INTERNATIONAL CHILD SUPPORT ISSUES
Presenter:
Randy Barker
Kansas Child Support
Chief of Litigation
History
Babylon 1790 B.C. ,, The Code of Hammurabi
(Code 137): If a man wish to separate from a woman who
has borne him children, or from his wife who has borne him
children: then he shall give that wife her dowry, and a part of
the usufruct of field, garden, and property, so that she can
rear her children. When she has brought up her children, a
portion of all that is given to the children, equal as that of one
son, shall be given to her. She may then marry the man of her
heart.
INTERNATIONAL CHILD SUPPORT
ENFORCEMENT
UIFSA - We all have it
???
HAGUE CONVENTION #38 42 U.S.C.A. § 659a
1996 / 2001 / 2008
Ratified Sept. 30, 2010
Fed requirements on
International Reciprocating Countries
AT-10-06: Final Rule: Intergovernmental Child Support
http://www.acf.hhs.gov/programs/cse/pol/AT/2010/at-10-06.htm
45 CFR 303.7 - See also, changes to 301, 302, 303 and 308
COMITY - Common Law
UIFSA - 1996
- all states required to adopt
http://www.ncsea.org/files/UIFSA_1996.pdf
UIFSA – 2001 Revisions to UIFSA - requires a
federal wavier to adopt
http://www.law.upenn.edu/bll/archives/ulc/uifsa/final2001.htm
http://www.acf.hhs.gov/programs/cse/pol/IM/2003/im-0301a.htm
Incorporates the principal of Comity
Adopted by:
Arizona, California, Colorado, Connecticut, Delaware, District of
Columbia,
daho, Illinois, Maine, Mississippi, Nebraska, Nevada, New Mexico,
Oklahoma, Rhode Island, South Carolina, Texas, Utah, Virginia,
UIFSA – 2008 Model Act - no federal wavier
required to adopt
http://www.law.upenn.edu/bll/archives/ulc/uifsa/2008final.htm
Incorporates the Hague Convention
Passed in: Maine, Nevada, North Dakota
Introduced: Missouri, Tennessee*, Wisconsin*,
Oklahoma.
UIFSA - 1996 Model Act §101 Definitions
(s) "State" means a state of the United States, the District
of Columbia, Puerto Rico, the United States Virgin Islands,
or any territory or insular possession subject to the
jurisdiction of the United States. The term includes:
(1) An Indian tribe; and
(2) a foreign jurisdiction that has enacted a law or
established procedures for issuance and enforcement of
support orders which are substantially similar to the
procedures under this act, the uniform reciprocal
enforcement of support act or the revised uniform
reciprocal enforcement of support act.
UIFSA - 2001
§ 102 Model Act -
Definitions
21) “State” . . .
(B) a foreign country or political subdivision jurisdiction that:
(i) has been declared to be a foreign reciprocating country
or political subdivision under federal law;
(ii) has established a reciprocal arrangement for child
support with this State as provided in Section 308; or
(iii) has enacted a law or established procedures for the
issuance and enforcement of support orders which are
substantially similar to the procedures under this [Act]. ,
the Uniform Reciprocal Enforcement of Support Act, or
the Revised Uniform Reciprocal Enforcement of Support Act.
UIFSA – 2008
Model Act § 102 - Definitions
(5) “Foreign country” means a country, including a political subdivision
thereof, other than the United States, that authorizes the issuance of
support orders and:
(A) which has been declared under the law of the United States to
be a foreign reciprocating country;
(B) which has established a reciprocal arrangement for child
support with this state as provided in Section 308;
(C) which has enacted a law or established procedures for the
issuance and enforcement of support orders which are
substantially similar to the procedures under this [act]; or
(D) in which the Convention is in force with respect to the United
States.
UIFSA – 2008
Model Act § 102 - Definitions (continued)
(6) “Foreign support order” means a support order of a foreign tribunal.
(7) “Foreign tribunal” means a court, administrative agency, or quasi-judicial
entity of a foreign country which is authorized to establish, enforce, or modify
support orders or to determine parentage of a child. The term includes a
competent authority under the Convention.
(8) “Home state” means the state or foreign country in which a child lived with a
parent or a person acting as parent for at least six consecutive months
immediately preceding the time of filing of a [petition] or comparable pleading for
support and, if a child is less than six months old, the state or foreign country in
which the child lived from birth with any of them. A period of temporary absence
of any of them is counted as part of the six-month or other period.
UIFSA 2008
Article 6
Part 4
REGISTRATION AND MODIFICATION OF FOREIGN CHILD-SUPPORT ORDER
§ 615. JURISDICTION TO MODIFY CHILD-SUPPORT ORDER OF FOREIGN
COUNTRY OR POLITICAL SUBDIVISION.
(a) Except as otherwise provided in Section 711, If if a foreign country or
political subdivision that is a State will not or may not modify its order lacks or
refuses to exercise jurisdiction to modify its child-support order pursuant to its
laws, a tribunal of this State state may assume jurisdiction to modify the child-
support order and bind all individuals subject to the personal jurisdiction of the
tribunal whether or not the consent to modification of a child-support order
otherwise required of the individual pursuant to Section 611 has been given or
whether the individual seeking modification is a resident of this State state or of
the foreign country or political subdivision.
(b) An order issued by a tribunal of this state modifying a foreign childsupport order pursuant to this section is the controlling order.
UIFSA - 2008 ARTICLE 7
SUPPORT PROCEEDING UNDER THE CONVENTION
Introductory Comment - This article contains provisions adapted from the
Convention that could not be readily integrated into the existing body of Articles 1
through 6. For the most part, extending the coverage of UIFSA (2008) to foreign
countries was a satisfactory solution to merge the appropriate Convention terms
into this act. In understanding this process, it must be clearly stated that the
terms of the Convention are not substantive law.
. . .
Thus, the ultimate enforcement of the treaty in the United States will be dependent
on the enactment of both federal and state legislation. This act is predicated on
the principle that the enactment of UIFSA (2008) will effectively implement the
Convention through state law by amending Articles 1 through 6, plus the addition
of this article. This will encourage international cooperation by emulating the
interstate effect of UIFSA for international cases, especially those affected by the
Convention.
UIFSA - 2008 ARTICLE 7
SUPPORT PROCEEDING UNDER CONVENTION
SECTION 701.
DEFINITIONS
SECTION 702.
APPLICABILITY
SECTION 703.
RELATIONSHIP OF [GOVERNMENTAL ENTITY] TO UNITED STATES
CENTRAL AUTHORITY
SECTION 704.
INITIATION BY [GOVERNMENTAL ENTITY] OF SUPPORT PROCEEDING
UNDER CONVENTION
SECTION 705.
DIRECT REQUEST
SECTION 706.
REGISTRATION OF CONVENTION SUPPORT ORDER
SECTION 707.
CONTEST OF REGISTERED CONVENTION SUPPORT ORDER
SECTION 708.
RECOGNITION AND ENFORCEMENT OF REGISTERED CONVENTION
SUPPORT ORDER
SECTION 709.
PARTIAL ENFORCEMENT
SECTION 710.
FOREIGN SUPPORT AGREEMENT
SECTION 711.
MODIFICATION OF CONVENTION CHILD-SUPPORT ORDER
SECTION 712.
PERSONAL INFORMATION; LIMIT ON USE
SECTION 713.
RECORD IN ORIGINAL LANGUAGE; ENGLISH TRANSLATION
Contest of registration or enforcement – DEFENSES
UIFSA 1996 § 607
a) A party contesting the validity or enforcement of a
registered order or seeking to vacate the registration has
the burden of proving one or more of the following
defenses:
(1) The issuing tribunal lacked personal jurisdiction over
the contesting party;
(2) the order was obtained by fraud;
(3) the order has been vacated, suspended or modified by
a later order;
(4) the issuing tribunal has stayed the order pending
appeal;
(5) there is a defense under the law of this state to the
remedy sought;
(6) full or partial payment has been made; or
(7) the statute of limitations under section 604 and
amendments thereto (choice of law) precludes
enforcement of some or all of the arre
Contest of registration or enforcement – DEFENSE
UIFSA 2001 § 607
The same as 1996 but amended (7) and added (8):
(7) the statute of limitation under Section 604 (Choice of Law) precludes
enforcement of some or all of the alleged arrearages; or
(8) the alleged controlling order is not the controlling order.
Contest of registration or enforcement – DEFENSES
(FOR CONVENTION SUPORT ORDERS)
UIFSA 2008 § 708
a) Except as otherwise provided in subsection (b), a tribunal of this state
shall recognize and enforce a registered Convention support order.
(b) The following grounds are the only grounds on which a tribunal of this
state may refuse recognition and enforcement of a registered
Convention support order:
(1) recognition and enforcement of the order is manifestly incompatible
with public policy, including the failure of the issuing tribunal to
observe minimum standards of due process, which include notice
and an opportunity to be heard;
(2) the issuing tribunal lacked personal jurisdiction consistent with
Section 201;
(3) the order is not enforceable in the issuing country;
(4) the order was obtained by fraud in connection with a matter of
procedure;
(5) a record transmitted in accordance with Section 706
lacks authenticity or integrity;
(6) a proceeding between the same parties and having the same
purpose is pending before a tribunal of this state and that
proceeding was the first to be filed;
(7) the order is incompatible with a more recent support order
involving the same parties and having the same purpose if the
more recent support order is entitled to recognition and
enforcement under this [act] in this state;
(8) payment, to the extent alleged arrears have been paid in whole or
in part;
(9) in a case in which the respondent neither appeared nor was represented
in the proceeding in the issuing foreign country:
(A) if the law of that country provides for prior notice of proceedings, the
respondent did not have proper notice of the proceedings and an
opportunity to be heard; or
(B) if the law of that country does not provide for prior notice of the
proceedings, the respondent did not have proper notice of the order
and an opportunity to be heard in a challenge or appeal on fact or law
before a tribunal; or
(10) the order was made in violation of Section 711 (the Modification section)
CONFIRMED ORDER
UIFSA 1996 / 2001 and 2008 § 608
Confirmation of a registered order, whether
by operation of law or after notice and
hearing, precludes further contest of the
order with respect to any matter that could
have been asserted at the time of
registration.
UIFSA 2008 - § 708 not quite the same
Combine § 708(a) and § 707(e).
Hague Convention:
Controls certain issues of International Law
#38: Convention of 23 November 2007 on the
International Recovery of Child Support and Other
Forms of Family Maintenance:
Ratified by the USA on September 30, 2010
(see full text at)
www.hcch.netindex_en.phpact=conventions.text&cid=131
Hague Convention
Article 1 Object
The object of the present Convention is to ensure the
effective international recovery of child support and other
forms of family maintenance, in particular by –
a) establishing a comprehensive system of co-operation
between the authorities of the Contracting States;
b) making available applications for the establishment of
maintenance decisions;
c) providing for the recognition and enforcement of
maintenance decisions; and
d) requiring effective measures for the prompt
enforcement of maintenance decisions.
Hague Convention
(continued)
You will need to read it carefully it is very similar to the provisions of
UIFSA.
Under the language of the Convention our UIFSA forms should provide
all the information required by Convention # 38 in transmitting
documents to a Reciprocating Country.
But: NEW 45 CFR 303.7 (a)(4) Use federally approved forms unless a
country has provided alternative forms as part of its chapter in a
Caseworker’s Guide to Processing Cases with Foreign
Reciprocating Countries. When using paper version, provide the
number of copies required by the responding.
Also: Translate the documents before sending
and include a copy of your states UIFSA code. To prove your
law is similar to theirs.
Countries that have ratified the Convention:
Norway
Countries that are signatories to the Convention
Albaina, Bosnia and Herzegovian,
European Union, Ukraine, and U.S.A.
Non-Member states:
Burkina Faso
42 U.S.C.A. § 659a
International support enforcement
(1) Declaration
The Secretary of State, with the concurrence of the Secretary of
Health and Human Services, is authorized to declare any foreign
country (or a political subdivision thereof) to be a foreign
reciprocating country if the foreign country has established, or
undertakes to establish, procedures for the establishment and
enforcement of duties of support owed to obligees who are residents
of the United States, and such procedures are substantially in
conformity with the standards prescribed under subsection (b) of
this section.
42 U.S.C.A. § 659a
(continued)
(2) Revocation
A declaration with respect to a foreign country made pursuant to
paragraph (1) may be revoked if the Secretaries of State and
Health and Human Services determine that-(A) the procedures established by the foreign country
regarding the establishment and enforcement of duties of support
have been so changed, or the foreign country's implementation of
such procedures is so unsatisfactory, that such procedures do
not meet the criteria for such a declaration; or
(B) continued operation of the declaration is not
consistent with the purposes of this part
42 U.S.C.A. § 659a
(continued)
(3) Form of declaration
A declaration under paragraph (1) may be made in the form
of an international agreement, in connection with an
international agreement or corresponding foreign
declaration, or on a unilateral basis.
42 U.S.C.A. § 659a
(continued)
(b) Standards for foreign support enforcement
procedures
(1) Mandatory elements
Support enforcement procedures of a foreign country
which may be the subject of a declaration pursuant to
subsection (a)(1) of this section shall include the
following elements:
(A)The foreign country (or political subdivision
thereof) has in effect procedures, available to
residents of the United States-(i) for establishment of paternity, and for
establishment of orders of support for
children and custodial parents; and
(ii) for enforcement of orders to provide support
to children and custodial parents, including
procedures for collection and appropriate
distribution of support payments under such
orders.
42 U.S.C.A. § 659a
(continued)
(B) The procedures described in subparagraph (A),
including legal and administrative assistance, are
provided to residents of the United States at no cost.
(C) An agency of the foreign country is designated as a
Central Authority responsible for
(i) facilitating support enforcement in cases involving
residents of the foreign country and residents of the
United States; and
(ii) ensuring compliance with the standards established
pursuant to this subsection.
(c) Designation of United States Central Authority
It shall be the responsibility of the Secretary of Health and Human
Services to facilitate support enforcement in cases involving residents
of the United States and residents of foreign countries that are the
subject of a declaration under this section, by activities including-(1) development of uniform forms and procedures for use in such
cases;
(2) notification of foreign reciprocating countries of the State of
residence of individuals sought for support enforcement purposes,
on the basis of information provided by the Federal Parent Locator
Service; and
(3) such other oversight, assistance, and coordination activities as the
Secretary may find necessary and appropriate.
(42 USCS 659a continued)
(d) Effect on other laws
States may enter into reciprocal arrangements for the
establishment and enforcement of support obligations
with foreign countries that are not the subject of a
declaration pursuant to subsection (a) of this section, to
the extent consistent with Federal law.
Foreign Reciprocating Countries - as of 2012
http://www.acf.hhs.gov/programs/cse/international/
Australia
Canada
Czech Republic
El Salvador
Finland
Hungary
Ireland
Israel
Netherlands
Norway
Poland
Portugal
Slovak Republic
Switzerland
The United Kingdom of Great Britain and Northern Ireland
Intergovernmental Child Support - Final Rule
Changes to 45 CFR 301, 302, 303, 305 and 308
Comprehensive intergovernmental regulation
(states, tribes, foreign countries)
Replaces 1988 interstate regulation 45 CFR 303.7
Applies only to state IV-D programs
Effective date: January 3, 2011
45 CFR sections with important changes:
(§301.1) General Definitions
(§302.36) State Plan Requirements for the provision
of services in intergovernmental cases
(§303.7) Standards for Program Operations for the
provision of services in intergovernmental
cases
(§303.11) Case Closure Criteria
(§305.63) Standards for Determining Substantial
Compliance with IV-D Requirements
(§308.2) Required Program Compliance Criteria
Requires that each state’s child support state plan
provides that the full range of child support services
be provided to any:
(a)(1) State IV-D program
(a)(2) Tribal IV-D program
(a)(3) “Country” as defined in §303.1
Foreign Reciprocating Countries (FRCs) and
Countries with State-level agreements
State Plan Amendments:
States are required to resubmit 2 state plan preprint pages to
certify compliance with the Intergovernmental Child
Support Final Rule.
1. Preprint page 2.6 is revised and now titled Provision of
Services in Intergovernmental IV-D Cases
2. Preprint page 2.15, Annual State Self-Assessment
Review and Report, has not been revised
State plan amendments were completed by
March 31, 2011.
TWO CHANGES TO NOTE:
One fixes a problem and one creates a problem:
1) § 303.7(e)(1)
The Responding IV-D agency must pay for the costs
of Genetic Testing.
2) § 303.7(d)(6)(iii) Moves the responsibility for reporting arrears to
Credit Reporting Agencies to the Responding State.
INTERGOVERNMENTAL CHILD SUPPORT - FINAL RULE
websites
AT-08-02: Distribution of Federally Approved Standard
Intergovernmental Child Support Enforcement (CSE) Forms
http://www.acf.hhs.gov/programs/cse/pol/AT/2008/at-08-02.htm
AT-10-06: Final Rule: Intergovernmental Child Support
http://www.acf.hhs.gov/programs/cse/pol/AT/2010/at-10-06.htm
COMITY
When no statutory law applies, common law
might:
“Courtesy, Respect, or deference to the
judgment of a court from another sovereignty.”
“Although the determination by the U.S. State
Department that a foreign nation is a
reciprocating county is binging on all states,
recognition of foreign support orders through
comity is dependent on the law of each UIFSA
state.”
UIFSA 2001 comments § 104
Office of Child Support v. Sholan,
172 Vt. 619, 783 A.2d 1199 (2001)
It is uncontested by the parties that no formal declaration
by the Secretary of State has been made under the
authority of 42 U.S.C. § 659a recognizing the Federal
Republic of Germany as a foreign reciprocating country.
Nor is it contested that Vermont has not entered into a
reciprocal arrangement, pursuant to 42 U.S.C. § 659a, with
that country. This does not, however, preclude Vermont
from giving effect to foreign child support orders under
the doctrine of comity.
COMITY
(continued)
Sholan further states:
“As a general matter, under principles of comity, final
judgments of courts of foreign nations which concern
recovery of sums of money, the status of a person, or
determine interests in property, are conclusive between
the parties to the action and are entitled to recognition in
United States courts.”
Restatement (Third) of Foreign Relations
Law of the United States § 481 (1987).
The Restatement further refines the principle of
comity, providing that “[a] foreign judgment is
generally entitled to recognition by courts in the
United States to the same extent as a judgment
of a court of one State in the courts of another
State.”
. . . For a court to recognize and give effect to a
foreign order, the judgment must have been:
- rendered under a judicial system which
provides impartial tribunals
- procedures compatible with due process of
law,
- have had personal jurisdiction over the
defendant,
-have had subject matter jurisdiction over the
action;
- the defendant must have been given
adequate notice of the proceeding;
- the judgment was obtained without fraud;
- the original action or judgment must be in
accord with state or federal public policy;
Restatement (Third) of Foreign Relations Law of
the United States § 482(2) (1987d.)
CASE LAW
This case law relates specifically to Germany, because
they are a good example of the non-reciprocating Country
(state), which has laws which are substantially similar
ours.
Research has shown several states have considered
whether a German court’s support order was enforceable
under UIFSA., all the recorded decisions found have held
that German court orders are enforceable under UIFSA or
URESA. No decisions to the contrary have been found.
Willmer v. Willmer, 144 Cal.App.4th 951, 956; 51 Cal.Rptr.3d
10, 13, (2006) (Cal.App. 1 Dist. Oct 18, 2006) (NO. A108621),
as modified (Nov 13, 2006). A well reasoned decision
describing why a German support order can be enforced in
California (and any where else the United States).
Lunceford v. Lunceford, 204 S.W.3d 699 (Mo.App. W.D. Nov 07, 2006)
(NO. WD65338). An interesting case where Kansas recognized a
German divorce decree that lacked a support order, entered a support
order there on, and Missouri recognized that Kansas retained
continuing jurisdiction over child support thereafter.
Office of Child Support Enforcement v. Gauvey, 96 Ark.App. 342, 241
S.W.3d 771 (Ark.App. Oct 25, 2006) (NO. CA06-103).
Where Arkansas
recognized that it could enforce not only a German child support
order, but also spousal maintenance under UIFSA.
Liuksila v. Stoll, 887 A.2d 501 (D.C. Dec 08, 2005) (NO. 03-FM-1226). In
the District of Columbia, the respondent failed to follow the proper
procedure, and his challenge to personal jurisdiction by the German
court was res judicata and barred from consideration by the appellate
court. The German order was enforceable.
Salles v. Salles, 928 So.2d 1, 2004-1449 (La.App. 1 Cir.
12/2/05) (La.App. 1 Cir. Dec 02, 2005) (NO. 2004 CA 1449).
Louisiana recognized the German support order as
enforceable, but found authority to modify the amount
under state law.
Pfeifer v. Cutshall, 851 A.2d 983, 2004 PA Super 206
(Pa.Super. Jun 03, 2004) (NO. 1400 WDA 2003) The
Pennsylvania court recognized the German child support
order but disallowed arrears that were not part of the order
and which predated the order.
Lang v. Lang, 157 N.C.App. 703, 579 S.E.2d 919 (N.C.App.
May 20, 2003) (NO. COA02-1064) . The North Carolina
courts recognized the German order but the issue was
whether North Carolina could exercise personal jurisdiction
to enforce the order.
STUFF TO KNOW ABOUT KANSAS
1. Dormancy and Extinction of Child Support Judgments
2. Common Law principal of “Laches”
3. Effect of age of emancipation
4. Interstate Issues Unique to Kansas
K.S.A. 60-2403 Judgment, when dormant
(NEW LANGUAGE)
(b) Except for those judgments which have become void as of July 1,
2007, no judgment for the support of a child shall be or become dormant
for any purpose except as provided in this subsection. If a judgment
would have become dormant under the conditions set forth in
subsection (a), the judgment shall cease to operate as a lien on the real
estate of the judgment debtor as of the date the judgment would have
become dormant, but the judgment shall not be released of record
pursuant to subsection (a).
Essentially if your judgment was not extinct on July 1, 2007
It will remain alive forever…
Child Support Judgments can still be in danger
K.S.A. 60-260 Relief from Judgment
(same as federal rule)
One year limitation:
1) Mistake, inadvertence, surprise or excusable neglect;
2) Newly discovered evidence, which with reasonable diligence, could not
have been discovered it time to request a new trial.
3) fraud, intrinsic or extrinsic, misrepresentation or misconduct by
opposing party.
No Time Limitation:
4) Judgment is void
5) Judgment has been satisfied, reversed or vacated; or applying it
prospectively in no longer equitable;
6) Any other reason the justifies relief.
Laches - equitable principal designed to bar stale claims
- Only applies to arrears owed to an emancipated child - and then
only based on special circumstances.
-
Never applies to arrears owed to a minor child.
Matter of the Marriage of Jones, 22 Kan.App.2d 753, 921 P.2d 839
(1996)
parties colluded in obtaining order.
two children – one emancipated, one still a minor.
Court could apply laches to emancipated child’s arrears as now only
a reimbursement action.
Court could not apply laches to minor child’s arrears as they are for
the support of a child.
Emancipation
When does child support stop?
Controlling statute, K.S.A. 60-1610 (a)
Age 18 unless:
- Parents agree in writing; or
- Child still in High School, then duty to support continues
to end of the school year. (June)
- If the child still in a ‘bona fide’ high school program support
can continue through child’s 19th year, only by motion to the
court and both parents jointly or knowingly acquiesced in
holding the child back in school.
INTERSTATE ISSUES UNIQUE TO KANSAS
In the Matter of the Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989)
Existing Father & Child relationship should not be disturbed unless
the court first determines that a paternity action is in the child’s best
interest.
Applied to incoming interstate cases. (our law imposed on you)
State of Florida, on behalf of Petit v. Breedon, 21 Kan.App.2nd 490,
901 P.2d 1357(1995)
The best interest hearing can only be held in the home state of the
child.