Volume 18, Number 7
Uniform Interstate Family Support Act
Collecting Interstate Child Support Obligations
By Valerie Brandenburg
The growing public outcry over the number of children not receiving child support from an absent parent resulted in a flurry of new legislation both at the federal and state levels. The changes are significant and very complex, leading to confusion even by very experienced family lawyers.
For example, did you know that it may be a federal crime when an individual with a child support obligation relocates out of the state and fails to pay that support obligation for six months? Did you know that your local court can no longer reduce an individual's child support obligation if the child support order originated in another state? Did you know that your client, an employer, must treat the wage withholding notice received through a child support enforcement agency of another state as a valid wage garnishment?
The first stage in the overhaul of the child support laws at the federal level was the 1992 passage of the Child Support Recovery Act.1 The culmination of the overhaul was each state's adoption of a version of the Uniform Interstate Family Support Act (UIFSA) by 1998. The UIFSA Model Act2 was drafted by the National Conference of Commissioners on Uniform Laws and was approved by the American Bar Association in 1993. Other legislation passed in the intervening years also contributed to the reform of child support laws. These laws include the Full Faith and Credit for Child Support Orders Act (FFCCSOA), applicable to every state in 1994, and the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), which requires each state to enact legislation similar to UIFSA in order to receive certain federal funds.3 Later in 1996, FFCCSOA was amended to be fully consistent with the UIFSA.
This series of legislation effectively superedes the Uniform Reciprocal Enforcement Support Act (URESA) and is an attempt to cure many of the problems that developed under URESA. UIFSA is applicable to all cases in which one parent owes a duty of support to another parent and the parents reside in different states. In theory, it provides remedies for the obligor as well as the obligee.
UIFSA provides for the establishment of paternity,4 issuance of original child support orders, enforcement of existing child support orders, and modification of existing support orders. UIFSA proceedings are either a one-state or a two (multiple)-state proceeding. Multiple-state proceedings are always limited to registration proceedings.
The focus of the UIFSA is that a single state can serve as a "one-state, one-stop shop"; this is its biggest difference from URESA. Under URESA each state had its own support order, which frequently resulted in conflicting orders from the second state when it attempted to enforce or modify the originating state's initial order. UIFSA is designed to resolve problems of establishment, enforcement, and modification of a support order when the parents of a child live in different states. UIFSA does not address visitation issues, nor is visitation denial a valid defense to nonpayment of child support.
Dealing with Multistate Hearings
In order to most effectively represent an obligor, you should promptly determine whether a one- state or a two-state procedure is being employed. In a two-state procedure, registration is used exclusively. The time period from notice to the second court's registration varies from state to state. In Ohio, this period is only 20 days. Under UIFSA, modification of the order in the registration state is prohibited, a major change from URESA. Objections to the order and the arrearages must be raised at the initial time of registration.
The obligor must act quickly to raise any valid defenses; however, these defenses are usually very limited. The obligor could argue that the court or agency issuing the child support determination lacked jurisdiction over the defendant; the order was obtained by fraud; the order has since been vacated, suspended or modified by a subsequent order; the order has been stayed pending appeal; or full or partial satisfaction has occurred.
The success of such tactics can been seen in cases like State ex rel. Wyoming v. Stout,5 in which the obligor presented a valid defense showing that the court that issued the support order lacked personal jurisdiction over him at the time the order was issued. Similarly, a support order emanating from a default divorce was void for lack of jurisdiction over the obligor-father.6 In Chapman v. Chapman,7 the court threw out the registration of a foreign judgment for failure to comply with the procedural requirements-neither a verified statement as to the arrearages nor an affidavit from the custodian of records was included in the pleadings.
The most significant change under UIFSA is that the child support enforcement agency of one state can mail a notice of wage withholding directly to an obligor's employer in another state. The support order does not have to be registered in the responding or sister state prior to the wage withholding notice being effectuated. Moreover, the withheld wages are mailed directly to the support agency of the state issuing the support order. The employer's state law governs what processing fee the employer can charge the employee and determines how long the employer has to mail the withheld wages to the state agency requesting them. The employer's state law also determines the priority of support orders and other garnishments. Some states provide an administrative remedy for the obligor present in their state. Should such an action be initiated, notice is sent to the state from which the support order originated, the person or agency designated to receive notice, and possibly the obligee.
Actions are not limited to the state in which an obligor resides or works. The state that made the child support determination can seek enforcement of that determination in any state where the obligor derives income, where the obligor owns property, and where personal jurisdiction can be obtained over the obligor. In all of these UIFSA matters, questions regarding procedure are resolved under the laws of the state in which the action is brought. As to the content of the order itself, the laws of the state from which the order originated control.
Learning the Lingo
UIFSA has some specialized terminology, so you must familiarize yourself with the definitions adopted by your state. Misunderstandings can easily occur by attributing common meanings to legal terms that have been given quite different meanings. For example, under the FFCCSOA,8 there is reference to "court orders"; however, the act broadens the meaning of court to encompass an administrative agency that the originating state has authorized to establish or modify the amount of child support. The FFCCOSA, however, raises agency determinations to the level of court orders. The term "home state," borrowed from the Uniform Child Custody Jurisdiction Act (UCCJA), is defined under UIFSA as the residence of the child for the preceding six months.
Individual states have their own particular terminology. Ohio's version of UIFSA uses the word "tribunal" to refer to a body (court, agency, or other) that has made a child support determination using due process. Likewise, "state" means any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the territories and possessions of the United States, and Indian territories.9 Your state's version of the act will undoubtedly also have some unique terminology.
The most problematic terminology is "continuing jurisdiction" or "continuing, exclusive jurisdiction," referred to as "CEJ." CEJ is a concept applicable to modification of existing orders. Under UIFSA, CEJ refers to the state that has the jurisdiction to issue an order or modify an existing order. Under § 1738(e), a state has CEJ if it had jurisdiction to make the original order and is still the residence of the child or an individual contestant, or each contestant has filed a written consent with the originating state for another state to modify and assume CEJ.10
In situations where there is more than one order, the order from the state having CEJ will be enforced. According to § 1738(f), if two or more courts having CEJ have issued child support orders, then the most recently issued order will be enforced. Where two or more child support orders have been made by courts without CEJ, the current jurisdiction may issue its own new support order. An originating court can still enforce its order even if it no longer has CEJ but only with respect to non-modifiable obligations and those provisions that are unsatisfied.The following hypothetical illustrates how CEJ raises some more traditional legal issues regarding jurisdiction. John and Jane Doe, both residents of Ohio, are divorced in Ohio, and the Ohio court issues an order for their daughter, Fawn. John's factory closes and he moves to Texas to seek employment and is successful in doing so. Jane's parents are retired and living in Florida. Jane's father dies and her mother hates living alone. Jane takes Fawn and moves to Florida to live with and care for her aging mother. Jane hears from a friend still residing in Ohio that John has had numerous promotions and is earning substantially more money. Jane wants to modify her child support award. Because Ohio no longer has CEJ under UIFSA, Jane turns to the Florida courts to have them modify her child support order. Under traditional analysis, John has never had contact with Florida, so Florida would lack "long-arm" jurisdiction over him. But under UIFSA, Florida does have CEJ and can modify Ohio's original support order.
John will be required to go to Florida and have representation regarding child support even though he never had any contact with Florida. Prior to UIFSA, Jane would have had to come back to Ohio to modify support or register/adopt in Texas and pursue a modification there. Under no circumstances could she have modified her support order in Florida.
These are the kinds of situations each state's court will eventually have to confront. It will be interesting to see how the different states grapple with this issue or whether they will find portions of UIFSA unenforceable. In Gentzel v. Williams,11 a Kansas court held that it did not have jurisdiction to modify an Arizona child support order. None of the parties remained in Arizona, and only the father resided in Kansas. The mother and child had moved to Texas and had not consented to modification in Kansas. Thus, the Kansas court did not have CEJ.
Solving Logistical Problems
UIFSA had to make new evidentiary provisions to accomplish its goals. Among these are procedures for holding a hearing when the obligor and obligee live in different states. These accommodations include telephonic testimony at hearings and telephonic depositions.12 Ohio has allowed the admission of verified and sworn pleadings, documents incorporated by reference, authenticated copies of child support payment records, copies of medical bills provided they have been provided to the obligor ten days prior to the hearing, and faxed documents from another tribunal. Ohio has also authorized its courts and agencies to contact the sister state to obtain information about the status of its proceedings, the legal effect of a judgment, and so forth. UIFSA does not address how a particular court or support agency will know that one of its orders no longer has prospective application.
In situations where a multistate proceeding involves differing statutes of limitations, UIFSA states that the longer statute of limitations is controlling. This is illustrated in King v. State.13 There will also be enforcement and arrearage calculation problems in situations where different, conflicting, or overlapping child support orders have been issued under URESA or UIFSA.
Before UIFSA, many practitioners did not fully understand the nature of URESA proceedings. Each URESA order from each state was a separate order and only stayed current full enforcement of the original order or one of the subsequent orders. Inevitably there was confusion as to which court had jurisdiction to modify an existing support order. Each subsequent URESA order from different courts did not supersede or nullify the original order or even the prior order, unless it specially said so. As a consequence, child support enforcement agencies and their tracking systems could not interpret these series of interstate orders in a predictable and consistent manner. Thus, the automated records presented by a child support enforcement agency did not yield either accurate or consistent accounts of the monies due the obligee. Finally, as an additional feature UIFSA contains provisions to protect the privacy of the obligee's current address and location if it has been demonstrated that such disclosure is not in the best interests of the obligee or the child.
UIFSA is the result of a tremendous effort by child support enforcement personnel, judges, magistrates, lawyers, and legislators to develop a reasonably efficient mechanism to collect child support in a timely fashion. Yet it is still an evolving process that is dependent on each lawyer's thoughtful and careful review and reflection of all applicable law in this area.Notes
1. 18 U.S.C. § 228.
2. § 331(b).
3. 42 U.S.C. § 666(f). Note that PRWORA, which was effective as of April 29, 1999, has provided an award of funds annually to states to set up and operate programs to support and facilitate visitation with the nonresidential or noncustodial parent. Included in § 391 are funds for mediation, counseling, education, and visitation enforcement. These programs are to be operated on a statewide basis.
4. While paternity can be established under UIFSA, UIFSA does not permit paternity issues to be raised as a defense where they could have been previously raised. Under Ohio's version of UIFSA, conception of the child in the state is sufficient to give the state jurisdiction over the alleged father. It is likely that due process issues surrounding this issue will lead to some interesting litigation.
5. No. 97CA2104, 1998 Colo. App. LEXIS 291 (Colo. Ct. App. Nov. 27, 1998).
6. Jones v. Jones, No. C3-98-593, 1998 WL 436866 (Minn. Ct. App. Aug. 4, 1998). See also Harvey v. Harvey, 6 Neb. App. 524, 575 N.W. 2d 167 (Neb. Ct. App. 1998); State v. Bess, No. 2693, 1997 S. C. LEXIS 92 (S.C. Ct. App. June 39, 1997).
7. No. 0797-0392-CV, 1998 Tex. App. LEXIS 3481 (Tex. Ct. App. June 10, 1998) .
8. § 1738B.
9. 18 U.S.C. § 1151.
10. The FFCCSOA continues to require that any "court order" (this could be an agency determination) to be given effect must include all of the following: (1) be made pursuant to the law of the state and § 1738(e), (f), and (g); (2) have personal jurisdiction over the contestants; and (3) allow for the parties to be given reasonable notice and opportunity to be heard. Section 1738(e) refers to the elements that must be present to modify the child support order issued from another state. Section 1738(f) refers to the rules a court is to use to determine which order would be recognized where there are multiple orders. Section 1738(g) refers to the ability of a court that no longer has "continuing, exclusive jurisdiction" over a child support order to enforce those aspects of its order that are non-modifiable and unsatisfied.
11. No. 78,935 1998 Kan. App. LEXIS 114 (Kan. Ct. App. Oct. 9, 1998).
12. See UIFSA §§ 316-318.
13. 58 Ark. App. 298, 952 S.W. 2d 180 (1997).
Valerie Brandenburg is director of the legal department at the Cuyahoga County Domestic Relations Court in Ohio.