Presented by: Mary Dahlberg, Deputy Attorney General Margaret Campbell Haynes, Esq. Susan Friedman Paikin, Esq.

Transcription

1 Introduction to Processing International Child Support Cases Presented by: Mary Dahlberg, Deputy Attorney General Margaret Campbell Haynes, Esq. Susan Friedman Paikin, Esq.

2 NOW. Handling International Child Support Cases in

3 International Case Types Section 459A of the Social Security Act Foreign Reciprocating Countries (FRC) Declared by the Secretary of State, with concurrence of Secretary of HHS FRC must meet the mandatory requirements of subsection (b) Procedures for establishment of paternity and support for children and custodial parent Procedures for enforcement of support order, collection and distribution Cost-free services Central Authority 3

4 International Case Types Section 459A of the Social Security Act State reciprocal arrangement State may enter into reciprocal arrangements for the establishment and enforcement of support obligations with foreign countries that are not the subject of a declaration pursuant to subsection (a), to the extent consistent with Federal law. (subsection(d)) 4

5 International Case Types UIFSA - international cases falling within definition of state UIFSA 1996: 101 (19)(ii) - foreign country has enacted law or procedures substantially similar to those under UIFSA or [R]URESA UIFSA 2001: 101(21) (B) a foreign country or political subdivision that is Declared an FRC Has a reciprocal arrangement with the forum state Has enacted law or procedures substantially similar to UIFSA 5

6 International Case Types Comity case by case basis Direct application for services to IV-D agency 6

7 OCSE International Page Includes links to: FRC websites and other international resources OCSE international policy issuances International Dear Colleague Letters Dear Colleague Letters Information Memorandum Policy Interpretation Questions FRC country specific information, including forms Caseworker s Guide to Processing Cases with Foreign Reciprocating Countries OCSE Intergovernmental Referral Guide (IRG) 7

8 OCSE Caseworker s Guides Contain information on how to work cases with an FRC based on extensive discussions with the Central Authority representatives in the FRC, including: Information on legal structure, law, policies and procedures of the FRC Bilingual forms substantially similar to UIFSA forms and additional forms the FRC may require Updated as needed based on changes in law/process and on experience working cases with the FRC Vary in level of detail more recent guides are significantly more detailed 8

9 State Reciprocal Arrangements Parallel Unilateral Policy Declaration (PUPD) not agreements No specific services from other country U.S. agencies must follow federal regulations. Information for each state s PUPDs is on the IRG (which has been updated recently) Cases are handled much like FRC cases. General Caseworker s Guide has some best practices 9

10 Enforcement When There is No Reciprocal Declaration UIFSA establish that the other country has similar laws using registration process Comity courts may recognize the judicial decisions of another country as a matter of deference and mutual respect, even if no obligation exists to do so. Process is under state law, not UIFSA, and probably requires a complaint. 10

11 Other Web Resources NCSEA web site: Information for non-frcs: Overview, Addresses, Bilingual forms, Relevant laws European Judicial Network in Civil and Commercial Matters: Information about EU members: emancipation laws, service of process, etc., in general civil actions 11

12 Direct Applications OCSE Policy Interpretation Question (PIQ-99-01) Section 454(4)(A)(ii) of the Social Security Act (the Act) imposes a literal requirement that State agencies must provide Title IV-D services to anyone who has filed a proper application for services with the agency. OCSE has consistently interpreted the language, now found under section 454(4)(A)(ii), as imposing no residency or citizenship requirement as a precondition for Title IV-D services under the Act. 12

13 SOON. International Enforcement in 2015? One can only hope! 13

14 What Needs to Happen? The Senate gave advice and consent to ratify the Convention on September 29, Congress must approve the implementing legislation. States must adopt UIFSA The President must deposit documentation with the Hague Conference on Private International Law ratifying the Convention. 14

15 Goals of UIFSA 2008 Implement the Hague Convention Address international cases in general Build upon UIFSA

16 International Case Processing Hague Convention is not exclusive remedy for international orders. UIFSA already contained provisions re: bilateral agreements and state reciprocity arrangements. A tribunal may also recognize a foreign order on basis of comity. Some concepts CEJ and DCO do not fit neatly in international arena. 16

17 New Definition of Foreign Country UIFSA 2001 incl. qualified foreign countries within definition of State UIFSA 2008 has separate definition that incl. many, but not all, foreign nations: 17

18 A country, including a political subdivision thereof, other than the United States, that authorizes the issuance of support orders and: (A) has been declared under US law to be a foreign reciprocating country; (B) Has established a state reciprocal arrangement for child support; (C) Has law or procedures for the issuance and enforcement of support orders which are substantially similar to UIFSA procedures; or (D) In which the Convention is in force with respect to the United States. 18

19 Road Map Articles 1 6, and as applicable Article 7, apply to a support proceeding involving: A foreign support order; A foreign tribunal; or An obligee, obligor, or child residing in a foreign country. Articles 1 6 may be applied by a tribunal recognizing and enforcing a support order on basis of comity Article 7 applies only to Convention proceedings. 19

20 Article 7 Definitions Central Authority Foreign support agreements (maintenance arrangements) Procedure for registration, recognition and enforcement Limited modification 20

21 Enforcement under UIFSA 2008 Direct income withholding only for support orders issued by a state. No longer requires US employers to honor DIWs from foreign countries. 21

22 Registration for Enforcement Procedure for non-hague Foreign Support Orders UIFSA 2001 Procedure for Hague Foreign Support Orders New Article 7 Major difference Documents Time frames Defenses 22

23 Documents Required Non-Hague Foreign Support Orders Transmittal Letter Two copies of order, incl. one certified copy Sworn or certified statement re: arrears Certain obligor information Certain obligee information If applicable, name and address of person to whom support payments are to be sent Request for DCO, if appropriate 23

24 Documents Required (cont d) Hague Foreign Support Orders Transmittal Letter Complete text of order [or abstract by issuing foreign tribunal] Record that order is enforceable in issuing country If default order, a record attesting to due process re: notice & opportunity to be heard Record re: arrears Record re: automatic adjustment of support If necessary, a record re: receipt of free legal assistance in issuing country 24

25 Time Frame to Contest Non-Hague Foreign Support Orders Within [20] days after notice of registration Hague Foreign Support Orders Not later than 30 days after notice of registration Not later than 60 days after notice if contesting party does not reside in US 25

26 New Defenses Hague Foreign Support Orders Recognition and enforcement of order is manifestly incompatible with public policy, including failure of issuing tribunal to observe minimum standards of due process; Issuing tribunal lacked personal jurisdiction consistent with Section 201; Order is not enforceable in issuing country; If default order, there was a lack of due process re: notice & opportunity to be heard 26

27 Registration for Enforcement (cont d) If a tribunal of a state does not recognize a Convention support order because There was a lack of personal jurisdiction There was procedural fraud A proceeding between same parties with same purpose is pending before a tribunal of that state and that proceeding was filed first The order is a default order but the notice and opportunity to challenge did not satisfy due process Then the tribunal may not dismiss the proceeding without allowing a reasonable time for a party to request the establishment of a new Convention support order. In fact, in a recognition and enforcement case that the IV-D child support agency is handling, the agency must take all appropriate measures to request a child-support 27 order for the obligee.

28 Modification under UIFSA 2008 Sections limited to modification of orders issued by a State (as newly defined) Section 611(f) is new. Provides that an issuing state tribunal retains jurisdiction to modify its order if: One party resides in another state; and Other party resides outside the United States. 28

29 Modification (cont d) Section 615 applies where foreign country lacks or refuses to exercise its jurisdiction to modify under its laws State tribunal may modify Regardless of consent Regardless of residence of petitioner Article 7 governs modification in Hague proceedings State tribunal may not modify if obligee remains resident of issuing country Exceptions 29

30 Status of UIFSA 2008 Enacted in Florida, Maine, Missouri, Nevada, New Mexico, North Dakota, Rhode Island, Tennessee, Utah, Wisconsin 2012 introductions Hawaii, Minnesota, Puerto Rico, Washington 30

31 Status of Hague Convention Norway ratified the Convention in April 2011 Other States to join soon: Brazil 31

32 Convention Resources Practical Handbook for Caseworkers Country Profiles Electronic format with tick boxes Summary of child support laws and procedures Separate profiles for other types of maintenance 32

33 Mandatory Forms Transmittal Must accompany the Application Annex 1 of Convention under Miscellaneous documents related to Convention Acknowledgment Must send within 6 weeks of receipt of Application Annex 2 of Convention 33

34 Recommended Forms Four Applications Abstract of a Decision Statement of Enforceability of a Decision Statement of Proper Notice Financial Circumstances Form Status of Application Report Restricted Information Form 34

35 Practical Issues Mary Dahlberg 35

36 Currency Conversion Which exchange rate? Date of breach (date current support was due) Date of order Date order was registered in country for enforcement (Canada) Date of payment Key point: Conversion does not modify the order. 36

37 Registration and Currency Conversion Best practice include language on registration documents regarding the U.S. Dollar equivalent (usually as of the day the form is completed). Sample language: amount of alleged arrearage is 900 Euros as of [date on arrears statement] having a U.S. dollar equivalence of $1260 as of [date calculation made]. Use same format for monthly obligation. Write out months, do not use numbers. 37

38 Forms OCSE Dear Colleague Letter (DCL)11-22) U.S. IV-D agencies are required to use federal forms when sending cases to FRCs unless an FRC has provided alternative forms. See 45 CFR 303.7(a) Always check the Caseworker s Guide on the OCSE website when working with an FRC. 38

39 More from OCSE DCL FRCs are not required to use U.S. federal forms. Some FRCs have developed similar forms. States are encouraged to be as flexible as possible in processing cases from FRCs. See 45 CFR 303.7(d)(2)(ii) and (iii) If the information is legally sufficient, even if not on familiar forms, the IV-D agency should take appropriate action. 39

40 And Still More on Forms.. Forms developed by FRCs and OCSE may not have any verification. They are, however, substantially similar to U.S. federal forms and should be treated as such. See UIFSA section 311(b). When in doubt, contact your state s international liaison or OCSE. Please do not reject an application without first discussing it with an expert. 40

41 Translation All legal documents must be translated into the official language of the responding jurisdiction. Better response if you translate all correspondence. Cost is borne by the sending jurisdiction. Check Caseworker s Guide some countries prefer English. 41

42 Notarization Documents are not required to be notarized. Alternatives may be (state law): Signed under penalty of perjury; Sworn to and signed before an official authorized to administer an oath; an ambassador, minister, consul, vice consul, or consular agent of the United States; or any judge of a court of record having a seal. 42

43 Modification in International Cases Modification of a U.S. order in a foreign jurisdiction If CEJ would place jurisdiction in U.S. state, a modification in another jurisdiction will not be recognized. The U.S. order will continue to be enforced (or arrears will accrue under that order). Modification of a Foreign Order in U.S. State without CEJ If a foreign jurisdiction with CEJ applies to a U.S. state for modification, the U.S. state will decline due to lack of jurisdiction under our law. Possible exception (under UIFSA 2001) If a foreign country or political subdivision that is a state (reciprocal) will not or may not modify its order pursuant to its laws. 43

44 Modification Issues Duration of the modified support order How does U.S. tribunal address foreign support order for post-majority support? Payment of support for adult children Modification vs. limited enforcement UIFSA

45 Case Law Personal Jurisdiction Willmer v. Willmer (Cal. Ct. App. 2006) 144 Cal.App.4 th 951 Luxembourg ex rel. Ribiero v. Candaras (N.J. Super. Ct. Ch. Div. 2000) 768 A.2d 283 Subject Matter Jurisdiction Richardson v. Richardson (Cal. Ct. App. 2009) 179 Cal.App.4 th

46 Case Law Subject Matter Jurisdiction Foreman v. Foreman (N.C.Ct.App.2001) 550 S.E.2d 792 (great discussion on substantially similar laws and who makes the determination) Reciprocity Bouquety v. Bouquety (Fla.Ct.App.2006) 922 So.2d

47 Registration Case Law Liuksila v. Stoll (D.C.Ct.App.2005) 887 A.2d 501 State ex rel. Desselberg v. Peele (N.C.Ct.App.1999) 523 S.E.2d 125 Comity Rains v. Rains (Wash.Ct.App.1999) 989 P.2d 558 Kalia v. Kalia (Ohio Ct.App.2002) 783 N.E.2d

48 Case Law Notice and Opportunity IRMO Kohl (Ill.App.Ct. 2002) 778 N.E.2d 1169 Public Policy Pfeifer v. Cutshall (Pa.Super.2004) 851 A.2d 983 Taking of Evidence In re Letter Rogatory from the Nedenes District Cour (Norway) (S.D.N.Y.2003) 216 F.R.D

49 Can I DO THAT? Questions and Conundrums 49

50 Contact Information Mary Dahlberg, Deputy Attorney General California Office of the Attorney General Margaret Campbell Haynes, Esq. Center for the Support of Families Charlotte, NC Susan Friedman Paikin, Esq. Center for the Support of Families Newark, DE