UNIFORM INTERSTATE FAMILY
SUPPORT ACT (1996)
Drafted by the
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
and by it
APPROVED AND RECOMMENDED FOR ENACTMENT
IN ALL THE STATES
at its
ANNUAL CONFERENCE
MEETING IN ITS ONE-HUNDRED-AND-FIFTH YEAR
SAN ANTONIO, TEXAS
JULY 12 - JULY 19, 1996
WITH PREFATORY NOTE AND COMMENTS
COPYRIGHT 1996
By
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS UNIFORM INTERSTATE FAMILY SUPPORT ACT (1996)
The Committee that acted for the National Conference of Commissioners on
Uniform State Laws in preparing the Uniform Interstate Family Support Act (1996)
was as follows:
BATTLE R. ROBINSON, Family Court Building, 22 The Circle, Georgetown,
DE 19947, Chair
MARLIN J. APPELWICK, Suite 220, 2611 N.E. 125th Street, Seattle, WA 98125
GEORGE C. BERK, 2500 Hospital Trust Tower, Providence, RI 02903
K. KING BURNETT, P.O. Box 910, 115 Broad Street, Salisbury, MD 21803
FLOYD R. GIBSON, U.S. Court of Appeals, 837 U.S. Courthouse, 811 Grand Avenue,
Kansas City, MO 64106
ORLAN L. PRESTEGARD, 430 Orchard Drive, Oregon, WI 53575
JOEL D. SIEGAL, 8th Floor, One Gateway Center, Newark, NJ 07102
HARRY L. TINDALL, 2800 Texas Commerce Tower, 600 Travis Street, Houston,
TX 77002
PAUL M. KURTZ, University of Georgia, School of Law, Athens, GA 30602,
Co-Reporter
JOHN J. SAMPSON, University of Texas, School of Law, 727 E. 26th Street, Austin,
TX 78705, Co-Reporter
EX OFFICIO
BION M. GREGORY, Office of Legislative Counsel, State Capitol, Suite 3021,
Sacramento, CA 95814-4996, President
DAVID PEEPLES, 224th District Court, Bexar County Courthouse, 100 Dolorosa,
San Antonio, TX 78205, Chair, Division F
EXECUTIVE DIRECTOR
FRED H. MILLER, University of Oklahoma, College of Law, 300 Timberdell Road,
Norman, OK 73019, Executive Director
Advisors
MICHAEL E. BARBER, 6700 Freeport Blvd., Suite 103, P.O. Box 221224, Sacramento,
CA 95822
PAULA ROBERTS, Center on Law & Social Policy, 3rd Floor, 1616 P Street N.W.,
Washington, DC 20036
Observers
JEFFREY BALL, Office of Child Support Enforcement, 370 L'Enfant Promenade S.W.,
Washington, DC 20447
BARRY BROOKS, Child Support Training Division, Mail Code 053, P.O. Box 12017,
Austin, TX, 78711
GLORIA F. DeHART, Office of Assistant Legal Adviser for Private International Law,
U.S. Department of State, 50 Fremont Street, Suite 300, San Francisco, CA 94105
MARGARET CAMPBELL HAYNES, Service Design Associates, 3507 Rittenhouse
Street NW, Washington, DC 20015
ELEANOR LANDSTREET, ABA Center on Children & the Law, 1800 M Street NW,
Washington, DC 20036
BETSY MATHESON, Office of Child Support Enforcement, 370 L'Enfant Promenade
SW, Washington, DC 20447
SUSAN F. PAIKIN, Family Court of Delaware, P.O. Box 2359, 900 King Street,
Wilmington, DE 19899
MARILYN RAY SMITH, General Counsel, Department of Revenue/Child Support,
141 Portland Street, Cambridge, MA 02139
Consultants
AMY BRYANT, City of Houston, 11430 Valley Spring, Houston, TX 77043
MICHAEL H. GOEDEKKE, Chrysler Payroll Services, 424-41-50, 25999 Lawrence
Avenue, Center Line, MI 48015-1136
DEBERA SALAAM, Employer Coalition on Child Support Enforcement, 4638
Clydesdale Street, Houston, TX 77084
RITA ZEIDNER, American Payroll Association, Suite 500, 1225 Eye Street NW,
Washington, DC 20005
Copies of this Act may be obtained from:
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
676 North St. Clair Street, Suite 1700
Chicago, Illinois 60611
(312) 915-0195 UNIFORM INTERSTATE FAMILY SUPPORT ACT (1996)
TABLE OF CONTENTS
Article 1. General Provisions
Section 101. Definitions
Section 102. Tribunal of State
Section 103. Remedies Cumulative
Article 2. Jurisdiction
Part 1. Extended Personal Jurisdiction
Section 201. Bases for Jurisdiction Over Nonresident
Section 202. Procedure When Exercising Jurisdiction Over Nonresident
Part 2. Proceedings Involving Two or More States
Section 203. Initiating and Responding Tribunal of State
Section 204. Simultaneous Proceedings in Another State
Section 205. Continuing, Exclusive Jurisdiction
Section 206. Enforcement and Modification of Support Order by Tribunal Having
Continuing Jurisdiction
Part 3. Reconciliation of Multiple Orders
Section 207. Recognition of Controlling Child-Support Order
Section 208. Multiple Child-Support Orders for Two or More Obligees
Section 209. Credit for Payments
Article 3. Civil Provisions Of General Application
Section 301. Proceedings Under [Act]
Section 302. Action By Minor Parent
Section 303. Application of Law of State
Section 304. Duties of Initiating Tribunal
Section 305. Duties and Powers of Responding Tribunal
Section 306. Inappropriate Tribunal
Section 307. Duties of Support Enforcement Agency
Section 308. Duty of [Attorney General]
Section 309. Private Counsel
Section 310. Duties of [State Information Agency]
Section 311. Pleadings and Accompanying Documents
Section 312. Nondisclosure of Information in Exceptional Circumstances
Section 313. Costs and Fees
Section 314. Limited Immunity of [Petitioner]
Section 315. Nonparentage as Defense
Section 316. Special Rules of Evidence and Procedure
Section 317. Communications Between Tribunals
Section 318. Assistance with Discovery
Section 319. Receipt and Disbursement of Payments
Article 4. Establishment Of Support Order
Section 401. [Petition] To Establish Support Order
Article 5. Enforcement Of Order Of Another State Without Registration
Section 501. Employer's Receipt of Income-Withholding Order of
Another State
Section 502. Employer's Compliance with Income-Withholding Order of
Another State
Section 503. Employer's Compliance with Multiple Income-Withholding
Orders
Section 504. Immunity from Civil Liability
Section 505. Penalties for Noncompliance
Section 506. Contest by Obligor
Section 507. Administrative Enforcement of Orders
Article 6. Enforcement And Modification Of Support Order After Registration
Part 1. Registration and Enforcement of Support Order
Section 601. Registration of Order for Enforcement
Section 602. Procedure To Register Order for Enforcement
Section 603. Effect of Registration for Enforcement
Section 604. Choice of Law
Part 2. Contest of Validity or Enforcement
Section 605. Notice of Registration of Order
Section 606. Procedure To Contest Validity or Enforcement of Registered Order
Section 607. Contest of Registration or Enforcement
Section 608. Confirmed Order
Part 3. Registration and Modification of Child-Support Order
Section 609. Procedure To Register Child-Support Order of Another State for
Modification
Section 610. Effect of Registration for Modification
Section 611. Modification of Child-Support Order of Another State
Section 612. Recognition of Order Modified in Another State
Section 613. Jurisdiction To Modify Child-Support Order of Another State
When Individual Parties Reside in this State
Section 614. Notice to Issuing Tribunal of Modification
Article 7. Determination Of Parentage
Section 701. Proceeding to Determine Parentage
Article 8. Interstate Rendition
Section 801. Grounds for Rendition
Section 802. Conditions of Rendition
Article 9. Miscellaneous Provisions
Section 901. Uniformity of Application and Construction
Section 902. Short Title
Section 903. Severability Clause
Section 904. Effective Date
Section 905. Repeals UNIFORM INTERSTATE FAMILY SUPPORT ACT (1996)
PREFATORY NOTE
I. Background Information
Congressional legislation in 1975, 1984, 1988, and 1996 has had a major
impact on state child support enforcement law. Over time Congress has mandated
that, in order to be eligible for federal funding of child support enforcement
programs, States must adopt child support guidelines, and establish child support
enforcement procedures such as wage withholding, tax intercepts, and credit
reporting. Similarly, as a practical matter federal law invaded the area of
substantive rules for child support; for example, the Bradley Amendment, adopted
in 1986, directs States to enact laws which prohibit retroactive reduction of a child
support arrearage stemming from a court order.
To respond to these developments, in 1988 the National Conference of
Commissioners on Uniform State Laws (hereafter Conference) established a
Drafting Committee to review the Uniform Reciprocal Enforcement of Support Act
(URESA) and its revised version (RURESA), some formulation of which had been
adopted in all States, and to adopt appropriate revisions to the Uniform Act. After
reviewing the congressional legislation of the 1980's and the Model Interstate
Income Withholding Act (MIIWA) drafted in 1984 by the American Bar
Association and the National Conference of State Legislatures, the Committee
originally decided that the interstate aspects of child support enforcement could be
adequately addressed by amendments to RURESA.
At the Conference's Annual Meeting in the summer of 1989, the Drafting
Committee presented some limited initial changes to RURESA. After obtaining the
views of numerous persons familiar with the Act, however, the Committee decided
to revise it much more extensively. These changes were presented for a first
reading at the Conference's 1990 Annual Meeting. Following additional extensive
comments at the 1990 Annual Meeting and from numerous groups and individuals,
the Drafting Committee recommended, and the Executive Committee of the
Conference agreed, that final approval of the revised RURESA should be delayed
until the Conference's 1992 Annual Meeting. Such a timetable coincided with the
work of the U.S. Commission on Interstate Child Support. Throughout 1991 and
1992, the Drafting Committee continued to work on the Act, in conjunction with
numerous knowledgeable advisors and observers, including five persons who also
served as members of the U.S. Commission.
The Drafting Committee and Executive Committee determined that the Act
should have a new name the Uniform Interstate Family Support Act (UIFSA),
which was intended to completely revise and replace URESA and RURESA. The
Act was unanimously approved by the Uniform Law Conference in August of
1992, and officially ratified by the American Bar Association in February 1993. As
of June 1, 1996, 33 States and the District of Columbia had enacted UIFSA.
Implementation of UIFSA by child support enforcement agencies
throughout the nation in thousands of cases spurred requests for amendments to a
limited number of provisions. A major source of these requests came from
individual employers and national payroll associations. Specifically, they sought
additional statutory guidance regarding direct income withholding from earnings
which the original UIFSA authorized, but did not supply significant detail on its
operation (only one relatively short provision controlled, Section 501). In UIFSA
the Conference had established a bare legal framework for the withholding of
income for child support across state lines without the necessity of involving
initiating or responding tribunals or acting through a child support agency.
However, employers stated that in order to act efficiently they needed additional
explanation of their rights and duties upon the receipt of an out-of-state income-
withholding order. Further, proposed federal legislation pending in the U.S.
Congress as part of its consideration of "welfare reform" furnished another major
reason to reexamine some of the terms of UIFSA.
Motivated by these developments, the Conference convened its UIFSA
Oversight Committee to draft proposed amendments. Once again the Drafting
Committee enlisted the volunteer assistance of a wide variety of observers,
advisors, and consultants to aid in drafting the proposed amendments.
Representatives of payroll associations and major employers were included in the
discussions to assure that employer interests were taken into account. In this
regard, the majority of employers have been very cooperative in assisting in the
collection of child support. Their suggestions were centered on making their
collection efforts more efficient and effective, and were not an attempt to avoid
contributing to this valuable social policy. The amendments approved for
incorporation into the Uniform Interstate Family Support Act (1996) were
unanimously adopted by the Conference at its San Antonio, Texas, meeting in July
1996.
Shortly after the Conference adopted UIFSA 1996, the likelihood of
universal acceptance of the revised Act became virtually certain. In enacting
welfare reform, officially known as the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996, Congress mandated enactment of UIFSA
in order for a State to remain eligible for the federal funding of child support
enforcement, as follows:
Sec. 321. ADOPTION OF UNIFORM STATE LAWS
Section 466 (42 U.S.C. 666) is amended by adding at the end the
following new subsection:
"(f) Uniform Interstate Family Support Act. In order to satisfy section
454(20(A), on and after January 1, 1998, each State must have in effect the
Uniform Interstate Family Support Act, as approved by the American Bar
Association on February 9, 1993, together with any amendments officially
adopted before January 1, 1998, by the National Conference of Commissioners
on Uniform State Laws." P.L. 104-193, 321, 110 Stat. 2221.
A description of the major changes made to the RURESA procedure by
UIFSA and the 1996 amendments to the original Act are as follows.
II. Proposed Changes
A. In General
1. TERMINOLOGY. The terminology of URESA and RURESA has been
retained as much as possible to ease the transition to UIFSA, i.e., "responding" and
"initiating" State. One notable change is the substitution of the term "tribunal" for
"court," in recognition of the fact that many States have created administrative
agencies to establish, enforce, and modify child support.
2. REORGANIZATION. UIFSA is organized into a more logical and
understandable order than was found in URESA and RURESA ("RURESA"
hereafter will be used to refer to both versions unless they each need to be cited
separately). The order in which civil and criminal proceedings are dealt with is
reversed, which more accurately reflects the frequency and utility of the two
proceedings. On the civil side of the docket, separate articles are created for:
provisions common to all types of actions (Article 3); the establishment of support
(Article 4); the enforcement of a support order of another State without registration
(Article 5); the enforcement and modification of support orders after registration
(Article 6); and, the determination of parentage (Article 7). In addition, new
jurisdictional provisions (Article 2) establish uniform long-arm jurisdiction over
nonresidents in order to facilitate one-state proceedings whenever possible.
Further, the key principle of "continuing, exclusive jurisdiction" is introduced to
interstate child support enforcement and modification. Finally, a method for the
transition from URESA and RURESA to the new Act is provided.
3. RECIPROCITY NOT REQUIRED. The hallmark of URESA and
RURESA, reciprocity of laws between States, is not required under UIFSA. Prior
to the promulgation of UIFSA, all States had quite similar laws. But, UIFSA takes
the position that a responding State should enforce a child support obligation
irrespective of another state's law. Further, to avoid conflict between state laws
UIFSA declares that URESA, RURESA and all substantially similar state laws
should be recognized and enforced for purposes of interstate actions (Section
101(7), (16)). Tolerance for the laws of other States and nations in order to
facilitate child support enforcement is a prime goal of the Act, which also contains
provisions to help ease the transition to the new system. Finally, reciprocity
continues to have an impact for international enforcement of support orders.
4. LONG-ARM JURISDICTION. The Act contains a broad provision for
asserting long-arm jurisdiction to provide a tribunal in the home State of the
supported family with the maximum possible opportunity to secure personal
jurisdiction over an absent respondent (Section 201). This converts what otherwise
would be a two-state proceeding into a one-state lawsuit. When jurisdiction over a
nonresident is obtained, the tribunal may obtain evidence, provide for discovery,
and elicit testimony through use of the "information route" provided (Sections 202,
316, and 318).
B. Establishing a Support Order
1. FAMILY SUPPORT. The Act may be used only for proceedings
involving the support of a child or spouse of the support obligor, and not to enforce
other duties such as support of a parent (Section 101(2), (18)). Under RURESA
child support and spousal support were treated identically. However, spousal
support is modifiable in the interstate context under UIFSA only when such a
request is forwarded to the original issuing State from an initiating State (Sections
205 and 206).
2. LOCAL LAW. A somewhat complex choice of law for establishment of
duties of support was provided in RURESA, i.e., the law of the State where the
obligor was present for the period during which support was sought. Otherwise
RURESA generally referred to the law of the forum. The new Act provides that the
procedures and law of the forum apply, with some significant additions or
exceptions:
(a) Certain procedures are prescribed for interstate cases even if they are
not consistent with local law, i.e., the contents of interstate petitions (Sections 311
and 602); the nondisclosure of certain sensitive information (Section 312);
authority to award fees and costs including attorney's fees (Section 313);
elimination of certain testimonial immunities (Section 314); and limits on the
assertion of nonparentage as a defense to support enforcement (Section 315).
(b) Visitation issues cannot be raised in child support proceedings (Section
305(d)).
(c) Special rules for the interstate transmission of evidence and discovery
are added to help place the maximum amount of information before the deciding
tribunal. These procedures are available even in one-state cases in which the
tribunal asserts long-arm jurisdiction over a nonresident (Sections 202, 316, and
318), and may have the effect of amending local law for long-arm cases.
(d) The choice of law for the interpretation of a registered order is that the
law of the issuing State governs the underlying terms of the controlling support
order. One important exception exists; if there are different statutes of limitation
for enforcement, the longer time limit of either the registering State or the issuing
State applies (Section 604).
3. ONE-ORDER SYSTEM. Under RURESA, the majority of support
proceedings were de novo. Even when an existing order of one State was
"registered" in a second State, the registering State often asserted the right to
modify the registered order. This meant that multiple support orders could be in
effect in several States. Under UIFSA, the principle of continuing, exclusive
jurisdiction aims, so far as possible, to recognize that only one valid support order
may be effective at any one time. This principle is carried out in Sections 204
(rules for resolving actions pending in two or more States); 205, and 206 (rules for
determining which tribunal has continuing, exclusive jurisdiction over the
controlling child support order); 207 (reconciliation with orders issued before the
effective date of the Act); and 208 (multiple orders for two or more families
supported by the same obligor).
4. PRIVATE ATTORNEYS. In support actions, UIFSA explicitly
authorizes parties to retain private legal counsel (Section 309), as well as to use the
services of a state support enforcement agency (Section 307(a)). The Act expressly
takes no position on whether the support enforcement agency assisting a supported
family establishes an attorney-client relationship with the applicant (Section
307(c)).
5. EFFICIENCY. A number of improvements are made to RURESA to
streamline interstate proceedings:
(a) Proceedings may be initiated by or referred to administrative agencies
rather than to courts in those States that use those agencies to establish support
orders (Section 101(22)).
(b) Initiation of an interstate case in the initiating State is expressly made
ministerial rather than a matter for adjudication or review by a tribunal. Further, a
party in the initiating State may file an action directly in the responding State
(Section 301(c)).
(c) To facilitate efficient interstate establishment, enforcement, and
modification of child support orders, forms sanctioned by the federal Office of
Child Support Enforcement, Department of Health and Human Services, are
available. Although developed in conjunction with the federal IV-D program, even
private parties and their attorneys who are engaged in an interstate child support
case are well advised to use the appropriate forms for transmission of information
from the initiating to the responding State (Section 311(b)). The information in
those forms is declared to be admissible evidence (Section 316(b)).
(d) Authority is provided for the transmission of information and
documents through electronic and other modern means of communication (Section
316(e)).
(e) A tribunal may permit an out-of-state party or witness to be deposed or
to testify by telephone conference (Section 316(f)).
(f) Tribunals are required to cooperate in the discovery process for use in a
tribunal in another State (Section 318).
(g) Tribunal and a support enforcement agency providing services to a
supported family must keep the parties informed about all important developments
in a case (Sections 305 and 307).
(h) A registered support order is confirmed and immediately enforceable
unless the respondent files a written objection within 20 days after service and
sustains that objection (Sections 603 and 607).
6. INTERSTATE PARENTAGE. UIFSA authorizes establishment of
parentage in an interstate proceeding, even if not coupled with a proceeding to
establish support (Section 701).
C. Enforcing a Support Order
1. DIRECT ENFORCEMENT. The Act provides two direct enforcement
procedures that do not require assistance from a tribunal. First, the support order
may be sent directly to the obligor's employer in another State (Section 501), which
triggers wage withholding by that employer without the necessity of a hearing
unless the employee objects. In response to requests from major employers and
national payroll associations, UIFSA 1996 greatly expands the procedure to be
followed by the employer in response to an interstate request for direct income
withholding. Instead of only Section 501 outlining the procedure, the directives on
compliance with direct income-withholding now cover six sections (Sections 501-
506).
In addition, the Act provides for direct administrative enforcement by the
support enforcement agency of the obligor's State (Section 507).
2. REGISTRATION. The registration process of the Act is modeled after
that procedure originated in RURESA, but is far more comprehensive. All judicial
or administrative agency enforcement activity must begin with the registration of
the existing support order in the responding State (Sections 601-604). However,
the registered order continues to be the order of the issuing State; the role of the
responding State is limited to enforcing that order except in the very limited
circumstances under which modification is permitted (Sections 605-608).
D. Modifying a Support Order
1. REGISTRATION. A party (whether obligor or obligee) requesting a
tribunal of another State to modify an existing child support order is first directed to
follow the identical procedure for registration as when enforcement is sought.
Various combination sequences are allowable: i.e., registration for enforcement and
later modification; or, a request for contemporaneous modification and
enforcement.
2. MODIFICATION LIMITED. Under RURESA most courts held that a
responding State could modify a support order for which enforcement was sought.
Except for narrowly defined fact circumstances, under UIFSA the only tribunal that
can modify a support order is the one having continuing, exclusive jurisdiction over
the order. But, if the parties no longer reside in the issuing State, or if they agree in
writing that another tribunal may assume modification jurisdiction, a tribunal with
personal jurisdiction over the parties, has jurisdiction to modify (Sections 205, 206,
603(c), 609-612). Except for modification by agreement or when the parties have
all moved to the same new State, the party petitioning for modification must submit
himself or herself to the forum State where the respondent resides. To facilitate
modification across international borders, an exception to this rule was added in
1996 for child support orders issued by foreign jurisdictions.
Two additional sections relating to modification were added by UIFSA
1996. Section 613 makes specific that which was previously only implied; when
the parties and the child have moved from the issuing State and by coincidence or
design the parties currently reside in the same State, that State has jurisdiction to
modify the existing order and assume continuing, exclusive jurisdiction over the
child support order. Section 614 continues the rule originally found in a subsection
of Section 611 that the party obtaining a modification has a duty to provide notice
of the new order to all interested tribunals. This stand-alone section serves to
improve the organization of the Act; the new section also grants the tribunal
authority to sanction a party who fails to perform this duty of notice.
E. Parentage
It was not entirely clear whether RURESA provided for an interstate
determination of parentage without also requiring the establishment of support.
UIFSA clearly states that interstate determination of parentage is authorized. It
may be accomplished without an accompanying establishment of support, or in a
contemporaneous manner to both determine parentage and establish support. The
Act provides no substantive or procedural alterations to the existing law of the
forum with regard to a determination of parentage.
UNIFORM INTERSTATE FAMILY SUPPORT ACT (1996)
ARTICLE 1. GENERAL PROVISIONS
SECTION 101. DEFINITIONS. In this [Act]:
(1) "Child" means an individual, whether over or under the age of majority,
who is or is alleged to be owed a duty of support by the individual's parent or who
is or is alleged to be the beneficiary of a support order directed to the parent.
(2) "Child-support order" means a support order for a child, including a
child who has attained the age of majority under the law of the issuing State.
(3) "Duty of support" means an obligation imposed or imposable by law to
provide support for a child, spouse, or former spouse, including an unsatisfied
obligation to provide support.
(4) "Home State" means the State 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 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.
(5) "Income" includes earnings or other periodic entitlements to money
from any source and any other property subject to withholding for support under
the law of this State.
(6) "Income-withholding order" means an order or other legal process
directed to an obligor's employer [or other debtor], as defined by [the income-
withholding law of this State], to withhold support from the income of the obligor.
(7) "Initiating State" means a State from which a proceeding is forwarded
or in which a proceeding is filed for forwarding to a responding State under this
[Act] or a law or procedure substantially similar to this [Act], the Uniform
Reciprocal Enforcement of Support Act, or the Revised Uniform Reciprocal
Enforcement of Support Act.
(8) "Initiating tribunal" means the authorized tribunal in an initiating State.
(9) "Issuing State" means the State in which a tribunal issues a support
order or renders a judgment determining parentage.
(10) "Issuing tribunal" means the tribunal that issues a support order or
renders a judgment determining parentage.
(11) "Law" includes decisional and statutory law and rules and regulations
having the force of law.
(12) "Obligee" means:
(i) an individual to whom a duty of support is or is alleged to be owed or
in whose favor a support order has been issued or a judgment determining
parentage has been rendered;
(ii) a State or political subdivision to which the rights under a duty of
support or support order have been assigned or which has independent claims based
on financial assistance provided to an individual obligee; or
(iii) an individual seeking a judgment determining parentage of the
individual's child.
(13) "Obligor" means an individual, or the estate of a decedent:
(i) who owes or is alleged to owe a duty of support;
(ii) who is alleged but has not been adjudicated to be a parent of a child;
or
(iii) who is liable under a support order.
(14) "Register" means to [record; file] a support order or judgment
determining parentage in the [appropriate location for the recording or filing of
foreign judgments generally or foreign support orders specifically].
(15) "Registering tribunal" means a tribunal in which a support order is
registered.
(16) "Responding State" means a State in which a proceeding is filed or to
which a proceeding is forwarded for filing from an initiating State under this [Act]
or a law or procedure substantially similar to this [Act], the Uniform Reciprocal
Enforcement of Support Act, or the Revised Uniform Reciprocal Enforcement of
Support Act.
(17) "Responding tribunal" means the authorized tribunal in a responding
State.
(18) "Spousal-support order" means a support order for a spouse or former
spouse of the obligor.
(19) "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:
(i) an Indian tribe; and
(ii) 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.
(20) "Support enforcement agency" means a public official or agency
authorized to seek:
(i) enforcement of support orders or laws relating to the duty of support;
(ii) establishment or modification of child support;
(iii) determination of parentage; or
(iv) to locate obligors or their assets.
(21) "Support order" means a judgment, decree, or order, whether
temporary, final, or subject to modification, for the benefit of a child, a spouse, or a
former spouse, which provides for monetary support, health care, arrearages, or
reimbursement, and may include related costs and fees, interest, income
withholding, attorney's fees, and other relief.
(22) "Tribunal" means a court, administrative agency, or quasi-judicial
entity authorized to establish, enforce, or modify support orders or to determine
parentage.
Comment
Twenty-two terms are defined in UIFSA as compared with the parallel
RURESA 2, which had fourteen entries. Many crucial definitions continue to be
left to local law. For example, the definitions of "child" and "child-support order"
provided by subsections (1) and (2) refer to "the age of majority" without further
elaboration. The exact age at which a child becomes an adult for different purposes
is a matter for the law of each State, as is the age at which a parent's duty to furnish
child support terminates. Similarly, a wide variety of other terms of art are
implicitly left to state law. For example, subsection (21) refers inter alia to "health
care, arrearages, or reimbursement ." All of these terms are subject to
individualized definitions on a state-by-state basis.
Subsection (3) defines "duty of support" to mean the legal obligation to
provide support before it has been reduced to judgment. This broad definition
includes both prospective and retrospective obligations to the extent they are
imposed by the relevant state law.
In order to resolve certain conflicts in the exercise of jurisdiction, for
limited purposes subsection (4) borrows the concept of the "home State of a child"
from the Uniform Child Custody Jurisdiction Act (UCCJA), versions of which have
been adopted in all 50 States, and incorporated into the federal Parental Kidnapping
Prevention Act, 42 U.S.C. 1738A (PKPA).
Subsection (6) is written broadly so states that direct income withholding by
an obligor's employer based on "other legal process," as distinguished from an
order of a tribunal, may have that legal process recognized as an income-
withholding order. Federal law requires that each State provide for income
withholding "without the necessity of any application therefor, or for any further
action by the court or other entity which issued such order ." 42 U.S.C.
666(b)(2). States have complied with this directive in a variety of ways. For
example, at the time UIFSA was originally drafted New York provided a method
for obtaining income withholding of court-ordered support by authorizing an
attorney, clerk of court, sheriff or agent of the child support enforcement agency to
serve upon the defaulting obligor's employer an "income execution for support
enforcement." New York McKinney's C.P.L.R. 5241. This "other legal process"
reportedly was the standard method for obtaining income withholding in that State,
while the statutory provision for an income-withholding order, C.P.L.R. 5242, was
rarely used by either the courts or the litigants.
Subsections (7) and (8) define "initiating State" and "initiating tribunal"
similarly to RURESA 2(d). It is important to note, however, that UIFSA permits
the direct filing of an interstate action in the responding State without an initial
filing in an initiating tribunal. Thus, in addition to the traditional resort to a local
"initiating tribunal," a petitioner in one State may seek to establish a support order
in a second State by either filing in the responding state's tribunal or by directly
seeking the assistance of the support enforcement agency in the second State.
The relationship between UIFSA and the prior Uniform Acts is captured in
the phrasing of subsection (7), and repeated several times throughout the Act. See,
i.e., subsections (16) and (19). The Act declares that URESA and RURESA are
compatible with UIFSA, and the new Act is designed to function with the earlier
Acts without conflict. Support orders issued under one of the earlier Acts should be
honored and enforced in any State with any of the three Uniform Acts. But, despite
their common roots, neither URESA nor RURESA can be said to be "substantially
similar" to the one-order system established in UIFSA. States enacting UIFSA are
directed to accord full enforcement remedies to support orders from those States,
but also to apply UIFSA restraint regarding modification, and to apply its "one-
order" rule to orders from non-UIFSA States, infra.
The term "obligee" in subsection (12) is defined in a broad manner similar
to RURESA 2(f), which is consistent with common usage. In instances of
spousal support, the person owed the duty of support and the person receiving the
payments are almost always the same. Use of the term is more complicated in the
context of a child support order. The child is the person to whom the duty of
support is owed, and therefore can be viewed as the ultimate obligee. However,
"obligee" usually refers to the individual receiving the payments. While this is
most commonly the custodial parent or other legal custodian, the "obligee" may be
a support enforcement agency that has been assigned the right to receive support
payments in order to recoup Temporary Assistance for Needy Families (TANF), 42
U.S.C. 601 et seq., formerly known as Aid to Families with Dependent Children
(AFDC). Even in the absence of such an assignment, a State may have an
independent statutory claim for reimbursement for general assistance provided to a
spouse, a former spouse, or a child of an obligor. The Act also uses "obligee" to
identify an individual who is asserting a claim for support, not just for a person
whose right to support is unquestioned, presumed, or has been established in a legal
action.
Subsection (13) provides the correlative definition of an "obligor," which
includes an individual who is alleged to owe a duty of support as well as a person
whose obligation has previously been determined.
The definitions of "responding State" and "responding tribunal" in
subsections (16) and (17) accommodate the direct filing of a petition under UIFSA
without the intervention of an initiating tribunal. Both definitions acknowledge the
possibility that there may be a responding State or tribunal in a situation where
there is no initiating State or tribunal.
Subsection (19) withdraws the requirement of reciprocity between the
several States and other U.S. jurisdictions formerly demanded by RURESA and
URESA. A State need not enact UIFSA for support orders issued by its tribunals to
be enforced by other States. Public policy favoring such enforcement is sufficiently
strong to warrant waiving any quid pro quo among the States. This provision will
be mooted by the likelihood that all States will enact UIFSA by January 1, 1998, as
mandated by Congress in its 1996 welfare reform. In the original promulgation of
UIFSA, the language of subsection (19) was somewhat ambiguous regarding the
necessity of extending reciprocity to an Indian tribe and to foreign jurisdictions. By
reorganizing the statutory language, the 1996 amendment clarifies that reciprocity
is not required between the several States and Indian tribes. Further, the additional
language and reorganization in subsection (19)(ii) makes clear that in this instance
UIFSA follows the pattern of RURESA to require that a foreign nation must have
substantially similar law or procedures to either UIFSA, RURESA, or URESA (that
is, reciprocity) in order for its support orders to be treated as if they had been issued
by a sister State. This is sharply different from the rule for States; amended UIFSA
1996 recognizes that in international relations the concept of reciprocity is crucial
to acceptance of child support orders by other nations.
Subsection (20), "Support Enforcement Agency," includes the state IV-D
agency (Part IV-D, Social Security Act, 42 U.S.C. 651 et seq.), and other state or
local governmental entities charged with establishing or enforcing support.
Subsection (22) introduces a completely new term, "tribunal," which
replaces the term "court" used in RURESA. With the advent of federally-funded
IV-D programs, a number of States have delegated various aspects of child support
establishment and enforcement to quasi-judicial bodies and administrative agencies.
UIFSA adopts the term "tribunal" to account for the breadth of state variations in
dealing with support orders. Unless expressly noted otherwise, throughout the Act
the term refers to a tribunal of the enacting State. To avoid confusion, however,
when actions of tribunals of the enacting State and another State are contrasted in
the same section or subsection, the phrases "tribunal of this State" and "tribunal of
another State" are used for the sake of clarity.
SECTION 102. TRIBUNAL OF STATE. The [court, administrative agency,
quasi-judicial entity, or combination] [is the tribunal] [are the tribunals] of this
State.
Comment
The enacting State must identify the court, administrative agency, or the
combination of those entities, which constitute the tribunal or tribunals authorized
to deal with family support. In a particular State there may be several different
such entities authorized to determine family support matters.
SECTION 103. REMEDIES CUMULATIVE. Remedies provided by this
[Act] are cumulative and do not affect the availability of remedies under other law.
Comment
The existence of procedures for interstate establishment, enforcement, or
modification of support or a determination of parentage in UIFSA does not
preclude the application of the general law of the forum. Even if the parents live in
different States, for example, a petitioner may decide to file an original action for
child support (and most likely for other relief as well) directly in the State of
residence of the respondent and proceed under that forum's generally applicable
support law. In so doing, the petitioner thereby submits to the personal jurisdiction
of the forum and foregoes reliance on UIFSA. Once a child support order has been
issued, this option is no longer available to interstate parties. Under UIFSA, a State
may not permit a party to proceed to obtain a second support order; rather, in
further litigation the tribunal must apply the Act's provisions for enforcement of an
existing order and limit modification to the strict standards of UIFSA.
ARTICLE 2. JURISDICTION
PART 1. EXTENDED PERSONAL JURISDICTION
SECTION 201. BASES FOR JURISDICTION OVER NONRESIDENT.
In a proceeding to establish, enforce, or modify a support order or to determine
parentage, a tribunal of this State may exercise personal jurisdiction over a
nonresident individual [or the individual's guardian or conservator] if:
(1) the individual is personally served with [citation, summons, notice]
within this State;
(2) the individual submits to the jurisdiction of this State by consent, by
entering a general appearance, or by filing a responsive document having the effect
of waiving any contest to personal jurisdiction;
(3) the individual resided with the child in this State;
(4) the individual resided in this State and provided prenatal expenses or
support for the child;
(5) the child resides in this State as a result of the acts or directives of the
individual;
(6) the individual engaged in sexual intercourse in this State and the child
may have been conceived by that act of intercourse;
[(7) the individual asserted parentage in the [putative father registry]
maintained in this State by the [appropriate agency]; or
(8) there is any other basis consistent with the constitutions of this State and
the United States for the exercise of personal jurisdiction.
Comment
Sections 201 and 202 assert what is commonly described as long-arm
jurisdiction over a nonresident respondent for purposes of establishing a support
order or determining parentage. Inclusion of this long-arm provision in this
interstate Act is justified because residents of two separate States are involved in
the litigation, both of whom are subject to the personal jurisdiction of the forum.
Thus, the case has a clear interstate aspect, despite the fact that only the law of the
forum State is applicable. Moreover, this is sufficient to invoke additional UIFSA
provisions in an otherwise intrastate lawsuit. See Sections 202, 316, and 318, infra.
The intent is to insure that every enacting State has a long-arm statute as broad as
constitutionally permitted. In situations in which the long-arm statute can be
satisfied, the petitioner (either the obligor or the obligee) has two options: (1)
utilize the long-arm statute to obtain personal jurisdiction over the respondent; or
(2) initiate a two-state action under the succeeding provisions of UIFSA seeking to
establish a support order in the respondent's State of residence. Of course, a third
option is available that does not implicate UIFSA; a petitioner may file a suit in the
respondent's State of residence (perhaps to settle all issues between the parties in a
single proceeding).
This long-arm statute applies to an order for spousal support as well as for
child support. However, almost all of the specific provisions relate to child support
orders or determinations of parentage. This accords with the fact that very few
States have chosen to enact specific domestic relations long-arm statutes and that
the focus of UIFSA is primarily on child support. Only subsections (1), (2) and (8)
are applicable to an action for spousal support asserting long-arm jurisdiction over
a nonresident. The first two subsections are wholly noncontroversial insofar as an
assertion of personal jurisdiction is concerned. Moreover, assertion of personal
jurisdiction under subsections (1), (2), or (8) will doubtless yield jurisdiction over
all matters to be decided between the spouses, including division of property on
divorce. Thus, the most obvious basis for asserting long-arm jurisdiction over
spousal support, i.e., "last matrimonial domicile," is not included in Section 201 to
avoid the potential problem of another instance of bifurcated jurisdiction. That is, a
situation is not created in which a tribunal is authorized to order a nonresident to
pay spousal support, but may not personally bind the nonresident to a property
division on divorce.
Under RURESA, multiple support orders affecting the same parties were
commonplace. UIFSA creates a structure designed to provide for only one support
order at a time. The new one-order regime is facilitated and combined with a broad
assertion of personal jurisdiction under this long-arm provision. The frequency of a
two-state procedure involving the participation of tribunals in both States should be
substantially reduced by the introduction of this long-arm statute.
Subsections (1) through (8) are derived from a variety of sources, including
the Uniform Parentage Act 8, Texas Family Code 102.011, and New York
Family Court Act 154.
Subsection (1) codifies the holding of Burnham v. Superior Court, 495 U.S.
604 (1990), which reaffirms the constitutional validity of asserting personal
jurisdiction based on personal service within a State.
Subsection (2) expresses the principle that a nonresident party concedes
personal jurisdiction by seeking affirmative relief or by submitting to the
jurisdiction by answering or entering an appearance. However, the power to assert
jurisdiction over a support issue under the Act does not extend the tribunal's
jurisdiction to other matters.
Subsections (3) through (6) identify specific fact situations justifying the
assertion of long-arm jurisdiction over a nonresident. Each provides an appropriate
affiliating nexus for such an assertion, when judged on a case-by-case basis with an
eye on procedural and substantive due process. Further, each subsection does
contain a possibility that an overly literal construction of the terms of the statute
will overreach due process. For example, subsection (3) provides that long-arm
jurisdiction to establish a support order may be asserted if "the individual resided
with the child in this State." The typical scenario contemplated by the statute is that
the parties lived as a family unit in the forum State, separated, and one of the
parents subsequently moved to another State while the other parent and the child
continued to reside in the forum. No time frame is stated for filing suit; this is
based on the fact that the absent parent has a support obligation that extends for at
least the minority of the child (and often longer in many States). On the other hand,
suppose that the two parents and their child lived in State A for many years, and
then decided to move the family to State B to seek better employment
opportunities. Those opportunities did not materialize and, after several weeks or a
few months of frustration with the situation, one of the parents returned with the
child to State A. Under these facts a tribunal of State A may conclude it has long-
arm jurisdiction to establish the support obligation of the absent parent. But,
suppose that the family's sojourn in State B lasted for many years, and one parent
unilaterally decides to return to State A. Many, and perhaps all, tribunals will
conclude that assertion of personal jurisdiction over the absent parent immediately
after the return based on subsection (3) would offend due process. The interstate
provisions of UIFSA are available to the returning parent to establish child support.
Note that State B will have long-arm jurisdiction to establish support under Section
201. See also Section 204, infra, for the resolution of simultaneous proceedings
provided by the Act.
The factual situations catalogued in the first seven subsections are
appropriate and constitutionally acceptable grounds upon which to exercise
personal jurisdiction over an individual. Subsection (7) is bracketed because not all
States maintain putative father registries.
Finally, subsection (8) tracks the broad, catch-all provisions found in many
state statutes, including California, Civ. P. Code 410.10 (1973); New York,
supra; and Texas, supra. Note, however, that the California provision, standing
alone, was found to be inadequate to sustain a child support order under the facts
presented in Kulko v. Superior Court of California for San Francisco, 436 U.S. 84
(1978).
SECTION 202. PROCEDURE WHEN EXERCISING JURISDICTION
OVER NONRESIDENT. A tribunal of this State exercising personal jurisdiction
over a nonresident under Section 201 may apply Section 316 (Special Rules of
Evidence and Procedure) to receive evidence from another State, and Section 318
(Assistance with Discovery) to obtain discovery through a tribunal of another State.
In all other respects, Articles 3 through 7 do not apply and the tribunal shall apply
the procedural and substantive law of this State, including the rules on choice of
law other than those established by this [Act].
Comment
Assertion of long-arm jurisdiction over a nonresident essentially results in a
one-state proceeding, notwithstanding the fact that the parties reside in different
States. With two exceptions, the provisions of UIFSA labeled an interstate act
are not applicable to such a proceeding. To facilitate interstate exchange of
information and to enable the nonresident to participate as fully as possible in the
proceedings without the necessity of personally appearing in the forum State,
Section 202 expressly incorporates two special UIFSA sections to long-arm cases.
The first exception allows the tribunal to apply the special rules of evidence and
procedure of Section 316 in order to facilitate decision-making when one party
resides in another State, even though that party is subject to the personal
jurisdiction of the tribunal. The same consideration accounts for the second
exception; the two-state discovery procedures of Section 318 are applicable to a
one-state proceeding when a foreign tribunal can assist in that process. In all other
situations, the substantive and procedural law of the forum State applies. In sum, a
one-state UIFSA case may utilize those two-state procedures which forward the
interests of economy, efficiency, and fair play.
PART 2. PROCEEDINGS INVOLVING
TWO OR MORE STATES
SECTION 203. INITIATING AND RESPONDING TRIBUNAL OF
STATE. Under this [Act], a tribunal of this State may serve as an initiating
tribunal to forward proceedings to another State and as a responding tribunal for
proceedings initiated in another State.
Comment
Sections 203 through 206 track the traditional RURESA action involving
residents of separate States. In this situation the initiating State does not assert
personal jurisdiction over the nonresident, but instead forwards the case to another,
responding State, which has the authority to assert personal jurisdiction over its
resident. This section identifies the various roles a tribunal of the forum may serve;
as appropriate, it may act as either an initiating or a responding tribunal. Under
UIFSA a tribunal may serve as a responding tribunal even when there is no
initiating tribunal in another State. This accommodates the direct filing of an action
in a responding tribunal by a nonresident.
SECTION 204. SIMULTANEOUS PROCEEDINGS IN ANOTHER
STATE.
(a) A tribunal of this State may exercise jurisdiction to establish a support
order if the [petition] or comparable pleading is filed after a pleading is filed in
another State only if:
(1) the [petition] or comparable pleading in this State is filed before the
expiration of the time allowed in the other State for filing a responsive pleading
challenging the exercise of jurisdiction by the other State;
(2) the contesting party timely challenges the exercise of jurisdiction in
the other State; and
(3) if relevant, this State is the home State of the child.
(b) A tribunal of this State may not exercise jurisdiction to establish a
support order if the [petition] or comparable pleading is filed before a [petition] or
comparable pleading is filed in another State if:
(1) the [petition] or comparable pleading in the other State is filed
before the expiration of the time allowed in this State for filing a responsive
pleading challenging the exercise of jurisdiction by this State;
(2) the contesting party timely challenges the exercise of jurisdiction in
this State; and
(3) if relevant, the other State is the home State of the child.
Comment
This section is similar to Section 6 of the Uniform Child Custody
Jurisdiction Act. Under the one-order system established by UIFSA, it is necessary
to provide a new procedure to eliminate the multiple orders so common under
RURESA and URESA. This requires cooperation between, and deference by,
sister-state tribunals in order to avoid issuance of competing support orders. To
this end, tribunals are expected to take an active role in seeking out information
about support proceedings in other States concerning the same child. Depending on
the circumstances, one or the other of two tribunals considering the same support
obligation should decide to defer to the other. In this regard, UIFSA makes a
significant departure from the approach adopted by the UCCJA, which chooses
"first filing" as the method for resolving competing jurisdictional disputes. In the
analogous situation, the federal Parental Kidnapping Prevention Act chooses the
home State of the child to establish priority. Given the preemptive nature of the
PKPA, and the possibility that custody and support are both involved in the case,
UIFSA opts for the federal method of resolving disputes between competing
jurisdictional assertions by establishing a priority for the tribunal in the child's
home State. If the child has no home State, "first filing" controls.
SECTION 205. CONTINUING, EXCLUSIVE JURISDICTION.
(a) A tribunal of this State issuing a support order consistent with the law
of this State has continuing, exclusive jurisdiction over a child-support order:
(1) as long as this State remains the residence of the obligor, the
individual obligee, or the child for whose benefit the support order is issued; or
(2) until all of the parties who are individuals have filed written consents
with the tribunal of this State for a tribunal of another State to modify the order and
assume continuing, exclusive jurisdiction.
(b) A tribunal of this State issuing a child-support order consistent with the
law of this State may not exercise its continuing jurisdiction to modify the order if
the order has been modified by a tribunal of another State pursuant to this [Act] or a
law substantially similar to this [Act].
(c) If a child-support order of this State is modified by a tribunal of another
State pursuant to this [Act] or a law substantially similar to this [Act], a tribunal of
this State loses its continuing, exclusive jurisdiction with regard to prospective
enforcement of the order issued in this State, and may only:
(1) enforce the order that was modified as to amounts accruing before
the modification;
(2) enforce nonmodifiable aspects of that order; and
(3) provide other appropriate relief for violations of that order which
occurred before the effective date of the modification.
(d) A tribunal of this State shall recognize the continuing, exclusive
jurisdiction of a tribunal of another State which has issued a child-support order
pursuant to this [Act] or a law substantially similar to this [Act].
(e) A temporary support order issued ex parte or pending resolution of a
jurisdictional conflict does not create continuing, exclusive jurisdiction in the
issuing tribunal.
(f) A tribunal of this State issuing a support order consistent with the law of
this State has continuing, exclusive jurisdiction over a spousal-support order
throughout the existence of the support obligation. A tribunal of this State may not
modify a spousal-support order issued by a tribunal of another State having
continuing, exclusive jurisdiction over that order under the law of that State.
Comment
This section is perhaps the most crucial provision in UIFSA. Drawing on
the precedent of the federal Parental Kidnapping Prevention Act, 28 U.S.C.
1738A, the issuing tribunal retains continuing, exclusive jurisdiction over a child
support order, except in very narrowly defined circumstances. As long as one of
the individual parties or the child continues to reside in the issuing State, and as
long as the parties do not agree to the contrary, the issuing tribunal has continuing,
exclusive jurisdiction over its order which in practical terms means that it may
modify its order. The statute attempts to be even-handed the identity of the
remaining party obligor or obligee does not matter. If the individual parties
have left the issuing State but the child remains behind, continuing, exclusive
jurisdiction remains with the issuing State.
The other side of the coin follows logically. Just as subsection (a)(1)
defines the retention of continuing, exclusive jurisdiction, by clear implication the
subsection also defines how jurisdiction to modify may be lost. That is, if all the
relevant persons the obligor, the individual obligee, and the child have
permanently left the issuing State, the issuing State no longer has an appropriate
nexus with the parties or child to justify exercise of jurisdiction to modify. Further,
the issuing tribunal has no current information about the factual circumstances of
anyone involved, and the taxpayers of that State have no reason to expend public
funds on the process. Note, however, that the original order of the issuing tribunal
remains valid and enforceable. That order is in effect not only in the issuing State
and those States in which the order has been registered, but also may be registered
and enforced in additional States even after the issuing State has lost its power to
modify its order, see Sections 601-604 (Registration and Enforcement of Support
Order), infra. The original order remains in effect until it is properly modified in
accordance with the narrow terms of Sections 609-612 (Registration and
Modification of Child Support Order), infra.
According to the logical implication of subsection (a)(2), the issuing State
may also lose its continuing, exclusive jurisdiction to modify if the parties consent
in writing for another State to assume jurisdiction to modify (even though one of
the parties or the child continues to reside in the issuing State). The only statutory
requirement for the parties to divest the issuing tribunal of its continuing, exclusive
jurisdiction is the filing of a written agreement to that effect with that tribunal. The
Drafting Committee anticipated that such an agreement would seldom occur
because of the almost universal desire of each party to prefer his or her local
tribunal; but, the Committee also believed that the parties should be allowed to
agree upon an alternate forum if they choose to do so.
Although subsection (a) identifies the methods for the retention and the loss
of continuing, exclusive jurisdiction by the issuing tribunal, it does not confer
jurisdiction to modify on another tribunal. Modification requires that a tribunal
have personal jurisdiction over the parties and meet other criteria as provided in
Sections 609 through 614, infra. It should also be noted that nothing in this section
is intended to deprive a tribunal which has lost continuing, exclusive jurisdiction of
the power to enforce arrearages that have accrued during the existence of a valid
order.
Spousal support is treated differently; the issuing tribunal retains
continuing, exclusive jurisdiction over an order of spousal support throughout the
entire existence of the support obligation. Sections 205(f) and 206(c) state that the
procedures of UIFSA are not available to a responding tribunal to modify the
existing spousal support order of the issuing State. This marks a radical departure
from RURESA, which treated spousal and child support orders identically. Under
UIFSA, modification of spousal support is limited to a procedure whereby an action
is initiated outside of the issuing State and a tribunal in that original State modifies
its order under its law. While UIFSA revises RURESA in this regard, in fact this
will have a minimal effect on actual practice. Interstate modification of pure
spousal support was relatively rare under RURESA, and played almost no part in
the activities of support enforcement agencies.
The prohibition of modification of spousal support by a nonissuing State
tribunal under UIFSA is consistent with the principle that a tribunal should apply
local law to such cases to insure efficient handling and to minimize choice of law
problems. Avoiding conflict of law problems is almost impossible if spousal
support orders are subject to modification in a second State. For example, States
take widely varying views of the effect on a spousal support order of the obligee's
remarriage or nonmarital cohabitation. Making a distinction between spousal and
child support is further justified because the standards for modification of child
support and spousal support are very different. In most jurisdictions a dramatic
improvement in the obligor's economic circumstances will have little or no
relevance in an action seeking an upward modification of spousal support, while a
similar change in an obligor's situation typically is the primary basis for an increase
in child support. This disparity is founded on a policy choice that post-divorce
success of an obligor-parent should benefit the obligor's child, but not the obligor's
ex-spouse.
Finally, UIFSA does not provide for shifting the continuing, exclusive
jurisdiction over a spousal-support order by mutual agreement. That procedure is
limited to child support under subsection (a)(2). Note that the Act is silent rather
than preclusive on the subject. If the parties wish to enter into such an agreement,
it is up to the individual States to decide whether to recognize it. A waiver of
continuing, exclusive jurisdiction and subsequent modification of spousal support
by a tribunal of another State simply is not authorized under the auspices of UIFSA.
SECTION 206. ENFORCEMENT AND MODIFICATION OF SUPPORT
ORDER BY TRIBUNAL HAVING CONTINUING JURISDICTION.
(a) A tribunal of this State may serve as an initiating tribunal to request a
tribunal of another State to enforce or modify a support order issued in that State.
(b) A tribunal of this State having continuing, exclusive jurisdiction over a
support order may act as a responding tribunal to enforce or modify the order. If a
party subject to the continuing, exclusive jurisdiction of the tribunal no longer
resides in the issuing State, in subsequent proceedings the tribunal may apply
Section 316 (Special Rules of Evidence and Procedure) to receive evidence from
another State and Section 318 (Assistance with Discovery) to obtain discovery
through a tribunal of another State.
(c) A tribunal of this State which lacks continuing, exclusive jurisdiction
over a spousal-support order may not serve as a responding tribunal to modify a
spousal-support order of another State.
Comment
This section is the correlative of the continuing, exclusive jurisdiction
asserted in the preceding section. Subsection (a) authorizes a tribunal of the
enacting State to initiate a request for enforcement or modification to the tribunal
with continuing, exclusive jurisdiction over a support order.
Subsection (b) confirms the power of the issuing tribunal to modify its child
support order as the responding tribunal, provided it retains a sufficient nexus with
its order. UIFSA defines that nexus as a situation in which the child or at least one
of the parties continues to reside in the issuing State. Subsection (b) also makes a
vital contribution to the exercise of its continuing, exclusive jurisdiction if one of
the parties leaves the State after the initial order was issued. The petitioner and the
absent respondent may take advantage of the special rules of evidence and
discovery in order to provide the tribunal with maximum current information in a
modification proceeding.
Subsection (c) is the correlative of Section 205(f), acknowledging the
continuing, exclusive jurisdiction of the tribunal ordering alimony and specifically
prohibiting a responding tribunal from modifying a spousal support order of
another State.
PART 3. RECONCILIATION OF MULTIPLE ORDERS
SECTION 207. RECOGNITION OF CONTROLLING CHILD-
SUPPORT ORDER.
(a) If a proceeding is brought under this [Act] and only one tribunal has
issued a child-support order, the order of that tribunal controls and must be so
recognized.
(b) If a proceeding is brought under this [Act], and two or more child-
support orders have been issued by tribunals of this State or another State with
regard to the same obligor and child, a tribunal of this State shall apply the
following rules in determining which order to recognize for purposes of continuing,
exclusive jurisdiction:
(1) If only one of the tribunals would have continuing, exclusive
jurisdiction under this [Act], the order of that tribunal controls and must be so
recognized.
(2) If more than one of the tribunals would have continuing, exclusive
jurisdiction under this [Act], an order issued by a tribunal in the current home State
of the child controls and must be so recognized, but if an order has not been issued
in the current home State of the child, the order most recently issued controls and
must be so recognized.
(3) If none of the tribunals would have continuing, exclusive
jurisdiction under this [Act], the tribunal of this State having jurisdiction over the
parties shall issue a child-support order, which controls and must be so recognized.
(c) If two or more child-support orders have been issued for the same
obligor and child and if the obligor or the individual obligee resides in this State, a
party may request a tribunal of this State to determine which order controls and
must be so recognized under subsection (b). The request must be accompanied by a
certified copy of every support order in effect. The requesting party shall give
notice of the request to each party whose rights may be affected by the
determination.
(d) The tribunal that issued the controlling order under subsection (a), (b),
or (c) is the tribunal that has continuing, exclusive jurisdiction under Section 205.
(e) A tribunal of this State which determines by order the identity of the
controlling order under subsection (b)(1) or (2) or which issues a new controlling
order under subsection (b)(3) shall state in that order the basis upon which the
tribunal made its determination.
(f) Within [30] days after issuance of an order determining the identity of
the controlling order, the party obtaining the order shall file a certified copy of it
with each tribunal that issued or registered an earlier order of child support. A
party who obtains the order and fails to file a certified copy is subject to appropriate
sanctions by a tribunal in which the issue of failure to file arises. The failure to file
does not affect the validity or enforceability of the controlling order.
Comment
Sections 207-209 are designed to span the gulf between the one-order
system created by UIFSA and the multiple-order system previously in place under
RURESA and URESA. A keystone of UIFSA is to provide a transitional procedure
for the eventual elimination of existing multiple support orders in an expeditious
and efficient manner. But, even assuming all U.S. jurisdictions enact UIFSA, many
years will pass before its one-order system will be completely in place. Multiple
orders covering the same parties and child number in the tens of thousands; it can
be reasonably anticipated that these orders will continue in effect far into the future.
To begin the process towards a one-order system, however, this section provides a
relatively simple procedure designed to identify a single viable order that will be
entitled to prospective enforcement in every UIFSA State.
Subsection (a) declares that if only one child support order exists, it is to be
denominated the controlling order, irrespective of when and where it was issued
and whether any of the individual parties or the child continue to reside in the
issuing State.
Subsection (b) establishes the priority scheme for recognition and
prospective enforcement of a single order among existing multiple orders regarding
the same obligor, obligee, and child. For UIFSA to function, one order must be
denominated as the controlling order, and its issuing tribunal must be recognized as
having continuing, exclusive jurisdiction. In choosing among existing multiple
orders, none of which can be distinguished as being in conflict with the principles
of UIFSA, subsection (b)(1) gives first priority to the order issued by the only
tribunal that is entitled to continuing, exclusive jurisdiction under the terms of
UIFSA, i.e., an individual party or the child continues to reside in that State, and no
other issuing State meets this criterion. If two or more tribunals would have
continuing, exclusive jurisdiction under the Act, subsection (b)(2) first looks to the
tribunal of the child's current home State. If that State has not issued a support
order, subsection (b)(2) looks next to the order most recently issued. Finally, if
none of the existing multiple orders are entitled to be denominated as the
controlling order because none of the preceding priorities apply, the forum tribunal
is directed to issue a new order, assuming that it has personal jurisdiction over the
obligor and obligee. The new order is to be treated as the controlling order,
establishing the support obligation, the nonmodifiable aspects of the support
obligation, see Section 611(c), infra, and the issuing tribunal's continuing,
exclusive jurisdiction. The rationale for creating yet another order is that there is
no valid reason under UIFSA to prefer the terms of one of the multiple orders over
another.
As originally promulgated, UIFSA did not come to grips with whether
existing multiple orders issued by different States might be entitled to full faith and
credit without regard to the determination of the controlling order under the Act.
The drafters took the position that state law, however uniform, could not interfere
with the ultimate interpretation of a constitutional directive. Fortunately, this
question has almost certainly been mooted by the 1996 amendment to 28 U.S.C.
1738B, Full Faith and Credit for Child Support Orders. Congress adopted the
terms of Section 207 of UIFSA virtually word for word in the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996. Pub. L. 104-
193, Aug. 22, 1996, 110 Stat. 2221.
It is not altogether clear whether the terms of UIFSA apply to a strictly
intrastate case; that is, a situation in which multiple child support orders have been
issued by multiple tribunals of a single State and all parties and the child continue
to reside in that State. This is not an uncommon situation, often traceable to the
intrastate applicability of RURESA. A literal reading of the statutory language
suggests the section applies. For a tribunal of the issuing State to so conclude will
further the goal of the Act of identifying a single controlling order for prospective
enforcement and modification. At the very least, the section provides a template
for resolving such conflicts, most likely yielding a determination that the last order
is the controlling order.
Subsection (c), added in 1996, clarifies that any party may request a tribunal
of the forum State to identify the controlling order. That party is directed to fully
inform the tribunal of all existing child support orders.
Amended subsection (d) provides that the determination of the controlling
order under this section has the effect of establishing the tribunal with continuing,
exclusive jurisdiction; only the order of that tribunal is entitled to prospective
enforcement by a sister State. To help insure regularity, subsection (e) directs the
forum tribunal to set forth the basis of its finding. Finally, the party obtaining the
determination is directed by subsection (f) to notify all interested tribunals of the
decision.
Section 207 presumes that a tribunal will be fully informed about all
existing orders if it is requested to determine which one of the existing multiple
child support orders is to be accorded prospective enforcement. If this does not
occur and one or more existing orders is not considered by the tribunal, the finality
of its decision is likely to turn on principles of estoppel on a case-by-case basis.
Assuming that the parties were accorded notice and opportunity to be heard by the
tribunal, a final decision on the subject is entitled to full faith and credit.
SECTION 208. MULTIPLE CHILD-SUPPORT ORDERS FOR TWO
OR MORE OBLIGEES. In responding to multiple registrations or [petitions] for
enforcement of two or more child-support orders in effect at the same time with
regard to the same obligor and different individual obligees, at least one of which
was issued by a tribunal of another State, a tribunal of this State shall enforce those
orders in the same manner as if the multiple orders had been issued by a tribunal of
this State.
Comment
Multiple orders may involve two or more families of the same obligor.
Although all such orders are entitled to enforcement, practical difficulties are often
presented. For example, full enforcement of each of the multiple orders may
exceed the maximum allowed for income withholding. The federal statute, 42
U.S.C. 666(b)(1), requires that to be eligible for the federal funding for
enforcement, States must provide for a maximum to be withheld from earnings for
child support in a percentage that may not exceed the federal consumer credit code
limitations on wage garnishment, 15 U.S.C. 1673(b). In order to allocate
resources between competing families, UIFSA refers to state law. The basic
principle is that one or more foreign orders for the support of an out-of-state family
of the obligor, and one or more orders of an in-state family, are all of equal dignity.
In allocating payments to different obligees, every child support order should be
treated as if it had been issued by a tribunal of the forum State.
SECTION 209. CREDIT FOR PAYMENTS. Amounts collected and
credited for a particular period pursuant to a support order issued by a tribunal of
another State must be credited against the amounts accruing or accrued for the same
period under a support order issued by the tribunal of this State.
Comment
This section is derived from RURESA 31 (Application of Payments).
Because of the multiple orders possible under RURESA, that section was primarily
concerned with insuring that payments made on a particular order were credited
towards the amounts due on all other orders. For example, full payment of $300 on
an order of State C earns a 100% pro tanto discharge of the current support owed on
a $200 order of State A, and a 75% credit against a $400 order of State B.
Crediting payments against arrears on multiple orders is more complex, and is
subject to different constructions in various States. Under the one-order system of
UIFSA, an obligor ultimately will be ordered to pay only one sum-certain amount
for current support (a sum certain to reduce arrears, if any).
The issuing tribunal is ultimately responsible for the overall control of the
enforcement methods employed and for accounting for the payments made on its
order from multiple sources. Until that scheme is fully in place, however, it will be
necessary to continue to mandate pro tanto credit for actual payments made against
all existing orders.
ARTICLE 3. CIVIL PROVISIONS OF GENERAL APPLICATION
SECTION 301. PROCEEDINGS UNDER [ACT].
(a) Except as otherwise provided in this [Act], this article applies to all
proceedings under this [Act].
(b) This [Act] provides for the following proceedings:
(1) establishment of an order for spousal support or child support
pursuant to Article 4;
(2) enforcement of a support order and income-withholding order of
another State without registration pursuant to Article 5;
(3) registration of an order for spousal support or child support of
another State for enforcement pursuant to Article 6;
(4) modification of an order for child support or spousal support issued
by a tribunal of this State pursuant to Article 2, Part 2;
(5) registration of an order for child support of another State for
modification pursuant to Article 6;
(6) determination of parentage pursuant to Article 7; and
(7) assertion of jurisdiction over nonresidents pursuant to Article 2, Part
1.
(c) An individual [petitioner] or a support enforcement agency may
commence a proceeding authorized under this [Act] by filing a [petition] in an
initiating tribunal for forwarding to a responding tribunal or by filing a [petition] or
a comparable pleading directly in a tribunal of another State which has or can
obtain personal jurisdiction over the [respondent].
Comment
This section is a "road map" of the types of actions authorized by UIFSA.
Although such a section is unusual for a Uniform Act, it is justified in this instance
because the majority of those persons administering the Act are not attorneys and
will doubtless find such assistance to be useful.
Subsection (a) mandates application of the general provisions of this article
to all UIFSA actions.
Subsection (b) identifies the general principles and structure of the Act.
Note that although orders for spousal support and child support are generally dealt
with in the same manner, subsection (b)(5) implicitly restates the fact that the
modification provisions are limited to child support orders, and do not apply to
spousal support orders.
Subsection (c) establishes the basic two-state procedure contemplated by the
Act. The initiating responding procedure is derived from the two-state procedure
under RURESA. Direct filing in the responding State by an individual or a support
enforcement agency without reference to an initiating State is new to this Act,
however.
SECTION 302. ACTION BY MINOR PARENT. A minor parent, or a
guardian or other legal representative of a minor parent, may maintain a proceeding
on behalf of or for the benefit of the minor's child.
Comment
This section is derived from RURESA 13. A minor parent may maintain
an action under UIFSA without the appointment of a guardian ad litem, even if the
law of the forum jurisdiction requires a guardian for an in-state case. If a guardian
or legal representative has been appointed, he or she may act on behalf of the
minor's child in seeking support.
SECTION 303. APPLICATION OF LAW OF STATE. Except as
otherwise provided by this [Act], a responding tribunal of this State:
(1) shall apply the procedural and substantive law, including the rules on
choice of law, generally applicable to similar proceedings originating in this State
and may exercise all powers and provide all remedies available in those
proceedings; and
(2) shall determine the duty of support and the amount payable in
accordance with the law and support guidelines of this State.
Comment
Historically States have insisted that forum law be applied to support cases
whenever possible. This continues as a key principle of UIFSA. In general, a
responding tribunal has the same powers in an action involving interstate parties as
it has in an intrastate case. This inevitably means that the Act is not self-contained;
rather, it is supplemented by the forum's statutes and procedures governing support
orders. To insure the efficient processing of the huge number of interstate support
cases, it is vital that decision-makers apply familiar rules of local law to the
maximum degree possible. This must be accomplished in a manner consistent with
the overriding principle of UIFSA that enforcement is of the issuing tribunal's
order, and that the responding State does not make the order its own as a condition
of enforcing it.
SECTION 304. DUTIES OF INITIATING TRIBUNAL.
(a) Upon the filing of a [petition] authorized by this [Act], an initiating
tribunal of this State shall forward three copies of the [petition] and its
accompanying documents:
(1) to the responding tribunal or appropriate support enforcement
agency in the responding State; or
(2) if the identity of the responding tribunal is unknown, to the state
information agency of the responding State with a request that they be forwarded to
the appropriate tribunal and that receipt be acknowledged.
(b) If a responding State has not enacted this [Act] or a law or procedure
substantially similar to this [Act], a tribunal of this State may issue a certificate or
other document and make findings required by the law of the responding State. If
the responding State is a foreign jurisdiction, the tribunal may specify the amount
of support sought and provide other documents necessary to satisfy the
requirements of the responding State.
Comment
Under RURESA 14, the initiating tribunal was required to make a
preliminary finding of the existence of a support obligation. As a practical matter,
observance of this obligation was at best erratic across the nation; very often courts
viewed the finding as boilerplate. By contrast, under UIFSA the role of the
initiating tribunal clearly consists of the ministerial function of forwarding the
documents. See Mossburg v. Coffman, 6 Kan. App. 2d 428, 629 P.2d 745 (1981);
Neff v. Johnson, 391 S.W.2d 760 (Tex. Civ. App. Houston 1965, no writ).
New subsection (b), a transition provision, facilitates interstate enforcement
between UIFSA States and those URESA and RURESA States prior to the likely
nationwide enactment of UIFSA by January 1, 1998. See P.L. 104-193, 321.
Although the three uniform acts seek the same goal interstate child support and
are compatible in the main, neither URESA nor RURESA can be said to be
"substantially similar" to UIFSA. Careful reading of UIFSA reveals that an arms-
length view is maintained on this topic, see Section 101(7), (16), and (19)(ii),
supra. Exemplary of the imperfect fit between the acts is the number of complaints
received during the period between the original promulgation of the Act in
February 1993 and the amendments in July 1996 alleging that the elimination of the
RURESA requirement for certification of a duty of support had led to serious
communication problems between RURESA States and UIFSA States. Supposedly
the difference in procedure and documentation required by the two acts caused a
tribunal in one State or the other to refuse to enforce a child support obligation
unless the paperwork conformed to its requirements or, alternatively, a tribunal
refused to provide the requested documents on the basis that the law of its State did
not require the production of such documents. The loser in the exercise of such
hypertechnical interstate recalcitrance was the child who was due support. In
response to such bureaucratic impasses, the 1996 amendment authorizes a tribunal
in a UIFSA State to provide whatever documentation is required by a RURESA
State to facilitate child support enforcement.
Supplying documentation required by a foreign jurisdiction that is not
required by UIFSA procedure will continue to be necessary into the future. The
initiating tribunal is authorized to cooperate and provide whatever information or
documentation is requested by the foreign jurisdiction, i.e., a statement of the
amount of support being requested is required by Canadian provinces.
SECTION 305. DUTIES AND POWERS OF RESPONDING TRIBUNAL.
(a) When a responding tribunal of this State receives a [petition] or
comparable pleading from an initiating tribunal or directly pursuant to Section
301(c) (Proceedings Under this [Act]), it shall cause the [petition] or pleading to be
filed and notify the [petitioner] where and when it was filed.
(b) A responding tribunal of this State, to the extent otherwise authorized
by law, may do one or more of the following:
(1) issue or enforce a support order, modify a child-support order, or
render a judgment to determine parentage;
(2) order an obligor to comply with a support order, specifying the
amount and the manner of compliance;
(3) order income withholding;
(4) determine the amount of any arrearages, and specify a method of
payment;
(5) enforce orders by civil or criminal contempt, or both;
(6) set aside property for satisfaction of the support order;
(7) place liens and order execution on the obligor's property;
(8) order an obligor to keep the tribunal informed of the obligor's
current residential address, telephone number, employer, address of employment,
and telephone number at the place of employment;
(9) issue a [bench warrant; capias] for an obligor who has failed after
proper notice to appear at a hearing ordered by the tribunal and enter the [bench
warrant; capias] in any local and state computer systems for criminal warrants;
(10) order the obligor to seek appropriate employment by specified
methods;
(11) award reasonable attorney's fees and other fees and costs; and
(12) grant any other available remedy.
(c) A responding tribunal of this State shall include in a support order
issued under this [Act], or in the documents accompanying the order, the
calculations on which the support order is based.
(d) A responding tribunal of this State may not condition the payment of a
support order issued under this [Act] upon compliance by a party with provisions
for visitation.
(e) If a responding tribunal of this State issues an order under this [Act], the
tribunal shall send a copy of the order to the [petitioner] and the [respondent] and to
the initiating tribunal, if any.
Comment
This section revises RURESA 9, 18, 19, 24, 25, and 26. It contains both
ministerial functions, such as those in subsection (a); judicial functions, as in
subsection (b); and substantive rules applicable to interstate cases, subsections (c)-
(e). Because a responding tribunal may be an administrative agency rather than a
court, the Act explicitly states that a tribunal is not granted powers that it does not
otherwise possess under state law. For example, authority to enforce orders by
contempt often is limited to courts.
Subsection (a) eliminates the authorization of notice "by first class mail."
Several reasons underlie this deletion. Originally the authorization of first class
mail was intended to facilitate relatively informal notice of the issuing tribunal's
action, that is, formal service of the order by an officer was not to be required. The
intent was that first class mail notice would be sufficient. The deletion of
specificity regarding notice is not intended to increase the burden of giving notice.
Rather, the advent of a variety of swifter and perhaps even more reliable forms of
notice in the modern era justifies the deletion of the first class mail requirement,
which may very well be unduly restrictive. For example, many States now
authorize notice by telephone facsimile (FAX), or by an express delivery company.
In addition, the authorization of legal notice of at least some documents by
electronic mail (email) may not be far off. Finally, authorization of notice by first
class mail in UIFSA could be regarded as an undue interference with state law,
something a Uniform Act should avoid.
Subsection (b)(7) purposefully avoids mention of the priority of liens issued
under UIFSA. As is generally true under the Act, that priority will be determined
by applicable state law concerning support liens. Subsection (b) supplies much
more detail than did RURESA 24 and 26 to make explicit the wide range of
specific powers of the responding tribunal. Subsection (b)(9) replaces RURESA
16 (Jurisdiction By Arrest), which authorized the responding tribunal "to obtain
the body of the obligor" if the tribunal "believes that the obligor may flee ."
Under UIFSA, the physical seizure of an obligor is left to the procedures available
under state law in other civil cases.
Subsection (c) clarifies that the details of calculating the child support order
are to be included along with the order. Local law generally requires that variation
from the child support guidelines must be explained, see 42 U.S.C. 667; this
requirement is extended to interstate cases.
Subsection (d) states that an interstate support order may not be conditioned
on compliance with a visitation order. While this may be at variance with state law
governing intrastate cases, under a UIFSA action the petitioner generally is not
present before the tribunal. This distinction justifies prohibiting visitation issues
from being litigated in the context of a support proceeding.
Subsection (e) introduces the policy determination that the petitioner, the
respondent, and the initiating tribunal, if any, shall be kept informed about actions
taken by the responding tribunal.
SECTION 306. INAPPROPRIATE TRIBUNAL. If a [petition] or
comparable pleading is received by an inappropriate tribunal of this State, it shall
forward the pleading and accompanying documents to an appropriate tribunal in
this State or another State and notify the [petitioner] where and when the pleading
was sent.
Comment
This section directs a tribunal receiving UIFSA documents in error to
forward the original documents to their proper destination without undue delay,
whether the appropriate tribunal is located in the same State or elsewhere. This
section is intended to apply both to initiating and responding tribunals receiving
such documents. For example, if a tribunal is inappropriately designated as the
responding tribunal, it shall forward the petition to the appropriate responding
tribunal wherever located, if known, and notify the initiating tribunal of its action.
Such a procedure is much to be preferred to returning the documents to the
initiating tribunal to begin the process anew. Cooperation of this sort will facilitate
the ultimate goals of the Act.
For a full explanation regarding the deletion of the authorization of notice
by first class mail, see the Comment to Section 305.
SECTION 307. DUTIES OF SUPPORT ENFORCEMENT AGENCY.
(a) A support enforcement agency of this State, upon request, shall provide
services to a [petitioner] in a proceeding under this [Act].
(b) A support enforcement agency that is providing services to the
[petitioner] as appropriate shall:
(1) take all steps necessary to enable an appropriate tribunal in this State
or another State to obtain jurisdiction over the [respondent];
(2) request an appropriate tribunal to set a date, time, and place for a
hearing;
(3) make a reasonable effort to obtain all relevant information, including
information as to income and property of the parties;
(4) within [two] days, exclusive of Saturdays, Sundays, and legal
holidays, after receipt of a written notice from an initiating, responding, or
registering tribunal, send a copy of the notice to the [petitioner];
(5) within [two] days, exclusive of Saturdays, Sundays, and legal
holidays, after receipt of a written communication from the [respondent] or the
[respondent's] attorney, send a copy of the communication to the [petitioner]; and
(6) notify the [petitioner] if jurisdiction over the [respondent] cannot be
obtained.
(c) This [Act] does not create or negate a relationship of attorney and client
or other fiduciary relationship between a support enforcement agency or the
attorney for the agency and the individual being assisted by the agency.
Comment
This section is derived from RURESA 12, 18, and 19.
Subsection (a) changes the focus of RURESA 12 (Officials to Represent
Obligee) from representation of an obligee to providing services to a petitioner.
Care should be exercised in the use of terminology given this substantial alteration
of past practice under RURESA. Not only may either the obligee or the obligor
request services, but that request may be in the context of the establishment of an
initial support order, enforcement or review and adjustment of an existing order, or
a modification of that order (upwards or downwards). Note that the Act does not
distinguish between child support and spousal support for purposes of providing
services. Note also, that the services available may differ significantly; for
example, modification of spousal support is limited to the issuing State, see Section
205(f), supra.
Subsection (b) responds to the complaint of many RURESA petitioners that
they were not properly kept informed about the progress of their requests for
services.
Subsection (c) explicitly states that UIFSA neither creates nor rejects the
establishment of an attorney-client or fiduciary relationship between the support
enforcement agency and a petitioner receiving services from that agency. This
highly controversial issue is left to otherwise applicable state law.
For a full explanation regarding the deletion of the authorization of notice
by first class mail, see the Comment to Section 305.
SECTION 308. DUTY OF [ATTORNEY GENERAL]. If the [Attorney
General] determines that the support enforcement agency is neglecting or refusing
to provide services to an individual, the [Attorney General] may order the agency to
perform its duties under this [Act] or may provide those services directly to the
individual.
Comment
This section continues the principle of RURESA 18(c), under which the
State Attorney General, or an alternative designated by state law, is given oversight
responsibility for the diligent provision of services by the support enforcement
agency and the power to seek compliance with the Act.
SECTION 309. PRIVATE COUNSEL. An individual may employ private
counsel to represent the individual in proceedings authorized by this [Act].
Comment
The right of a party to retain private counsel in an action to be brought
under UIFSA is explicitly recognized. RURESA's failure to clearly recognize that
power led to some confusion and inconsistent decisions.
SECTION 310. DUTIES OF [STATE INFORMATION AGENCY].
(a) The [Attorney General's Office, State Attorney's Office, State Central
Registry or other information agency] is the state information agency under this
[Act].
(b) The state information agency shall:
(1) compile and maintain a current list, including addresses, of the
tribunals in this State which have jurisdiction under this [Act] and any support
enforcement agencies in this State and transmit a copy to the state information
agency of every other State;
(2) maintain a register of tribunals and support enforcement agencies
received from other States;
(3) forward to the appropriate tribunal in the place in this State in which
the individual obligee or the obligor resides, or in which the obligor's property is
believed to be located, all documents concerning a proceeding under this [Act]
received from an initiating tribunal or the state information agency of the initiating
State; and
(4) obtain information concerning the location of the obligor and the
obligor's property within this State not exempt from execution, by such means as
postal verification and federal or state locator services, examination of telephone
directories, requests for the obligor's address from employers, and examination of
governmental records, including, to the extent not prohibited by other law, those
relating to real property, vital statistics, law enforcement, taxation, motor vehicles,
driver's licenses, and social security.
Comment
This section, based on RURESA 17 (State Information Agency),
continues the information-gathering duties of the central information agency.
Subsection (b)(4) does not provide independent access to the information
sources or to the governmental documents listed. Because States have different
requirements and limitations concerning such access based on differing views of
the privacy interests of individual citizens, the agency is directed to use all lawful
means under the relevant state law to obtain and disseminate information.
SECTION 311. PLEADINGS AND ACCOMPANYING DOCUMENTS.
(a) A [petitioner] seeking to establish or modify a support order or to
determine parentage in a proceeding under this [Act] must verify the [petition].
Unless otherwise ordered under Section 312 (Nondisclosure of Information in
Exceptional Circumstances), the [petition] or accompanying documents must
provide, so far as known, the name, residential address, and social security numbers
of the obligor and the obligee, and the name, sex, residential address, social security
number, and date of birth of each child for whom support is sought. The [petition]
must be accompanied by a certified copy of any support order in effect. The
[petition] may include any other information that may assist in locating or
identifying the [respondent].
(b) The [petition] must specify the relief sought. The [petition] and
accompanying documents must conform substantially with the requirements
imposed by the forms mandated by federal law for use in cases filed by a support
enforcement agency.
Comment
Derived from RURESA 11, this section establishes the basic requirements
for drafting and filing interstate pleadings. Subsection (a) should be read in
conjunction with Section 312, which provides for the confidentiality of certain
information if disclosure is likely to result in harm to a party or a child.
Subsection (b) provides authorization for the use of the federally authorized
forms promulgated in connection with the IV-D child support enforcement program
and mandates substantial compliance with those forms. Although the use of other
forms is not prohibited, statutory preapproval of forms that substantially conform to
those sanctioned by federal law will help to standardize documents, with a
concomitant improvement in the efficient processing of UIFSA actions.
SECTION 312. NONDISCLOSURE OF INFORMATION IN
EXCEPTIONAL CIRCUMSTANCES. Upon a finding, which may be made ex
parte, that the health, safety, or liberty of a party or child would be unreasonably
put at risk by the disclosure of identifying information, or if an existing order so
provides, a tribunal shall order that the address of the child or party or other
identifying information not be disclosed in a pleading or other document filed in a
proceeding under this [Act].
Comment
Public awareness of and sensitivity to the dangers of domestic violence has
significantly increased since the original promulgation of URESA and RURESA.
This section authorizes confidentiality in instances where there is a serious risk of
domestic violence or child abduction. Although local law generally governs the
conduct of the forum tribunal, state law may not provide for maintaining secrecy
about the exact whereabouts of a litigant or other information ordinarily required to
be disclosed under state law, i.e., Social Security number of the parties or the child.
If so, this provision creates a confidentiality provision which is particularly
appropriate in the light of the intractable problems associated with interstate (as
opposed to intrastate) childnapping.
SECTION 313. COSTS AND FEES.
(a) The [petitioner] may not be required to pay a filing fee or other costs.
(b) If an obligee prevails, a responding tribunal may assess against an
obligor filing fees, reasonable attorney's fees, other costs, and necessary travel and
other reasonable expenses incurred by the obligee and the obligee's witnesses. The
tribunal may not assess fees, costs, or expenses against the obligee or the support
enforcement agency of either the initiating or the responding State, except as
provided by other law. Attorney's fees may be taxed as costs, and may be ordered
paid directly to the attorney, who may enforce the order in the attorney's own
name. Payment of support owed to the obligee has priority over fees, costs and
expenses.
(c) The tribunal shall order the payment of costs and reasonable attorney's
fees if it determines that a hearing was requested primarily for delay. In a
proceeding under Article 6 (Enforcement and Modification of Support Order After
Registration), a hearing is presumed to have been requested primarily for delay if a
registered support order is confirmed or enforced without change.
Comment
This section is derived from RURESA 15 (Costs and Fees), which
authorized fees and costs to be assessed against "the obligor." In recognition of the
fact that under UIFSA either the obligor or the obligee may file suit or seek services
from a support enforcement agency, subsection (a) permits either party to file
without payment of a filing fee or other costs. Subsection (b), however, continues
the RURESA determination that only the support obligor may be assessed the
specified costs and fees.
Subsection (c) provides a sanction to deal with a frivolous contest regarding
compliance with an interstate withholding order, registration of a support order, or
comparable delaying tactics regarding an appropriate enforcement remedy.
SECTION 314. LIMITED IMMUNITY OF [PETITIONER].
(a) Participation by a [petitioner] in a proceeding before a responding
tribunal, whether in person, by private attorney, or through services provided by the
support enforcement agency, does not confer personal jurisdiction over the
[petitioner] in another proceeding.
(b) A [petitioner] is not amenable to service of civil process while
physically present in this State to participate in a proceeding under this [Act].
(c) The immunity granted by this section does not extend to civil litigation
based on acts unrelated to a proceeding under this [Act] committed by a party while
present in this State to participate in the proceeding.
Comment
This section significantly expands RURESA 32. Under subsection (a),
direct or indirect participation in a UIFSA proceeding does not subject a petitioner
to an assertion of personal jurisdiction over the petitioner by the forum State in
other litigation between the parties. The primary object of this prohibition is to
preclude joining disputes over child custody and visitation with the establishment,
enforcement, or modification of child support. This prohibition strengthens the ban
on visitation litigation established in Section 305(d). A petition for affirmative
relief under UIFSA limits the jurisdiction of the tribunal to the boundaries of the
support proceeding.
Similarly, subsection (b) grants a litigant a variety of limited immunity from
service of process during the time a party is physically present in a State for a
UIFSA action. The immunity provided is in no way comparable to diplomatic
immunity, however, which should be clear from reading subsection (c) in
conjunction with the other subsections.
Subsection (c) does not extend immunity to civil litigation unrelated to the
support action which stems from contemporaneous acts committed by a party while
present in the State for the support litigation. For example, a petitioner involved in
an automobile accident or a contract dispute over the cost of lodging while present
in the State does not have immunity from a civil suit on those issues.
SECTION 315. NONPARENTAGE AS DEFENSE. A party whose
parentage of a child has been previously determined by or pursuant to law may not
plead nonparentage as a defense to a proceeding under this [Act].
Comment
Arguably this section does no more than restate the basic principle of res
judicata. However, there is a great variety of state law regarding presumptions of
parentage and available defenses after a prior determination of parentage. This
section is intended neither to discourage nor encourage collateral attacks in
situations in which the law of a foreign jurisdiction is at significant odds with local
law. If a collateral attack on a parentage decree is permissible under the law of the
issuing jurisdiction, such an action must be pursued in that forum and not in a
UIFSA proceeding. In sum, this section mandates that a parentage decree rendered
by another tribunal is not subject to collateral attack in a UIFSA proceeding. Of
course, an attack on an alleged final order on a fundamental constitutional ground is
permissible in the forum State, such as a denial of due process because of a failure
of notice and opportunity to be heard or a lack of personal jurisdiction over a party
who did not answer or appear.
Similarly, the law of the issuing State may provide for a determination of
parentage based on certain specific acts of the obligor acknowledging parentage as
a substitute for a decree, i.e., signing the child's birth certificate or publicly
acknowledging a duty of support after receiving the child into his home. UIFSA
also is neutral regarding a collateral attack on such a parentage determination. The
responding tribunal must give effect to such an act of acknowledgment of parentage
if it is recognized as determinative in the issuing State. The consistent theme of
this section is that a collateral attack cannot be made in a UIFSA proceeding.
SECTION 316. SPECIAL RULES OF EVIDENCE AND PROCEDURE.
(a) The physical presence of the [petitioner] in a responding tribunal of this
State is not required for the establishment, enforcement, or modification of a
support order or the rendition of a judgment determining parentage.
(b) A verified [petition], affidavit, document substantially complying with
federally mandated forms, and a document incorporated by reference in any of
them, not excluded under the hearsay rule if given in person, is admissible in
evidence if given under oath by a party or witness residing in another State.
(c) A copy of the record of child-support payments certified as a true copy
of the original by the custodian of the record may be forwarded to a responding
tribunal. The copy is evidence of facts asserted in it, and is admissible to show
whether payments were made.
(d) Copies of bills for testing for parentage, and for prenatal and postnatal
health care of the mother and child, furnished to the adverse party at least [ten] days
before trial, are admissible in evidence to prove the amount of the charges billed
and that the charges were reasonable, necessary, and customary.
(e) Documentary evidence transmitted from another State to a tribunal of
this State by telephone, telecopier, or other means that do not provide an original
writing may not be excluded from evidence on an objection based on the means of
transmission.
(f) In a proceeding under this [Act], a tribunal of this State may permit a
party or witness residing in another State to be deposed or to testify by telephone,
audiovisual means, or other electronic means at a designated tribunal or other
location in that State. A tribunal of this State shall cooperate with tribunals of other
States in designating an appropriate location for the deposition or testimony.
(g) If a party called to testify at a civil hearing refuses to answer on the
ground that the testimony may be self-incriminating, the trier of fact may draw an
adverse inference from the refusal.
(h) A privilege against disclosure of communications between spouses does
not apply in a proceeding under this [Act].
(i) The defense of immunity based on the relationship of husband and wife
or parent and child does not apply in a proceeding under this [Act].
Comment
This section combines RURESA 9, 19, 21, 22, and 23; and, provides
additional innovative methods for gathering evidence in interstate cases.
Subsections (b) through (f) greatly expand on RURESA 23 (Rules of
Evidence). The intent is to eliminate as many potential hearsay problems as
possible in interstate litigation because the out-of-state party and that party's
witnesses usually do not appear in person at the hearing.
Subsection (d) provides a simplified means for proving health care expenses
related to the birth of a child. Because ordinarily these charges are not in dispute,
this is designed to obviate the cost of having health care providers appear in person
or of obtaining affidavits of business records from each provider.
Subsections (e) and (f) encourage tribunals and litigants to take advantage
of modern methods of communication in interstate support litigation; most
dramatically, the out-of-state party is authorized to testify by telephone and supply
documents by fax.
Subsection (g) codifies the rule in effect in many States that in civil
litigation an adverse inference may be drawn from a litigant's silence. See, i.e., In
re Matter of Joseph P., 487 N.Y.S.2d 685 (Fam. Ct. 1985); Pa. Cons. Stats. Ann.,
Tit. 23, 5104(c) (1991) and La. Rev. Stats., Tit. 9, 396(A) (1992) ("if any party
refuses to submit to such tests, the court may resolve the question of paternity
against such party"); 9 N.J. Stats. Ann. 17-51(d) (1991) ("refusal to submit to blood
tests or genetic tests, or both, may be admitted into evidence and shall give rise to
the presumption that the results of the tests would have been unfavorable to the
interests of the party refusing").
SECTION 317. COMMUNICATIONS BETWEEN TRIBUNALS. A
tribunal of this State may communicate with a tribunal of another State in writing,
or by telephone or other means, to obtain information concerning the laws of that
State, the legal effect of a judgment, decree, or order of that tribunal, and the status
of a proceeding in the other State. A tribunal of this State may furnish similar
information by similar means to a tribunal of another State.
Comment
This section is derived from UCCJA 7(d) (Inconvenient Forum), which
authorizes communications between courts in order to facilitate decisions under
that Act. In contrast to RURESA, broad cooperation between tribunals is permitted
under UIFSA to expedite establishment and enforcement of a support order.
SECTION 318. ASSISTANCE WITH DISCOVERY. A tribunal of this
State may:
(1) request a tribunal of another State to assist in obtaining discovery; and
(2) upon request, compel a person over whom it has jurisdiction to respond
to a discovery order issued by a tribunal of another State.
Comment
This section takes another logical step to facilitate interstate cooperation by
enlisting the power of the forum to assist a tribunal of another State with the
discovery process. The grant of authority is quite broad, enabling the tribunal of
the enacting State to fashion its remedies to facilitate discovery consistent with
local practice.
SECTION 319. RECEIPT AND DISBURSEMENT OF PAYMENTS. A
support enforcement agency or tribunal of this State shall disburse promptly any
amounts received pursuant to a support order, as directed by the order. The agency
or tribunal shall furnish to a requesting party or tribunal of another State a certified
statement by the custodian of the record of the amounts and dates of all payments
received.
Comment
The first sentence of this section is derived from RURESA 29 (Additional
Duty of Initiating Court). The second sentence confirms the duty of the agency or
tribunal to furnish payment information in interstate cases.
ARTICLE 4. ESTABLISHMENT OF SUPPORT ORDER
SECTION 401. [PETITION] TO ESTABLISH SUPPORT ORDER.
(a) If a support order entitled to recognition under this [Act] has not been
issued, a responding tribunal of this State may issue a support order if:
(1) the individual seeking the order resides in another State; or
(2) the support enforcement agency seeking the order is located in
another State.
(b) The tribunal may issue a temporary child-support order if:
(1) the [respondent] has signed a verified statement acknowledging
parentage;
(2) the [respondent] has been determined by or pursuant to law to be the
parent; or
(3) there is other clear and convincing evidence that the [respondent] is
the child's parent.
(c) Upon finding, after notice and opportunity to be heard, that an obligor
owes a duty of support, the tribunal shall issue a support order directed to the
obligor and may issue other orders pursuant to Section 305 (Duties and Powers of
Responding Tribunal).
Comment
This section authorizes a tribunal of the responding State to issue temporary
and permanent support orders binding on an obligor over whom the tribunal has
personal jurisdiction. UIFSA does not permit such orders to be issued when
another support order exists, thereby prohibiting a second tribunal from establishing
another support order and the accompanying continuing, exclusive jurisdiction over
the matter. See Section 205 (Continuing, Exclusive Jurisdiction) and Section 206
(Enforcement and Modification of Support Order by Tribunal Having Continuing
Jurisdiction).
ARTICLE 5. ENFORCEMENT OF ORDER
OF ANOTHER STATE WITHOUT REGISTRATION
SECTION 501. EMPLOYER'S RECEIPT OF INCOME-
WITHHOLDING ORDER OF ANOTHER STATE. An income-withholding
order issued in another State may be sent to the person or entity defined as the
obligor's employer under [the income-withholding law of this State] without first
filing a [petition] or comparable pleading or registering the order with a tribunal of
this State.
Comment
In 1984 Congress mandated that all States adopt procedures for enforcing
income-withholding orders of sister States. As a result, the Child Support Project
of the American Bar Association and the National Conference of State Legislatures
promulgated a Model Interstate Income Withholding Act in 1985; however, the
Model Act was not widely enacted. RURESA was silent on the subject. Direct
recognition by the out-of-state obligor's employer of a withholding order issued by
another State long was sought by support enforcement associations and other
advocacy groups. In 1993 UIFSA recognized such a procedure.
Section 501 is deliberately written in the passive voice; the Act does not
restrict who may send an income-withholding order across state lines. Although
the sender will ordinarily be a child support enforcement agency or the obligee, the
obligor or any other person may supply an employer with the income-withholding
order. Further, "sending a copy" of a withholding order to an employer is clearly
distinguishable from "service" of that order on the same employer. The latter
necessarily intends to invoke the tribunal's authority only over an employer doing
business in the forum State. But, for there to be valid "service" of a withholding
order on an employer in another State, the tribunal must have authority to bind the
employer. In most cases, this requires the assertion of the authority of a local
responding tribunal in a "registration for enforcement" proceeding. The formality
of "service" defeats the whole purpose of direct income withholding across state
lines. This explains the deletion of the original requirement in the 1993 version of
UIFSA that the income-withholding order of one State "may be sent by first class
mail." In sum, the process contemplated is direct "notification" to an employer in
another State of a withholding order without the involvement of initiating or
responding tribunals. Therefore, receipt of a copy of a withholding order by
facsimile, regular first class mail, registered or certified mail, or any other type of
direct notice is sufficient to provide the requisite notice to trigger direct income
withholding in the absence of a contest by the employee-obligor.
SECTION 502. EMPLOYER'S COMPLIANCE WITH INCOME-
WITHHOLDING ORDER OF ANOTHER STATE.
(a) Upon receipt of an income-withholding order, the obligor's employer
shall immediately provide a copy of the order to the obligor.
(b) The employer shall treat an income-withholding order issued in another
State which appears regular on its face as if it had been issued by a tribunal of this
State.
(c) Except as otherwise provided in subsection (d) and Section 503, the
employer shall withhold and distribute the funds as directed in the withholding
order by complying with terms of the order which specify:
(1) the duration and amount of periodic payments of current child-
support, stated as a sum certain;
(2) the person or agency designated to receive payments and the address
to which the payments are to be forwarded;
(3) medical support, whether in the form of periodic cash payment,
stated as a sum certain, or ordering the obligor to provide health insurance coverage
for the child under a policy available through the obligor's employment;
(4) the amount of periodic payments of fees and costs for a support
enforcement agency, the issuing tribunal, and the obligee's attorney, stated as sums
certain; and
(5) the amount of periodic payments of arrearages and interest on
arrearages, stated as sums certain.
(d) An employer shall comply with the law of the State of the obligor's
principal place of employment for withholding from income with respect to:
(1) the employer's fee for processing an income-withholding order;
(2) the maximum amount permitted to be withheld from the obligor's
income; and
(3) the times within which the employer must implement the
withholding order and forward the child support payment.
Comment
Major employers and national payroll associations urged the National
Conference of Commissioners on Uniform State Laws to supply more detail
regarding the rights and duties of an employer on receipt of an income-withholding
order from another State. The Conference obliged with amendments to UIFSA that
set forth a series of steps for the employer to track.
The employer's first step is to notify the employee of receipt of the out-of-
state withholding order. If the employee disputes the validity of the withholding
order, it is the employee's responsibility to take appropriate defensive measures to
contest the withholding. At this point neither an initiating nor a responding tribunal
is directly involved. The withholding order may have been forwarded by the
obligee, the obligee's attorney, or the out-of-state IV-D agency. In fact, there is no
prohibition against anyone sending a valid copy of an income-withholding order,
even a stranger to the litigation, such as the child's grandparent. Subsection (a)
does not specify the method for sending this relatively informal notice for direct
income withholding, but rather takes a permissive view of communication notice
on the assumption that an obligor will act to prevent a wrongful invasion of income
not owed as current child support or arrears.
Subsection (b) directs an employer of the enacting State to recognize a
withholding order of a sister State, subject to the employee's right to contest the
validity of the order or its enforcement. Prior to the promulgation of UIFSA,
agencies in several States adopted a procedure of sending direct withholding
requests to out-of-state employers. A contemporaneous study by the federal
General Accounting Office reported that employers in a second State routinely
recognized withholding orders of sister States despite an apparent lack of statutory
authority to do so. UIFSA marked the first official sanction of this practice.
Subsection (b) does not define "regular on its face," but the term should be liberally
construed, see U.S. v. Morton, 467 U.S. 822 (1984) ("legal process regular on its
face"). The rules governing intrastate procedure and defenses for withholding
orders will apply to interstate orders. Thus, subsection (a) makes clear that
employers who refuse to recognize out-of-state withholding orders will be
subjected to whatever remedies are otherwise available under state law.
Subsection (c) is the answer to employers' complaints that insufficient
direction for action was given by the original UIFSA. Formerly the employer was
merely told to "distribute the funds as directed in the withholding order." This
section clarifies the terms of the out-of-state order with which the employer must
strictly comply, and those terms that are subject to compliance with local law. As a
general principle, an employer is directed to comply with the specific terms
contained in the order, but there are exceptions. Moreover, many income-
withholding orders currently do not provide the detail necessary for the employer to
comply with each and every directive. Fortunately, when the long-anticipated
federal forms are finally promulgated, more uniformity in the text of child support
orders will eventually occur. To the extent that an order is silent, the employer is
not required to respond to unstated demands of the issuing State. Formerly,
employers often were so concerned about ambiguous or incomplete orders that they
telephoned child support enforcement agencies in other States to attempt to
understand and comply with unstated terms. Employers should not be expected to
become investigators or shoulder the responsibility of learning the law of 50 States.
Subsection (c)(1) directs that the amount and duration of periodic payments
of current child support must be stated in a sum certain in order to elicit
compliance. The duration of the support obligation is fixed by the controlling order
and should be stated in the withholding order so that the employer is informed of
the date on which the withholding is anticipated to terminate. The "sum certain"
requirement is crucial to facilitating the employer's compliance. An order for a
"percentage of the obligor's net income," for example, does not satisfy this
requirement. A State that typically issues its orders as a percentage of income is
not entitled to compliance by an employer receiving an interstate income-
withholding order by an employer. Such a State should revisit the issue and
provide an order for a sum certain if the procedures set forth in this article are to be
employed.
Subsection (c)(2) states the obvious: Necessary information must be clearly
stated. For example, the destination of the payments must correspond to the
destination originally designated or subsequently authorized by the issuing tribunal.
Subsection (c)(3) provides that medical support for the child must be stated
either by a periodic cash payment or, alternatively, by an order directing the obligor
to provide health insurance coverage from his employment. In the absence of an
order for payment of a sum certain, an order for medical support as child support
requires the employer to enroll the obligor's child for coverage if medical insurance
is available through the obligor's employment. Failure to enroll the child should
elicit, at the least, registration of the order for enforcement in the responding State,
to be implemented by an order of a tribunal directing the employer to comply.
Because the employer is so directed by the medical support order, enrollment of the
child in the health care plan at the employee-obligor's expense is not dependent on
the obligor's consent, any more than withholding a sum certain from the obligor's
wages is subject to a veto. It is up to the obligor to assert any defense to prevent
the employer from abiding by the medical support order.
Subsection (c)(4) identifies certain costs and fees incurred in conjunction
with the support enforcement that may be added to the withholding order.
Subsection (c)(5) requires that the amount of periodic payments for arrears
and interest on arrears also must be stated as a sum certain. If the one-order system
is to function properly, the issuing State ultimately must be responsible to account
for payments and maintain the record of arrears and interest rate on arrears. Full
compliance with the support order will only be achieved when the issuing State
determines that the obligation no longer exists.
Subsection (d) identifies those narrow provisions in which the law of the
employee's work State, rather than the law of the issuing State, should apply. A
large employer will almost certainly have a number of employees subject to
income-withholding orders. From the employer's perspective, the procedural
requirements for compliance should be uniform for all of those employees. Certain
issues should be matters for the law of the employee's work State, such as the
employer's fee for processing, the maximum amount to be withheld, and the time in
which to comply. The latter necessarily includes the frequency with which income
withholding must occur. This is also consistent with regard to the tax consideration
imposed by choice of law considerations. The only element of the list of local law
concerns identified in subsection (d) which stirred any controversy whatsoever was
the fact that the maximum amount permitted to be withheld is to be subject to the
law of the employee's work State. Demands of equal treatment for all citizens of
the responding State and the practical concern for uniform computer programming,
however, mandate this solution.
SECTION 503. COMPLIANCE WITH MULTIPLE INCOME-
WITHHOLDING ORDERS. If an obligor's employer receives multiple income-
withholding orders with respect to the earnings of the same obligor, the employer
satisfies the terms of the multiple orders if the employer complies with the law of
the State of the obligor's principal place of employment to establish the priorities
for withholding and allocating income withheld for multiple child support obligees.
Comment
Consistent with the Act's general problem-solving approach, the employer
is directed to deal with multiple income orders for multiple families in a manner
consistent with local law.
SECTION 504. IMMUNITY FROM CIVIL LIABILITY. An employer
who complies with an income-withholding order issued in another State in
accordance with this article is not subject to civil liability to an individual or agency
with regard to the employer's withholding of child support from the obligor's
income.
Comment
Because employer cooperation is a key element in interstate child support
enforcement, it is sound policy to state explicitly that an employer who complies
with the income-withholding order from another State is immune from civil
liability.
SECTION 505. PENALTIES FOR NONCOMPLIANCE. An employer
who willfully fails to comply with an income-withholding order issued by another
State and received for enforcement is subject to the same penalties that may be
imposed for noncompliance with an order issued by a tribunal of this State.
Comment
Only an employer who willfully fails to comply with an interstate order
should be subject to enforcement procedures. Local law is the appropriate source
for the applicable sanctions.
SECTION 506. CONTEST BY OBLIGOR.
(a) An obligor may contest the validity or enforcement of an income-
withholding order issued in another State and received directly by an employer in
this State in the same manner as if the order had been issued by a tribunal of this
State. Section 604 (Choice of Law) applies to the contest.
(b) The obligor shall give notice of the contest to:
(1) a support enforcement agency providing services to the obligee;
(2) each employer that has directly received an income-withholding
order; and
(3) the person or agency designated to receive payments in the income-
withholding order or if no person or agency is designated, to the obligee.
Comment
This section incorporates the law regarding defenses an alleged obligor may
raise to an intrastate withholding order into the interstate context. Generally, States
have accepted the IV-D requirement that the only viable defense is a "mistake of
fact." 42 U.S.C. 666(b)(4)(A). This apparently includes "errors in the amount of
current support owed, errors in the amount of accrued arrearage or mistaken
identity of the alleged obligor" while excluding "other grounds, such as the
inappropriateness of the amount of support ordered to be paid, changed financial
circumstances of the obligor, or lack of visitation." H.R. Rep. No. 98-527, 98th
Cong., 1st Sess. 33 (1983). The latter claims must be pursued in a separate legal
action in the State having continuing, exclusive jurisdiction over the support order,
not in a UIFSA proceeding.
After the employer receives a withholding order from another State, the first
step is to notify the employee that income withholding for child support will begin
within the time frame specified by state law, just as it would if the withholding
order is received from a tribunal of the employer's State. It is the responsibility of
the employee to take whatever protective measures are necessary to prevent the
withholding if the employee asserts a defense.
This procedure is based on the assumption that defenses to income
withholding for child support are few and far between. Experience has shown that
only in a relatively few cases does an employee-obligor have a defense, i.e., the
child has died, another contingency ending the support has occurred, the order has
been superseded, or there is a case of mistaken identity and the employee is not the
obligor. An employee's complaint that "The child support is too high" must be
ignored. The employee's simplest, most efficient, cost-effective method to assert a
defense is probably to register the withholding order with a local tribunal and seek
protection from that tribunal pending resolution of the contest. This may be
accomplished through the obligor's employment of private counsel or by a request
for services made to the child support enforcement agency of the responding State.
In the absence of expeditious action by the employee to assert a defense and contest
the request, however, the employer must begin income withholding in a timely
fashion.
In contrast to the multiple-order system of RURESA, another issue the
employee may raise is that the withholding order received by the employer is not
based on the controlling child support order issued by the tribunal with continuing,
exclusive jurisdiction, see Section 207, supra. Such a claim does not constitute a
defense to the obligation of child support, but does put at issue the identity of the
order to which the employer must respond. Clearly the employer is in no position
to make such a decision. When multiple orders involve the same obligor and child,
as a practical matter resort to a responding tribunal to resolve a dispute over
apportionment almost certainly is necessary.
SECTION 507. ADMINISTRATIVE ENFORCEMENT OF ORDERS.
(a) A party seeking to enforce a support order or an income-withholding
order, or both, issued by a tribunal of another State may send the documents
required for registering the order to a support enforcement agency of this State.
(b) Upon receipt of the documents, the support enforcement agency,
without initially seeking to register the order, shall consider and, if appropriate, use
any administrative procedure authorized by the law of this State to enforce a
support order or an income-withholding order, or both. If the obligor does not
contest administrative enforcement, the order need not be registered. If the obligor
contests the validity or administrative enforcement of the order, the support
enforcement agency shall register the order pursuant to this [Act].
Comment
This section authorizes summary enforcement of an interstate child support
order through the administrative means available for intrastate orders. Under
subsection (a), an interested party in another State, which necessarily may include a
private attorney or a support enforcement agency, may forward a support order or
income-withholding order to a support enforcement agency of the responding State.
The term "responding State" in this context does not contemplate resort to a
tribunal as an initial step.
Subsection (b) directs the support enforcement agency in the responding
State to employ that State's regular administrative procedures to process an out-of-
state order. Thus, a local employer accustomed to dealing with the local agency
need not change its procedure to comply with an out-of-state order. Similarly, the
administrative agency is authorized to apply its ordinary rules equally to both
intrastate and interstate orders. For example, if the administrative hearing
procedure must be exhausted for an intrastate order before a contesting party may
seek relief in a tribunal, the same rule applies to an interstate order received for
administrative enforcement. Thereafter, the order may be registered with a tribunal
for enforcement if that is the next step for an intrastate order, see Sections 601-608,
infra.
ARTICLE 6. ENFORCEMENT AND MODIFICATION
OF SUPPORT ORDER AFTER REGISTRATION
PART 1. REGISTRATION AND ENFORCEMENT
OF SUPPORT ORDER
SECTION 601. REGISTRATION OF ORDER FOR ENFORCEMENT.
A support order or an income-withholding order issued by a tribunal of another
State may be registered in this State for enforcement.
Comment
Sections 601 through 604 greatly expand the procedure for the registration
of interstate support orders available under RURESA 35-40. The common
practice under RURESA was to initiate a new suit for the establishment of a
support order, even though there was an existing order for child support. That
practice is specifically rejected by UIFSA. The fact that RURESA permitted
(really encouraged) initiation of a new suit under those circumstances led to the
multiple support order system that UIFSA is designed to eliminate.
Under the one-order system of UIFSA, only one existing order is to be
enforced prospectively (if more than one child support order exists, refer to Section
207 for resolution of the conflict). Registration of that order in the responding State
is the first step to enforcement by a tribunal of that State. Rather than being an
optional procedure, as was the case under RURESA, registration for enforcement
under UIFSA is the primary method for interstate enforcement of child support. If
the prior support order has been validly issued by a tribunal with continuing,
exclusive jurisdiction, see Section 205, only that order is to be prospectively
enforced against the obligor in the absence of narrow, strictly-defined fact
situations in which an existing order may be modified. See Sections 609 through
612. Until that order is modified, however, it is fully enforceable in the responding
State.
Registration should be employed if the purpose is enforcement. Although
registration not accompanied by a request for affirmative relief is not prohibited,
the Act does not contemplate registration as serving a purpose in itself.
SECTION 602. PROCEDURE TO REGISTER ORDER FOR
ENFORCEMENT.
(a) A support order or income-withholding order of another State may be
registered in this State by sending the following documents and information to the
[appropriate tribunal] in this State:
(1) a letter of transmittal to the tribunal requesting registration and
enforcement;
(2) two copies, including one certified copy, of all orders to be
registered, including any modification of an order;
(3) a sworn statement by the party seeking registration or a certified
statement by the custodian of the records showing the amount of any arrearage;
(4) the name of the obligor and, if known:
(i) the obligor's address and social security number;
(ii) the name and address of the obligor's employer and any other
source of income of the obligor; and
(iii) a description and the location of property of the obligor in this
State not exempt from execution; and
(5) the name and address of the obligee and, if applicable, the agency or
person to whom support payments are to be remitted.
(b) On receipt of a request for registration, the registering tribunal shall
cause the order to be filed as a foreign judgment, together with one copy of the
documents and information, regardless of their form.
(c) A [petition] or comparable pleading seeking a remedy that must be
affirmatively sought under other law of this State may be filed at the same time as
the request for registration or later. The pleading must specify the grounds for the
remedy sought.
Comment
This section outlines the mechanics for registration of an interstate order.
Subsection (c) warns that if a particular enforcement remedy must be specifically
sought under local law, the same rule of pleading is applicable in an interstate case.
The authorization of a later filing to comply with local law contemplates that
interstate pleadings may be liberally amended to conform to local practice.
SECTION 603. EFFECT OF REGISTRATION FOR ENFORCEMENT.
(a) A support order or income-withholding order issued in another State is
registered when the order is filed in the registering tribunal of this State.
(b) A registered order issued in another State is enforceable in the same
manner and is subject to the same procedures as an order issued by a tribunal of this
State.
(c) Except as otherwise provided in this article, a tribunal of this State shall
recognize and enforce, but may not modify, a registered order if the issuing tribunal
had jurisdiction.
Comment
Subsection (a) is derived from RURESA 39(a), which stated that "filing
constitutes registration." Although the registration procedure under UIFSA is
nearly identical to that of RURESA, the underlying intent of registration is
radically different. Under RURESA, once an order of State A was registered in
State B, it became an order of the latter. Under UIFSA, the order continues to be a
State A order, which is to be enforced by a State B tribunal. State B's rules of
evidence and procedure apply to hearings, except as local law is supplemented or
specifically superseded by the Act. The order itself remains a State A order.
Subsection (b) is derived from RURESA 40(a). RURESA specifically
subjected a registered order to "proceedings for reopening, vacating, or staying as a
support order of this State"; these procedures are not authorized under UIFSA. An
interstate support order is to be enforced and satisfied in the same manner as if it
had been issued by a tribunal of the registering State, although it remains an order
of the issuing State. Conceptually, the responding State is enforcing the order of
another State, not its own order.
Subsection (c) mandates enforcement of the registered order. See Sections
606 through 608. This is at sharp variance with the common interpretation of
RURESA 40, which stated that "the registered foreign support order shall be
treated in the same manner as a support order issued by a court of this State." This
language was generally construed as converting the foreign order into an order of
the registering State. Once the registering court concluded that it was enforcing its
own order, the next logical step was to modify the order as the court deemed
appropriate. This rationale resulted in yet another order in the multiple-order
system. UIFSA mandates an end to this process, except as modification is
authorized in this article. See Sections 609 through 612.
Ultimately, under UIFSA there will be only one order in existence at any
one time. That order is enforceable in a responding State irrespective of whether
such an order may be modified. In most instances, the support order will be subject
to the continuing, exclusive jurisdiction of the issuing State. But sometimes the
issuing State will have lost its authority to modify the order because neither the
child nor the parties continue to reside in the issuing State. Nonetheless, the order
may be registered and is fully enforceable in a responding State until the potential
for modification actually occurs in accordance with the strict terms for such an
action. See Sections 609-612.
SECTION 604. CHOICE OF LAW.
(a) The law of the issuing State governs the nature, extent, amount, and
duration of current payments and other obligations of support and the payment of
arrearages under the order.
(b) In a proceeding for arrearages, the statute of limitation under the laws of
this State or of the issuing State, whichever is longer, applies.
Comment
This section identifies situations in which local law is inapplicable. The
basic principle of the Act is that throughout the process the controlling order
remains the order of the issuing State, and that responding States only assist in the
enforcement of that order. Absent a loss of continuing, exclusive jurisdiction and a
subsequent modification of the order, the order never becomes an "order of the
responding State." Ultimate responsibility for enforcement and final resolution of
the obligor's compliance with all aspects of the support order belongs to the issuing
State. Thus, calculation of whether the obligor has fully complied with the
payment of current support, arrears, and interest on arrears, is the duty of the
issuing State. For example, under subsection (a) the responding State must
recognize and enforce an order of the issuing State for the support of a child until
age 21, notwithstanding the fact that the duty of support of a child ends at age 18
under the law of the responding State. See Gonzalez-Goengaga v. Gonzalez, 426
So.2d 1106 (Fla. App. 1983); Taylor v. Taylor, 122 Cal. App. 3d 209, 175 Cal.
Rptr. 716 (1981). Similarly, the law of the issuing State governs whether a
payment made for the benefit of a child, such as a Social Security benefit for a child
of a disabled obligor, should be credited against the obligor's child support
obligation.
Subsection (b) contains another choice of law provision that may diverge
from local law. In situations in which the statutes of limitation differ from State to
State, the statute with the longer term is to be applied. In interstate cases,
arrearages often will have accumulated over a considerable period of time before
enforcement is perfected. The obligor should not gain an undue benefit from the
choice of residence if the forum State has a short statute of limitations for
arrearages.
PART 2. CONTEST OF VALIDITY OR ENFORCEMENT
SECTION 605. NOTICE OF REGISTRATION OF ORDER.
(a) When a support order or income-withholding order issued in another
State is registered, the registering tribunal shall notify the nonregistering party. The
notice must be accompanied by a copy of the registered order and the documents
and relevant information accompanying the order.
(b) The notice must inform the nonregistering party:
(1) that a registered order is enforceable as of the date of registration in
the same manner as an order issued by a tribunal of this State;
(2) that a hearing to contest the validity or enforcement of the registered
order must be requested within [20] days after notice;
(3) that failure to contest the validity or enforcement of the registered
order in a timely manner will result in confirmation of the order and enforcement of
the order and the alleged arrearages and precludes further contest of that order with
respect to any matter that could have been asserted; and
(4) of the amount of any alleged arrearages.
(c) Upon registration of an income-withholding order for enforcement, the
registering tribunal shall notify the obligor's employer pursuant to [the income-
withholding law of this State].
Comment
Sections 605-608 provide the procedure for the nonregistering party to
contest registration of an order, either because the order is allegedly invalid,
superseded, or no longer in effect, or because the enforcement remedy being sought
is opposed by the nonregistering party.
This section directs that the nonregistering party be fully informed of the
effect of registration. After such notice is given, absent a successful contest by the
nonregistering party, the order will be confirmed and future contest will be
precluded.
For a full explanation regarding the deletion of the authorization of notice
by first class mail, see the Comment to Section 305. The same considerations
apply to the deletion of the additional methods of notice originally prescribed in
this section.
SECTION 606. PROCEDURE TO CONTEST VALIDITY OR
ENFORCEMENT OF REGISTERED ORDER.
(a) A nonregistering party seeking to contest the validity or enforcement of
a registered order in this State shall request a hearing within [20] days after notice
of the registration. The nonregistering party may seek to vacate the registration, to
assert any defense to an allegation of noncompliance with the registered order, or to
contest the remedies being sought or the amount of any alleged arrearages pursuant
to Section 607 (Contest of Registration or Enforcement).
(b) If the nonregistering party fails to contest the validity or enforcement of
the registered order in a timely manner, the order is confirmed by operation of law.
(c) If a nonregistering party requests a hearing to contest the validity or
enforcement of the registered order, the registering tribunal shall schedule the
matter for hearing and give notice to the parties of the date, time, and place of the
hearing.
Comment
Subsection (a) is derived in part from RURESA 40(b), under which the
"obligor" was directed to contest the registration of a foreign order within a short
period of time. This procedure is continued, but the terminology is changed to
"nonregistering party" because either the obligor or the obligee may seek to register
a foreign support order.
Moreover, subsection (a) is philosophically very different from RURESA
40, which directed that a registered order "shall be treated in the same manner as
a support order issued by a court of this state." A contest of the fundamental
provisions of the registered order is not permitted in the responding State. The
nonregistering party must return to the issuing State to prosecute such a contest
(obviously only as the law of that State permits). The procedure adopted here is
akin to the prohibition found in Section 315 against asserting a nonparentage
defense in a UIFSA proceeding. In short, raising a collateral issue in a UIFSA
proceeding is prohibited, but no attempt is made to preclude the issue from being
litigated in another, more appropriate forum if otherwise allowed by that forum.
On the other hand, the respondent may assert defenses such as "payment" or
"the obligation has terminated" to allegations of past noncompliance with the
registered order. Similarly, a constitutionally-based attack may always be asserted,
i.e., an alleged lack of personal jurisdiction over a party by the issuing tribunal.
There is no defense, however, to the registration of a valid foreign support order.
Subsection (b) precludes an untimely contest of a registered support order.
As noted above, the nonregistering party is free to seek redress in the issuing State
from the tribunal with continuing, exclusive jurisdiction over the support order.
Subsection (c) directs that a hearing be scheduled when the nonregistering
party contests some aspect of the registration. At present, federal regulations
govern the allowable time frames for contesting income withholding in IV-D cases.
See 42 U.S.C. 666(b). Additional, codification of the procedure process is
unwise.
For a full explanation regarding the deletion of the authorization of notice
by first class mail, see the Comment to Section 305. The same considerations
apply to the deletion of the additional methods of notice originally identified in this
section.
SECTION 607. CONTEST OF REGISTRATION OR ENFORCEMENT.
(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 limitation under Section 604 (Choice of Law)
precludes enforcement of some or all of the arrearages.
(b) If a party presents evidence establishing a full or partial defense under
subsection (a), a tribunal may stay enforcement of the registered order, continue the
proceeding to permit production of additional relevant evidence, and issue other
appropriate orders. An uncontested portion of the registered order may be enforced
by all remedies available under the law of this State.
(c) If the contesting party does not establish a defense under subsection (a)
to the validity or enforcement of the order, the registering tribunal shall issue an
order confirming the order.
Comment
Subsection (a) places the burden on the nonregistering party to assert
narrowly defined defenses to registration of a support order.
If the obligor is liable for current support, under subsection (b) the tribunal
must enter an order to enforce that obligation. Proof of arrearages must result in
enforcement; under the Bradley Amendment, 42 U.S.C. 666(a)(10), all States are
required to treat child support payments as final judgments as they come due (or
lose federal funding). Therefore, such arrearages are not subject to retroactive
modification.
SECTION 608. CONFIRMED ORDER. 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.
Comment
The policy determination that a foreign support order may need to be
confirmed by the forum tribunal is derived from RURESA 40, which incidentally
did not explain the details of the confirmation procedure. Under UIFSA,
confirmation of an order may be the result of operation of law because of a failure
to contest or an unsuccessful contest after a hearing. Either method precludes
raising any issue that could have been asserted in a hearing. Confirmation of a
foreign support order validates both the terms of the order and the asserted
arrearages. See Chapman v. Chapman, 205 Cal. App. 3d 253, 252 Cal. Rptr. 359
(1988).
PART 3. REGISTRATION AND MODIFICATION
OF CHILD-SUPPORT ORDER
SECTION 609. PROCEDURE TO REGISTER CHILD-SUPPORT
ORDER OF ANOTHER STATE FOR MODIFICATION. A party or support
enforcement agency seeking to modify, or to modify and enforce, a child-support
order issued in another State shall register that order in this State in the same
manner provided in Part 1 if the order has not been registered. A [petition] for
modification may be filed at the same time as a request for registration, or later.
The pleading must specify the grounds for modification.
Comment
Sections 609 through 614 deal with situations in which it is permissible for
a registering State to modify the existing child support order of another State. A
petitioner wishing to register a support order of another State for purposes of
modification must conform to the general requirements for pleadings in Section 311
(Pleadings and Accompanying Documents), and follow the procedure for
registration set forth in Section 602 (Procedure To Register Order for
Enforcement). If the tribunal has the requisite jurisdiction over the parties as
established in Section 611, modification may be sought in conjunction with
registration and enforcement, or at a later date after the order has been registered,
confirmed, and enforced.
SECTION 610. EFFECT OF REGISTRATION FOR MODIFICATION.
A tribunal of this State may enforce a child-support order of another State
registered for purposes of modification, in the same manner as if the order had been
issued by a tribunal of this State, but the registered order may be modified only if
the requirements of Section 611 (Modification of Child-Support Order of Another
State) have been met.
Comment
An order registered for purposes of modification may be enforced in the
same manner as an order registered for purposes of enforcement. But, the power of
the forum tribunal to modify a child support order of another tribunal is limited by
the specific factual preconditions set forth in Section 611.
SECTION 611. MODIFICATION OF CHILD-SUPPORT ORDER OF
ANOTHER STATE.
(a) After a child-support order issued in another State has been registered in
this State, the responding tribunal of this State may modify that order only if
Section 613 does not apply and after notice and hearing it finds that:
(1) the following requirements are met:
(i) the child, the individual obligee, and the obligor do not reside in
the issuing State;
(ii) a [petitioner] who is a nonresident of this State seeks
modification; and
(iii) the [respondent] is subject to the personal jurisdiction of the
tribunal of this State; or
(2) the child, or a party who is an individual, is subject to the personal
jurisdiction of the tribunal of this State and all of the parties who are individuals
have filed written consents in the issuing tribunal for a tribunal of this State to
modify the support order and assume continuing, exclusive jurisdiction over the
order. However, if the issuing State is a foreign jurisdiction that has not enacted a
law or established procedures substantially similar to the procedures under this
[Act], the consent otherwise required of an individual residing in this State is not
required for the tribunal to assume jurisdiction to modify the child-support order.
(b) Modification of a registered child-support order is subject to the same
requirements, procedures, and defenses that apply to the modification of an order
issued by a tribunal of this State and the order may be enforced and satisfied in the
same manner.
(c) A tribunal of this State may not modify any aspect of a child-support
order that may not be modified under the law of the issuing State. If two or more
tribunals have issued child-support orders for the same obligor and child, the order
that controls and must be so recognized under Section 207 establishes the aspects of
the support order which are nonmodifiable.
(d) On issuance of an order modifying a child-support order issued in
another State, a tribunal of this State becomes the tribunal having continuing,
exclusive jurisdiction.
[ 611(e) moved to 614, infra]
Comment
As long as the issuing State retains its continuing, exclusive jurisdiction
over its child support order, a registering sister State is precluded from modifying
that order. This is a very significant departure from the multiple-order, multiple-
modification system of RURESA. However, if the issuing State no longer has a
sufficient interest in the modification of its order under the factual circumstances
described in this section, after registration the responding State may assume the
power to modify. Note that under UIFSA a responding State does not have
authority to modify a spousal support order; modification of a spousal support order
is restricted to the original issuing tribunal. See Sections 205(f) and 206(c), supra.
Under the procedure established by RURESA, after a support order was
registered for the purpose of enforcement it was treated as if it had originally been
issued by the registering tribunal. Most States interpreted the RURESA registration
provisions as also authorizing prospective modification of the registered order, see,
i.e., Lagerwey v. Lagerwey, 681 P.2d 309 (Alaska 1984); In re Marriage of Aron,
224 Cal. App. 3d 1086 (1990); MacFadden v. Martini, 119 Misc. 2d 94, 463
N.Y.S.2d 674 (1983); Pinner v. Pinner, 33 N.C. App. 204, 234 S.E.2d 633 (1977).
In sum, by its terms RURESA contemplated the existence of multiple support
orders, none of which was directly related to any of the others. Although the
issuing tribunal under RURESA retained a version of continuing, exclusive
jurisdiction to modify its own order, that power was not exclusive. Tribunals in
other States often assumed jurisdiction to enter new orders or to modify an out-of-
state support order.
Under UIFSA, registration is subdivided into distinct categories:
registration for enforcement, for modification, or both. UIFSA is based on
recognizing the truism that when a foreign support order is registered for
enforcement, the rights of the parties affected have been previously litigated.
Because the obligor already has had a day before an appropriate tribunal, an
enforcement remedy may be summarily invoked. On the other hand, modification
of an existing order presupposes a change in the rights of the parties. In fact, even
under RURESA more elaborate procedures were required by most States prior to
the issuance of a modified order. The requirements for modification of a child
support order are much more explicit and restrictive under UIFSA.
Under UIFSA a tribunal may modify an existing child support order of
another State only if certain quite limited conditions are met. First, the tribunal
must have all the prerequisites for the exercise of personal jurisdiction required for
rendition of an original support order. Second, one of the restricted fact situations
described in subsection (a) must be present. This section, which is a counterpart to
Section 205(b) (Continuing, Exclusive Jurisdiction), establishes the conditions
under which the continuing, exclusive jurisdiction of the issuing tribunal is
released. The degree to which new standards are established is illustrated by
comparing UIFSA to the Uniform Child Custody Jurisdiction Act. Sections 12-14
of the UCCJA provide general principles for the judicial determination of an
appropriate fact situation for subsequent modification of an existing custody order
by another court. In contrast, UIFSA establishes a set of "bright line" rules which
must be met before a tribunal may modify an existing child support order. The
intent is to eliminate multiple support orders to the maximum extent possible
consistent with the principle of continuing, exclusive jurisdiction that pervades the
Act.
The UIFSA system begins with Section 205, which mandates that the
continuing, exclusive jurisdiction of the issuing tribunal remains intact as long as
one individual party or the child continues to reside in the issuing State, or unless
the parties mutually agree to the contrary. This is also the standard for recognition
of sister state custody orders under the federal Parental Kidnapping Prevention Act,
28 U.S.C. 1738A. Once every individual party and the child leave the issuing
State, the continuing, exclusive jurisdiction of the issuing tribunal to modify its
order terminates, although its order remains in effect and enforceable until it is
modified by another tribunal with authority to do so under the Act. If and when the
order is modified by a tribunal of another State, the basic principle of UIFSA is
further ratified. The order of the modifying tribunal becomes the operative
"controlling order" and the modifying tribunal assumes continuing, exclusive
jurisdiction over the only operative child support order.
Under subsection (a)(1), the individual parties affected by the initial order
must have moved from the issuing State before a tribunal in a new forum may
modify. In the overwhelming majority of cases, the party seeking modification
must seek that relief in a new forum, almost invariably the State of residence of the
other party. This rule applies to either obligor or obligee, depending on which of
those parties seeks to modify. Proof of the fact that neither individual party nor the
child continues to reside in the issuing State may be made directly in the forum
State; no purpose would be served by requiring the petitioner to return to the
original issuing State for a document to confirm the fact that none of the relevant
persons still lives there.
The policies underlying the change affected by subsection (a)(1)
contemplate that the issuing State has lost continuing, exclusive jurisdiction and
that the obligee may seek modification in the obligor's State of residence, or that
the obligor may seek a modification in the obligee's State of residence. This
restriction attempts to achieve a rough justice between the parties in the majority of
cases by preventing a litigant from choosing to seek modification in a local tribunal
to the marked disadvantage of the other party. For example, an obligor visiting the
children at the residence of the obligee cannot be validly served with citation
accompanied by a motion to modify the support order. Even though such personal
service of the obligor in the obligee's home State is consistent with the
jurisdictional requisites of Burnham v. Superior Court, 495 U.S. 604 (1990), the
motion to modify does not fulfill the requirement of being brought by "a
[petitioner] who is a nonresident of this State ." In short, the obligee is required
to register the existing order and seek modification of that order in a State which
has personal jurisdiction over the obligor other than the State of the obligee's
residence. Most typically this will be the State of residence of the obligor.
Similarly, fairness requires that an obligee seeking to modify or modify and enforce
the existing order in the State of residence of the obligor will not be subject to a
cross-motion to modify custody or visitation merely because the issuing State has
lost its continuing, exclusive jurisdiction over the support order. The obligor is
required to make that motion in a State other than that of his or her residence; most
likely, the obligee's State of residence.
The procedure put in place by UIFSA is in marked contrast to the actual
system under RURESA. The multiple-order system provided virtually no incentive
for an obligor to seek to reduce an unfair or unduly burdensome child support
order. Rather, the obligor typically waited for an enforcement proceeding to be
filed in his State of residence and then sought modification in a forum which
presented him with the "hometown advantage." Two major arguments sustain the
choice of venue made by the Act. First, "jurisdiction by ambush" will be avoided.
That is, personal service on either the custodial or noncustodial party found within
the state borders will not yield jurisdiction to modify. Thus, parents seeking to
exercise rights of visitation, delivering or picking-up the child for such visitation, or
engaging in unrelated business activity in the State, will not be involuntarily
subjected to protracted litigation in an inconvenient forum. The chilling effect on
the exercise of parental contact with the child that the possibility of such litigation
might have is avoided. Second, disputes about whether the tribunal has jurisdiction
will be eliminated; submission by the petitioner to the State of residence of the
respondent alleviates this issue completely.
There are two exceptions to the rule of subsection (a)(1) requiring the
petitioner to be a nonresident of the forum in which modification is sought. First,
under subsection (a)(2) the parties may agree that a particular forum may serve to
modify the order. Second, Section 613, infra, applies if all parties have left the
original issuing State and now reside in the same new forum State.
Subsection (a)(2), which authorizes the parties to terminate the continuing,
exclusive jurisdiction of the issuing State by agreement, is based on several implicit
assumptions. First, the subsection applies even if the issuing tribunal has
continuing, exclusive jurisdiction because one of the parties or the child continues
to reside in that State. Subsection (a)(2) also is applicable if the individual parties
and the child no longer reside in the issuing State, but agree to submit the
modification issue to a tribunal in the petitioner's State of residence. Also implicit
in a shift of jurisdiction over the child support order is that the agreed-upon tribunal
must have subject matter jurisdiction and personal jurisdiction over at least one of
the parties or the child, and that the other party submits to the personal jurisdiction
of that forum. In short, UIFSA does not contemplate that absent parties can agree
to confer jurisdiction on a tribunal without a nexus to the parties or the child. But if
the other party agrees, either the obligor or the obligee may seek assertion of
jurisdiction to modify by a tribunal of the State of residence of either party. In
contrast to subsection (a)(1), the written consents of the individual parties to an
agreement to submit modification of child support to a tribunal of another State
must be filed with the issuing tribunal. The Act does not extend discretion to refuse
to yield jurisdiction to the issuing tribunal. In sum, the section contemplates that
mutual agreement of the parties to submit themselves to the continuing, exclusive
jurisdiction of another tribunal is sufficient to accomplish that goal.
The 1996 amendments provide a different rule if the issuing State is a
foreign nation that has not enacted UIFSA or a similar statute or procedure. The
policies underlying provisions of UIFSA are wholly inapplicable to a jurisdiction
which is unlikely to enact the Act or even a similar act. For example, suppose the
foreign jurisdiction has a prohibition against modification unless the parties
actually appear before the tribunal in person. Without the amendment, an obligor
who moved to the United States could have successfully warded off an attempt to
modify the child support obligation in his State of residence by asserting that the
obligee or child continued to reside in the foreign nation, which therefore had
continuing, exclusive jurisdiction under UIFSA. This despite the fact that the
issuing nation does not recognize a continuing, exclusive jurisdiction concept, and
will not modify its own child support order without the obligor being physically
present. Merely by refusing to agree to a modification and refusing to travel to the
issuing nation, the obligor would have been able to forestall modification
indefinitely. If the child support order is that of a foreign nation, the UIFSA State
of residence of the obligor may adjudicate whether modification of child support is
appropriate under its internal law.
Modification of child support under subsections (a)(1) and (a)(2) is distinct
from custody modification under the federal Parental Kidnapping Prevention Act,
42 U.S.C. 1738A, which provides that the court of continuing, exclusive
jurisdiction may "decline jurisdiction." Similar provisions are found in the UCCJA,
14. In those statutes the methodology for the declination of jurisdiction is not
spelled out, but rather is left to the discretion of possibly competing courts for case-
by-case determination. The privilege of declining jurisdiction, thereby creating the
potential for a vacuum, is not authorized under UIFSA. Once an initial child
support order is established, at all times thereafter there is an existing order in effect
to be enforced. Even if the issuing tribunal no longer has continuing, exclusive
jurisdiction, its order remains fully enforceable until a tribunal with modification
jurisdiction issues a new order in conformance with this article.
Subsection (b) states that if the forum has modification jurisdiction because
the issuing State has lost continuing, exclusive jurisdiction, the proceedings will
generally follow local law with regard to modification of child support orders.
However, subsection (c) prevents the modification of any final, nonmodifiable
aspect of the original order. For example, if child support was ordered through age
21 in accordance with the law of the issuing State and the law of the forum State
ends the support obligation at 18, modification by the forum tribunal may not affect
the duration of the support order to age 21. The 1996 amendment clarifies that
when multiple orders have been issued prior to the effective date of UIFSA, there
will almost certainly be nonmodifiable aspects at variance from the two or more
tribunals that have acted in the past. The amendment clarifies that it is the
controlling order's nonmodifiable aspects that prospectively determine those issues
throughout the minority of the child.
Subsection (d) provides that upon modification the new order becomes the
one order to be recognized by all UIFSA States, and the issuing tribunal acquires
continuing, exclusive jurisdiction.
SECTION 612. RECOGNITION OF ORDER MODIFIED IN ANOTHER
STATE. A tribunal of this State shall recognize a modification of its earlier child-
support order by a tribunal of another State which assumed jurisdiction pursuant to
this [Act] or a law substantially similar to this [Act] and, upon request, except as
otherwise provided in this [Act], shall:
(1) enforce the order that was modified only as to amounts accruing before
the modification;
(2) enforce only nonmodifiable aspects of that order;
(3) provide other appropriate relief only for violations of that order which
occurred before the effective date of the modification; and
(4) recognize the modifying order of the other State, upon registration, for
the purpose of enforcement.
Comment
Independent support orders relating to the same parties, a hallmark of
RURESA, are replaced in UIFSA by deference to the support order of a sister State.
This applies not just to the original order, but also to a modified child support order
issued by a second State under the standards established by Section 611
(Modification of Child Support Order of Another State). For the Act to function
properly, the original issuing State must recognize and defer to such a modified
order, and must regard its prior order as prospectively inoperative. Because the
modifying tribunal lacks the authority to direct the original issuing State to release
its continuing, exclusive jurisdiction, each State must recognize this effect by
enacting UIFSA.
Power is retained over post-modification by the original issuing tribunal for
remedial actions directly connected to its now-modified order. A tribunal may
enforce its subsequently modified order for violations of that order which occurred
before the modification. Further, aspects of the original order that have become
final or are not modifiable may be prospectively enforced by the issuing tribunal.
For example, a contractual obligation to provide a college education trust fund for a
child may be enforced under the law of the issuing State irrespective of the law of
the modifying State.
SECTION 613. JURISDICTION TO MODIFY CHILD-SUPPORT
ORDER OF ANOTHER STATE WHEN INDIVIDUAL PARTIES RESIDE
IN THIS STATE.
(a) If all of the parties who are individuals reside in this State and the child
does not reside in the issuing State, a tribunal of this State has jurisdiction to
enforce and to modify the issuing state's child-support order in a proceeding to
register that order.
(b) A tribunal of this State exercising jurisdiction under this section shall
apply the provisions of Articles 1 and 2, this article, and the procedural and
substantive law of this State to the proceeding for enforcement or modification.
Articles 3, 4, 5, 7, and 8 do not apply.
Comment
The Comment to Section 611(e) in the 1992 version of UIFSA contains the
following statement:
"Finally, note that if the parties have left the issuing state and now reside in the
same state, this section is not applicable. Such a fact situation does not present
an interstate matter and UIFSA does not apply. Rather, the issuing state has
lost its continuing, exclusive jurisdiction and the forum state, as the residence of
the parties, should apply local law without regard to the interstate Act."
The intent of the Comment was to state what seemed at the time to the
Drafting Committee to be obvious; an action between two citizens of the same State
is not a matter for interstate concern or application. A significant number of
knowledgeable Commentators, however, found the statement in the Comment to
be wholly inadequate. After all, the Commentary is not substantive law, but rather
merely expresses an interpretive opinion of the drafters of the Act. On reflection,
the Drafting Committee decided that the critics were correct; the Act should deal
explicitly with the possibility that the parties and the child no longer reside in the
issuing State and that the individual parties have moved to the same new State.
After all, there is an interstate aspect when one State purports to modify the child
support order of another State. Moreover, a literal reading of the Act could yield a
construction that the issuing State has lost its continuing, exclusive jurisdiction to
modify, but no State is permitted under UIFSA to take its place to do so.
This section is designed to make it clear that when the issuing State no
longer has continuing, exclusive jurisdiction and the obligor and obligee reside in
the same State, a tribunal of that State has jurisdiction to modify the child support
order and assume continuing, exclusive jurisdiction. Although the individual
parties must reside in the forum State, there is no requirement that the child must
also reside in the forum State (although the child must have moved from the issuing
State).
Finally, because modification of the child support order when all parties
reside in the forum is essentially an intrastate matter, subsection (b) withdraws
authority to apply most of the substantive and procedural provisions of UIFSA, i.e.,
those found in the Act other than in Articles 1, 2, and 6. Note, however, that the
provision in Section 611(c) forbidding modification of nonmodifiable aspects of the
controlling order applies. For example, the duration of the support obligation
remains fixed despite the subsequent residence of all parties in a new State with a
different duration of child support.
SECTION 614. NOTICE TO ISSUING TRIBUNAL OF
MODIFICATION. Within [30] days after issuance of a modified child-support
order, the party obtaining the modification shall file a certified copy of the order
with the issuing tribunal that had continuing, exclusive jurisdiction over the earlier
order, and in each tribunal in which the party knows the earlier order has been
registered. A party who obtains the order and fails to file a certified copy is subject
to appropriate sanctions by a tribunal in which the issue of failure to file arises.
The failure to file does not affect the validity or enforceability of the modified order
of the new tribunal having continuing, exclusive jurisdiction.
Comment
This section, derived from former Section 611(e) of the 1993 version of the
Act, is made a stand-alone provision to clarify the organization of the Act. Section
614 states a crucial proposition; the prevailing party must inform the original
issuing tribunal that it has lost continuing, exclusive jurisdiction over the child
support order. Thereafter, the original tribunal may not modify, or review and
adjust, the amount of child support. Notice to the issuing tribunal and other
affected tribunals that the former controlling order has been modified is crucial to
avoid the confusion and chaos of the multiple-order system UIFSA is designed to
replace.
Additionally, the 1996 amendment grants the tribunal the authority to
impose sanctions on a party who fails to comply with the requirement to give notice
of a modification to all interested tribunals. As originally enacted, this provision
could have been regarded as hortatory because no penalty was authorized for failure
to comply with the directive of the statute. The 1996 amendment not only provides
discretion for sanctions as appropriate, but also states that failure to notify of a
modification does not affect the validity of the modified order.
ARTICLE 7. DETERMINATION OF PARENTAGE
SECTION 701. PROCEEDING TO DETERMINE PARENTAGE.
(a) A tribunal of this State may serve as an initiating or responding tribunal
in a proceeding brought under this [Act] or a law or procedure substantially similar
to this [Act], the Uniform Reciprocal Enforcement of Support Act, or the Revised
Uniform Reciprocal Enforcement of Support Act to determine that the [petitioner]
is a parent of a particular child or to determine that a [respondent] is a parent of that
child.
(b) In a proceeding to determine parentage, a responding tribunal of this
State shall apply the [Uniform Parentage Act; procedural and substantive law of
this State,] and the rules of this State on choice of law.
Comment
This article authorizes a "pure" parentage action in the interstate context,
i.e., an action not joined with a claim for support. Either the mother or a man
alleging to be the father of a child may bring such an action. More commonly, an
action to determine parentage across state lines will also seek to establish a support
order under the Act. See Section 401 ([Petition] to Establish Support Order).
An action to establish parentage under UIFSA is to be treated identically to
such an action brought in the responding State.
ARTICLE 8. INTERSTATE RENDITION
SECTION 801. GROUNDS FOR RENDITION.
(a) For purposes of this article, "governor" includes an individual
performing the functions of governor or the executive authority of a State covered
by this [Act].
(b) The governor of this State may:
(1) demand that the governor of another State surrender an individual
found in the other State who is charged criminally in this State with having failed to
provide for the support of an obligee; or
(2) on the demand by the governor of another State, surrender an
individual found in this State who is charged criminally in the other State with
having failed to provide for the support of an obligee.
(c) A provision for extradition of individuals not inconsistent with this
[Act] applies to the demand even if the individual whose surrender is demanded
was not in the demanding State when the crime was allegedly committed and has
not fled therefrom.
Comment
This section tracks RURESA 5 (Interstate Rendition) with no substantive
change. Virtually no controversy has been generated regarding this portion of
RURESA. Arguably application of subsection (c) is problematic in situations in
which the obligor neither was present in the demanding State at the time of the
commission of the crime nor fled from the demanding State. The possibility that an
individual may commit a crime in a State without ever being physically present
there has elicited considerable discussion and some case law. See L. Brilmayer,
"An Introduction to Jurisdiction in the American Federal System," 329-335 (1986)
(discussing minimum contacts theory for criminal jurisdiction); Rotenberg,
"Extraterritorial Legislative Jurisdiction and the State Criminal Law," 38 Tex. L.
Rev. 763, 784-87 (1960) (due process requires that the behavior of the defendant
must be predictably subject to State's criminal jurisdiction); cf. Ex parte Boetscher,
812 S.W.2d 600 (Tex. Crim. App. 1991) (Equal Protection Clause limits disparate
treatment of nonresident defendants); In re King, 3 Cal.3d 226, 90 Cal. Rptr. 15,
474 P.2d 983 (1970), cert. denied 403 U.S. 931 (enhanced offense for nonresidents
impacts constitutional right to travel).
SECTION 802. CONDITIONS OF RENDITION.
(a) Before making demand that the governor of another State surrender an
individual charged criminally in this State with having failed to provide for the
support of an obligee, the governor of this State may require a prosecutor of this
State to demonstrate that at least [60] days previously the obligee had initiated
proceedings for support pursuant to this [Act] or that the proceeding would be of no
avail.
(b) If, under this [Act] or a law substantially similar to this [Act], the
Uniform Reciprocal Enforcement of Support Act, or the Revised Uniform
Reciprocal Enforcement of Support Act, the governor of another State makes a
demand that the governor of this State surrender an individual charged criminally in
that State with having failed to provide for the support of a child or other individual
to whom a duty of support is owed, the governor may require a prosecutor to
investigate the demand and report whether a proceeding for support has been
initiated or would be effective. If it appears that a proceeding would be effective
but has not been initiated, the governor may delay honoring the demand for a
reasonable time to permit the initiation of a proceeding.
(c) If a proceeding for support has been initiated and the individual whose
rendition is demanded prevails, the governor may decline to honor the demand. If
the [petitioner] prevails and the individual whose rendition is demanded is subject
to a support order, the governor may decline to honor the demand if the individual
is complying with the support order.
Comment
This section tracks RURESA 6 (Conditions of Interstate Rendition)
without significant change. Interstate rendition remains the last resort for support
enforcement, in part because a governor may exercise considerable discretion in
deciding whether to honor a demand for rendition of an obligor.
ARTICLE 9. MISCELLANEOUS PROVISIONS
SECTION 901. UNIFORMITY OF APPLICATION AND
CONSTRUCTION. This [Act] shall be applied and construed to effectuate its
general purpose to make uniform the law with respect to the subject of this [Act]
among States enacting it.
SECTION 902. SHORT TITLE. This [Act] may be cited as the Uniform
Interstate Family Support Act.
Comment
Renaming the Act reflects the dramatic departure from the structure of the
earlier interstate reciprocal support acts, URESA and RURESA.
SECTION 903. SEVERABILITY CLAUSE. If any provision of this [Act]
or its application to any person or circumstance is held invalid, the invalidity does
not affect other provisions or applications of this [Act] which can be given effect
without the invalid provision or application, and to this end the provisions of this
[Act] are severable.
SECTION 904. EFFECTIVE DATE. This [Act] takes effect
. . . . . . . . . . . . . . . . . . . . . .
SECTION 905. REPEALS. The following acts and parts of acts are hereby
repealed:
(1) . . . . . . . . . . . . . . . . . . . . .
(2) . . . . . . . . . . . . . . . . . . . . .
(3) . . . . . . . . . . . . . . . . . . . . .