Techniques for Effective Management of Program Operations

TEMPO

2001 Revisions to Uniform Interstate Family Support Act (UIFSA)

The Uniform Interstate Family Support Act (UIFSA) was approved in 1992 and amended in 1996. In August 2001 the National Conference of Commissioners on Uniform State Laws approved additional amendments to the Act. This TEMPO summarizes the most major changes to the Act.

The TEMPO discusses:

Table of Contents
Introduction
Statement of the Problem
Determination of Controlling Order
Consolidation of Arrears
Jurisdiction to Modify
Redirection of Payments
Expansion of Duties of Support Enforcement Agency
Nondisclosure of Information
Direct Income Withholding
International Cases
Other Amendments
Conclusion

Introduction

The IV-D child support enforcement program involves cooperation of federal, state, and local governments. The program began in 1975 when Congress amended Title IV of the Social Security Act to include the child support enforcement program as a new Part D. Today, all states, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, and Guam participate in the IV-D program.

The Office of Child Support Enforcement (OCSE) is the federal agency responsible for providing oversight of this federal program. In addition, OCSE is responsible for providing technical assistance to the state and local IV-D agencies, in order to coordinate an efficient, effective, and uniform implementation of the nation’s child support enforcement program.

The Uniform Interstate Family Support Act (UIFSA) offers solutions to many of the long-standing problems that have plagued interstate IV-D collections since 1975. The 2001 amendments to the Act will further improve interstate case processing. At this point, there is no federal mandate to enact the 2001 amendments. In fact, the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) required states to enact UIFSA, as approved by the American Bar Association on February 9, 1993, together with any amendments officially adopted by NCCUSL before January 1, 1998, i.e., the 1996 version of UIFSA. To the extent that the 2001 amendments clarify or enhance, rather than conflict with, the 1996 version of UIFSA, state child support agencies may wish to consider them as best practices. Unless and until there is a federal mandate to enact the 2001 amendments to UIFSA, states seeking to enact UIFSA 2001 must request an exemption from the requirement to adopt the 1996 version. OCSE has developed guidance for states to request an exemption to enact UIFSA 2001.[1]

OCSE publishes this “Techniques for Effective Management of Program Operations” (TEMPO) regarding the 2001 revisions to UIFSA as a technical assistance tool for state and local IV-D agencies. This TEMPO discusses those changes to the Act that will have the most significant impact on IV-D caseworkers and IV-D attorneys.

Statement of the Problem

For years, there have been problems unique to enforcement of interstate child support cases. Establishment and collection rates for interstate cases lagged behind the rates for intrastate cases. Currently, the interstate caseload is about 25% to 30% of the total child support caseload. Throughout the 1980s, these problems became more pronounced as the nation’s interstate caseload continued to grow. The laws that governed the interstate child support enforcement process during these years were the Uniform Reciprocal Enforcement of Support Act (URESA) and the Revised Uniform Reciprocal Enforcement of Support Act (RURESA).


URESA authorized the entry of de novo (new) child support orders in cases where support orders already existed. As a result, it became common to see interstate cases with multiple support orders for the same parents and child. Unfortunately, these multiple orders rarely set the support obligation at the same amount and for the same duration. As a result, parents and the state child support enforcement programs frequently disagreed as to the correct child support amounts owed. By the late 1980s, it was apparent that the inefficiencies and confusion resulting from URESA’s multiple order system had to be addressed.

In 1990, the U.S. Commission on Interstate Child Support and the National Conference of Commissioners on Uniform State Laws (NCCUSL) began a reevaluation of URESA. After two years of intense scrutiny and debate, NCCUSL developed a new model law for interstate child support enforcement -- the Uniform Interstate Family Support Act (UIFSA). In its 1992 report to Congress, the Interstate Commission recommended that Congress require that all states enact UIFSA as a condition of receiving federal Title IV-D funds. Section 321 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), Pub. L. No. 104-193, did just that; it amended section 466 of the Social Security Act to require that, on and after January 1, 1998, each state must have in effect UIFSA, as approved by the American Bar Association on February 9, 1993, together with any amendments officially adopted by NCCUSL before January 1, 1998, as a condition of receiving federal child support funds. All states had enacted UIFSA by June 1998.

In 2000, the child support community requested that NCCUSL review the Act for potential amendments. A drafting committee met in March 2001. In attendance were private attorneys, decision-makers, representatives of the Office of Child Support Enforcement, representatives of national and regional child support organizations, IV-D attorneys, and family advocates. The committee also considered suggested revisions received from various individuals and groups, including state IV-D directors. The results of those deliberations were substantive and procedural amendments that were approved by NCCUSL at its annual meeting in August, 2001. The amendments do not change the overriding goal of UIFSA to reach a “one-order” world. Rather, they address issues that have arisen in case law or the implementation of the Act.

Determination of Controlling Order

UIFSA’s most revolutionary concept is its “one-order system” to resolve the problems associated with URESA’s multiple orders. Under UIFSA, once a support order is entered, that order controls the child support obligation regardless of whether the parents or child later move to another state. This “one order” is called the Controlling Order.

Because we have inherited a world where multiple support orders exist in many interstate cases, UIFSA contains rules for a tribunal to apply in determining which existing support order will control current support prospectively. This process is called the Determination of Controlling Order (DCO). The 2001 amendments to UIFSA do not change the DCO rules found in section 207(a) and (b). Instead, the amendments to other provisions in section 207 address a number of implementation issues that had arisen since 1996.

What Jurisdiction is Required?

The first issue that the amendments address is the type of jurisdiction necessary in order for a tribunal to make a binding determination of controlling order. The 1996 version of UIFSA was silent. However, many judges and attorneys who had worked with UIFSA believed that personal jurisdiction over the individual parties was required. In their opinion, the ultimate decision of the controlling order affects the rights and responsibilities of the parties, i.e., one of several child support orders becomes “locked in” (subject to later modification) as the order controlling future enforcement of support. Because they viewed a DCO as analogous to a declaratory judgment, they believed that personal jurisdiction was required in order for a DCO to be entitled to full faith and credit. This view is the one adopted by NCCUSL. Section 207(c) of the Act now clearly states that the tribunal must have personal jurisdiction over both the obligor and the individual obligee in order to determine which order controls. In order for a state to have personal jurisdiction over a party, the party must have received notice of the proceeding and the party must have sufficient minimum contacts with the state conducting the hearing so that due process is satisfied.

Who May Request a DCO and When Can the Request Be Made?

The second issue addressed is who may request a DCO. The 1996 version of section 207 indicated that an individual party may request a DCO. The amendment to section 207(c) clarifies that the potential requesters can include a support enforcement agency. The amendment also addresses the related issue of when a request for a DCO may be made. In IV-D interstate case processing, a DCO is most likely to occur in the context of a registration for enforcement or registration for modification proceeding. The 1996 version of section 207(c) also provided for a “stand-alone” DCO. That is, in multiple order cases, it is possible for one of the parties to initiate the DCO. The 2001 amended section 207(c) more clearly states that a DCO may occur in any of those three contexts: “the request [to determine which order controls] may be filed with a registration for enforcement or registration for modification pursuant to Article 6, or may be filed as a separate proceeding.”

What Type of Notice is Required?

Other issues relate to notice. For example, is a child support agency a necessary party that must receive prior notice of a DCO and the resulting consolidation of arrears? UIFSA does not address that issue. However, it appears that the answer is “it depends,” since state law will control. Where public assistance is involved, the party has assigned support rights to the state. The state is considered an obligee and therefore is a necessary party. In fact, in public assistance cases, there is case law holding that in any action to establish a judgment or compromise on the arrears, the interests of the custodial parent and the agency, although common in many instances, are separate and distinct. See Crews v. Parker, 354 S.E.2d 501 (N.C. 1987). In such a situation, both the agency and the individual obligee should receive notice. Where public assistance is not involved, there nevertheless may be a state statute specifying that the agency is a real party in interest. See, e.g., N.D. Cent. Code § 14-09-09.26(3) that designates the state as the real party in interest to enforce a support order of another state.

Because the amended Act requires that a DCO occur in conjunction with a registration proceeding, if there are multiple orders, the drafters also amended section 605 (Notice of Registration of Order). If the registering party asserts that two or more orders are in effect, the notice of registration must also:

(1) identify the two or more orders and the order alleged by the registering person to be the controlling order and the consolidated arrears, if any;

(2) notify the nonregistering party of the right to a determination of which is the controlling order;

(3) state that the procedures provided in subsection (b) apply to the determination of which is the controlling order; and

(4) state that failure to contest the validity or enforcement of the order alleged to be the controlling order in a timely manner may result in confirmation that the order is the controlling order.

Amended section 605(c). Most states will need to change their Notice of Registration to include the new required provisions. The drafters also amended section 607(a)(8) to provide proof that the alleged controlling order is a valid defense to registration.

What Findings Must the Tribunal Make?

Another issue concerns what findings a tribunal must make in determining the controlling order. Here, there is a substantive change to the Act. The new section 207(f), in contrast to former section 207(e), requires that the order specify the amount of prospective support and consolidated arrears and accrued interest, as follows:

  (f) A tribunal of this state that determines by order which 
  is the controlling order under subsection (b)(1) or (2) or (c), 
  or that issues a new controlling order under subsection (b)(3), 
  shall state in that order:
      (1) the basis upon which the tribunal made its
          determination;
      (2) the amount of prospective support, if any; and
      (3) the total amount of consolidated arrears and accrued
          interest, if any, under all of the orders after all 
          payments made are credited as provided by Section 209.

Is the Determination of Controlling Order a Significant Proceeding?

The significance of the determination of the controlling order is highlighted by several other 2001 amendments. Section 307, which lists duties of the support enforcement agency, is amended in subsection (c) to require the agency to be proactive in requesting a determination of controlling order. Section 305, which lists duties and powers of the responding tribunal, is amended in subsection (b)(1) to specifically include the power to determine the controlling child support order. There are also substantive changes to section 602, which details the procedure to register an order for enforcement. In the past, some child support agencies had chosen to register the support order with the highest support amount and seek enforcement of it, despite the fact that there were other existing support orders and the highest order may not be the presumed controlling order. The 2001 amendments prohibit such a practice. If there are multiple support orders in effect, the new section 602(d) requires the person requesting registration for enforcement to provide the tribunal a copy of every support order in effect; specify the order alleged to be the controlling order, if any; and specify the amount of consolidated arrears, if any. A request for a DCO may be filed separately or with a request for registration and enforcement or for registration and modification. The person requesting registration must give notice of the request to each party whose rights may be affected by the DCO.

Consolidation of Arrears

2001 Amendment

In the 1996 version of UIFSA, there is no provision that requires the determination of arrears in conjunction with a DCO. The only proceeding in which the 1996 Act directs the tribunal to determine arrears is in a registration proceeding. However, in an effort to provide a uniform system of arrearage calculation, some practitioners have suggested that tribunals, as a “best practice,” determine arrears under existing orders in the same proceeding as they determine the controlling order for prospective enforcement of current support. As noted above, the 2001 amendments to section 207 require tribunals to do just that.

The new section 207(f) requires the tribunal that determines the controlling order to state in its order “the total amount of consolidated arrears and accrued interest, if any, under all of the orders after all payments made are credited as provided by section 209.” This requirement is also consistent with the fact that a determination of the controlling order for prospective support has the effect of stopping the accrual of support under all but the controlling order and, thus, the amount of consolidated arrears is ascertainable at that time.

Impact on Case Processing

The requirement that a tribunal must not only determine the controlling order but address arrears under existing orders, will have a significant impact on interstate case processing. It will become necessary for IV-D workers to obtain copies of all existing support orders, as well as copies of the pay records. See new section 207(d). It also means that the pleadings or documents from the initiating state should allege what the consolidated arrearage is, up to the point of filing. Since many cases that predate UIFSA have multiple support orders, often in conflicting amounts that run concurrently, a worker in the initiating state should perform a calculation of the alleged consolidated arrears. Beginning with the first order, and then using the highest support amount due under any existing order in each month (or other payment increment), the worker will need to calculate the support due each month, giving credit for payments made by the obligor. When calculating arrears, section 604(a)(2) as amended directs that the interest to be included is based upon the law of the state that issued the support order. Currently, on the federal Registration Statement, there is a place to state the amount of arrears that have accrued under a specific order. However, there is no place to allege an overall consolidated arrears under all orders. The Child Support Enforcement Transmittal # 1 – Initial Request may be an appropriate place to provide the arrearage information or the worker may submit an affidavit with the information.

It is important that IV-D agencies train workers on how to calculate arrears under multiple support orders. Once a tribunal determines the consolidated arrears, new section 207(h) provides that a “judgment for consolidated arrears of support and interest, if any, ... must be recognized in proceedings” under UIFSA. In other words, the determination is res judicata and binding on other states.

Jurisdiction to Modify

Amendments to Clarify Continuing, Exclusive Jurisdiction

Section 205 is one of the most crucial provisions of the Act. It introduces the concept of continuing, exclusive jurisdiction. The 2001 amendments to section 205 contain some clarifications, as well as a major substantive change. Because some people incorrectly have used the terms “continuing, exclusive jurisdiction” (CEJ) and “controlling order” interchangeably, amendments to both the section title and to section 205(a) clarify that continuing, exclusive jurisdiction is a concept that applies to the jurisdiction to modify a child support order. The bases upon which a state may possess CEJ to modify the order have been expanded. The initial basis has not changed: A state that has issued a controlling order under UIFSA has CEJ to modify the order as long as the state is the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued. The amendment of section 205(a)(1) clarifies that the residence of the parties at the time of the filing of the request for modification is considered when determining whether CEJ exists. The substantive change is to jurisdiction to modify based on consent. As amended, section 205(a)(2) authorizes a tribunal to modify a controlling order even if the state is not the residence of the obligor, the individual obligee, or the child (i.e., the tribunal lacks CEJ), if the parties “consent in a record or in open court” that the tribunal may continue to exercise jurisdiction to modify its order. The amendment is in response to questions about why parties could not modify an order in the state that issued the order, even if no one lived in that state, if everyone was agreeable to that state’s exercise of modification jurisdiction. The most common examples are where the parties want the same state to have jurisdiction over both spousal and child support, or where the parties have moved just across the state line and continue to have a strong affiliation with the issuing state, perhaps through employment. Additionally, just as section 205(a) addresses the retention of CEJ to modify, there is also an amendment to section 205(b) that addresses the circumstances under which an issuing tribunal may lose CEJ when the parties consent to have another state modify the order.

Evidentiary Provisions

Another amendment combines provisions formerly found in sections 202 and 206(b) into a new section 210. By moving the often overlooked section 206(b) to a stand-alone provision, the drafters highlight its importance in ensuring the effective implementation of continuing, exclusive jurisdiction. Section 210 provides that if a tribunal has CEJ, a nonresident party -- either the petitioner or the respondent --may present evidence pursuant to section 316. Additionally, the tribunal may communicate with the tribunal of another state pursuant to section 317, and the tribunal can obtain discovery pursuant to section 318. Therefore, although the other provisions of UIFSA do not apply, it is clear that the CEJ tribunal cannot require the nonresident party’s physical presence in the proceeding and must accept evidence via telephone, telecopier, and similar means that do not provide an original record.

Inapplicability of Long-Arm Provision

In order to address some case law that was developing, the 2001 UIFSA Drafting Committee made several changes to emphasize that jurisdiction to modify can only be based on provisions within Article VI of the Act. First, the 2001 amendments to section 201 (Bases for Jurisdiction over Nonresident) delete any reference to modification in order to clarify that the long-arm jurisdiction provisions do not apply to proceedings to modify an order. To further emphasize the point, a new section 201(b) explicitly states that the bases of personal jurisdiction set forth in subsection (a) or in any other law of the state may not be used to acquire personal jurisdiction for a tribunal of the state to modify a child support order of another state unless the requirements of sections 611 or 615 are met. According to the Official Comments to the amended section 201:

Some courts broadly construed the former reference to “modify” [in section 201] to justify ignoring the requirement of Section 611 that, absent agreement of the parties, a petitioner for modification of a child-support order of an issuing state when all parties have left that state must be a nonresident of the forum. The 2001 amendments make clear that a tribunal may not apply the long-arm provisions of Subsection (a), or any other law of the forum, and thereby assert that personal jurisdiction over both individual parties to a support order of another state is sufficient to modify that order. The limitations on the exercise of subject matter jurisdiction provided by Sections 611 and 615 must be observed irrespective of the existence of personal jurisdiction over the parties. Long-arm personal jurisdiction over the respondent, standing alone, is not sufficient to grant subject matter jurisdiction over a proposed modification to a tribunal of the state of residence of the petitioner. See LeTellier v. LeTellier, 40 S.W.3d 490, 90 A.L.R.5th 7007 (Tenn. 2001), reversing 1999 WL 732487 (Tenn. App. 1999).

Modifying Another State’s Order

Section 611 addresses the circumstances under which a tribunal has authority to modify another state’s child support order once it is registered for modification. Under one option, the order may be modified when the following three prerequisites are each met. First, neither the child, the individual obligee, nor the obligor may reside in the issuing state (if one of them did reside in that state, it would have CEJ for modification). Second, the petitioner must be a nonresident of the state in which modification is sought. Third, the registering tribunal must have personal jurisdiction over the respondent. In the alternative, the tribunal can modify another state’s order and assume continuing, exclusive jurisdiction. The registering state is the residence of the child or an individual party who is subject to the personal jurisdiction of the tribunal and all of the individual parties have filed consents in a record in the issuing tribunal. However, a tribunal may not modify another state’s order if either section 613 applies (all parties live in the same state and there is no CEJ state) or section 615 provides otherwise (modification of a foreign nation’s order).

Duration of Support

The most substantive amendments to section 611 are in subsection (c) and a new subsection (d). Both amendments address duration of support. Prior to the 2001 amendments, one needed to read the Official Comments to this section of UIFSA to learn that duration of support is an example of a nonmodifiable term under most state laws. Subsection (c) now specifically lists “duration of the obligation of support” as an aspect of a child support order that may not be modified under the issuing state’s law. According to Official Comments to the new subsection (d), its addition was “designed to eliminate scattered attempts to subvert a significant policy decision made when UIFSA was first promulgated. . . .” Additionally, the new subsection (d) provides that 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 support. Furthermore, once an obligor has fulfilled the support duty under that controlling order, a tribunal cannot impose a further support obligation, for example, through an establishment proceeding. According to the Official Comments:

From its original promulgation, UIFSA determined that the duration of [sic] child-support obligation should be fixed by the controlling order . . . . If the language was insufficiently specific before 2001, the amendments should make this decision absolutely clear. … Some courts have sought to subvert this policy by holding that completion of the obligation to support a child through age 18 established by the now-completed controlling order does not preclude the imposition of a new obligation thereafter to support the child through age 21 or even to age 23 if the child is enrolled in higher education. Subsection (d) is designed to eliminate these attempts to create multiple, albeit successive, support obligations.

IV-D workers and attorneys should pay close attention to the words “initial controlling order.” In multiple order cases, it is not the first order issued that establishes duration; it is the order determined to be controlling that locks in duration. Thereafter, the initial controlling order may be modified, but the duration will remain the same. An illustration may help one understand this important concept. Assume that the parties were divorced in 1990. The duration of support in state A, which issued the divorce decree, was age 18. In 1992, state B issued a de novo URESA order, with a duration of support of age 21. At the time of the filing of the 2001 UIFSA enforcement proceeding, the obligee and child resided in state C, with a duration of support of age 19, and the obligor continued to reside in state B. The tribunal, within the context of the registration for enforcement proceeding, determines that the state B order is the controlling order. Therefore, the duration of support that is “locked in” is age 21. No matter how many times that order may subsequently be modified, a tribunal cannot modify the age 21 duration of support, which is the duration of the “initial controlling order.”

Redirection of Payments

One of UIFSA’s goals is get support payments to a relocated custodial parent as quickly as possible while ensuring that there is an accurate accounting record. The 2001 UIFSA Drafting Committee furthers this goal through amendments to section 319 (Receipt and Disbursement of Payments). It provides that if no individual party or child resides in the state that issued the controlling order, upon the request of a support enforcement agency, either the support enforcement agency of the issuing state or a tribunal of the issuing state -- depending upon state law -- must “(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.” In order to ensure that tribunals are informed of how much money has been collected, a new subsection (c) requires the support enforcement agency of a state receiving redirected payment from another state to furnish to a requesting party or tribunal of the other state a certified statement by the custodial of the record of the amount and dates of all payments received. Note that the accounting is only required upon request.

If a support enforcement agency in the state providing services to the obligee requests a redirection of payments, section 307(e) as amended requires the support enforcement agency receiving such a request to either issue (if it has administrative power), or request a tribunal of the state to issue, a child support order and an income withholding order that redirect payment of current support, arrears, and interest.

Expansion of Duties of Support Enforcement Agency

The overall UIFSA duties of the support enforcement agency appear at section 307. Subsection (f) avoids the issue of whether an attorney-client relationship is formed between a IV-D attorney and an individual receiving agency services by stating that the Act does not create or negate such a relationship. Section 307(a) requires the support enforcement agency to provide services, upon request, to a petitioner. The petitioner may be the obligee or the obligor. The agency must, among other obligations, facilitate the UIFSA process and keep the service recipient informed of notices and communications.

The 2001 amendments to section 307 also place greater responsibility on the support enforcement agency to seek a determination of controlling order:

   (c) A support enforcement agency of this state that requests
   registration of a child-support order in this state for 
   enforcement or for modification shall make reasonable efforts:
        (1) to ensure that the order to be registered is the 
            controlling order; or
        (2) if two or more child-support orders exist and the 
            identity of the controlling order has not been determined, 
            to ensure that a request for such a determination is made 
            in a tribunal having jurisdiction to do so.

The amendments will prohibit the current practice of some initiating agencies of registering the highest support order, rather than ensuring that a determination of controlling order is made.

The 2001 amendments to section 307 also address international cases and redirection of support payments. The new section 307(d) requires the initiating support enforcement agency that is seeking registration and enforcement of a support order, arrears, or judgment stated in a foreign currency, to convert the amounts into the equivalent amounts in dollars under applicable exchange rates. See also the discussion on international cases below.

The new section 307(e) requires a support enforcement agency to cooperate with a request from another support enforcement agency for a redirection of payments by either issuing (if the agency has such administrative power), or requesting a tribunal to issue, a child support order and an income withholding order that redirect payment of current support, arrears, and interest to the support enforcement agency in the state in which the obligee is receiving services.

Nondisclosure of Information

Section 312 of UIFSA has always addressed the need to protect address information in cases where there is a risk of domestic violence or child abduction. The 2001 amendments to the section change the language so that it is consistent with section 209 of the Uniform Child Custody Jurisdiction and Enforcement Act. As amended, section 312 now reads:

If a party alleges in an affidavit or a pleading under oath that the health, safety, or liberty of a party or child would be jeopardized by disclosure of specific identifying information, that information must be sealed and may not be disclosed to the other party or the public. After a hearing in which a tribunal takes into consideration the health, safety, or liberty of the party or child, the tribunal may order disclosure of information that the tribunal determines to be in the interest of justice.

Direct Income Withholding

One of the implementation issues that had arisen under the 1996 amended UIFSA was how to challenge a direct income withholding order. Under the 1996 version, section 506 authorized an obligor to challenge the validity or enforcement of a direct income withholding order in the same manner as if the order had been issued by his or her employer’s state. The problem was that states had procedures for contesting immediate withholding, but many states lacked procedures for challenging a withholding order once it had already been issued. Therefore, section 506 referenced a procedure that did not exist in some states.

The 2001 amendment to section 506 recognizes that one “simple, efficient, and cost-effective” method for an employee-alleged obligor to file a contest is to allow the obligor to register the withholding order using the registration process provided in Article 6 of the Act, and to seek protection from that tribunal pending resolution of the contest. See Official Comments to section 506, as amended. In the alternative, the obligor is still allowed to also use any method that would be available for challenging an intrastate income withholding.

International Cases

A cornerstone of the original URESA was reciprocity of laws between states. Reciprocity is not a requirement of UIFSA, with the exception of the recognition and enforcement of support orders of foreign countries or political subdivisions. The 2001 amendments continue this concept in its new expanded definition of state as it relates to a foreign country:


    The term includes:
         …  
    (B) 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 for the
         issuance and enforcement of support orders which are 
         substantially similar to the procedures under this [Act].

2001 amendments, section 101(21)(B). Subsection (i) refers to the authorization of the U.S. Department of State, with the concurrence of the U.S. Department of Health and Human Services, to declare a foreign jurisdiction to be a foreign reciprocating country or political subdivision pursuant to section 459a of the Social Security Act. Currently, such declarations have been made with Australia; the Canadian provinces of British Columbia, Manitoba, and Nova Scotia; the Czech Republic; Ireland; Poland; Portugal; and the Slovak Republic. See Notice of Declaration of Foreign Countries as Reciprocating Countries for the Enforcement of Family Support (Maintenance) Obligations, 66 Fed. Reg. 58,545 (Nov. 21, 2001). A State Department declaration is binding on all U.S. states. UIFSA also authorizes a designated state official or agency to make a reciprocal agreement with a foreign country or political subdivision for the enforcement of support. See section 308. A number of states have entered into reciprocal arrangements with such countries as England, Germany, and the Canadian provinces. A tribunal applying subsection (iii) may determine whether a particular country has substantially similar laws or procedures in order for its support orders to be enforced under the provisions of UIFSA.

There were several advisors and observers to the 2001 UIFSA Drafting Committee with international expertise. They raised several issues related to international cases. The first issue was conversion of foreign currency. As a result, the drafters added several provisions placing responsibilities on support enforcement agencies and tribunals to convert the amount stated in the foreign currency into the equivalent amounts in dollars under applicable exchange rates as publicly reported. See 2001 amended sections 304(b), 305(f), and 307(d).

Another issue was the need to facilitate modification across international borders. A new section 615 expands upon a provision that was added in 1996 to UIFSA. This new section, entitled “Jurisdiction to Modify Child-Support Order of Foreign Country or Political Subdivision,” authorizes a U.S. tribunal to modify a foreign support order when a tribunal of the foreign country or political subdivision would have jurisdiction to modify its order under the rules of UIFSA, but under the law or procedure of that foreign country or political subdivision, the tribunal will not or may not exercise that jurisdiction to modify. “The standard example cited for the necessity of this special rule involves the conundrum posed to a tribunal of a foreign country having a requirement that the parties be physically present in order to sustain a modification of child support, and lacking the authority to compel a party residing outside of the borders of the country to appear.” See 2001Official Comments to section 615. In such a situation, a U.S. tribunal may assume modification jurisdiction and bind all individuals subject to its personal jurisdiction. Consent to modify that would otherwise be required by section 611 is not necessary. Nor does it matter whether the individual seeking modification is a resident of the U.S. state or of the foreign country or political subdivision. Once an order is issued under the new section 615, it is the controlling order.

Finally, there was an extended discussion regarding to what extent UIFSA’s enforcement procedures extend to foreign orders. If the issuing foreign country or political subdivision falls within UIFSA’s definition of “state,” then all of UIFSA’s provisions are applicable to a tribunal. The 2001 amendments also recognize the principle of comity. See 2001 amended section 104(a). If a tribunal recognizes a foreign support order on the basis of comity, the only provisions of UIFSA that are applicable are sections 316 (Special Rules of Evidence and Procedure), section 317 (Communications Between Tribunals), and section 318 (Assistance with Discovery). See new section 210. The full range of enforcement remedies that are available to enforce orders recognized through comity will also depend upon state law.

Other Amendments

Evidentiary Provisions

One of the significant changes of UIFSA from URESA and RURESA are the evidentiary provisions. The 2001 amendments to section 316 further strengthen the intent of this section, which has always been “to eliminate by statute as many potential hearsay problems as possible in interstate litigation.” See Official Comments to amended section 316. The first change is to section 316(a). Rather than state that only the petitioner’s physical presence cannot be required in a UIFSA proceeding, the amendment provides that the physical presence of an individual nonresident party (i.e., the petitioner or the respondent) cannot be required in a tribunal. The second change is to section 316(b). The amendment eliminates the requirement that an affidavit or other document must be given under oath in order to be admissible in evidence. Rather, it is sufficient if the information is provided under penalty of perjury. According to the Comments, this is a simpler standard and is similar to what is required by the federal income tax form 1040. Third, the amendments add a new subsection (j), authorizing the admissibility of a voluntary acknowledgment of paternity, certified as a true copy, in order to establish parentage of a child. The change with the most significant impact is a simple word change from “may” to “shall” in subsection (f). Henceforth, a tribunal must permit a party or witness resident in another state to testify by telephone, audiovisual means, or other electronic means at a designated tribunal or other location in that state. Testimony by such means is no longer discretionary with the tribunal. The practical effect of the change is that many tribunals may now acquire speakerphones.

Temporary Support Order

Section 401 authorizes a tribunal to issue a temporary support order in certain circumstances. 2001 amendments to subsection (b) change the list of circumstances so that they are consistent with the bases for a temporary support order under the new Uniform Parentage Act.

Choice of Law

Finally, there are significant amendments to section 604 (Choice of Law). One of the questions that had confused IV-D agencies is which state’s law applied in the calculation of interest. 2001 amendments to section 604(a), (c), and (d) specifically address interest on arrears. Prior to the determination of the controlling order, the law of the issuing state governs the computation of arrears and accrual of interest on arrears under the support order. Therefore, if there are multiple support orders, prior to a DCO, the arrears -- including interest -- under each order should be calculated using the law of the state that issued that order. However, once there has been a DCO and a consolidation of arrears, all tribunals must prospectively apply the law of the state that issued the controlling order, “including its law on interest on arrears, on current and future support, and on consolidated arrears.” That means the law of the state that issued the controlling order will determine the interest rate not only on arrears that had accrued under it, but also the prospective interest rate on the balance of consolidated arrears. Therefore, if the state that issued the controlling order does not require interest and a state that issued one of the “old” orders does, the issuing state’s interest rate will apply in the initial determination of arrears; however, once the arrears have been consolidated and the controlling order determined, no further interest will accrue.

It is unlikely that statewide systems will ever be programmed with the interest rates of each state. Presumably, the state that issued the controlling order will periodically let the registering or responding state know how much interest has accrued.

Conclusion

Since its original promulgation in 1992, UIFSA has been amended twice. Like the 1996 amendments, the 2001 amendments clarify case processing issues; they do not change the fundamental principles of UIFSA. Through this TEMPO, OCSE hopes to enhance the child support community’s understanding of the 2001 amendments and highlight the importance of improved interstate child support enforcement.


[1] See OCSE-AT-02-02.