UNIFORM INTERSTATE FAMILY SUPPORT ACT
Last Amended or Revised in 2001
AMENDMENTS TO THE UNIFORM INTERSTATE FAMILY SUPPORT ACT (2001) ARE INDICATED BY UNDERSCORE AND STRIKEOUT
APPROVED AND RECOMMENDED FOR ENACTMENT
IN ALL THE STATES
at its
ANNUAL CONFERENCE
MEETING IN ITS ONE-HUNDRED-AND-TENTH YEAR
WHITE SULPHUR SPRINGS, WV
AUGUST 10-17, 2001
WITH PREFATORY NOTES AND COMMENTS
Copyright © 2001
By
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
December 2001
DRAFTING COMMITTEE FOR AMENDMENTS TO THE UNIFORM INTERSTATE FAMILY SUPPORT ACT
BATTLE R. ROBINSON, 104 W. Market Street, Georgetown, DE 19947, Chair
MARLIN J. APPELWICK, Court of Appeals, One Union Square, 600 University Street, Seattle, WA 98101
DEBORAH E. BEHR, Office of Attorney General, Dept. of Law, P.O. Box 110300, Juneau, AK 99811
CHARLOTTE M. BROOKINS-HUDSON, Council of the District of Columbia, 7th Floor North, Room 711, 441 Fourth Street NW, Washington, D.C. 20001
ROBERT L. McCURLEY, JR., Alabama Law Institute, P.O. Box 861425, Tuscaloosa, AL 35486
ROBERT C. ROBINSON, P.O. Box 568, 12 Portland Pier, Portland, ME 04112, Division Chair
KING BURNETT, P.O. Box 910, Salisbury, MD 21803
ELWAINE F. POMEROY, 1415 SW Topeka Boulevard, Topeka, KS 66612-1818
HARRY L. TINDALL, 1300 Post Oak Blvd., Suite 2200, Houston, TX 77056-3014, Enactment Plan Coordinator
JOHN J. SAMPSON, University of Texas Law School, 727 E. Dean Keeton Street, Austin, TX 78705-3299, Reporter
EX OFFICIO
JOHN L. McCLAUGHERTY, P.O. Box 553, Charleston, WV 253320533, President
ROBERT C. ROBINSON, P.O. Box 568, 12 Portland Pier, Portland, ME 041120568, Division Chair
AMERICAN BAR ASSOCIATION ADVISOR
JOSEPH W. BOOTH, Suite 160, 10990 Quivira, Overland Park, KS 66210
EXECUTIVE DIRECTOR
FRED H. MILLER, University of Oklahoma, College of Law, 300 Timberdell Road, Norman, OK 73019, Executive Director
WILLIAM J. PIERCE, 1505 Roxbury Road, Ann Arbor, MI 48104, Executive Director Emeritus
OBSERVERS
JANICE ALLEN, Anoka County Attorney Office, 2100 Third Avenue, Anoka, MN 55393-2265
BARRY BROOKS, Child Support Division, Office of the Texas Attorney General, P.O. Box 12017, Austin, TX 78711-2017
MARY HELEN CARLSON, Department of State, Office of Legal Advisor for Private International Law (DOS/L/PIL), 2201 C Street NW, Washington, D.C. 20520
GARY CASWELL, Office of the Attorney General of Texas, Manager, International Coordination OAG-CSD, 1139 Gembler Road, San Antonio, TX 78219
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
STEPHEN GRANT, U.S. Central Authority for International Child Support/DHHS/OCSE, 370 L’Enfant Promenade SW, Washington, D.C. 20447
MARGARET CAMPBELL HAYNES, Former Chair, U.S. Commission on Interstate Child Support, 3507 Rittenhouse Street NW, Washington, D.C., 20015
LILY MATHESON, U.S. Office of Child Support Enforcement, DHHS, Director of Policy, 370 L’Enfant Promenade SW, Washington, D.C. 20447
SUSAN NOTAR, Federal Office of Child Support Enforcement, 370 L’Enfant Promenade SW, Washington, D.C. 20447
SUSAN F. PAIKIN, Eastern Regional Interstate Child Support Association, 13 Deer Run, Little Baltimore, Newark, DE 19711
KIT PETERSON, American Academy of Matrimonial Lawyers, P.O. Box 1243, Norman, OK 73070
PAULA ROBERTS, Center for Law & Social Policy, 1616 P Street NW, Suite 150, Washington, D.C. 20036-1492
JAN ROTHSTEIN, Office of Child Support Enforcement, DHHS, 4th Floor, 370 L’Enfant Promenade SW, Washington, D.C. 20997
MARILYN RAY SMITH, National Child Support Enforcement Association, c/o Child Support Enforcement Division, Massachusetts Department of Revenue, P.O. Box 9492, Boston, MA 02205-9492
NATHANIEL (NICK) L. YOUNG, JR., President, National Council of Child Support Directors, 730 E. Broad Street, Richmond, VA 23219
UNIFORM INTERSTATE FAMILY SUPPORT ACT (2001)
TABLE OF CONTENTS
ARTICLE 1
GENERAL PROVISIONS
SECTION 101. SHORT TITLE. (Moved from Section 902). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
SECTION 102. DEFINITIONS.(Amended). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 103. TRIBUNAL OF STATE. (Unchanged). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
SECTION 104. REMEDIES CUMULATIVE. (Amended). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
PART 1. EXTENDED PERSONAL JURISDICTION
SECTION 201. BASES FOR JURISDICTION OVER NONRESIDENT. (Amended). . . . . . . . . . . . . . . . 17
SECTION 202. PROCEDURE WHEN EXERCISING JURISDICTION OVER NONRESIDENT
DURATION OF PERSONAL JURISDICTION. (Amended). . . . . . . . . . . . . . . . . . . . . . . . . .21
PART 2. PROCEEDINGS INVOLVING TWO OR MORE STATES
SECTION 203. INITIATING AND RESPONDING TRIBUNAL OF STATE. (Unchanged). . . . . . . . . . 22
SECTION 204. SIMULTANEOUS PROCEEDINGS IN ANOTHER STATE. (Unchanged). . . . . . . . . . .23
SECTION 205. CONTINUING, EXCLUSIVE JURISDICTION TO MODIFY
CHILD-SUPPORT ORDER. (Amended). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 206. ENFORCEMENT AND MODIFICATION OF SUPPORT ORDER BY TRIBUNAL
HAVING CONTINUING JURISDICTION TO ENFORCE CHILD-SUPPORT ORDER. (Amended). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
PART 3. RECONCILIATION OF MULTIPLE ORDERS
SECTION 207. RECOGNITION DETERMINATION OF CONTROLLING CHILD-SUPPORT
ORDER. (Amended). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 208. MULTIPLE CHILD-SUPPORT ORDERS FOR TWO OR MORE OBLIGEES. (Unchanged). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
SECTION 209. CREDIT FOR PAYMENTS. (Amended). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 210. APPLICATION OF [ACT] TO NONRESIDENT SUBJECT TO
PERSONAL JURISDICTION. (New). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 211. CONTINUING, EXCLUSIVE JURISDICTION TO MODIFY
SPOUSAL-SUPPORT ORDER. (New). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE 3
CIVIL PROVISIONS OF GENERAL APPLICATION
SECTION 301. PROCEEDINGS UNDER [ACT]. (Amended). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 302. ACTION PROCEEDING BY MINOR PARENT. (Unchanged). . . . . . . . . . . . . . . . . . . . 42
SECTION 303. APPLICATION OF LAW OF STATE. (Amended). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 304. DUTIES OF INITIATING TRIBUNAL. (Amended). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 305. DUTIES AND POWERS OF RESPONDING TRIBUNAL. (Amended). . . . . . . . . . . . . . 45
SECTION 306. INAPPROPRIATE TRIBUNAL. (Unchanged). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 307. DUTIES OF SUPPORT ENFORCEMENT AGENCY. (Amended). . . . . . . . . . . . . . . . . .48
SECTION 308. DUTY OF [ATTORNEY GENERAL STATE OFFICIAL OR AGENCY]. (Amended). . 51
SECTION 309. PRIVATE COUNSEL. (Unchanged). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 310. DUTIES OF [STATE INFORMATION AGENCY]. (Unchanged). . . . . . . . . . . . . . . . . . 52
SECTION 311. PLEADINGS AND ACCOMPANYING DOCUMENTS. (Amended). . . . . . . . . . . . . . . .53
SECTION 312. NONDISCLOSURE OF INFORMATION IN EXCEPTIONAL
CIRCUMSTANCES. (Amended). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 313. COSTS AND FEES. (Unchanged). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 314. LIMITED IMMUNITY OF [PETITIONER]. (Amended). . . . . . . . . . . . . . . . . . . . . . . . . .56
SECTION 315. NONPARENTAGE AS DEFENSE. (Amended). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57
SECTION 316. SPECIAL RULES OF EVIDENCE AND PROCEDURE. (Amended). . . . . . . . . . . . . . . .58
SECTION 317. COMMUNICATIONS BETWEEN TRIBUNALS. (Unchanged). . . . . . . . . . . . . . . . . . . 61
SECTION 318. ASSISTANCE WITH DISCOVERY. (Unchanged). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62
SECTION 319. RECEIPT AND DISBURSEMENT OF PAYMENTS. (Amended). . . . . . . . . . . . . . . . . . 62
ESTABLISHMENT OF SUPPORT ORDER
SECTION 401. [PETITION] TO ESTABLISH SUPPORT ORDER. (Amended). . . . . . . . . . . . . . . . . . . . 65
ARTICLE 5
ENFORCEMENT OF ORDER OF
ANOTHER STATE WITHOUT REGISTRATION
SECTION 501. EMPLOYER’S RECEIPT OF INCOME-WITHHOLDING ORDER OF
ANOTHER STATE. (Unchanged). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .67
SECTION 502. EMPLOYER’S COMPLIANCE WITH INCOME-WITHHOLDING ORDER OF
ANOTHER STATE. (Unchanged). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68
SECTION 503. EMPLOYER’S COMPLIANCE WITH MULTIPLE TWO OR MORE
INCOME-WITHHOLDING ORDERS. (Unchanged). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72
SECTION 504. IMMUNITY FROM CIVIL LIABILITY. (Unchanged). . . . . . . . . . . . . . . . . . . . . . . . . . .72
SECTION 505. PENALTIES FOR NONCOMPLIANCE. (Unchanged). . . . . . . . . . . . . . . . . . . . . . . . . . .73
SECTION 506. CONTEST BY OBLIGOR. (Amended). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .73
SECTION 507. ADMINISTRATIVE ENFORCEMENT OF ORDERS. (Unchanged). . . . . . . . . . . . . . . .75
ARTICLE 6
REGISTRATION, ENFORCEMENT, AND MODIFICATION OF SUPPORT ORDER
PART 1. REGISTRATION AND ENFORCEMENT OF SUPPORT ORDER
SECTION 601. REGISTRATION OF ORDER FOR ENFORCEMENT. (Amended). . . . . . . . . . . . . . . . . 77
SECTION 602. PROCEDURE TO REGISTER ORDER FOR ENFORCEMENT. (Amended). . . . . . . . . .78
SECTION 603. EFFECT OF REGISTRATION FOR ENFORCEMENT. (Unchanged). . . . . . . . . . . . . . . 80
SECTION 604. CHOICE OF LAW. (Amended). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
PART 2. CONTEST OF VALIDITY OR ENFORCEMENT
SECTION 605. NOTICE OF REGISTRATION OF ORDER. (Amended). . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 606. PROCEDURE TO CONTEST VALIDITY OR ENFORCEMENT OF
REGISTERED ORDER. (Unchanged). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .85
SECTION 607. CONTEST OF REGISTRATION OR ENFORCEMENT (Amended).. . . . . . . . . . . . . . . . 87
SECTION 608. CONFIRMED ORDER. (Unchanged). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
PART 3. REGISTRATION AND MODIFICATION OF CHILD-SUPPORT ORDER
SECTION 609. PROCEDURE TO REGISTER CHILD-SUPPORT ORDER OF
ANOTHER STATE FOR MODIFICATION. (Unchanged). . . . . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 610. EFFECT OF REGISTRATION FOR MODIFICATION. (Unchanged). . . . . . . . . . . . . . . 90
SECTION 611. MODIFICATION OF CHILD-SUPPORT ORDER OF ANOTHER STATE. (Amended). 90
SECTION 612. RECOGNITION OF ORDER MODIFIED IN ANOTHER STATE. (Amended). . . . . . . . 97
SECTION 613. JURISDICTION TO MODIFY CHILD-SUPPORT ORDER OF ANOTHER STATE
WHEN INDIVIDUAL PARTIES RESIDE IN THIS STATE. (Unchanged). . . . . . . . . . . . . .98
SECTION 614. NOTICE TO ISSUING TRIBUNAL OF MODIFICATION. (Unchanged). . . . . . . . . . . . 99
SECTION 615. JURISDICTION TO MODIFY CHILD-SUPPORT ORDER OF
FOREIGN COUNTRY OR POLITICAL SUBDIVISION. (New). . . . . . . . . . . . . . . . . . . . .100
ARTICLE 7
DETERMINATION OF PARENTAGE
SECTION 701. PROCEEDING TO DETERMINE PARENTAGE. (Amended). . . . . . . . . . . . . . . . . . . . .102
ARTICLE 8
INTERSTATE RENDITION
SECTION 801. GROUNDS FOR RENDITION. (Unchanged). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .103
SECTION 802. CONDITIONS OF RENDITION. (Amended). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
ARTICLE 9
MISCELLANEOUS PROVISIONS
SECTION 901. UNIFORMITY OF APPLICATION AND CONSTRUCTION. (Unchanged). . . . . . . . . 106
SECTION 902. SHORT TITLE. (Moved to Section 101)
SECTION 902. SEVERABILITY CLAUSE. (Unchanged). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .106
SECTION 903. EFFECTIVE DATE. (Unchanged). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .106
SECTION 904. REPEALS. (Unchanged). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
APPENDIX
UIFSA AMENDMENTS APPROVED JULY 1996. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .107
UNIFORM INTERSTATE FAMILY SUPPORT ACT (2001)
PREFATORY NOTE
I. BACKGROUND INFORMATION
In 1992 the National Conference of Commissioners on Uniform State Laws [hereafter NCCUSL, the Conference, or Uniform Law Commissioners] promulgated the UNIFORM INTERSTATE FAMILY SUPPORT ACT [hereafter UIFSA] as a complete replacement for the two then-existing uniform interstate support acts, the UNIFORM RECIPROCAL ENFORCEMENT OF SUPPORT ACT [URESA] and its revised version [RURESA]. In 1993 two States, Arkansas and Texas, enacted UIFSA. By the summer of 1996, 35 States had adopted the new Uniform Act. That year was a very eventful one in the history of UIFSA. First, a Drafting Committee was convened in Spring 1996 in response to requests from representatives of employer groups for more specific statutory directions regarding interstate child-support withholding orders. Second, the child-support community (primarily the IV-D programs funded by federal subsidies) requested review of the substantive and procedural provisions. As a result, significant amendments to UIFSA were adopted by the Conference in July, 1996.
The Conference promulgated UIFSA in July, 1996. Less than one month later, the U.S. Congress assured that nationwide acceptance of the amended Act was virtually certain. In the “welfare reform” legislation passed in August 1996, officially known as the PERSONAL RESPONSIBILITY AND WORK OPPORTUNITY RECONCILIATION ACT OF 1996 (PRWORA), the enactment of UIFSA, as amended, was mandated as a condition of state eligibility for the federal funding of child support enforcement, as follows:
Sec. 321. ADOPTION OF UNIFORM STATE LAWS [42 U.S.C. Section 666] is amended by adding at the end the following new subsection:
“(f) Uniform Interstate Family Support Act.—In order to satisfy [42 U.S.C. 654(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, Section 321, 110 Stat. 2221.
For a comprehensive history of the events leading up to the replacement of URESA and RURESA by UIFSA, see the Prefatory Notes to the 1992 and 1996 versions of the Act found in 9 UNIFORM LAWS ANNOTATED 253, 393 (2000), or John J. Sampson, Uniform Interstate Family Support Act with Unofficial Annotations, 27 FAM. L.Q. 91 (1993), and John J. Sampson, Uniform Interstate Family Support Act (1996), Statutory Text, Prefatory Note, and Commissioners Comments (with More Unofficial Annotations), 32 FAM. L.Q. 385 (1998).
In accordance with the congressional mandate, by 1998 all U.S. jurisdictions had enacted UIFSA. Thus, the several states have had between four and eight years of experience with the various iterations of the Act. Moreover, there has been an extraordinary amount of comprehensive training about the Act by the child support enforcement agencies throughout the nation and associated agencies and organizations of those agencies, e.g.: U.S. Department of Health and Human Services, Office of Child Support Enforcement (OCSE); National Child Support Enforcement Association (NCSEA); Eastern Regional Interstate Child Support Association (ERICSA); and, Western Interstate Child Support Enforcement Council (WICSEC). As a consequence, the provisions of UIFSA are far more familiar to those who must administer it than ever was true of its predecessor acts, URESA and RURESA.
In 2000 the child-support community again requested that the Act be reviewed and amendments suggested as appropriate. In response to this request, the Conference leadership appointed a new Drafting Committee (the earlier Committee had been disbanded). A single meeting in March 2001 led to significant substantive and procedural amendments that ultimately were approved by the Conference at its Annual Meeting in August, 2001. None of the amendments, however, make a fundamental change in the policies and procedures established in UIFSA 1996. The widespread acceptance of UIFSA is due primarily to the fact that representatives of the child support enforcement community mentioned above participated actively in the drafting of each version of the Act, including the amendments of 2001. In sum, although two sets of amendments have been propounded since the initial 1992 version of UIFSA, its basic principles have remained constant.
II. BASIC PRINCIPLES OF UIFSA
A. In General
1. RECIPROCITY NOT REQUIRED BETWEEN STATES. Reciprocal laws, the hallmark of RURESA and URESA, are not required under UIFSA. Although reciprocity became irrelevant in this country with the universal adoption of UIFSA, reciprocity continues to be an issue with regard to the recognition and enforcement of support orders of foreign countries and their political subdivisions, Sections 102(21), 104, 308. Respect and tolerance for the laws of other states and nations in order to facilitate child support enforcement is another prime goal of the Act. The 2001 amendments continue this perspective by explicitly recognizing that tribunals may extend the principle of comity to foreign support orders, Sections 104 and 210.
2. LONG-ARM JURISDICTION. UIFSA contains a broad provision for asserting long-arm jurisdiction to provide a tribunal in the State of residence of the spouse or a child entitled to support 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 proceeding. When jurisdiction over a nonresident is obtained, the tribunal may obtain evidence, provide for discovery, and elicit testimony through use of the same "information route" provided for two-state proceedings, Sections 210, 316-318. Amendments in 2001 to the basic long-arm provision, Section 201, clarified and strengthened the interrelationship between the assertion of such jurisdiction and the continuing nature of personal jurisdiction for enforcement and modification of a support order, Sections 205 and 206.
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; it does not include enforcement of other duties of support found in the statutes of a few states, such as requiring support of an elderly or disabled parent by an adult child, Sections 101(2),(18).
2. LOCAL LAW. UIFSA 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 in cases in which the tribunal asserts jurisdiction over a nonresident, (Sections 210, 316-318), and may have the effect of amending local law in long-arm cases.
(d) The choice-of-law rule 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 the registering and issuing State have different statutes of limitation for enforcement, the longer time limit applies, Section 604.
3. CONTINUING EXCLUSIVE JURISDICTION AND THE ONE-ORDER SYSTEM. Under URESA and 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. As far as is possible, under UIFSA the principle of continuing, exclusive jurisdiction aims to recognize that only one valid support order may be effective at any one time, Sections 205-207. This principle is carried out in Sections 203-211.
4. PRIVATE ATTORNEYS. UIFSA explicitly authorizes parties to retain private legal counsel in support proceedings, 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’s assistance of a supported family establishes an attorney-client relationship with the applicant, Section 307(c).
5. EFFICIENCY. UIFSA streamlines interstate proceedings as follows:
(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) Under the old system, the process began by requiring a local “initiating tribunal” to make a preliminary (and nonbinding) determination of a duty to support, and then forwarding the documents to a “responding tribunal” for a binding decision. Under UIFSA an individual party or support enforcement agency in the initiating State may file a proceeding directly in a tribunal in the responding State, Section 301. This innovation by UIFSA has proven to be a major contribution to efficient case management. In the unlikely event that some local action is needed, initiation of an interstate case in the initiating State is expressly made ministerial rather than a matter for adjudication or review by a tribunal.
(c) To facilitate efficient interstate establishment, enforcement, and modification of child support orders, forms sanctioned by the federal Office of Child Support Enforcement are available. Although developed in conjunction with the federal IV-D program, 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 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) Tribunals are directed to 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) A 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 an objection in a record within a fixed period of time, almost invariably the 20 days suggested originally, 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. UIFSA provides two direct enforcement procedures that do not require assistance from a tribunal. First, a notice may be sent directly to the obligor's employer in another State, Section 501, which triggers income withholding by that employer without the necessity of a hearing unless the employee objects. The Act details the procedure to be followed by the employer in response to an interstate request for direct income withholding, Sections 502-506. Additionally, the Act provides for direct administrative enforcement by the support enforcement agency of the obligor's State, Section 507.
2. REGISTRATION. Enforcement of a support order of another State or nation involving a tribunal of the forum State begins with the registration of the existing support order in a tribunal of the responding State, Sections 601-604. However, the registered order continues to be the order of the issuing State, Sections 605-608. The role of the responding State is limited to enforcing that order except in the very limited circumstances under which modification is permitted, infra.
D. Modifying a Support Order
1. REGISTRATION. The first step for a party (whether obligor or obligee) requesting a tribunal of another State to modify an existing child support order is to follow the identical procedure for registration as when enforcement is sought. All modification requests are subject to strict rules, infra, although different sequences are allowable: i.e., registration for enforcement and a later request for modification; or, a request for contemporaneous modification and enforcement.
2. MODIFICATION STATUTORILY RESTRICTED. Under UIFSA, the only tribunal that can modify a support order is one having continuing, exclusive jurisdiction over the support issue. As an initial matter, this is the tribunal that first acquires personal and subject matter jurisdiction over the parties and the support obligation. If modification of the order by the issuing tribunal is no longer appropriate, another tribunal may become vested with the continuing, exclusive jurisdiction necessary to modify the order. Primarily this occurs when neither the individual parties nor the child reside in the issuing State, or when the parties agree in a record that another tribunal may assume modification jurisdiction. Only then may another tribunal with personal jurisdiction over the parties assume continuing, exclusive jurisdiction and have jurisdiction to modify the order, Sections 205, 206, 603(c), 609-612. Further, except for modification by agreement, Section 205 and 207, or when the parties have all moved to the same new State, Section 613, the party petitioning for modification must be a nonresident of the responding State and must submit himself or herself to the forum State, which must have personal jurisdiction over the respondent, Section 611. The vast majority of the time this is the State in which the respondent resides. A colloquial short-hand summary of the principle is that ordinarily the movant for modification of a child support order “must play an away game.”
A 2001 amendment adds that even if the parties and child have moved from the issuing State they may agree that the tribunal that issued the controlling order will continue to exercise its continuing, exclusive jurisdiction, Section 205. This recognizes the fact that it may be preferable for the parties to return to a tribunal familiar with the issues rather than to be required to fully inform another tribunal of all the facts and issues that have been previously litigated. This exception may be particularly appropriate if both child-support and spousal-support are involved in the same case; under this Act, jurisdiction to modify the spousal support order is exclusively reserved to the issuing tribunal, regardless of where the parties reside.
Section 613 makes an obvious exception to the nonresident petitioner rule: if the child no longer resides in the issuing State and the parties have moved from the issuing State and by coincidence or design 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 places the duty on the party obtaining a modification to provide notice of the new order to all interested tribunals, and grants the tribunal authority to sanction a party who fails to perform this duty of notice.
To facilitate modification across international borders, another exception to the nonresident petitioner rule was added in 1996 for child support orders issued by foreign jurisdictions. The amendments of 2001 recodified this procedure in a wholly new provision. Section 615 expands on the right of a tribunal of one of the several states to modify a child support order of a foreign country or political subdivision if that jurisdiction is prevented from modifying its order under its local law and the modification would be consistent with standards of due process.
GENERAL PROVISIONS
SECTION 101. SHORT TITLE. This [Act] may be cited as the Uniform Interstate Family Support Act.
SECTION 102. 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:
(A) 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;
(B) 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
(C) an individual seeking a judgment determining parentage of the individual’s child.
(13) “Obligor” means an individual, or the estate of a decedent:
(A) who owes or is alleged to owe a duty of support;
(B) who is alleged but has not been adjudicated to be a parent of a child; or
(C) who is liable under a support order.
(14) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, or instrumentality, public corporation, or any other legal or commercial entity.
(15) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(16) “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].
(17) “Registering tribunal” means a tribunal in which a support order is registered.
(18) “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.
(19) “Responding tribunal” means the authorized tribunal in a responding State.
(20) “Spousal-support order” means a support order for a spouse or former spouse of the obligor.
(21) “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:
(A) an Indian tribe; and
(B) a foreign country or political subdivision jurisdiction that:
(i) has been declared to be a foreign reciprocating country or political subdivision under federal law;
(ii) has established a reciprocal arrangement for child support with this State as provided in Section 308; or
(iii) has enacted a law or established procedures for the issuance and enforcement of support orders which are substantially similar to the procedures under this [Act], the Uniform Reciprocal Enforcement of Support Act, or the Revised Uniform Reciprocal Enforcement of Support Act.
(22) “Support enforcement agency” means a public official or agency authorized to seek:
(A) enforcement of support orders or laws relating to the duty of support;
(B) establishment or modification of child support;
(C) determination of parentage; or
(D) to locate location of obligors or their assets; or
(E) determination of the controlling child-support order.
(23) “Support order” means a judgment, decree, or order, or directive, whether temporary, final, or subject to modification, issued by a tribunal 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.
(24) “Tribunal” means a court, administrative agency, or quasi-judicial entity authorized to establish, enforce, or modify support orders or to determine parentage.
Comment
The terms defined in UIFSA have undergone relatively little amendment since its original promulgation in 1992. Two new terms were added in 2001—“person” and “record,” found in Subsections (14) and (15), respectively. Other definitions have been amended slightly over the years, but none as significantly as the 2001 amendments to the definition of “State” in Subsection (21).
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 (23) 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, whether or not that duty has been the subject of an order by a tribunal. This broad definition includes both prospective and retrospective obligations to the extent they are imposed by the relevant state law.
For the limited purpose of resolving certain conflicts in the exercise of jurisdiction, Subsection (4) borrows the concept of the "home State of a child” from the UNIFORM CHILD CUSTODY JURISDICTION ACT (UCCJA) and its successor, the UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA), versions of which have been adopted in all 50 states, and incorporated into the federal PARENTAL KIDNAPPING PREVENTION ACT, 42 U.S.C. Section 1738A (PKPA).
Subsection (6) is written broadly to include an “income withholding order” based on "other legal process," as distinguished from “by order of a tribunal.” Some states issue such orders administratively, which are entitled to enforcement notwithstanding the fact that no judicial or quasi-judicial process is involved. Federal law requires that, in order to be eligible for federal subsidy monies, each State must 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. Section 666(b)(2). States have complied with this requirement in a variety of ways.
From its beginning UIFSA has permitted direct filing of an interstate proceeding in a responding State without an initial filing in an initiating tribunal. This has become the standard operating procedure for child support enforcement agencies. Thus, a petitioner in one State may seek to establish, enforce, or modify 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. Although Subsections (7), (8), (18) and (19) supply definitions for "initiating and responding State" and "initiating and responding tribunal," the procedure of “initiation and response” established by the predecessor acts of URESA and RURESA has become an anachronism since the universal enactment of UIFSA.
Until the 2001 amendments, the relationship between UIFSA and the prior uniform acts was captured in the reference to URESA and RURESA as “substantially similar” acts. This phrasing in Subsections (7), (18) and (21), and repeated several times throughout the Act, has been deleted everywhere it appears to avoid confusion that might arise from appearing to incorporate statutes that have been replaced. This is not to suggest in any way that support orders issued under URESA or RURESA are not fully enforceable under UIFSA. Until valid orders issued under those laws expire of their own terms or are replaced by new UIFSA orders, the support orders themselves will continue to have vitality, see Sections 201-211, infra. In short, UIFSA is specifically designed to function with the earlier acts without conflict. Support orders issued under one of the earlier acts should be honored and enforced in every State. But, despite their common roots, neither URESA nor RURESA can be said to be “substantially similar” with regard to the continuing, exclusive jurisdiction/one-order system established in UIFSA. States are directed to accord full enforcement remedies to support orders issued under the prior acts, but they must apply UIFSA restraint regarding modification. In situations involving multiple orders created under the former system, UIFSA mandates the application of its one-order rules to determine the single order that is entitled to prospective enforcement, see Section 207, infra.
The term "obligee" in Subsection (12) is defined in a broad manner, 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 child support. 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. Section 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 proceeding.
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 terms “obligor” and “obligee” inherently contain the legal obligation to pay or receive support, and both terms also implicitly refer to the individuals with a duty to support a child. The one-order system of UIFSA can succeed only if the respective obligations of support are adjusted as the physical possession of a child changes between parents or involves a third party caretaker. This must be accomplished in the context of modification, and not by the creation of multiple orders attempting to reflect each changing custody scenario. Obviously this issue is of concern not only to interstate child-support orders, but applies to intrastate orders as well.
The definition of “record” in new Subsection (14) conforms UIFSA to the Conference standard for legal documentation as established in the UNIFORM ELECTRONIC TRANSACTIONS ACT Section 102(13) [hereafter UETA]. Henceforth, the phrase “in a record” will replace the terminology “in writing” as the appropriate manner to recognize that electronic transmissions and signatures are increasingly appropriate substitutes for more traditional documentation.
The definitions of "responding State" and "responding tribunal" in Subsections (18) and (19) 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 and a responding tribunal in a situation where there is no initiating State or initiating tribunal.
Subsection (21) no longer requires reciprocity between the several states, formerly a cornerstone of RURESA and URESA. Public policy favoring enforcement of child support orders is sufficiently strong to warrant waiving any quid pro quo requirement between U.S. jurisdictions. This was true even before the issue was mooted by the enactment of UIFSA by all states by 1998.
The 1996 amendment to Subsection (21) clarified the position that UIFSA, like RURESA before it, does not waive reciprocity in the international context. A major amendment to the text of Subsection (21) was made in 2001 to make clear that a foreign country or political subdivision is defined as a “State” under the Act in three situations. First, a declaration by the U.S. State Department that a foreign jurisdiction is a reciprocating country or political subdivision is controlling for all states. Second, in the absence of such a declaration, each of the several states can make an arrangement with a foreign country or political subdivision for reciprocal enforcement of child support. Finally, a finding may be made that a foreign jurisdiction has a law or procedure substantially similar to UIFSA. That is, a tribunal may consider whether the foreign jurisdiction also has laws and procedures that allow for a U.S. order to be recognized in that foreign jurisdiction independent of a formal reciprocity agreement. The inclusion of foreign political subdivisions is necessary because in some countries the central government will not or cannot bind the subdivisions. For example, reciprocal arrangements with Canada are made on the province level and not with the Canadian federal government.
Although the vast bulk of child support establishment, enforcement, and modification in the United States is performed by the state IV-D agencies, see Part IV-D, SOCIAL SECURITY ACT, 42 U.S.C. Section 651 et seq., Subsection (22) defines the term "support enforcement agency" to include not only those entities, but also any other state or local governmental entities charged with establishing or enforcing support. The 2001 amendment simply adds another key task to the list of powers, that is, determination of the controlling order in multiple order situations.
In 1992 Subsection (24) introduced a completely new term, "tribunal," which replaced 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. The term "tribunal" accounts for the breadth of state variations in dealing with support orders. By 2001 the usage has become the standard in the child support enforcement community, although private practitioners who only rarely are involved in such cases may still find the term unfamiliar.
SECTION 103. TRIBUNAL OF STATE. The [court, administrative agency, quasi-judicial entity, or combination] [is the tribunal] [are the tribunals] of this State.
SECTION 104. REMEDIES CUMULATIVE.
(a) Remedies provided by this [Act] are cumulative and do not affect the availability of remedies under other law, including the recognition of a support order of a foreign country or political subdivision on the basis of comity.
(b) This [Act] does not:
(1) provide the exclusive method of establishing or enforcing a support order under the law of this State; or
(2) grant a tribunal of this State jurisdiction to render judgment or issue an order relating to [child custody or visitation] in a proceeding under this [Act].
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 proceeding 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.
The 2001 addition to Subsection (a) specifically recognizes the doctrine of comity as a legitimate function of state law that on a proper showing provides for the recognition of a foreign support order, see Mississippi Dept. Human Svcs. v. Shelnut, 772 So.2d 1041 (Miss. 2000). Although the determination by the U.S. State Department that a foreign nation is a reciprocating country is binding on all states, recognition of foreign support orders through comity is dependent on the law of each UIFSA State. The reference to “remedies under other law” is intended to recognize the principle of comity as developed in the forum State by statutory or common law, rather than to create a substantive right independent of that law.
New Subsection (b)(1) gives notice that UIFSA is not the only means for establishing or enforcing a support order with an interstate aspect. Examples abound. A potential child-support
obligee may voluntarily submit to the jurisdiction of another State to seek the full range of desired relief under the law of that State using intrastate procedures, rather than resorting to the interstate procedure provided by UIFSA. A nonresident married parent may choose to file a proceeding in the forum State for dissolution of the marriage, including property division and spousal support, and in conjunction seek an order regarding child custody and visitation and child support. A parent may submit to the jurisdiction of another State for a determination of parentage and child support. A support order resulting from each of these scenarios implicates UIFSA. Invariably the issuing tribunal will have continuing, exclusive jurisdiction over its controlling child or spousal support orders as provided by Sections 205, 207, 211, infra, with all of the attendant application of the Act to those orders.
On the other hand, Subsection (b)(2) states what is clear under U.S. Supreme Court decisions; the bases of jurisdiction for child custody and visitation orders and the jurisdiction for child-support orders run on separate tracks, compare May v. Anderson, 345 U.S. 528 (1953) with Kulko v. Superior Court, 436 U.S. 84 (1978). If the child-support order is sought under the authority of UIFSA, the most important aspect of this rule is that a child-support obligee utilizing the provisions of UIFSA to establish child support across State lines submits to jurisdiction for child support only, and does not submit to the jurisdiction of the responding State with regard to child custody or visitation.
JURISDICTION
PART 1.
EXTENDED PERSONAL JURISDICTION.
SECTION 201. BASES FOR JURISDICTION OVER NONRESIDENT.
(a) In a proceeding to establish, or 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 in a record, 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; [or]
(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.
(b) The bases of personal jurisdiction set forth in subsection (a) or in any other law of this State may not be used to acquire personal jurisdiction for a tribunal of the State to modify a child support order of another State unless the requirements of Section 611 or 615 are met.
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 proceeding. See Sections 202, 316, and 318, infra. The intent is to insure that every enacting State has a long-arm statute that is 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 proceeding 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 proceeding 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 an order for child support. However, almost all of the specific provisions relate to child support orders or determinations of parentage. This derives from the fact 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 possible 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. This restraint avoids a situation in which UIFSA grants long-arm jurisdiction for a spousal support order when the forum State has no correlative statute for property division in 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 (1973) Section 8, TEXAS FAMILY CODE Section 102.011, and NEW YORK FAMILY COURT ACT Section 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 a proceeding; 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 then one parent unilaterally decides to return to State A. It is a reasonable expectation that 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 Section 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, 436 U.S. 84 (1978).
When read together, the 2001 amendments to Subsection(a) deleting the term “modify” and the addition of new Subsection (b) are designed to preclude a tribunal of the forum from ignoring the restrictions on modification of child-support orders established by UIFSA. Some courts broadly construed the former reference to “modify” to justify ignoring the requirement of Section 611 that, absent agreement of the parties, a petitioner for modification of a child-support order of an issuing State when all parties have left that State must be a nonresident of the forum. The 2001 amendments make clear that a tribunal may not apply the long-arm provisions of Subsection (a), or any other law of the forum, and thereby assert that personal jurisdiction over both individual parties to a support order of another State is sufficient to modify that order. The limitations on the exercise of subject matter jurisdiction provided by Sections 611 and 615 must be observed irrespective of the existence of personal jurisdiction over the parties. Long-arm personal jurisdiction over the respondent, standing alone, is not sufficient to grant subject matter jurisdiction over a proposed modification to a tribunal of the State of residence of the petitioner, see LeTellier v. LeTellier, 40 S.W.3d 490, 90 A.L.R.5th 707 (Tenn. 2001), reversing 1999 WL 732487 (Tenn. App. 1999).
Subsection (b) is intended to cement the principle that modification of an existing order is not subject solely to the usual rules of personal jurisdiction over both parties. Even if a tribunal has personal jurisdiction over both parties, absent agreement of the parties it does not have subject matter jurisdiction to modify a support order of another State if one of the parties or the child reside in the issuing State at the time the modification proceeding is filed, see Section 207, infra. Even if everyone has moved away from the issuing State, a tribunal having personal jurisdiction over both parties may not modify the order if the petitioner is a resident of the tribunal forum—unless both parties are residents of the forum, see Sections 611 and 613, infra. Absent an agreement of the parties, in all other cases the movant must be a nonresident, and the tribunal must have personal jurisdiction over the respondent. Almost invariably the respondent will be a resident of the forum.
On rare occasion, however, the required personal jurisdiction over the respondent may be available only by virtue of the long-arm provisions of this section, which explains why Sections 201, 205, 207, 611 and 615 must read in conjunction with one another. An example of such a situation is as follows: the controlling child-support order was issued by a tribunal in State A, which of course had personal jurisdiction over the parties when it issued its order; the obligee and child presently reside in State B (a State the obligor has never even visited); the obligor presently is employed and resides in Nation X, although the obligor’s “home base” in the United States can be identified as State C where the headquarters of the obligor’s employer is located; and, finally, other than Nation X, the only states that can claim a nexus with the obligor sufficient to assert personal jurisdiction over him are State C and perhaps State A. Under this fact situation, it is necessary to invoke one of the long-arm bases of Section 201 to assert the personal jurisdiction over the obligor necessary to modify the order. Note that the long-arm statute may not be asserted in State B where the movant resides due to the restriction provided in Section 611, even if a basis exists for assertion of long-arm jurisdiction in that State. The employment connection in State C is likely to permit a tribunal in that State to assert jurisdiction to modify the support order based on the catch-all provision, Subsection (a)(8). Further, a tribunal in State A might also find that it has retained jurisdiction to modify the order under Subsection (a)(8) (remember both parties are nonresidents) given the absence or paucity of other U.S. jurisdictions with a nexus to the obligor, see Phillips v. Phillips, 826 S.W.2d 746 (Tex. App. 1992). Note, however, that such an action by the original issuing State must be exercised with extreme restraint or the restriction on modification in Section 611 will become a nullity. Concern that long-arm jurisdiction will be asserted in less compelling circumstances than presented in this hypothetical situation is not substantiated by experience with Section 201 in establishment cases filed since the enactment of UIFSA. In fact, overreaching assertions of long-arm jurisdiction have been dealt with satisfactorily on a case-by-case basis using due process constitutional or forum non conveniens grounds. Rains v. Dept. of Social & Health Serv., 989 P.2d 558 (Wash. App. 1998); Phillips v. Fallen, 6 S.W.3d 862 (Mo.1999), reversing 1999 WL 50159 (Mo. App. W.D.,1999); Abu-Dalbouh v. Abu-Dalbouh, 547 N.W.2d 700 (Minn. App.1996).
SECTION 202. PROCEDURE WHEN EXERCISING JURISDICTION OVER NONRESIDENT DURATION OF PERSONAL JURISDICTION. Personal jurisdiction acquired by a tribunal of this State in a proceeding under this [Act] or other law of this State relating to a support order continues as long as a tribunal of this State has continuing, exclusive jurisdiction to modify its order or continuing jurisdiction to enforce its order as provided by Sections 205, 206, and 211.
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
This section can be said to state a legal truism, albeit a useful one. That is, once a tribunal issues a support order binding on the parties, which must be based on personal jurisdiction by virtue of Kulko v. Superior Court, 436 U.S. 84 (1978) and Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957), jurisdiction in personam continues absent the statutorily specified reasons for its termination. The rule established by UIFSA is that the personal jurisdiction necessary to sustain enforcement or modification of an order of child support or spousal support persists as long as the order is in force and effect, even as to arrears, see Sections 205-207, 211, infra. This is true irrespective of the context in which the support order arose, e.g., divorce, UIFSA support establishment, parentage establishment, modification of prior controlling order, etc. Insofar as a child-support order is concerned, depending on specific factual circumstances a distinction is made between continuing, exclusive jurisdiction to modify an order and continuing jurisdiction to enforce an order, see Sections 205 and 206, infra. Authority to modify a spousal support order is permanently reserved to the issuing tribunal, Section 211, infra.
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
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 a proceeding 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
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 1992 UIFSA took a significant departure from the approach adopted by the UCCJA ("first filing"), by choosing the “home State of the child” as the primary method for resolving competing jurisdictional disputes, thereby adopting the choice of the federal PARENTAL KIDNAPPING PREVENTION ACT, 28 U.S.C. 1238A Section (C). Given the pre-emptive nature of the PKPA, and the possibility that custody and support will both be involved in some cases, the PKPA/UIFSA choice for resolving disputes between competing jurisdictional assertions was followed in 1997 by the decision of the Conference to replace the UCCJA with the UCCJEA. If the child has no home State, however, "first filing" will continue to control.
SECTION 205. CONTINUING, EXCLUSIVE JURISDICTION TO MODIFY CHILD-SUPPORT ORDER.
(a) A tribunal of this State issuing that has issued a child-support order consistent with the law of this State has and shall exercise continuing, exclusive jurisdiction over a to modify its child-support order if the order is the controlling order and:
(1) as long as at the time of the filing of a request for modification this State remains is 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 even if this State is not the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued, the parties consent in a record or in open court that the tribunal of this State may continue to exercise jurisdiction to modify its order.
(b) A tribunal of this State issuing that has issued a child-support order consistent with the law of this State may not exercise its continuing, exclusive 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].:
(1) all of the parties who are individuals file consent in a record with the tribunal of this State that a tribunal of another State that has jurisdiction over at least one of the parties who is an individual or that is located in the State of residence of the child may modify the order and assume continuing, exclusive jurisdiction; or
(2) its order is not the controlling order.
(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
If a tribunal of another State which has issued a child-support order pursuant to this [the Uniform Interstate Family Support Act] or a law substantially similar to this [that Act] which modifies a child-support order of a tribunal of this State, tribunals of this State shall recognize the continuing, exclusive jurisdiction of the tribunal of the other State.
(d) A tribunal of this State that lacks continuing, exclusive jurisdiction to modify a child-support order may serve as an initiating tribunal to request a tribunal of another State to modify a support order issued in that State.
(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 spousal 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. Section 1738A, the issuing tribunal retains continuing, exclusive jurisdiction over a child support order, except in very narrowly defined circumstances. First introduced by UIFSA in 1992, this principle is understood and widely accepted in all jurisdictions. “CEJ,” as it is known in the child-support enforcement world, is fundamental to the one-child-support-order-at-a-time principle of UIFSA. At first glance this section appears to have been significantly rewritten; certainly minor adjustments have been made to the substantive rules established. But, with the exception of the addition of and entirely new Subsection (a)(2), the sole intent and effect of the 2001 amendments is to reorganize the statutory language for greater clarity. The basic concept that the tribunal issuing a support order retains continuing, exclusive jurisdiction to modify that order remains the cornerstone of the Act.
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 child-support 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 [a.k.a. CEJ ] remains with the issuing State. Even if all parties and the child no longer reside in the State, the support order continues in existence and is fully enforceable unless and until a modification takes place in accordance with the requirements of Article 6, infra. Note, however, that the CEJ of the issuing State over a spousal support order is permanent, see Section 211, infra.
In 2001 a significant, albeit subtle amendment was made to Subsection (a)(1). The intent was not to make a substantive change, but rather to clarify the original intent of the Drafting Committee. First, the time to measure whether the issuing tribunal has continuing, exclusive jurisdiction to modify its order, or whether all parties and child have left the State, is explicitly stated to be at the time of filing a proceeding to modify the child support order. Second, substitution of the term "is the residence" for the term "remains the residence" makes clear that any interruption of residence of a party between the date of the issuance of the order and the date of filing the request for modification does not affect jurisdiction to modify. Thus, if there is but one order, it is the controlling order in effect and enforceable throughout the United States, notwithstanding the fact that everyone has left the issuing State. If the order is not modified during this time of absence, a return to reside in the issuing State by a party or child will immediately identify the proper forum at the time of filing a proceeding for modification. Although the statute does not speak explicitly to the issue, temporary absence should be treated in a similar fashion. Tempora