From: Battle R. Robinson, Chair

John J. Sampson, Reporter

Date: February 28, 2001

Subject: First Draft, Amendments to UIFSA for Meeting March 16-18, 2001

Last Summer, on request of Commissioner Robinson, the Scope and Program Committee authorized drafting proposed amendments to the Uniform Interstate Family Support Act (1996). The first draft has been completed and is attached for your consideration for the meeting scheduled in Washington, DC, on March 16-18, 2001.

The amendments that we decide to propose are scheduled to be presented to the Conference for approval this summer. In order to expedite the process, a first draft has been prepared of potential amendments which have already been identified. This does not foreclose other changes which might be proposed before or during our March meeting.

The draft features several cleanup provisions and two or three sections of considerable importance. First, two new definitions have been added: "medical support" and "record," and two definitions have been expanded, "child support orders" and "state." Of these, the only change with substantive importance is the definition of "state," which identifies a "foreign reciprocating country" as a state subject to the right to have its orders enforced in the United States under the terms of UIFSA. Throughout the Act concepts such as "in writing" and "written agreement" are replaced with the now standard language of the conference that such matters should be "in a record."

Other changes in the law since the promulgation of UIFSA in July of 1996 include recognition of the federally inspired/mandated procedure for voluntary acknowledgement of paternity, which has been integrated into the act. References to URESA and RURESA have been deleted since those Acts have now been superseded by UIFSA in all the states. Modification proceedings have been deleted from the long-arm provision (Sec. 201), since some courts have used the language of the section to by-pass the UIFSA rules for modifications.

The first major amendment is found in § 205, Continuing Exclusive Jurisdiction, a.k.a., CEJ. The existing law has been modified to identify that the important time for measurement where the court has CEJ is at the time of the hearing. In addition many persons have urged that modification by the controlling order state be permitted even if all parties no longer reside there if the parties agree that the tribunal may exercise CEJ to modify.

There are a variety of important changes relating to dealing with foreign support orders. Initially it was thought that the federal government, through the cooperation of the Departments of State and Health and Human Services, in a relatively short period of time implement and regularize the process and identify those foreign nations whose orders should be registered and enforced in this country (and perhaps also identify those nations whose laws did not warrant such treatment). This process has proven to be far more complex than originally predicted. As a result individuals residing in the United States have often escaped their responsibility to support their children residing overseas. The definition of "state," supra, plus § 307, is designed to assist states in enforcing foreign support orders without interfering with the processes of the Departments of State and Health and Human Services in working toward a truly national system for dealing with foreign support orders, and to assure that United States support orders will be enforced in foreign nations.

Another important substantive clarification is found in § 604, Choice of Law. UIFSA has always intended that the first controlling order for child support will set the duration of support obligation. This is designed to end repeated litigation after an original order has been issued and one of the parties has moved to another state. Potential motions involve increasing the child support from 18 years to 21 years (or more), or decreasing an order for support to age 21 (or greater) to 18 or 19 years, depending on the variations of state laws. Rather than allowing relitigation over the duration of support which previously resulted in a checkerboard of judicial decisions, UIFSA seeks to fix the time of duration as of the initial controlling order. This principle has almost, but not quite, been universally accepted. On occasion a few states have extended the time for the child support obligation even though the obligor had fully complied with the order as initially rendered. Section 604 is rewritten to clarify that the intent of UIFSA is as described above.

Section 611 has been rewritten to make the modification of foreign child support orders more understandable and more comprehensive.

Finally, the committee should consider amendments to respond to incipient federal regulations tentatively proposed by the committee for "Interstate Regulations Initiative," a/k/a IRI. The IRI proposal attempts to deal with problems of allocation of child support payments when there are multiple claims against payments-that is, for TANF or AFDC reimbursement, current support, arrears, intrastate interest payments. These claims involve direct conflicts. The difficulties are compounded if one party or both parties have left the issuing state. At present there are concepts being considered which include the Case Manager's State, the Limited Services State, and the Controlling Order State. One possible approach, easily amendable, is presented in new sections 615-618. These sections establish a method whereby a request may be made for a state to enforce the order without modification after the issuing state no longer has a party or the child residing within its borders. Issuing tribunals in this circumstance have been reluctant to fulfill a duty of continuing to monitor and account for collections when all the parties have left the state.

Another possibility is to amend various sections of the act to provide for the functioning of entities such as the controlling order state/issuing state, the limited services/responding state, and the case manager/responding state. Although some would say that the act itself is already structured sufficiently to cover these matters if the states would follow current law, there is agitation from both the states and from OCSE to modify the procedure.

Your review of these materials should focus not only on the policy decisions, but also on the language of the statutory provisions and on the sufficiency of the Comments.

We are still receiving additional comments from Title IV Directors and other interested persons. We will summarize these suggestions in another memo that we will forward to you prior to our meeting.

We look forward to seeing you in D.C.