cases that predate 1994 often contain multiple support orders.[68] Both FFCCSOA and UIFSA contain rules for determining which of these support orders is controlling and governs prospective enforcement of support. See the discussion below regarding determination of the controlling order (DCO).
Identification of Support Orders
Before seeking a tribunal determination of the controlling order, the CSE attorney should ensure that the agency worker has identified all support orders involving the obligor and child, and has obtained certified copies of the orders. The most important sources of information about the existence of orders are the parties themselves. Inquiries about where they have lived and whether they have received public assistance from any State might facilitate the location of orders. In addition the Federal Case Registry (FCR) can provide assistance in locating orders. The FCR is a national registry of participants in IV-D cases and in
non-IV-D orders established or modified on or after October 1, 1998. The FCR contains data identifying cases and orders transmitted electronically from the State Case Registries (SCRs). The FCR does not provide a copy of the order. Non-IV-D orders issued or modified before October 1, 1998, and any closed IV-D cases are not required to be placed on the SCR and, therefore, will not be reported to the FCR. Nor does the FCR identify States that have issued support orders. The FCR does not, therefore, identify the controlling support order under UIFSA. The FCR does, however, identify the existence of a support order and what State agencies are working the case. The initiating support enforcement agency can then contact those other State agencies to discover which State(s) issued the reported order(s).
It is important to remember that only orders that contain a prospective support obligation qualify for controlling order status. Temporary ex parte support orders, income withholding orders, and orders collecting arrears alone should not be considered.
Even using all the sources available, it is conceivable that a tribunal could determine the controlling order based on incorrect information about the existence of support orders. UIFSA itself does not specify what should happen in such a situation. There is, however, guidance provided in the comments:
Section 207 presumes that a tribunal will be fully informed about all existing orders if it is requested to determine which one of the existing multiple child support orders is to be accorded prospective enforcement. If this does not occur and one or more existing orders is not considered by the tribunal, the finality of its decision is likely to turn on principles of estoppel on a case-by-case basis. Assuming that the parties were accorded notice and opportunity to be heard by the tribunal, a final decision on the subject is entitled to full faith and credit.[69]
UIFSA’s Official Comments are consistent with long-standing legal principles of res judicata. Assuming that all necessary parties received notice of the proceeding and had an opportunity to present testimony, the final determination of controlling order is binding, even if it did not include all existing orders. On the other hand, a party who was not given proper notice should later be able to ask for consideration of other orders. There also may be a basis for setting aside the ruling pursuant to Rule 60b or a similar Rule of Civil Procedure.
Is a child support agency a necessary party in all DCO actions? There is not a universally agreed-upon answer. In some States, there is law providing that the child support agency is a necessary party in any action involving a IV-D case.[70] In such States, the IV-D agency would be a necessary party to a DCO and should receive notice. In other States that lack such legislation, arguably the child support agency is not a necessary party to a DCO. In those States, a failure to provide notice to the child support agency regarding an upcoming DCO should not affect the validity of the DCO. An exception would be where the custodial parent is currently receiving assistance under the Temporary Assistance for Needy Families (TANF) program, Medicaid, or the IV-E foster care program or has previously received such assistance, in which case the agency may be considered an “obligee.” One cannot rely on the caption of an order nor the current TANF, Medicaid, or foster care status of the obligee to determine whether the State IV-D agency is a necessary party. It might, therefore, be advisable to give notice of an upcoming DCO not only to individual parties, but also to any
IV-D agency that is currently enforcing the order or is otherwise connected with support orders in the case. The best way to identify these agencies is to check the FCR.[71]
Determination of Controlling Order
Before any action can be taken to collect child support, and after the existing orders are discovered, the controlling order must be determined. This is the one order to be prospectively enforced, and the law of the State that issued it governs the non modifiable aspects of the order.[72]
Who can determine a controlling order. For the controlling order determination to be binding, it must be made by the appropriate tribunal. A preliminary determination of the controlling order by the child support agency, an attorney, or a party, is insufficient to resolve the issue. Each State has discretion in defining what entity is a tribunal. In States that have limited the definition of “tribunal” to the courts, a support enforcement agency should not proceed with administrative enforcement in a multiple support order case until the court has determined the controlling order.[73]
When a tribunal can determine a controlling order. Normally, a tribunal will make a determination of controlling order in the context of a registration proceeding for enforcement or modification.[74] The issue also could arise in two other contexts. First, if there are multiple support orders but no order was issued by a tribunal with continuing, exclusive jurisdiction, there is no controlling support order and the proper action for a party is to seek the establishment of a support order.[75] Before the responding tribunal issues a support order, it should first find that there is no controlling order. Secondly, UIFSA allows a party to bring a stand-alone proceeding to determine the controlling order.[76] One of the individual parties must reside in the State where the determination is sought. The request must include a certified copy of every existing support order, and the requester must provide notice of the action to each party whose rights might be affected by the ruling.[77]
What type of jurisdiction is required. As originally drafted, UIFSA was silent regarding the requisite jurisdiction for a tribunal to determine the controlling order. The 2001 amendments clarify that the tribunal must have personal jurisdiction over both individual parties.[78] The requirement of personal jurisdiction is consistent with the view by many judges that a DCO is similar to a declaratory judgment, which requires personal jurisdiction.
What rules apply. Both UIFSA and FFCCSOA specify rules that a tribunal must apply in determining the controlling order that will govern prospective enforcement of support:
See Exhibit 12-3 for a Determination of Controlling Order flowchart.
States that allowed inter county proceedings under URESA face the dilemma of how to handle multiple support orders existing within the State. UIFSA does not address this issue. Pennsylvania has adopted an intrastate act to address conflicting intrastate orders and other issues that arise in a State where counties act independently.[83] A 2001 survey of State child support agencies found that most States lacked laws or policy on how to handle inconsistent intrastate orders.[84] Even the UIFSA drafters were unclear about the application of UIFSA in this situation. The official comment to Section 207 (b) states:
It is not altogether clear whether the terms of UIFSA apply to a strictly intrastate case; that is, a situation in which multiple child support orders have been issued by multiple tribunals of a single [S]tate and all parties and the child continue to reside in that [S]tate…. A literal reading of the statutory language suggests the section applies. For a tribunal of the issuing [S]tate to so conclude will further the goal of the Act of identifying a single controlling order for prospective enforcement and modification. At the very least, the section provides a template for resolving such conflicts, most likely yielding a determination that the last order is the controlling order.[85]
A New York court has specifically held that UIFSA jurisdiction extends only to interstate child support cases and cannot be applied to reconcile intrastate cases.[86]
How arrears are addressed. Note that neither FFCCSOA nor UIFSA invalidates any of the existing orders. Each order remains in full force and effect until a tribunal makes a controlling order determination. Therefore, arrears will accrue under existing support orders up to the point of a DCO. When there are concurrent support orders, the highest amount due under any order at any given time is due for that period. Once there is a DCO, the controlling order determination cuts off the accumulation of additional arrears under the “old” orders.
The only time that UIFSA (as currently enacted by States) requires a determination of arrears is in the context of a registration for enforcement or a registration for modification. In seeking registration, the petitioner must allege the amount of any arrears; thereafter, both the order and the arrears are confirmed.[87] At least one appellate court has held that confirmation of an order registered under UIFSA must include a determination of arrears.[88]
Although not required by UIFSA, some State IV-D agencies have adopted a policy of seeking a reconciliation of arrears, under all orders, any time a controlling order determination is made. By proceeding in this way, they ensure that all interested parties receive notice of the proposed action and that the arrears determination can properly be considered res judicata. This “best practice” is codified in the 2001 amendments to UIFSA, in Section 207(f), which requires the tribunal that makes the controlling order determination to state in its order “ the total amount of consolidated and accrued interest, if any, under all of the orders” after giving appropriate credits under Section 209. Section 209 addresses reconciliation of multiple order accounts by requiring the tribunal to “ credit amounts collected for a particular period pursuant to any child-support order against the amounts owed for the same period under any other child-support order for support of the same child. …”
What type of notice is required. When determination of controlling order is made, the tribunal is required to state the basis on which its determination is made.[89] Within 30 days of the determination, the party who requested the determination must file a certified copy of the order with each tribunal that issued or registered a prior order. UIFSA permits the imposition of sanctions for failure to do this, but provides that the failure does not affect the validity of the determination or the enforceability of the controlling order. OCSE has developed a Federal form for use in providing notice of a determination of controlling order.[90] Note that although UIFSA places the responsibility for providing notice on the parties, many support enforcement agencies have also voluntarily assumed that responsibility in IV-D cases.
Impact of a controlling order determination. Under UIFSA, there can be only one order controlling the ongoing support amount. This amount can be enforced prospectively in all States where the obligor or his or her assets or income are located. A State issuing the controlling order has CEJ to modify the order as long as either of the individual parties or the child resides there. The law of the State that is determined, under Section 207, to have issued the initial controlling order governs the non-modifiable aspects of the order, regardless of where enforcement and subsequent modifications take place.[91]
INTERSTATE PATERNITY AND SUPPORT ESTABLISHMENT
The central point in UIFSA is the “one order in time” concept. The general rule is that a tribunal can issue a paternity or child support order only if no support order entitled to recognition as a controlling order already exists.[92]
Thus, the initial inquiry for the CSE attorney should be whether there is an existing order entitled to recognition. As previously discussed in the section on identification of support orders for the controlling order determination, there are several ways to discover existing orders. The primary means is through an effective client interview. Because UIFSA requires a petitioner to append any existing order to the pleadings when seeking to establish a parentage or support order,[93] the CSE agency should ask the custodial parent to disclose, and provide copies of, any existing support orders. The respondent also has an opportunity to bring omitted orders to the tribunal’s attention in responsive pleadings. The third method is through the FCR.[94] One component of the FCR data is an order indicator, which identifies whether a support order exists for a particular child. If there is a support order entitled to recognition under UIFSA, no other tribunal can establish a de novo order.
Sometimes there might be multiple support orders but no controlling order because none of the tribunals that has issued a support order has CEJ. In that situation, there is no order entitled to recognition under the Act. Section 207 of UIFSA directs the responding tribunal with personal jurisdiction over the parties to issue a new order. That new order becomes the controlling order in the case.
Initial Establishment of Paternity or Support
Standing. UIFSA authorizes either the mother or a man alleging himself to be the father of a child to initiate a paternity action. If the case is being initiated by a IV-D agency, an action to determine parentage will usually also seek establishment of a support order.
Jurisdiction. For a tribunal to establish paternity and/or a support order, it must have jurisdiction over the parties.[95] A tribunal can assert jurisdiction over a nonresident respondent by means of UIFSA’s long-arm provisions.[96] In a two-State UIFSA action, the petitioner files a paternity/support action in the State where the respondent lives.[97]
Long-arm proceeding. When a person commits certain acts within a State, the State can exercise jurisdiction over the person, even though the person is not a resident of the State. The State can reach out its “long arm” to require the person to resolve issues related to that person’s acts in the State. Pursuant to State law, the State must specify which acts will subject an individual to the State’s jurisdiction. Historically, most States have had long-arm statutes that were applicable to child support cases.[98] UIFSA includes expansive long-arm provisions for establishing paternity and support that are now available in every State.[99] These provisions incorporate essentially every constitutionally permissible basis of obtaining authority over an out-of-State party:
Note that personal jurisdiction over a nonresident respondent is subject to challenge. The typical claim is that there is an insufficient nexus between the act involved and the forum State to pass the fundamental fairness test or, in other words, maintain certain minimum conequivalent to a Federal mandate to use a specific legal remedy.While it might be possible to assert long-arm jurisdiction over the respondent, the petitioner can choose to use UIFSA’s two-State procedures if more appropriate.[106]
Two-State proceeding. If long-arm jurisdiction is not available or appropriate, a petitioner can file a UIFSA petition in his or her State. That petition is transmitted to the State with jurisdiction over the respondent. This two-State process can be used to seek paternity only, paternity and support, or support alone.[107]
Initiating tribunal. Although the initiation of a UIFSA two-State case is similar to the process under URESA, there are several critical differences. First, URESA provided a court-to-court process. A lawsuit was filed in a court in the initiating State. A judge reviewed the pleadings and, if they were found to be legally and factually sufficient, the judge signed a Certificate and Order to transfer the matter to the appropriate court with jurisdiction over the respondent. In actuality, this initial review rarely consisted of more than a pro forma signature on a stack of pleadings, accomplishing little more than delay. In an effort to streamline the process, UIFSA did away with this review and eliminated the Certificate and Order requirement.[108] Thus, in the current two-State process, the role of the initiating tribunal is largely ministerial. It is charged with forwarding three copies of the petition and supporting documents to the responding State’s tribunal or CSE agency, as appropriate.[109] Note that, when dealing with the tribunal of a country that does not have a law substantially similar to UIFSA, the initiating State tribunal can issue a URESA-like certificate, and make any findings required by the responding jurisdiction, before forwarding the petition.[110] For example, for petitions sent to Canada, an initiating U.S. tribunal can enter a finding of the amount of support being requested, as required by Canadian law.
Pleadings.UIFSA provides that a verified petition is admissible in evidence if given under oath by a party in another State.[111] Unless subject to an order for nondisclosure,[112] the petition must include, to the extent known, the parties’ names, residential addresses, and Social Security Numbers, as well as the name, sex, residential address, Social Security Number, and date of birth of each child for whom support is sought.[113]
OCSE has developed a forms matrix that identifies Federal forms that should be forwarded in various interstate actions. For the initial establishment of a support order, the following documents should be forwarded: Child Support Enforcement Transmittal # 1— Initial Request, Uniform Support Petition, and General Testimony. If the petitioner is also seeking paternity establishment, the Affidavit in Support of Establishing Paternity should also be completed. The petitioner must verify the petition. There is a line on the petition for the signature of a IV-D representative; instructions to the Federal UIFSA forms indicate that an attorney’s signature is not necessary. Note that if the petitioner is seeking establishment of a support order because the case has multiple support orders involving the same obligor and child, but no order is entitled to recognition as the controlling order, it might be necessary for the petitioner to also forward forms required for registration for enforcement in order to collect arrears under those prior support orders.
Unlike URESA, UIFSA permits a petitioner to bypass the initiating tribunal altogether and file the UIFSA petition directly in a State with jurisdiction over the respondent.[114] A parallel provision requires the responding tribunal to act on any direct filing received.[115] The direct filing of the action in another State (and similarly, representing a party or agency during a telephonic hearing to a tribunal in another State) raises the issue of unauthorized practice of law where counsel in the initiating State is not licensed to practice law in the responding State. In the future, States will have to address this issue to facilitate interstate litigation and further the purpose of UIFSA.[116] A child support agency cannot use the direct filing provision; Federal regulations require that the initiating State agency forward the pleadings to the interstate central registry in the responding State.[117] For registry address information, check the National Roster and Interstate Referral Guide.[118]
Responding tribunal. Generally, a responding tribunal will hear and decide an interstate paternity or child support matter just as it would any intrastate case.[119] UIFSA specifically directs the tribunal to apply its own procedural and substantive law, including its child support guidelines.[120] Therefore, although UIFSA offers special rules of evidence and procedure to assist in securing information from parties and other tribunals,[121] the tribunal’s duties do not differ much from the role it would play in a local matter.
Notwithstanding local law or procedures, a responding tribunal must:
The CSE attorney should request that the tribunal make specific findings in its order regarding the bases for jurisdiction over the respondent and the method of service. Such findings make it more likely that the orders will be upheld on review.
The responding tribunal must send copies of its order to the individual or agency petitioner, the respondent, and the initiating tribunal, if there was one.[125] Also, the tribunal will have to follow its State procedure for entry of the order into the SCR. This action makes relevant information about the order and the parties available for enforcement purposes within the State and nationwide, once the SCR data is forwarded to the FCR.
Nonparentage as a defense.UIFSA precludes a party from raising nonparentage in a UIFSA proceeding when parentage already has been determined by or pursuant to law.[126] A collateral attack on a parentage decree or determination must be pursued in the issuing State, according to that State’s laws; it is not an issue properly raised in a UIFSA proceeding.[127]
The majority of State courts have taken this position. For example, where there was a prior order of support with a paternity determination, or made pursuant to a divorce proceeding, and no challenge to the determination was made for children born during the marriage, the Louisiana and South Carolina courts have held that the obligor cannot seek genetic testing in the responding tribunal.[128] A recent Maryland decision, however, promises to raise some interesting issues for that State as well as States that interact with Maryland on a regular basis. The Maryland Court of Appeals held that Md. Code Ann., Fam. Law § 5-1038(a)(2)(i)(2) applies to any action to disestablish paternity, regardless of the date paternity was established.This provision gives an adjudicated father the right to reopen and challenge the paternity declaration against him, whenever post-declaration genetic test results show that he is not the child’s biological father. Not only can a challenge proceed, the adjudicated father can also request a blood or genetic test to confirm or deny paternity. The court found that a determination of the child’s best interests is inappropriate and irrelevant to deciding whether to order genetic testing or to disestablish paternity.[129]
This decision affects Maryland paternity determinations made without genetic testing, but not voluntary acknowledgments entered under Maryland’s current statute. It also raises several questions as to whether a Maryland paternity order is entitled to full faith and credit as required under PRWORA when genetic testing was not involved; and whether a party, whose paternity determination is subject to reopening in Maryland, can request genetic testing in a subsequent UIFSA proceeding in another State.
PRWORA required States to enact specific laws and procedures related to paternity establishment as a condition of Federal funding.[130] Several of the provisions are relevant in deciding whether there has been a determination of paternity “by or pursuant to law,” as required by UIFSA. For example, States now must have laws and procedures providing the following:
- a voluntary acknowledgment constitutes a legal finding of parentage, unless withdrawn within a 60-day rescission period;
- tribunals must give full faith and credit to paternity acknowledgments properly executed in another State; and
- a State cannot require judicial or administrative proceedings to ratify an unchallenged acknowledgment of paternity. [131]
Challenging a decree on constitutional due process grounds is always permissible.[132] The tribunal also might be asked to decide whether a UIFSA petitioner, including the IV-D agency or child, is bound by a prior parentage determination in an action to which it was not a party.[133]
Simultaneous proceedings. Because UIFSA permits either parent or the IV-D agency to file actions, there might be instances in which proceedings are filed at roughly the same time in different States. UIFSA sets out clear instructions for when a tribunal can, and cannot, exercise jurisdiction if there is an action pending elsewhere.
Under UIFSA, a tribunal can exercise jurisdiction to establish an order only when:
According to UIFSA’s Official Comments, this section “requires cooperation between, and deference by, sister-[S]tate tribunals in order to avoid issuance of competing support orders. To this end, tribunals are expected to take an active role in seeking out information about support proceedings in other [S]tates concerning the same child.”[135]
ESTABLISHMENT VERSUS MODIFICATION
The Federal Full Faith and Credit for Child Support Orders Act[136] has an expansive definition of “modification.” Modification means “a change in a child support order that affects the amount, scope, or duration of the order and modifies, replaces, supercedes, or otherwise is made subsequent to the child support order.”[137]As discussed below, some modifications are permissible under UIFSA; others are not. One issue that has arisen is whether certain tribunal actions are considered establishment or enforcement actions or whether they are considered modifications.
Silent Order
If there is a divorce decree that is silent on the issue of support, the consensus among child support practitioners is that a subsequent action seeking a support order is considered an establishment action.
$O Support Order
If there is a support order for $0, the consensus among child support practitioners is that any increase in the support amount is considered a modification.
Suspended Order
If there is a support order that has been suspended, case law supports the view that reinstatement of the order is considered a modification.[138]
Issue of Support Reserved
Where the issue of support is reserved, there appears to be no consensus regarding whether such an order is considered a support order. Some tribunals will want to know the basis for the reservation and whether the issuing tribunal had personal jurisdiction over the respondent. Although UIFSA does not provide specific guidance in this situation, the Act does direct the forum tribunal to use the issuing State’s law to ascertain the nature of a support order.[139] Thus, it appears that the existence of an order in these situations that is entitled to recognition under UIFSA may vary by State.
Addition of Medical Support
If a support order does not address health care, any addition of a provision requiring health insurance coverage or reimbursement of medical expenses is considered a modification of the support order.
Temporary Support Order
UIFSA clearly provides that a temporary support order, issued ex parte or pending resolution of a jurisdictional conflict, does not create CEJ in the issuing tribunal. Thus, in those instances, it will be necessary to establish a support order rather than modify the temporary order.[140]
INTERSTATE MODIFICATION
Along with the State’s legal criteria for when it is appropriate to modify an order, UIFSA plays a role in interstate modification decisions. Its provisions set forth who can modify and where the modification should take place.
Standing
Pursuant to UIFSA, a petitioner can be the obligee or the obligor. Therefore, UIFSA’s modification provisions can be used to seek downward adjustments as well as increases in support.
Jurisdiction
To modify a support order, the tribunal must have personal jurisdiction as well as subject matter jurisdiction. UIFSA and the FFCCSOA are consistent with regard to the rules governing jurisdiction to modify. The cornerstone of the Act is CEJ . The 2001 amendments to UIFSA clarify that CEJ is a concept that applies to modification.[141] As noted earlier, a tribunal has CEJ if it has issued a support order and is the residence of the child, individual obligee, or obligor.[142] Regardless of how many support orders exist in the case, if there is only one tribunal with CEJ, that is the tribunal with exclusive jurisdiction to modify. If there is more than one support order and more than one tribunal that can claim CEJ, the tribunal must first determine the controlling order. The tribunal that issued the controlling order is the tribunal with exclusive jurisdiction to modify. If there is more than one support order but no tribunal can claim CEJ, then the responding jurisdiction with jurisdiction over the respondent must establish a new order that will become the controlling order in the case. Finally, if there is only one support order but no one resides in the issuing State and therefore there is no tribunal with CEJ, then the party seeking modification must register the support order in a State— other than the petitioner’s State— that has jurisdiction over the respondent; usually that means registering the support order in the State where the respondent lives.[143] A flowchart outlining UIFSA’s modification rules is found in Exhibit 12- 6.
If a tribunal has CEJ, it cannot decline jurisdiction to modify based on forum non conveniens.[144] The only exception to CEJ is if the parties themselves file consent in the tribunal with CEJ, stating that they want another tribunal to exercise modification jurisdiction and assume CEJ.[145] This second State must be a tribunal that has some nexus with the parties.
There are three other exceptions to UIFSA’s modification rules. First, the rules only apply to modification of child support orders. UIFSA has a separate provision governing modification of spousal support orders.[146] Only the original issuing tribunal has CEJ to modify the spousal support order. Sometimes spousal support (alimony) and child support are combined in an undifferentiated amount. Two cases that addressed this issue held that UIFSA’s limitation on spousal support modification applied to the entire order amount, thereby prohibiting the tribunal from modifying child support.[147]
The second exception is in international cases.[148] The consent required by Section 611 to shift CEJ is not required if a foreign country or political subdivision that is a State will not or cannot modify its order pursuant to its laws, regardless of the residence of the person seeking modification. The third exception applies when there is one support order, no party or child lives in the issuing State, and now everyone lives in the same State. UIFSA provides that the party seeking a modification can register the support order in the State where everyone is living; the petitioner nonresidency that otherwise is required for registration for modification does not apply in this limited situation.[149]
At least one State has held that having custody jurisdiction under the UCCJA affords a State proper jurisdiction to modify another State’s order. The Alaska Supreme Court found that an Alaska court could exercise jurisdiction over the out-of- State father and modify a Texas order where Texas had lost CEJ, and Alaska had already exercised personal jurisdiction over the father under the UCCJA and PKPA for custody and visitation issues; it concluded that UIFSA’s long-arm provisions authorized personal jurisdiction in this instance.[150] A later Arkansas case held just the opposite— that the UCCJA does not confer jurisdiction to modify in an interstate child support case; only UIFSA’s bases for jurisdiction under Section 611 and corresponding provisions do so.[151] New Jersey courts have also concluded that custody and child support jurisdiction have different legal bases.[152]
The 2001 amendments to UIFSA clarify that the long-arm bases for jurisdiction found in Section 201 cannot be used to establish a basis for modification.[153] Section 201 applies only to establishment and enforcement proceedings.[154]
Pleadings
If the petitioner is seeking modification in the issuing State because it has CEJ, the petitioner should file whatever pleadings are required by the issuing State. In most States, it will be considered a local action and therefore UIFSA pleadings are not required. It still might be advisable, however, for the petitioner to complete the UIFSA testimony form in order to provide the tribunal with personal and financial information.
If the petitioner is registering an order for modification, UIFSA requires all of the following documents:
The Federal Uniform Support Petition may be used to request modification of a support order. There is a second section of the Petition that provides the grounds supporting the remedy sought in Section I. In addition to checking the box stating “A modification is appropriate due to a change in circumstances,” it is advisable to include testimony regarding the basis for the changed circumstances, e.g., change in income, increased medical expenses.
If there has already been a determination of controlling order, that is the order that should be registered for modification. If there are multiple support orders and there has not been a determination of controlling order, every support order should be forwarded so that a DCO can be made.[155]
Completion of the Federal Registration Statement provides the information required by UIFSA. According to instructions accompanying the Federal form, there must be a completed form for each registered support order.
The CSE attorney should advise caseworkers of the importance of an accurate completion of the Registration Statement. Tribunals have dismissed cases where there was no arrearage alleged, as required by the Act.[156]
Although not required by UIFSA, the Federal forms matrix that applies in IV-D cases also requires the submission of the Child Support Enforcement Transmittal # 1— Initial Request. The petitioner can seek registration for modification, or registration for modification and enforcement, if there are arrears.
Registration for Modification
On receipt of the petition for modification and the documents for registration, most States require the registering tribunal to file the support order(s) with the registry for foreign support orders or other appropriate registry. UIFSA requires that the nonmovant receive notice of the registration. The notice must inform the nonmovant:
The nonmovant must challenge the registration or alleged arrears within the specified time period. If the nonmovant requests a hearing, the registering tribunal must schedule the matter and give notice to the parties.
A registering tribunal has authority to modify a child support order if (1) the petitioner is not a resident of the registering State; the respondent is subject to the personal jurisdiction of the registering tribunal; and the original issuing State lacks CEJ because the child, individual obligee, and obligor no longer reside in the issuing State, or (2) an individual party or child is subject to the personal jurisdiction of the registering tribunal and all of the individual parties have filed written consent in the issuing State providing that the registering State can modify the order and assume CEJ.[158] The following cases are examples of decisions where the tribunal has correctly resolved CEJ issues:
Evidentiary Provisions
UIFSA’s evidentiary provisions in Sections 316 and 318 apply to a modification proceeding, regardless of whether it is pursuant to a petition for registration for modification or a pleading filed in the issuing State that has CEJ. In fact, Section 206 of UIFSA specifically provides the following: “If a party subject to the continuing, exclusive jurisdiction of the tribunal no longer resides in the issuing state, in subsequent proceedings the tribunal might apply Section 316 (Special Rules of Evidence and Procedure) to receive evidence from another State and Section 318 (Assistance with Discovery) to obtain discovery through a tribunal of another state.” Therefore, in a modification proceeding where the parties live in different States, it is not necessary for the petitioner to be physically present in the forum State.
Choice of Law
When an order is registered for modification, the forum is to apply its own law, procedures, and defenses regarding modification.[165] Thus, the tribunal will apply its own threshold for determining whether modification is appropriate and, if so, apply its own support guidelines. For example, if a State conditions modification on a substantial change of circumstance or a numerical standard, such as a 25 percent change in the order amount, that standard applies to the registered order as well.[166] The forum cannot, however, change any term of the original order that is not modifiable in the State that issued the controlling order.[167] The example given in the Official Comments of a nonmodifiable term is the duration of support: “For example, if child support was ordered through age 21 in accordance with the law of the issuing state and the law of the forum State ends the support obligation at 18, modification by the forum tribunal cannot affect the duration of the support order to age 21.”[168] In 1996, NCCUSL amended Section 611 to clarify that it is the law of the State that issued the initially determined controlling order that “locks in” those nonmodifiable terms. The following cases have correctly resolved issues regarding modification and duration of support:
One issue that has arisen is whether a registering tribunal can establish a new support order under its laws after a child had reached the age specified under the duration of support law of the State that issued the registered order. A New York appellate court held that it could, concluding that a New York trial court could extend the duration of the Maryland support order from 18 to 21 years, after finding that all the parties had relocated to New York.[172] The 2001 amendments to UIFSA are “designed to eliminate such attempts to create multiple, albeit successive, support obligations.”[173] The new Section 611(d) provides: “In a proceeding to modify a child-support order, the law of the State that is determined to have issued the initial controlling order governs the duration of the obligation of support. The obligor’s fulfillment of the duty of support established by that order precludes imposition of a further obligation of support by a tribunal of this State.”
Assumption of CEJ
Once an order is modified under UIFSA, the forum tribunal assumes CEJ over the support order.[174] Within 30 days of an order modifying the child support order, the party obtaining the modification must file a certified copy of the order with the issuing tribunal that had CEJ over the earlier order, and in each tribunal in which the party knows the earlier order has been registered. The failure to file a certified copy with other tribunals does not affect the validity or enforceability of the modified order of the new CEJ tribunal. All States must recognize this assumption of jurisdiction.[175] The new order is comprised of the newly modified terms, nonmodifiable terms of the original order, and arrearage amounts that accrued before modification, all of which are enforceable.[176]
Because UIFSA provisions leave it to each State to determine the appropriate tribunal for handling these matters, a court’s order can subsequently be modified by an administrative agency where the State has appropriately assumed CEJ. The court is required by its own State law (UIFSA) to recognize the modified order and the loss of CEJ.
Void vs. Res Judicata
An issue over which experts have disagreed is the effect of an order issued contrary to FFCCSOA’s and UIFSA’s rules regarding modification jurisdiction. Are such orders void for lack of subject matter jurisdiction, or res judicata if they are not timely appealed? Proponents of the latter view argue that any modification contrary to FFCCSOA and UIFSA is a mistake of law, rather than a lack of subject matter jurisdiction. If a court enters an incorrect decision, the remedy is to appeal the ruling or to file a Rule 60b (or equivalent) motion to reopen the decision, as appropriate. Absent a proper challenge, even a wrong order is entitled to full faith and credit.[177] Proponents of the former view are supported by recent case law.[178] These decisions conclude that an order established contrary to the modification rules of UIFSA and FFCCSOA is void because of a lack of subject matter jurisdiction.
INTERSTATE ENFORCEMENT
Although UIFSA places clear restrictions on the establishment and modification of support orders, it does not limit a petitioner’s enforcement options in the same way. An obligee can seek to enforce a support order in any, and every, State in which the obligor receives income, owns property, or has assets, as well as in each State with personal jurisdiction over the obligor. To maximize enforcement, UIFSA provides several enforcement options.
Direct Income Withholding
Income withholding is an enforcement tool where an employer or other income holder deducts the obligated support amount from the obligor’s income. It is, by far, the most effective means of obtaining full and timely payment of child support debts. In fact, every State now provides for immediate income withholding, as soon as an order is established or modified, unless good cause is found.[179] Federal law first addressed income withholding in interstate cases in 1984. Interstate income withholding was not, however, as effective as Congress had hoped. To avoid the delays inherent when a second agency is involved, many child support agencies began sending income withholding orders directly across State lines to employers, even when there was no legal authority to do so because the employer did not conduct business in their State. A 1992 General Accounting Office study found that 75 percent of the surveyed IV-D offices directly served out-of- State employers with income withholding orders, with a median success rate of 72 percent.[180] After studying the effectiveness of direct income withholding, the U.S. Commission on Interstate Child Support recommended that the practice be legalized.
In 1994, PRWORA required States, as a condition of receiving Federal funds, to have laws and procedures that direct employers to comply with an income withholding order issued by any State and to treat that order as if it were issued by a tribunal in the employer’s State. [181] UIFSA contains a procedure for direct income withholding in Article 5 that satisfies the PRWORA requirement.
Initiation of direct income withholding. UIFSA allows anyone— an attorney, a child support enforcement (IV-D) agency, a parent, even a friend or relative— to initiate direct income withholding.[182] This is accomplished by sending an income withholding order[183], issued by any State, directly to an obligor’s employer or income holder. No pleading is required to accompany the order. Nor is it necessary to register the order for enforcement first.[184] OCSE has promulgated a form that IV-D agencies must use to initiate direct income withholding.[185]
Although UIFSA permits direct income withholding, there are times when that remedy might not be appropriate. One example is when the initiating support enforcement agency or individual knows that there are multiple orders for a child, but there has not been a controlling order determination. Another is when the initiating support enforcement agency has already opened a two- State case and direct income withholding would duplicate action already being taken by the responding State. This problem has been exacerbated with the automated interplay between the National Directory of New Hires (NDNH) and the Federal Case Registry; IV-D agencies are getting address information and automatically generating income withholding orders, which often go to employers in other States. No one questions the crucial benefit of these new enforcement tools. To diminish the likelihood of employer backlash caused by receipt of multiple withholdings on the same case, however, State child support agencies are beginning to program appropriate flags in their Statewide systems that suppress initiation of direct income withholding when a two-State case already exists.
Employer response. If the order appears regular on its face, the employer must immediately provide a copy to the employee/obligor and treat the order as if issued by the appropriate tribunal of the employer’s State.[186] Withholding must begin on receipt of the order, with the income holder distributing funds as directed in the order.[187] The employer must comply with the terms of the order/notice regarding:
In addition, the employer must comply with the State law of the obligor’s principal place of employment to determine any employer processing fee, the maximum withholding amount, and the time period for forwarding payment.[189] Similarly, the law of the employer’s State governs the way to prioritize withholding orders and to allocate withheld sums when there are multiple withholding orders for the same employee.[190]
Contest to direct income withholding.The obligor has the right to challenge direct income withholding, but only on narrow grounds. Generally, a contest to the income withholding is limited to a mistake of fact, a statute of limitations issue, the issuing tribunal’s lack of personal jurisdiction over the obligor, or another permissible constitutional due process challenge. According to the Official Comments to Section 506, the obligor can also assert that there is a different support order that should be the controlling order in the case.
To contest the direct income withholding order/notice, the obligor must notify the initiating support enforcement agency, if one is involved, each employer that received a copy of the order, and the person or agency designated to receive payments under the withholding order. If no payment recipient is designated, the obligor must notify the obligee.[191] The Act requires notice to the initiating support enforcement agency so that hopefully— through an exchange of communication and/or documents— the challenge can be resolved without a hearing. If the issues cannot be resolved informally, UIFSA requires that the hearing or formal review occur in the State of the obligor’s primary employer.[192]
The Act requires the challenge to be heard in the same manner as if the income withholding order had been issued by a tribunal of the employer’s State.[193] Several States have faced implementation issues because they lack procedures for challenging an intrastate income withholding order after it has been issued. In these States it is unclear what documents would be filed or how the pleading should be captioned. Because neither the tribunal nor the IV-D agency in the employer’s State has knowledge of the direct withholding, there is no docket number or IV-D case number. As there is no IV-D case in the employer’s State, the role of the IV-D agency in that State is also unclear.
Some experts recommend that, on contest, the initiating State should withdraw the direct withholding notice and the obligee should seek withholding under the traditional two-State process. UIFSA does not require the State to do so. At least one State has amended UIFSA to include procedures for registering the income withholding order so that the obligor can challenge it.[194] Other States, in the absence of statutory direction, are developing policies and procedures to handle such contests, including whether the local IV-D child support enforcement agency will provide assistance to the initiating support enforcement agency in defending the withholding order. The 2001 amendments to UIFSA address the issue by providing a bit more direction. Amended Section 506 provides that the obligor may challenge the direct income withholding “by registering the order in a tribunal of this State and filing a contest to that order as provided in Article 6, or otherwise contesting the order 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.
Employer compliance. Employers should not fear liability for compliance with a direct income withholding order/notice; the Act provides immunity to an employer that proceeds accordingly.[195] In fact, an employer who fails to comply with another State’s withholding order, is subject to the same penalties that would apply if the order had been issued by the employer’s State.[196] A Connecticut court held a noncustodial parent’s employer in contempt for failure to implement a direct income withholding order. The employer was required to (1) pay the custodial parent $29,259 for the full amount of income not withheld after proper notice was received, and (2) post a performance bond in the amount of $412,808 to secure future payments. After failure to comply, the CEO must appear and show cause why he should not be incarcerated until the bond is posted and income withholding is in place.[197]
Arrearage payback. According to Federal regulations, in addition to the amount to be withheld to pay current support, the amount to be withheld must include an amount to be applied toward liquidation of overdue support.[198] States must have expedited procedures for adding an arrearage payback amount.
Redirection of Payments. Whether payments can be redirected to a different State after the custodial parent moves from the controlling order State is an issue in dispute among child support professionals, and there is no reported case law on point.[199] A recent Federal Policy Interpretation Question (PIQ) addresses the issue:[200]
Section 501 of the Uniform Interstate Family Support Act (UIFSA) authorizes that an income withholding order of another State can be sent directly to the obligor’ s employer in another State without filing a pleading or registering the order. There is no restriction under UIFSA on who can send the income withholding order to the employer. Section 502(c)(2) of UIFSA mandates the employer to “withhold and distribute funds as directed in the withholding order by complying with the terms of the order which specify… (2) the person or agency designated to receive payments and the address to which payments are to be forwarded;… ” Therefore, if a support order or income withholding order issued by one State designates the person or agency to receive payments and the address to which payments are to be forwarded, an individual or entity in another State may not change the designation when sending an Order/Notice to Withhold Child Support [in the same case].
Section 466(c)(1)(E) of the Act requires States to have laws under which— in cases where support is subject to an assignment to the State or to a requirement to pay through the State disbursement unit— on notice to the obligor and obligee, the IV-D agency can direct the obligor or other payor to change the payee to the appropriate Government entity. States therefore must have the authority to administratively change the payee or redirect payments under an order issued in their State without obtaining an order from any other judicial or administrative tribunal in their own State. This requirement does not authorize a State IV-D agency to administratively change the payee or the agency designated to receive payments from any designation in, or subsequently authorized in, an order issued by another State.
The policy concerns are how to ensure an accurate accounting of payments yet have support payments reach the relocated custodial parent as soon as possible. Recognizing the ongoing discussion within the CSE community, NCCUSL included a new provision within the 2001 amendments to UIFSA. Section 319 (Receipt and Disbursement of Payments) has been amended to include a new subsection (b):
(b) If neither the obligor, nor the obligee who is an individual, nor the child resides in this State, on request from the support enforcement agency of this State or another State, [the support enforcement agency of this State or] a tribunal of this State shall:
(1) direct that the support payment be made to the support enforcement agency in the State in which the obligee is receiving services; and
(2) issue and send to the obligor’s employer a conforming income-withholding order or an administrative notice of change of payee, reflecting the redirected payments.
(c) The support enforcement agency of this State receiving redirected payments from another State pursuant to a law similar to subsection (b) shall furnish to a requesting party or tribunal of the other State a certified statement by the custodian of the record of the amount and dates of all payments received.
There is a corresponding amendment to Section 307 that outlines duties of the support enforcement agency.[201]
Administrative Enforcement
UIFSA provides another enforcement option that does not involve registration of the support order. UIFSA authorizes the responding support enforcement agency to use any administrative procedure authorized by State law to enforce a local support order.[202] Registration of the order is not necessary unless the obligor challenges the validity, or the enforcement, of the order.
To request administrative enforcement, the initiating support enforcement agency or party seeking enforcement must send the same documents required for registration for enforcement to the support enforcement agency in the responding State. On receipt of the documents, the responding support enforcement agency, without initially registering the order(s), must consider and, if appropriate, use any administrative procedure authorized by local law to enforce a support order or income withholding order. Given the broadened administrative authority of State IV-D agencies that resulted from PRWORA, administrative enforcement is usually the preferred method of enforcing an obligation for child support because it is usually faster than remedies requiring a court hearing. Administrative remedies must include authority to order income withholding; seize periodic or lump sum payments; attach and seize assets held in financial institutions; attach public and private retirement funds; impose liens, force the sale of property, and distribute proceeds; and increase monthly payments to cover amounts for arrearages.[203]
If the obligor challenges administrative enforcement and the administrative review process has been exhausted, then UIFSA directs the responding State support enforcement agency to register the order with the appropriate tribunal. The CSE attorney in the responding State can also seek registration for enforcement if administrative enforcement would not be effective and the attorney wants to seek a judicial remedy such as contempt.
Registration for Enforcement
UIFSA’s registration for enforcement process is similar to the registration of foreign support orders under URESA. There are two critical differences, however. First, any contest to the amount of the arrears must be made at the time of the registration.[204] Second, UIFSA prohibits the responding State from modifying an order that is registered for enforcement only.[205] Under URESA, the registering court entered a conforming support order of its own. Accordingly, when the order was both registered and modified, it was unclear whether the modification also affected the original order.[206] Registration for enforcement under UIFSA, however, does not affect the issuing tribunal’s CEJ to modify the order. The registering State is simply authorized to enforce a sister State’s order as it would its own. No conforming order is entered.
Initiation of a registration request. It is unlikely that a CSE attorney will be involved in the initiation of a registration request. To the extent that the attorney is involved in developing agency policies and procedures, however, the attorney should ensure that those procedures require the caseworker initiating the registration request to seek information about all existing support orders involving the same obligor and child(ren). In addition to intake, the worker should check the FCR to determine the existence of support orders.[207] The worker should also know the current residences of the obligee, obligor, and child(ren). To register an order for enforcement, the initiating State agency, or the nonresident petitioner filing directly, must send the following documents to the responding State:
According to the Federal forms matrix, the Federally developed forms that must be submitted with a Registration for Enforcement request are the Child Support Enforcement Transmittal # 1— Initial Request and the Registration Statement/Statement of Facts. Instructions specify that a separate Registration Statement must accompany each order. A pleading is not usually required unless the law of the registering State requires that the enforcement remedy be specifically pled. The caseworker or recipient of IV-D services can sign the Registration Statement; an attorney’s signature is not necessary. Note that it is not necessary to register an order in a State if that State issued the order the agency wants enforced. If appropriate, under “I. Action” on the Child Support Enforcement Transmittal # 1— Initial Request, the worker should check “Enforcement of Existing Order.”
Case law has held that the procedural requirements for registration of a foreign support order are mandatory. In In re Chapman, the Attorney General’s failure to provide the required documentation was fatal; an order confirming the registration was reversed because the foreign judgment was not accompanied by either a sworn statement by the party seeking registration or a certified statement by the custodian of the records showing the amount of any arrearages.[211]
If there are multiple support orders in the case, the initiating support enforcement agency should also seek a determination of controlling order. In fact, such action is a requirement of the 2001 amendments to UIFSA. On the current Federal transmittal form, there is a place for the petitioner to check whether an order is the controlling order or the presumed controlling order.
Responsibilities of the registering tribunal. On receipt, the registering tribunal must file the order as a foreign judgment, regardless of its form.[212] The registering tribunal must also provide notice to the nonregistering party.[213] The notice to the nonregistering party must include a copy of the registered order and any accompanying documents. It also must advise the party:
Although not required by UIFSA, it might be advisable to inform the nonregistering party that the order being registered is the one that the petitioner asserts is the controlling order. This will permit that party to inform the registering tribunal of any other orders that might be appropriate for consideration in a controlling order determination. If an income-withholding order is being registered, UIFSA requires the tribunal to also notify the obligor’s employer, pursuant to that State’s withholding law.[216]
If the obligor raises a defense after the 20-day challenge periodexpires, the CSE attorney should argue that the defense is barred; the order and arrears are already confirmed by operation of law. Case law has upheld that position when an obligor untimely raised the defense of statute of limitations.[217]
If there is no contest or the contesting party does not establish a valid defense, the tribunal confirms the registered order.[218] After confirmation, UIFSA precludes further contest as to a matter that could have been asserted at the time of registration. Enforcement then proceeds as it would in a local matter.
Contest to registration. To contest registration of another State’s order, the nonregistering party must request a hearing within a specified timeframe. The nonregistering party can seek to vacate the registration, assert a permissible defense to the noncompliance allegation, contest the remedies being sought, and/or challenge the alleged arrears amount.[219]
If the obligor makes this challenge in a timely manner, the registering tribunal must schedule a hearing and give notice to all parties.[220] The contesting party has the burden to establish one of the following limited defenses:
Nonpaternity and reduced income are not permissible defenses.[223] Presumably, however, the obligor can raise the fact that the order registered for enforcement is not the controlling order.[224]
The registering tribunal can stay enforcement if the obligor presents evidence of a full or partial defense. It can continue the proceeding to permit production of additional relevant evidence. It can also enforce any uncontested portion of the registered order during a stay or continuance.[225] It is clear, however, that when an order is registered for enforcement, the registering tribunal cannot modify the order.[226]
If there are multiple support orders for current support, the registering tribunal must determine the controlling order, as well as determine arrears under existing orders.
Choice of law. Generally, UIFSA provides that the law of the issuing State governs “ the nature extent, amount and duration of current support and other obligations of support and the payment of arrearages under the order.”[227] Therefore, in calculating arrears under existing orders— including any interest owed -- the tribunal should follow the law of the issuing State. The issuing State’s law also governs whether the obligor should receive credit toward his or her child support obligation because of Social Security payments paid on his or her behalf to the child(ren).[228] The law of the registering State governs the enforcement remedies that are available. With regard to the applicable statute of limitations for enforcement of arrears, UIFSA adopts a policy in favor of the longest enforcement; the statute of limitations of the issuing State or the registering State, whichever is longer, applies.[229] A matrix of State statutes of limitations for enforcement purposes is found in Exhibit 8-1.
A question that attorneys have debated is whose law governs interest on arrears that accrue after an order has been registered for enforcement— the registering State’s law or the issuing State’s law. The 2001 amendments to UIFSA answer that question:
(d) After a tribunal of this or another State determines which is the controlling order and issues an order consolidating arrears, if any, a tribunal of this State shall prospectively apply the law of the State issuing the controlling order, including its law on interest on arrears, on current and future support, and on consolidated arrears.[230]
Confirmation of order. If the nonregistering party does not establish a valid defense to the validity or enforcement of the registered order, the tribunal must issued an order confirming the registration. According to Official Comments to Section 607, “[a]lthough the statute is silent on the subject, it seems likely that res judicata requires that both the registering and nonregistering party who fail to register the ‘true’ controlling order will be estopped from subsequently collaterally attacking the confirmed order on the basis that the unmentioned ‘true order should have been confirmed instead.’” Confirmation of a registered order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration.
Registration of an order for enforcement does not shift CEJ to the registering tribunal. The order remains an order of the issuing State, enforceable anywhere the obligor has income or assets. Case law has upheld this fundamental principle of UIFSA.
2001 amendments. In August 2001, the National Conference of Commissioners on Uniform State Laws approved a number of amendments to UIFSA. Many of the amendments address determination of the controlling order in multiple order cases. In addition to amendments to Section 207, the Commissioners approved amendments to Article VI that highlight the need to do a determination of controlling order in the context of registration for enforcement.
The amendments specify that, if there is more than one support order in effect, the person requesting registration must (1) furnish the tribunal with a copy of every support order in effect, (2) specify the order alleged to be the controlling order, and (3) specify the amount of consolidated arrears, if any, under existing orders.[233] The latter requirement means that an attorney or caseworker must review pay records from various States and attempt to reconcile arrears that have accrued under orders running concurrently, giving the obligor appropriate credit for payments made in the various States. The petitioner can file a request for determination of controlling order separately or at the same time as a request for registration and enforcement.
If the registering party alleges that there are multiple support orders, the notice of registration must contain additional information. The amendments require that the notice also:
(1) identify the