ERICSA 53rd Annual Training Conference & Exposition May 1-5 Myrtle Beach, South Carolina

Transcription

1

2

3 What is a One-State Intergovernmental Case? Texas Colorado

4 One-State Interstate Actions Long-arm jurisdiction to establish paternity and/or a support order Using UIFSA 316, 317 and 318 re: evidence and discovery Requesting one-time assistance from another state Direct income withholding Service of process Using a federal enforcement remedy (e.g. IRS, MSFIDM, Insurance lien) Filing a direct lien Using an interstate administrative subpoena

5 One-State Establishment Using UIFSA long-arm jurisdiction to establish paternity and/or a support order Advantages More control Order issued within your state Order establishment may occur sooner Possible Barriers Dealing with an evasive obligor Difficulty in obtaining income information Send SPLS Limits Enforcement Remedies

6 What is Long-Arm Jurisdiction? A state may reach outside its borders to subject a person in another state to its jurisdiction if that person has minimum contacts with the state seeking to subject that person to its laws. See Kulko v Superior Court, 436 U.S. 84 (1978)

7 Long-Arm Jurisdiction There must be in personam jurisdiction over the non-resident party (in addition to the court having subject matter jurisdiction). In most other countries, the rule is that CS jurisdiction is available where the child resides regardless of the NCP s residence (U.S. follows this rule for custody & visitation-uccjea/pkpa)

8 Long-Arm and Minimum Contacts What are the recognized forms of contact that allow for a forum state to exercise jurisdiction over an out-ofstate individual? (UIFSA section 201) Individual is served personally when physically in forum state Individual waives jurisdictional objection explicitly or by filing a general response w/o mentioning jurisdictional issue. Individual resided in forum state with child Individual resided in forum state and provided prenatal assistance or support to child Child is in forum state due to acts or directives of the Individual Child may have been conceived by act of intercourse involving the Individual in forum state Individual asserts parentage in a putative father registry of the forum state Any other contact that would be consistent with the constitutions of the forum state and the U.S.

9 One-State - Evidence & Discovery Section 316 Special rules of evidence and procedure Section 317 Communication between tribunals Section Requesting assistance with discovery from a tribunal in another state

10 Request for One-Time Assistance The Transmittal #3 may be used to request one-time assistance from another agency.

11 Requests via Transmittal #3 What are the types of requests for assistance you can make to another state using a Transmittal #3? Certified orders, payment records, financial statements Service of process Genetic testing Securing answers to interrogatories Teleconferences and depositions Obtain financial data, proof of NCP s income Obtain necessary signatures Lien perfection Other

12 One-State Service of Process (SOP)

13 Service of Process Rules Whose SOP rule applies when you seek to serve process in another state, that of the forum state seeking service or that of the state in which the defendant is to be served? The forum state s rule governs because you must satisfy the decision-maker that service was accomplished based on the forum state s rule for service on an out-of-state defendant.

14 Service of Process Example FL is the forum state and TX is the defendant s state. FL requires that the defendant be served personally and that process not be left with anyone else. TX allows process to be left at the abode of defendant with someone over 18. If TX county sheriff leaves paperwork with a 25-year old at the defendant s house, it is not proper service under FL s laws. Must convince process server to serve based on FL s rule so decision-maker in FL will be satisfied with service. FL Forum State TX Defendant State

15 One-State Enforcement Direct Income Withholding (DIW) Requirements: Valid enforceable order Issued by your state Issued by another state but redirected to pay your state s SDU. Verified out-of-state employer Must issue DIW within 2 days of locating out-ofstate employment

16 Direct Income Withholding UIFSA 501 allows you to send an IWO to the employer in another state without the need to register the order for enforcement. UIFSA 502 requires the employer to honor the out-of-state IWO. UIFSA 502(d) states that the choice of law is that of the state of the employee s principal place of employment regarding: Employer s fee for withholding The CCPA limit for withholding The time within which the employer must comply with the IWO UIFSA 503 the employer follows the law of the employee s principal place of employment re: multiple order allocation and withholding

17 Serving local agent or business If the NCP works for a multistate or multinational company, you can serve the registered agent for service of process, preferably if there is one in your state, with IWOs and NMSNs. Check with the state Secretary of State to find a list of companies licensed to do business in the state and then find out who is designated as the resident agent for service of process. You can serve the resident agent based on that state s rules for service on resident agents. You can send an IWO or NMSN to a local site of a business in which the employee works in another state but: It is preferable to send to the company s home or payroll office. Be careful that there are franchisees and other non-directly related entities that may not have direct corp. connection. (e.g., Burger King franchisee in Myrtle Beach probably has no direct legal relation to a franchisee in Albany, NY)

18 Federally-Employed NCPs If the NCP is a military member or a DoD civilian employee, serve IWOs on DFAS in Cleveland, OH regardless of duty station site (Coast Guard not incl.). DFAS honors IWOs under state law or 42 USC 661. DFAS garnishes pay but not allowances (no BAH, BAS). DFAS also garnishes military retirement pay. Some other federal agencies use DFAS for federal civilian employees (State Dept & VA employees). NMSNs are not sent to DFAS for military families. TRICARE is the military health plan (incl Coast Guard). Direct the family member to TRICARE (after paternity acknowledged or established) to enroll in DEERS. NMSNs for civilian DoD employees are sent to DoD HR office appearing on new hire or quarterly wage match info through FPLS.

19 One-State Enforcement Other Tools Using a federal enforcement remedy (e.g. IRS, MSFIDM, Insurance lien) Using an Interstate Lien Form Using an Interstate Administrative Subpoena

20 IRS Offsets If the NCP owes a child support debt to more than one state, each state will submit its case for offset. The NCP receives a notice for each state's debt. The NCP will have the right to contest each state's debt amount.

21 MSFIDM Congress in 1998 authorized OCSE to operate the Multistate Financial Institution Data Match (MSFIDM) program. OCSE enters into agreements with multistate financial institutions (FI) to match OCSE s identifying data about obligors with arrearages to their FI account records. The matches are sent to state child support agencies. For more information, go to fidm@ssa.gov.

22 Interstate Lien Form File a lien in another state using the federal form 42 USC 654(9)(E) requires all IV-D programs to use the Notice of Lien form in interstate cases. IV-D programs may also use the form to impose liens in intrastate cases This form may be used to assert liens on assets discovered through the Financial Institution Data Match process. OCSE website See OCSE AT (12/20/13) re: lien form changes and a link to the form and its instructions. Remember that the perfection, priority and enforcement procedures of the lien filing will be based on the law of the state of the recording office. The form can be used for an obligor with multiple orders if specified on the form.

23 Interstate Administrative Subpoena If you need information from a person or entity in another state, use the federal Administrative Subpoena - authorized in 42 USC 654(9)(E). A state may elect to use this form in intrastate cases. This form is to be administratively issued by the IV-D program to subpoena financial or other information needed to establish, modify, or enforce a child support order. OCSE website See OCSE AT (12/20/13) re: Administrative Subpoena Form changes and a link to the form and its instructions. Some entities (like banks) may charge a fee for responding to the subpoena. Sometimes entities do not fully comply or comply at all. If the information is crucial, you may want to send a Trans. #3.

24 Is a Two-State Case Needed? When you need the help of another state, tribe, or country to establish, modify, or enforce an order, initiate a two-state case.

25 Two-State Intergovernmental Case You do not have minimum contacts to claim personal jurisdiction against out-of-state defendant. You do not have jurisdiction to modify so you have to send a case to the state with CEJ or which can assume CEJ. You don t have the authority to issue a direct income withholding order (DIW). Your DIW was not honored and you want the other state to enforce or file contempt on the employer. The defendant is residing/working on tribal land, the tribe has a IV-D program, and you want to establish or enforce against the defendant. The defendant resides in another country and you need to establish or enforce against the defendant.

26 One-State or Two-State Case? Work as a one-state case when possible. Don t hesitate to ask another state for limited assistance. File a two-state case when needed.

27