INTERNATIONAL CHILD SUPPORT ISSUES

Presenter: Randy BarkerKansas 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 ??? 1996 / 2001 / 2008

HAGUE CONVENTION #38 - Ratified Sept. 30, 2010

42 U.S.C.A. § 659a 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 adopthttp://www.law.upenn.edu/bll/archives/ulc/uifsa/final2001.htm

http://www.acf.hhs.gov/programs/cse/pol/IM/2003/im-03-01a.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,Washington, West Virginia, Wyoming.

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 child-

support 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 ORDERUIFSA 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 sameCombine § 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 ConventionArticle 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 sendingand include a copy of your states UIFSA code. To prove yourlaw 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 RuleChanges 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 RULEwebsites

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

COMITYWhen 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, 2007It 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.