CHILD SUPPORT JURISDICTION

 Source: http://www.aaml.org/Articles/2001-05/Child Support Jurisdiction-Viken.htm

   Materials Prepared and Compiled By:

  LINDA LEA M. VIKEN, ESQ.

   1617 Sheridan Lake Road

    Rapid City, South Dakota 57702

 

MARCH 2001

 

     CHILD SUPPORT JURISDICTION

   

I. INTRODUCTION

Jurisdiction over support matters can in many instances differ from jurisdiction to grant the divorce or jurisdiction over child custody.  This presentation focuses on two jurisdictional pieces of legislation dealing with establishing and modification of support: the Full Faith and Credit for Child Support Orders Act of 1994[1] (FFCCSOA) and the Uniform Interstate Family Support Act (UIFSA).

 

II.      FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT OF 1994

The Full Faith and Credit for Child Support Orders Act of 1994 (FFCCSOA) is binding in all the states and supercedes any inconsistent provisions of state law.  Isabel M. v. Thomas M., 624 NY2d 356, (164 Misc. 2d 420, NY Fam. Ct. 1995); Kelly v. Otte, 474 SE2d 131 (NC Ct. App. 1996); State v. Skladanuk, 683 S2d 624 (FL Dist. Ct. App. 1996).

Because the full faith and credit clause of the United States Constitution does not automatically insure that one state’s judgment will be enforceable in another state, problems arose with retroactive modification of past due payments.  To stop the hemorrhage of support orders caused by jurisdiction jumping, Congress enacted the Full Faith and Credit For Child Support Orders Act (FFCCSOA) in 1994.  This Act requires that all courts of the United States and its territories accord full faith and credit to a child support order issued by a sister state which has properly exercised jurisdiction over the parties and the subject matter, subject to only limited defenses.  This law contains jurisdictional proscriptions identical to UIFSA.  The FFCCSOA prohibits a state from entering a new order or modifying an existing child support order from another state unless all the parties and the child have left the issuing state or the parties have filed a written consent in the court of the issuing state to have another state modify the order.  Just as for custody orders under the Parental Kidnapping Prevention Act, the jurisdiction of the issuing state continues even after the parties and the child have left the state until such time as a new state of residence obtains jurisdiction to modify the order.[2]  Cases have held that even if all parties have left the state and a child or one of the parties returns thereto, the originating state’s jurisdiction is again exclusive if no intervening modification has occurred.  See Porter v. Porter, 684 A2d 259 (RI 1996).

Under the FFCCSOA, as with UIFSA, the law of the forum state applies in any proceedings to establish or modify a support order, but the law of the issuing state is applied to interpret an existing support order including the length of the obligation.  A court can apply the longer of the statute of limitations of the forum state or the state of the issuing court when enforcing arrears.[3]

 

III.     UNIFORM INTERSTATE FAMILY SUPPORT ACT


The Uniform Interstate Family Support Act was the recommended replacement for the Uniform Reciprocal Enforcement of Support Act (URESA) which was first enacted in 1950 and later updated as RURESA.  Notwithstanding this legislation, the states’ handling of URESA and RURESA was neither uniform nor reciprocal and many states had special rules and requirements that made timely and effective litigation impossible.  Therefore in 1992 the National Conference of Commissioners on Uniform State Laws (NCCUSL) promulgated UIFSA as a replacement for the revised URESA.  Further clarifying amendments were approved in 1996. 

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) required that states have UIFSA in effect by January 1, 1998, including any amendments adopted by NCCUSL as of 1996.  As of April 1, 1998, all states and territories and the District of Columbia had some form of UIFSA.

One of the main concerns of the drafters of UIFSA was that the orders entered thereunder existed independently of each other which resulted in conflicting and multiple orders governing the same parties and children.  Thus the goal of UIFSA was to provide one order to control the current support obligation even though more than one state might enforce it.  Under UIFSA while a state may have jurisdiction to enforce an order it does not necessarily acquire jurisdiction to modify the order. 

Under UIFSA there is both a registration procedure for enforcement and a registration procedure for modification.  A petitioner can seek enforcement in any state where the obligor derives income or owns property or assets.

 

Caveats    

There are three jurisdictional idiosyncracies to remember about UIFSA:

1.   UIFSA does not deal with visitation or custody matters.  As noted in the official comments “the primary object of this prohibition is to preclude joining disputes over child custody and visitation with the establishment, enforcement or modification of child support. . .”


2.   The Act provides limited immunity to an out-of-state petitioner appearing in a UIFSA proceedings in a responding tribunal.  Participation in a UIFSA hearing does not confer personal jurisdiction over the petitioner in another proceeding nor is the petitioner amenable to service of process. 

3.   Spousal support orders can be modified only by the original issuing jurisdiction.[4]   See Hibbits v. Hibbits, 749 A2d 975 (PA Super. Ct. 2000); State ex rel Kirby v. Jacoby, 975 P2d 939 (UT Ct. App. 1999); In re Erickson, 991 P2d 123 (WA Ct. App 2000).  For an interesting discussion of the application of this principle of alimony jurisdiction versus child support jurisdiction, see Weekley v. Weekley, 604 NW2d 19 (SD 1999).

 

IV.    INITIAL ORDER JURISDICTION

In Kulko v. Superior Court, 436 US 84, 98 S.Ct. 1690 (1978), the United States Supreme Court rejected a child-centered basis for establishing jurisdiction for child support over a non-resident.  The UIFSA jurisdictional long arm provisions found at §201(1) contain a number of permissible basis for asserting jurisdiction over the out-of-state parent.  These include the following:

1.   Individuals personally served with a citation, summons or similar notice within the state;

2.   The individual submits to the jurisdiction of the state by consent, by entering a general appearance, or by filing a responsive document with the effect of waiving any contest to personal jurisdiction;

3.   The individual resided with the child in the state;

4.   The individual resided in the state and provided prenatal expenses or support for the child;

5.   The child resides in the state as a result of the acts or directives of the individual;

6.   The individual engaged in sexual intercourse in the state and the child may have been conceived by that act of intercourse;

7.   The individual asserted parentage in the putative father registry maintained in the state by the appropriate agency; or

8.   There is any other basis consistent with the constitutions of the state and the United States for the exercise of personal jurisdiction.

Of course, in lieu of using long arm jurisdiction under UIFSA, a parent may simply elect to file in the home state of the respondent.  If competing actions are filed, UIFSA gives priority to the child’s home state rather than the state where the matter was first filed.[5]  The state of first filing is given priority only if no action is filed in the child’s home state.  UIFSA also requires that if there is a subsequent petition it must be filed before the time for filing a responsive pleading in the first forum has elapsed and there must be a timely challenge to the jurisdiction in the first forum.

 

V.    JURISDICTION FOR ENFORCEMENT


Under UIFSA a support order may be registered for enforcement purposes.[6]   This registration does not, however, confer jurisdiction to modify the order.  For enforcement purposes “support” includes ongoing support, arrearages, health care reimbursement, interest, attorneys fees and related costs and fees.[7]

An order issued by a tribunal of another state can be registered for enforcement in a “responding state.”  A petitioner can choose to file either with their local tribunal which will serve as the “initiating tribunal” or directly in the responding state, that is, the state of the obligor’s residence.  The order then becomes enforceable in the same manner as if it were issued by the responding state, but it may not be modified.  A pleading is usually not required  unless the law of the responding state requires that the enforcement remedy be specifically plead.  UIFSA however requires certain information be provided to the responding state:[8]

9.   A transmittal letter requesting registration and enforcement.

10.     Two copies including one certified copy of all orders to be registered, including any modification of an order.

11.     Petitioner’s sworn statement, or a certified statement, by the custodian of records, showing the amount of any arrears.

12.     The name and if known the Social Security number and address of the obligor.

13.     The name and address of the obligor’s employer and any source of income.

14.     A description and location of property subject to execution.

15.     The name and address of the obligee and entity to whom payments should be sent.


The registering tribunal must file a support order as it would a foreign judgment and must also notify the non-registering party of the registration and include a copy of the registered order and any accompanying documents.  If any income withholding order has been registered for enforcement, the registering tribunal must also notify the obligor’s employer pursuant to the income withholding law of that state.  As a practical matter, it may be necessary for the practitioner to provide these documents to the tribunal for its use to ensure that this portion of the law is complied with. 

A registering tribunal must schedule a hearing upon a timely request for hearing and give notice to the parties.  The law of the forum state is applied at the hearing including the procedural and substantive law.  If a party desires to contest registration for enforcement, a hearing must be requested within 20 days of the notice of registration.[9]   The non-registering party may seek to vacate the registration, to assert any defense to an allegation of noncompliance with the registered order, or contest the remedies being sought or the amount of arrearages alleged.[10]  A failure to timely object results in confirmation of the order by operation of law.   UIFSA §313(b) provides that the tribunal must order the payment of costs and reasonable attorney’s fees if it is determined that a hearing was requested primarily for delay.  Attorney’s fees are permissive otherwise.

The party who contests the validity or enforcement of the order, or seeks to vacate the registration must prove one or more of the following defenses:

16.     The issuing tribunal lacked personal jurisdiction over the contesting party;

17.     The order was obtained by fraud;

18.     The order has been vacated, suspended, or modified by a later order;

19.     The issuing tribunal has stayed the order pending appeal;

20.     There is a defense under the law of the state to the remedy sought;

21.     Full or partial payment has been made; or

22.      The statute of limitation under Section 604 (Choice of Law) precludes enforcement of some or all of the arrearages.[11] 

 

 

VI.    JURISDICTION FOR MODIFICATION

The goal of both UIFSA and FFCCSOA is “one order, one time, one place.”  Under both  UIFSA and FFCCSOA only one state can modify the existing order at any one time.  As long as either of the individual parties or the child resides in the state that entered the original order, that state retains exclusive jurisdiction to modify the order upon the proper petition, both under UIIFSA and FFCCSOA.   When the parties and the child have left the state issuing the initial order or, if the parties agree in writing to allow the court of another state to have jurisdiction, UIFSA sets forth a method for registering the support order in another state for purposes of modification.  But that modification, though it may be sought by either party, must be done in the jurisdiction of the opposing party.[12]  If the child support order was issued by a foreign nation, the tribunal in the obligor’s state of residence may decide whether modification is appropriate under its law.[13]


Registration for modification requires a petition for registration and modification.[14]  The petition must allege the grounds for modification and be accompanied by two copies, one certified, of the support orders to be registered.  The petitioner must submit a sworn statement containing the same information as required by registration for enforcement.  While financial information is not required, the testimony forms that have been developed for UIFSA cases by the Federal Office of Child Support Enforcement include financial statements for both parties.[15]  Just as in registration for enforcement, the registering tribunal must provide the non-registering party with notice.  The non-registering party has 20 days  to contest registration or raise a defense to the modification request.

For the responding tribunal to have jurisdiction to modify the support order the following must be present:

23.     The original issuing state must lack continuing exclusive jurisdiction either because no obligor, individual obligee, or child continues to reside there or both individual parties have agreed in writing that the registering state may exercise jurisdiction to modify.

24.     The petitioner is a non-resident of the registering state and the registering tribunal has jurisdiction over the respondent.[16]

   OR

25.     The original issuing state must lack continuing exclusive jurisdiction because no obligor, individual obligee, or child continues to reside there,

26.     All of the individual parties reside in the same state, and

27.     A party has registered the order in the state where the parties now reside.[17]

Once a state determines it properly has jurisdiction for modification, and, after proper notice and hearing, the court then applies its own procedural and substantive law and the duty of support and amount payable will be determined in accordance with the law and support guidelines of that state.[18] UIFSA outlines duties and powers of the responding tribunal.  A tribunal may not modify any aspect of the child support order that could not be modified under the law of the issuing state such as whether post minority support is appropriate.  A trial court must enforce the child support provisions of a foreign divorce decree rather than a subsequent order entered by a court of the forum state purporting to shorten the duration of the support applying the Full Faith and Credit For Child Support Order Act.  State ex rel Harnes v. Lawrence, No. 99-1254 (NC Ct. App. 12/5/00).  Once an order modifying child support has been properly entered in a state, that state then becomes the tribunal having continuing exclusive jurisdiction.[19]  Therefore caution should be exercised by the practitioner as to when and where to seek modification as the responding state’s child support laws may result in a greater or lesser support award than the current order for support.


Malpractice Trap

The party obtaining a modification must file a certified copy of the modified order with the issuing tribunal which had continuing exclusive jurisdiction and in each tribunal where the earlier order had been registered.  This filing must be within 30 days.[20]  Failure to file the notice subjects the petitioner to sanctions where the failure to file occurs, but does not affect the validity and enforceability of the other modified order. 

 

VII.   CONTROLLING ORDER DETERMINATION

UIFSA authorizes a proceeding, which is similar in nature to a declaratory judgment in which a tribunal may determine which of multiple support orders is controlling.[21]  Either the obligor or an obligee may make the request.  There are three requirements.  First, an individual party must reside in the forum state.  (It is not necessary for the requesting party to be the party that resides in the forum state.)   Second, the party requesting the determination must accompany a written request with a certified copy of every support order in effect.  The Federal Case Registry (FCR) can be utilized to search for multiple support orders.  The FCR contains information on individuals and all publicly enforced cases and private (non IV-D) orders that were entered or modified after October 1, 1998.  In addition, CSENet is a small communication network between states used to transfer information on an order or case contained in one state case registry to another.  These sources however are not normally available to the practitioner, but may be available in a given state through the local child support enforcement agency.  Third, every party whose rights may be affected must be notified.


The order that determines the controlling order must list all orders considered and the basis upon which the determination was made.  Within 30 days after a controlling order is issued the party obtaining the order must file a certified copy with each tribunal that issued or registered an earlier order of child support.[22]  Failure to do so subjects the party to sanctions.

Careful consideration should be given by the practitioner in determining when and where to request a ruling on a Controlling Order as the parties’ residence (particularly the obligor’s) at the time a decision is made may affect the ruling, as that state’s local rules will be applied including procedural and substantive law and the duty of support and amount payable will be determined in accordance with the law and support guidelines of that state.

 

 

VIII. CONCLUSION

Just as the Parental Kidnapping Prevention Act (PKPA) and the Uniform Child Custody Jurisdiction Act (UCCJA) or Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) work together for custody jurisdiction, the UIFSA and FFCCSOA work in tandem to address support issue jurisdiction.


     THE THEORY IN PRACTICE

      A PRACTITIONER’S CHECKLIST

 

 

I. INTRODUCTION

Having reviewed the two main pieces of legislation dealing with jurisdiction over child support orders, what are the questions then for a practitioner to answer when faced with the issue of establishment or modification of a support order?

 

II.    ESTABLISHMENT OF THE INITIAL ORDER

28.     Which court has the jurisdiction over the potential obligor? 

1.   Does the state long arm jurisdiction apply?

2.   Does the state version of UIFSA apply?

 

III.     SEEKING ENFORCEMENT OF THE ORDER IN ANOTHER STATE

29.     Does the initial issuing tribunal still have continuing exclusive jurisdiction?

30.     Does the state long arm jurisdiction bring the obligor under the authority of the court?

31.     If not, is registration for enforcement available in the state of residence of the obligor?

1.   Check version of UIFSA adopted by the state of obligor’s residence.

2.   Check available remedies for enforcement.

32.     Determine remedies to be requested including income withholding, contempt, marshaling of  assets, etc.

33.     Fill out and transmit the proper forms to the state or states where obligor resides and/or has property and assets.


34.     Insure that proper notification is given by the responding court to the obligor.

35.     Be familiar with the responding state’s rules of procedure (or refer your client to an AAML member residing therein).

 

IV.    MODIFICATION OF EXISTING ORDER

36.     What order or orders exist?

1.   Determine if assistance can be obtained from the local office of child support enforcement to access all the state records.

2.   Obtain certified copies of the order and verify that no subsequent orders have been issued in that tribunal.

37.     Determine the applicability of FFCCSOA as to the following:

1.   Which order was entered first?

2.   At the time of the entry of that order was there jurisdiction over the parties pursuant to FFCCSOA and UIFSA?

3.   If there was a subsequent modification was there compliance with FFCCSOA?

38.    Had all parties left the state that had issued the order?

39.    Had another court properly assumed jurisdiction under UIFSA or had the parties consented to another state having jurisdiction?

d.    If there was a subsequent modification was there compliance with UIFSA?

1.    Was notice properly given?

2.    Was the law of the forum applied?

3.    Was notice of the modification properly given to all courts?


40.     Which state now has jurisdiction under FFCCSOA to modify the order?

1.   Have the parties and the child moved from the state of the last order?

2.   Is there any long arm jurisdiction available?

3.   Where does the obligor reside?

41.     Which state now has jurisdiction under UIFSA to modify the order?

1.   Do any states have constitutional long arm jurisdiction over him?

2.   Where does the obligor personally reside?

42.     Should I request a Controlling Order Determination?

1.   Where do the parties currently reside?

2.   What state’s law will be utilized and how does that affect the outcome?

3.   If the Controlling Order is obtained, be sure proper notice is given to all parties.

43.     File in accordance with the provisions of UIFSA requesting modification.

44.     Be sure the obligor receives proper and timely notice of the proceedings.

45.     Review and utilize the discovery method allowed under UIFSA.

46.     Be sure that all states wherein the previous order or orders were obtained or registered for enforcement receive timely notice of the modified order.

 


[1]28 USC § 1738(B) Appendix A.

[2]A trial court loses its exclusive jurisdiction to modify its order when all parties move from the state and a request is made to register the order in the state of residence of the obligor. In re Abplanalp, 7 P3d 1269 (KS App. 2000).

[3] 28 USC §1738B(h) (1998).

[4] UIFSA §205 and 206(c); but see definition of “duty of support” and “support order” which include alimony.  UIFSA §101(3) and (21).

[5] UIFSA §204.

[6] UIFSA §601-608.

[7]UIFSA §101(21).

[8]UIFSA §602.  The Federal Office of Child Support Enforcement has developed UIFSA forms, see Appendix B.

[9]UIFSA §303; UIFSA’s short window of time to contest an order filed for enforcement has been upheld.  Washington v. Thompson, 6 SW3d 82 (AK 1999).

[10]UIFSA §606.

[11]UIFSA §607.

[12]UIFSA §611(a)(1)(ii)(iii).  See Weekley v. Weekley, 604 NW2d 19 (SD 1999); Groseth v. Groseth, 257 NW2d 525 (NE 1999); Compton v. Compton, 1999 Ohio App. Lexis 2592, C.A. Case No. 99-CA-17; Cepukenas v. Cepukenas, 584 NW2d 227 (WI Ct. App. 1998).

[13]UIFSA §611(a)(2).

[14]See Appendix B for form.

[15]See Appendix B for form.

[16] §611.  The courts have been clear that an action to modify support must be initiated in the state of the obligor’s residence unless the obligor consents to another state’s jurisdiction.  See Phillips v. Fallen, 6 SW3d 862 (MO 1999).

[17]UIFSA §613.

[18]UIFSA applies the child support guidelines of the state of residence of the obligor.  Department of Human Services v. Frye, No. Han-99-592 (Maine 6/30/00).

[19]The modification of an original support order by a court having proper UIFSA jurisdiction operates to extinguish the originating state’s exclusive jurisdiction.   Loden v. Loden, No. 79A05-9911-CV525 (Ind. Ct. App. 10-25-00).

[20]UIFSA §614.

[21]UIFSA §307(c).

[22]See Appendix B for form “Notice of Determination of Controlling Order.”