UIFSA 1996, 2001 & 2008 - Third Time's The Charm

1. UIFSA 1996, 2001 & 2008 - Third Time's The Charm Margaret Campbell Haynes Susan Friedman Paikin

2. UIFSA – Tell Me More! • Three versions • 1996 • 2001 • 2008 • All versions built around two major concepts • Controlling Order • Continuing, Exclusive Jurisdiction

3. Main Concepts Controlling Order • The order that governs your case • “Which” order is the enforceable current support order Continuing, Exclusive Jurisdiction (CEJ) • “Which” jurisdiction has authority to modify the order

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

5. Changes from 1996 to 2001 • Modification jurisdiction • Telephone hearings • Redirection • Choice of law • International provisions

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

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

8. Current Status of Ratification Convention is in effect! • Norway • Albania • Bosnia and Herzegovina

9. U.S. Ratification in 2016 One can only hope!

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

11. Changes from 2001 to 2008 • Impetus was Hague Convention • Main focus is on international provisions

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

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

14. Foreign Reciprocating Countries The U.S. currently has bilateral reciprocity agreements with 14 countries and 12 Canadian Provinces.

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

16. Foreign Reciprocating Countries Netherlands Norway Poland Portugal Slovak Republic Switzerland The United Kingdom of Great Britain and Northern Ireland

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

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

19. Modification under UIFSA 2008 • Adds provisions related to modification of order issued by a “state” • State1 order, one party moves to US state 2, and other party is in a foreign country • Includes provision related to modification of order issued by a foreign country • Adds provision related to modification of order from a Hague country

20. Establishment Today • Outgoing • Long arm jurisdiction • Forms • Choice of law • Two state process • Forms • Choice of law • Services provided • Incoming • Application fees • Cost recovery • Services provided

21. Establishment under UIFSA 2008 • Outgoing • Long arm jurisdiction • Forms • Choice of law • Two state process • Forms • Choice of law • Services provided • Incoming • Application fees • Cost recovery • Services provided

22. Enforcement Today • Outgoing • Direct income withholding – can US initiate to another jurisdiction? • Registration for enforcement • Forms • Choice of law • Services provided • Incoming • Direct income withholding – can another jurisdiction initiate against US employer? • Registration for enforcement • Forms • Choice of law • Challenge

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

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

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

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

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

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

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

30. Modification Today • Outgoing • Forms • Choice of law • Services provided • Incoming • Forms • Choice of law • Services provided

31. Modification under UIFSA 2008 • Outgoing • Forms • Choice of law • Services provided • Incoming • Forms • Choice of law • Services provided

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

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

34. Resources – Cont’d • ERICSA has published many helpful tools when working intergovernmental cases, including a list of which version of UIFSA states have enacted and an explanation of “CEJ in United States Child Support Cases” for use by Canadian courts, attorneys, and caseworkers. https://asoft10146.accrisoft.com/ramm/index.php?submenu=Members&src=gendocs&ref=tools_landing&category=ERICSA&link=tools_landing • NCSEA has FAQs on international child support enforcement. http://www.ncsea.org/resources-info/international-child-support/

35. Contact Information • Margaret Campbell Haynes • mhaynes@csfmail.org • 240-743-8007 • Susan Friedman Paikin • spaikin@csfmail.org • 302-234-4806 • Alicia Key • alicia.key@xerox.com • 512-858-4064