General Practice, Solo & Small Firm DivisionMagazine
Domestic Relations Law
International Child Support–1998
By Gary Caswell
This article discusses international child support cases in the context of: identifying international cases and the legal issues they present; how practitioners, tribunals, conventions, and state level initiatives have attempted to deal with those issues; and the role of the U.S. government in international child support and the status of federal reciprocity negotiations with foreign countries. The final section of the article details a pilot program between Texas, Tamaulipas, and Nuevo Leon.
Identifying International Cases. When looking for something international, consider what is requested, who the petitioner is, and who is initiating the case. If the petition requests enforcement of a foreign juridical act against a resident of the forum’s sovereign territory, the case is international, regardless of who is requesting the enforcement. The focus is on what is requested. If the petition requests establishment of an order against a resident of the U.S. forum’s sovereign territory, the case may or may not be considered international. The focus is not on what is requested because the forum court will use local laws and procedures to establish a local order. Depending on state law or the international policy of the responding IV-D agency, who is requesting the service may make the difference in whether or not the agency will work the case.
Where the establishment request is by direct application to the IV-D agency from an individual residing in a foreign jurisdiction, states can provide IV-D services if the individual signs an application for services. If an IV-D agency or a private attorney is initiating an action to a foreign jurisdiction, the case is always international.
The United States is a signatory to the Convention on the Civil Aspects of International Child Abduction and will probably sign the Hague Convention for the Protection of Children. The United States is also a member of judicial assistance conventions, including Hague Conventions on Service of Process, Evidence, Legalization of Public Documents, and the Inter-American Convention on Letters Rogatory.
Federal vs. State Role in Family Law. The federal government’s influence comes from regulations requiring that states adopt various procedures and laws or lose funding available for IV-D agencies. Procedures adopted through federal mandates include wage withholding, credit bureau reporting, tax refund intercepts, automated linkage to a National Case Registry, operation of a State Directory of New Hires, license suspension, certification for passport denial and revocation, and financial institution data matches. Laws that states have been required to enact include the adoption of Uniform Interstate Family Support Act (UIFSA), legal finding of paternity based upon an unrescinded acknowledgment of paternity, no jury trials in actions to establish parentage, child support liens in the amount of unpaid support that arise by operation of law, guidelines for child support, and legislation prohibiting the retroactive reduction of child support arrearages arising from court orders. Federal law affecting substantive family law include: criminal nonsupport legislation in interstate cases, requiring recognition of sister-state support orders, and authorizing the secretary of state to bind the states to child support reciprocity arrangements with foreign jurisdictions.
In 1859, Supreme Court dicta in Barber v. Barber disclaimed federal court jurisdiction over "the subject of divorce, or alimony," thereby laying the foundation for an "exception" to federal jurisdiction in family law cases. In 1992, in Ankenbrandt v. Richards, the Court held that the exception encompasses only cases involving the core matters of family law, such as the issuance of a divorce, alimony, or child custody decree. This exception has been used to justify resistance to federal court involvement in child support.
The Child Support Recovery Act (CSRA) federalized the criminal prosecution of a noncustodial parent who willfully fails to pay a past due support obligation for a child who resides in another state. Reciprocity agreements, whereby states mutually agree to pursue and extradite each other’s delinquent support obligors, present a "free rider" problem. States refusing to sign extradition agreements would "free ride" off the other states, exporting their costs (unsupported dependents) and importing benefits (productive adult taxpayers who happen not to pay their child support obligation). The CSRA was seen as one way to alleviate this free-rider problem.
The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) expands federal government involvement in family law and international child support. All states must adopt the UIFSA which requires a foreign jurisdiction to have enacted a law or established procedures that are substantially similar to the procedures under the Uniform Reciprocal Enforcement of Support Act or the Revised Uniform Reciprocal Enforcement of Support Act. UIFSA gives the initiating tribunal the authority to issue certificates or other documents required by states that have not yet enacted UIFSA and by foreign jurisdictions. States are authorized to enter into their own arrangements with foreign jurisdictions up until such time as countries are declared foreign reciprocating countries under the Act.
Initiating Elements. Each country has unique procedures to follow and forms for foreign applicants to use when initiating requests for services. OCSE and NCSEA are developing guides to provide information and forms that can be used to initiate actions designed for each country with which some or all U.S. states have reciprocity. The term "letters rogatory" refers to a request for judicial assistance from a court in one country to a court in another country. It can be used to request service of process, for assistance in obtaining evidence, or the enforcement of judgments.
The ability to properly obtain service of process abroad can be a valuable asset in cases where the respondent is residing in a country that does not have reciprocity or an agency willing to provide judicial assistance. UIFSA extends personal jurisdiction over nonresidents on a variety of bases. Tribunals that have already asserted and continue to exercise jurisdiction over a party may willingly hear enforcement actions where the enforcement remedy is in the forum state.
Responding Elements. If there is a reciprocity arrangement, the foreign order should be treated as if it was issued by a sister U.S. state. Because UIFSA remedies are cumulative, if there is no reciprocal arrangement the practitioner can still argue that the issuing country is a "state" because its law or procedures are substantially similar enough to UIFSA, URESA, or RURESA to meet the uniform act’s definition of "state." Absent both a reciprocal arrangement and proof of foreign laws and procedures, the tribunal should be urged to recognize a foreign order in a spirit of comity, absent clear evidence that the foreign law and procedures do not afford due process.
UIFSA provides two exceptions to the use of the forum state’s law in enforcing another state’s support order. First, the issuing state law governs the nature, extent, amount, and duration of support and the payment of arrearages under the order. Second, regarding statutes of limitation for proceedings to recover arrearages, UIFSA provides that the statute of limitations of the forum state or issuing state, whichever is longer, shall apply. It also provides a method for the forum state to modify a foreign tribunal order.
Gary Caswell is an assistant attorney general in the Office of the Texas Attorney General; Federal Office of Child Support Enforcement (OCSE) Resource Person, and Co-Chair of the OCSE Working Committee for International Child Support; Advisor on U.S. delegations conducting federal level international child support negotiations.
-This article is an abridged and edited version of one that originally appeared on page 525 in Family Law Quarterly, Fall 1998 (32:3).