Continuing, Exclusive Jurisdiction (CEJ) in United States Child Support Cases
Federal law in the United States requires that all states enact the Uniform Interstate Family Support Act (UIFSA) as in effect in 1996 as a condition for receiving federal funding for the child support program. All states timely adopted UIFSA (1996) as required in 42 U.S.C. §666(f). The National Conference of Commissioners on Uniform State Laws [now referenced as the Uniform Law Commission (ULC)] approved amendments to UIFSA in 2001 and 2008, referred to as UIFSA (2001) and UIFSA (2008).[1]
UIFSA (2008) incorporates: 1) the UIFSA (2001) amendments; and, 2) state law changes necessary for the U.S. to comply with the new Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. Attachment 1 lists the states where UIFSA 2001 is in effect as of July 31, 2012. Federal legislation implementing the Maintenance Convention will require all states to enact UIFSA (2008).
UIFSA is built on a “one order, one time, one place” construct. A U.S. tribunal may not enter a current support order where a valid one already exists. The support order that governs prospective current support is known as the “controlling order”.[2]
UIFSA’s core concept is continuing, exclusive jurisdiction (CEJ). So long as an individual party or the child resides in the “issuing state” (the state of the tribunal which issued the controlling order), that tribunal retains CEJ - exclusive jurisdiction to modify its order, upon proper petition. Though the language differs, the federal Full Faith and Credit for Child Support Orders Act (FFCSOA) also adopts CEJ as a linchpin. (28 U.S.C. §1738B) Whether an issuing tribunal has CEJ is determined at the time a party files a modification petition. An order modifying the controlling order which was entered in violation of the CEJ rules of UIFSA/FFCCSOA later may be determined by a U.S. tribunal to be void and unenforceable.[3]
Where the parties and the child have left the issuing state or the individual parties agree in writing to vest jurisdiction in another state,[4] the issuing tribunal no longer has CEJ and loses the authority to prospectively modify its current child support order.[5] [UIFSA (2001) amended §205(a)(2), adding authority for the issuing tribunal to hear a petition to modify its order when no one resides there, where the parties consent in the record.]
UIFSA §611 provides rules under which a tribunal in another state determines whether or not it has the authority to modify the issuing state’s order. The party seeking the modification must register the controlling order in the other party’s state – in other words, “play away”. The tribunal where modification is sought must find the following: the state which issued the controlling order state does not have CEJ; the petitioner is a non-resident; and the tribunal may obtain personal jurisdiction over the respondent. If a support order is modified consistent with UIFSA, the modifying tribunal’s order becomes the controlling order.[6] Thus, as the issuing state, it now has CEJ to modify the new controlling order so long as the obligor, obligee or child continues to reside in the state. CEJ and the continuing jurisdictional rules described above then apply to this order.
There are four exceptions to the requirement to “play away”:
1. The obligor (debtor/payor) and individual obligee (creditor/recipient) may agree in writing for the petitioner’s state to exercise modification jurisdiction and file that agreement with the tribunal in the state that issued the controlling order (§611).
2. UIFSA (2001) added §615, applicable only in international cases. Here, the written consent required by §611 is not required if a foreign country or political subdivision “will not or cannot” modify its order pursuant to its laws, regardless of the residence of the person seeking modification. UIFSA (2008) changes this provision to a case where the foreign country “lacks or refuses to exercise jurisdiction” to modify its support order.
3. Where the individual parties reside in the same state, upon registration and petition, that state may modify the controlling order of another state (§613).
4. UIFSA (2008) grants the issuing tribunal authority to modify its order if one party now resides in another state and the other party resides outside the United States [§611(f)].
Under UIFSA, the tribunal which issued a valid support order has continuing jurisdiction to enforce it, regardless of whether anyone resides in the issuing state. This order also may be registered for enforcement in any and all states in which the obligor resides, is employed, or has assets without stripping the issuing tribunal of its authority to enforce the order. The order remains valid and controls the current support obligation unless and until it is modified by a tribunal with jurisdiction pursuant to UIFSA/FFCCSOA rules.
UIFSA (2001) §202 clarifies that personal jurisdiction over an individual in support cases continues so long as the tribunal has either CEJ to modify or continuing jurisdiction to enforce the order.
UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA)
UIFSA (2001) The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 mandated that all states enact UIFSA (1996) [42 U.S.C. §666(f)]. All states complied. After passage of the UIFSA (2001) amendments, OCSE-AT-02-02 notified states that they could request a state plan exemption should they choose to enact UIFSA (2001). Twenty-two states now have UIFSA (2001); the remaining states continue to have UIFSA (1996).
An electronic version of UIFSA (2001) is not currently on the Uniform Law Commission (UCL) website. However, an OCSE TEMPO – 2001 Revisions to the Uniform Family Support Act (UIFSA) is found at:
http://www.acf.hhs.gov/programs/cse/pol/IM/2003/im-03-01a.htm
See also, John J. Sampson & Barry Brooks, Uniform Interstate Family Support Act (2001) With Prefatory Note and Comments (With Still More Unofficial Annotations), 36 Fam. L. Q. 329 (2002) (Available on Westlaw and Lexis).
UIFSA (2001) is in effect in 22 states: Arizona, Colorado, Connecticut, Delaware, District of Columbia, Idaho, Illinois, Maine, Maryland, Mississippi, Nebraska, Nevada, New Mexico, Oklahoma, Rhode Island, South Carolina, Texas, Utah, Virginia, Washington, West Virginia, and Wyoming. All have received a state plan exemption from OCSE. UIFSA (2001) was enacted in California years ago but is effective only upon federal waiver or change in federal mandate from 1996 to 2001; a state plan exemption request has not been submitted to OCSE.
UIFSA (2008) The 2008 UIFSA amendments are a limited revision of UIFSA (2001) made by the ULC to comport with the obligations of the United States under the new Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (Convention). UIFSA 2008 (without comments) is found at: http://www.uniformlaws.org/Acts.aspx?title=Interstate%20Family%20Support
See also, Uniform Interstate Family Support Act (Last Amended or Revised in 2008) With Prefatory Note and Comment, 43 FAM. L. Q.75 (Vol.1 Spring 2009)
In DCL-08-41, OCSE provided information for states interested in enacting UIFSA (2008) prior to the change in federal mandate. States may enact UIFSA 2008 verbatim with a provision that the effective date of its enactment will be delayed until the Hague Treaty is ratified and the United States deposits its instrument of ratification. States that choose to follow this process do not need to request an exemption from OCSE.
The 2008 amendments have been enacted in Florida , Maine, Missouri, Nevada, New Mexico, North Dakota, Rhode Island, Tennessee, Utah, and Wisconsin; however, they will not come into effect until (at least) the Convention is ratified. To date in 2012, bills to enact the amendments also have been introduced in Hawaii, Puerto Rico, Minnesota, and Washington.
Case Scenarios
The following scenarios offer examples as to how a tribunal will analyze typical fact situations under UIFSA 1996 and UIFSA 2001. The reader is reminded that child support cases are heard in state tribunals. ERICSA posts case law updates on intergovernmental cases as an additional resource.
Scenario 1
A child support order is entered in by a US state tribunal. The custodial parent (CP) and child reside in the state that issued the support order. The non-custodial parent (NCP) has moved to Canada. The IV-D agency registers the order for enforcement in the Canadian province/territory where NCP resides. The obligor subsequently petitions the Canadian court for a modification of the registered order. The Canadian court grants the requested relief and reduces the NCP’s current child support obligation; the NCP starts paying the lower amount.
Would the issuing state recognize the modified Canadian order?
Under either UIFSA 1996 or UIFSA 2001, the issuing order state would have continuing and exclusive jurisdiction to modify its support order because the custodial parent and child remain residents of the state. (§205) The 2001 version of UIFSA changed §205, but primarily to clarify the intent of the provision. Relevant to this scenario, both versions of UIFSA allow the parties to consent for a Canadian court to assume modification jurisdiction. However, that consent must be clear and filed with the issuing order tribunal.
UIFSA 1996 § 205(a) provides that, so long as the issuing order state “remains the residence” of either individual party or the child, the issuing tribunal has continuing, exclusive jurisdiction to modify its order “until all the parties who are individuals have filed written consents with the tribunal of [the issuing order] State for a tribunal of another State to modify the order and assume continuing, exclusive jurisdiction.”
UIFSA 2001 §205(b)(1) provides that the order-issuing state with CEJ (because the CP, NCP or child is still in residence), “may not exercise continuing, exclusive jurisdiction to modify [its] order” if the individual parties file a consent in the record of the issuing tribunal “that a tribunal of another State that has jurisdiction over at least one of the parties who is an individual or that is located in the State of residence of the child may modify the order and assume continuing, exclusive jurisdiction.”
Consent must be clear, unambiguous, and filed with the issuing state tribunal. The UIFSA rules for when a state may modify another State’s support order, are set out in UIFSA §§609 – 615. Specifically, §612 requires the issuing tribunal to recognize a modification of its order only where the modifying tribunal has “assumed jurisdiction pursuant to” UIFSA.
Overwhelmingly, U.S. courts have interpreted these sections as a matter of subject matter jurisdiction. It a court modifies another state’s child support order without meeting UIFSA’s requirements, the modified order is held to be void and unenforceable.
In this scenario, if the Canadian modification order is sent to the U.S. state with a request to register and enforce it, neither the issuing order state nor any other U.S. state tribunal is likely to recognize the modification. Arrears would continue to accrue under the original order.
Case law in a few states has not analyzed the matter as an issue of subject matter jurisdiction. In these states, the improperly modified order is treated as voidable. Nevertheless, even these courts are highly unlikely to recognize the Canadian modified order absent very unusual factual circumstances.
Scenario 2
A Canadian party wishes to modify a child support order made in the province or territory where that party resides. The Canadian party submits an ISO Support Variation Application (which corresponds to a UIFSA modification request), requesting that the tribunal or court in the state where the other party resides modify the Canadian child support order. The Inter-jurisdictional Support Orders Act (ISO) permits the Canadian party to make this type of application.
If the Canadian ISO Support Variation Application (modification request) is sent to the U.S. state where the other party resides, how would this request be dealt with?
Preliminarily, this scenario assumes that the party seeking modification in a U.S. state (either the CP or NCP) resides in the same province or territory that issued the order.[7] The requested U.S. state will consider the requirements of §§609 – 615. Here, the analysis depends on which version of UIFSA has been enacted in the requested state. Of course, as described in Scenario 1, if both parties file a written consent with the issuing Canadian tribunal for the U.S. tribunal to modify the support order and assume continuing, exclusive jurisdiction, the U.S. state would have subject matter jurisdiction to modify under either version of UIFSA.
UIFSA 1996 waives the requirement for the party living in the requested state to consent where “the issuing State is a foreign jurisdiction and has not enacted or established procedures substantially similar to the procedures under [UIFSA]…” (§ 611(b)(2)) The question is whether a Canadian province or territory that has been declared a foreign reciprocating country under federal law will meet this requirement.
UIFSA 2001 revised § 611, eliminating this exception and added §615 Jurisdiction to Modify Child-Support Order of Foreign Country or Political Subdivision. Subsection (a) adds exception allowing the requested state tribunal to assume modification jurisdiction where the issuing foreign jurisdiction “will not or may not modify its order pursuant to its laws…”
In this situation, the requested U.S. tribunal must be satisfied that the requirement is met. There is no provision within UIFSA, nor any case law to date, addressing how a party would prove that the issuing Canadian tribunal “may not or will not” modify its order. What satisfies a state tribunal may vary.
The requested tribunal also must have personal jurisdiction over both parties. Jurisdiction over the party remaining in the issuing Canadian province or territory is obtained by submitting to the forum by making a request for modification of the Canadian support order.
After the U.S. tribunal enters a modified support order, its order is controlling and the tribunal obtains continuing, exclusive jurisdiction to modify the controlling order.
[1] See, the Family Law Quarterly for each version of UIFSA with official comments and unofficial comments by the ULC Reporter, Professor John J. Sampson, as follows: UIFSA (1996) 32 Fam L. Q. 385 (Summer 1998); UIFSA (2001) 26 Fam. L. Q. 329 (Fall 2002); UIFSA (2008) 43 Fam. L. Q. 75 (Spring 2009).
[2] Prior to UIFSA, U.S. states operated under the Uniform Reciprocal Enforcement of Support Act (URESA), which established de novo orders when cases moved from one state to another. As a result, many interstate cases had multiple support orders governing the obligor’s current support obligation. To move from a multiple order to one order world, UIFSA and FFCCSOA establish identical rules for selecting which order will control prospective current support. Attachment 2 is a decision matrix showing the application of UIFSA §207. The controlling order must be recognized by all U.S. tribunals.