November 01, 2020 Feature

International Child Support Issues with a U.S. Element

Michael S. Coffee

International family law matters arise with globalization and the international movement of families. These matters include child support issues, among which are the establishment, enforcement, and modification of orders. In many respects, international child support issues are similar to interstate issues. However, significant differences remain.

Six categories of international child support issues are likely to present themselves to a U.S. practitioner: (1) establishment of an order in the United States involving persons outside of the United States, (2) establishment of an order in another country involving persons in the United States, (3) enforcement of a U.S. order in another country, (4) enforcement of a foreign order in the United States, (5) modification of a U.S. order in another country, and (6) modification of a foreign order in the United States. Each of these issues will be discussed in this article.

Once you have determined that you are presented with an issue falling within one of the six aforementioned categories, you should identify the foreign country, or countries, involved. For purposes of these issues, there are effectively five categories of countries: (a) countries for which the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (hereinafter the Child Support Convention) has effect regarding relations with the United States, (b) foreign reciprocating countries (FRCs), (c) countries that have a relevant child support arrangement in place with the appropriate U.S. state, (d) countries that have enacted a law or established procedures for the issuance and enforcement of support orders that are substantially similar to the procedures established by the law of the appropriate U.S. state, and (e) all other countries. It is possible that a country will fall into multiple categories. The relevance of each category will be discussed below.

To determine whether the Child Support Convention has effect regarding relations between the United States and a foreign country, you should look to the status chart maintained by the Hague Conference on Private International Law. Once you have identified the country in the “Contracting Party” column, you should look to the “Type” column. If the type is reflected as “R” or “Ap,” then the Convention does have effect regarding relations between the United States and that country. If, however, the type is “A,” then it is important to click on the link in the final column (“Res/D/N/DC”). If an objection by the United States is noted, then the Convention does not affect relations between that country and the United States. (Unfortunately, it is possible that there might be a slight delay in adding objections to that website. Therefore, you might want to check the website for those countries that have acceded to the Child Support Convention for a couple weeks after the entry into force date to confirm that an objection has not been made.)

The list of FRCs pursuant to section 459A of the Social Security Act (42 U.S.C. § 659A) is published in the Federal Register, with the most recent list published on August 20, 2014. See 79 Fed. Reg. 49,368 (Aug. 20, 2014). These countries have established or undertaken to establish procedures for the establishment and enforcement of child support obligations that support U.S. residents. It is possible for the Child Support Convention to have effect regarding relations between the United States and an FRC.

Many U.S. states have child support arrangements in place with foreign countries. While each state will have a current list of such arrangements, this information has been provided to the Office of Child Support Enforcement at the U.S. Department of Health and Human Services. This information is included in that Office’s Intergovernmental Reference Guide. Once you select the relevant U.S. state, item C.1 will list those countries with which the U.S. state has indicated that it has a child support arrangement in place.

Courts will identify those countries that have enacted a law or established procedures for the issuance and enforcement of support orders that are substantially similar to the procedures established by the law of the appropriate U.S. state. To identify such states, you might want to look to any relevant reported decisions in your state or in any other U.S. state, as the relevant U.S. law is based on a uniform act. Alternatively, you should look to the jurisdictional rules of the other country and compare them to the relevant state rules, as you might need to help the court determine whether a country falls within this category.

For the six matters identified above, there might be some benefit to obtaining the assistance of the relevant U.S. state or tribal child support agency. Contact information for these agencies is available at http://www.acf.hhs.gov/css/resource/state-and-tribal-child-support-agency-contacts. These agencies are particularly helpful where the Child Support Convention has effect regarding relations with the other country, the country is an FRC, or the relevant U.S. state has an arrangement in place with the other country. Benefits of direct resolution of these matters by such agencies is that they do so without cost and the resolution might be faster than private court action as the agencies often have familiarity with the procedures applied by their foreign counterparts.

Should you decide to take on the case yourself, the applicable law for actions in the United States will likely be the relevant state’s enactment of the Uniform Interstate Family Support Act (hereinafter UIFSA). UIFSA was amended in 2008 to conform with the relevant provisions of the Child Support Convention. Because each state’s enactment of this uniform act should be nearly identical, this article refers to the Uniform Law Commission’s version of UIFSA. The section numbering in each state might vary. The result of the application of the provisions of UIFSA will depend on which of the five categories into which the relevant foreign country will fall.

Establishment of an Order in the United States Involving Persons Outside of the United States

If you are looking to establish a child support order abroad involving persons in the United States, the jurisdictional and procedural rules of the country in which you seek to establish the order will govern. Here, a foreign lawyer or a U.S. state or tribal child support agency might be particularly helpful. The foreign lawyer should be knowledgeable as to the applicable jurisdictional or procedural rules. The child support agency might be able to engage with a foreign counterpart if the foreign country is a country for which the Child Support Convention has effect regarding relations between the United States and that country or is an FRC, or if the there is a relevant child support arrangement in place between the relevant U.S. state and that country. Where the Child Support Convention applies, article 37 permits direct requests by parties.

Establishment of an Order in Another Country Involving Persons in the United States

If you are looking to establish an order in the United States involving persons outside of the United States, you should look to section 201 of UIFSA for the jurisdictional rules concerning nonresidents of the U.S. state. The procedural rules will be determined by the state in which you seek to establish the order. It should be noted that each state may assign the authority to make relevant decisions to different bodies. Some U.S. states rely on courts to address these matters. Other states utilize administrative bodies to resolve child support matters. Some U.S. states use a combination of administrative bodies and courts. Item I in the Intergovernmental Reference Guide (website above) includes state-provided information helpful to determining how to establish a child support order in that state, to include the type(s) of bodies involved.

Enforcement of a U.S. Order in Another Country

If you seek to enforce a U.S. order in another country, the jurisdictional and procedural rules of the country in which you seek to establish the order will govern. Again, the assistance of a foreign lawyer or a U.S. state or tribal child support agency might be helpful. Chapter V of the Child Support Convention provides rules for the recognition and enforcement of foreign orders, with article 37 allowing parties to make direct requests of competent authorities in the other country. Domestic enactments of this chapter of the Child Support Convention will provide the applicable rules.

Enforcement of a Foreign Order in the United States

The categorization of the foreign country becomes particularly relevant in the context of an action in a U.S. state court to enforce a foreign child support order. Section 601 of UIFSA permits the registration of foreign orders for the purpose of enforcement. The general procedure for registering a foreign order for enforcement is contained in section 602 of UIFSA, with a different rule for the registration of orders from a country for which the Child Support Convention has effect regarding relations between the United States and that country in section 706 of UIFSA. Pursuant to section 603 of UIFSA, a registered foreign child support order is enforceable in the same manner and subject to the same procedures as an order of that state. Section 603 of UIFSA also provides that registered child support orders shall be recognized, as well as enforced, if the issuing tribunal had proper jurisdiction. Section 605 of UIFSA spells out the notice requirements when a child support order is registered. Sections 606 and 607 of UIFSA address the procedure and burdens, respectively, for contesting the validity or enforcement of a foreign child support order. Section 707 of UIFSA modifies these rules slightly should a party seek to challenge a child support order from a country for which the Child Support Convention has effect regarding relations between the United States and that country. Pursuant to section 608 of UIFSA, once a registered child support order is confirmed, the order may not be contested with respect to a matter that may have been asserted at the time of registration. Section 708 of UIFSA addresses recognition and enforcement of a child support order from a country for which the Child Support Convention has effect regarding relations between the United States and that country.

A unique feature of the Child Support Convention is that it establishes an obligation to recognize and enforce certain written agreements relating to the payment of child support as if they are orders from foreign courts. The fundamental requirement, identified in article 30 of the Child Support Convention, for this obligation to apply is that these agreements must be enforceable as if they were decisions issued in the foreign country. (This would not extend to, for example, consent agreements that are incorporated into judicial orders.) Section 710 of UIFSA addresses these agreements.

Modification of a U.S. Order in Another Country

If you seek to modify a U.S. order in another country, the jurisdictional and procedural rules of the country in which you seek to establish the order will govern. Once again, the assistance of a foreign lawyer or a U.S. state or tribal child support agency might be helpful. However, article 37 of the Child Support Convention allows parties to make direct requests of competent authorities in the other country. Domestic enactments of this article of the Child Support Convention will provide the applicable rules.

Modification of a Foreign Order in the United States

As is the case for enforcement of a foreign child support order in the United States, the categorization of the foreign country is relevant in the context of an action to modify a foreign child support order in a U.S. state court. The general rule, established by section 616 of UIFSA, requires that the foreign child support order be registered and allows for a petition for modification to be filed contemporaneously with, or subsequent to, the registration request. If the child support order sought to be modified is from a country for which the Child Support Convention has effect regarding relations between the United States and that country, section 711 of UIFSA establishes the jurisdictional rules applicable in the U.S. state. For modification of orders from other countries, the jurisdictional rules are found in section 615 of UIFSA.

Over time, as more countries become party to the Child Support Convention such that the Convention has effect regarding relations between the United States and those countries, the overarching regime would be established by the Convention itself. Of course, the provisions of the Convention will be effectuated by domestic law, such as UIFSA in the United States. Once that happens, there should be greater consistency globally in the application of the applicable rules. Until that time, you should focus on the category (or categories) into which the foreign country fits and consider consulting with foreign attorneys as needed. Keep in mind that your client’s best interests might be served by the involvement of U.S. state and tribal child support agencies.

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Michael S. Coffee has served as an attorney-adviser in the Office of the Legal Adviser at the U.S. Department of State where, for nearly a decade, he was responsible for the development and implementation of rules applicable to international family law. He is currently a professorial lecturer in law at the George Washington University Law School, where he co-teaches international family law.

 

Any views expressed herein are the author’s views and not necessarily those of the aforementioned institutions.