UIFSA 2008It’s Time Has Come!

MARGARET CAMPBELL HAYNES

CENTER FOR THE SUPPORT OF FAMILIES

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Hague Maintenance Convention: Making of the Treaty

55 Hague member countries + 15 “observer” (non-Hague-member) countries and non-governmental organizations (e.g., NCSEA)

5 years of negotiations (2003 -2007)

U.S. signed the Hague Convention on November 23, 2007, committing to work toward ratification and implementation in the U.S.

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Hague Maintenance Convention: Current Status31 Countries have ratified

European Union countries (27) Norway Albania Bosnia and Herzegovina Ukraine

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US Ratification in 2016?

6/20/2013

The pigs are flying!

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What Has Happened The Senate gave advice and consent to ratify the treaty (Sept. 29, 2010)

Congress approved implementing legislation that the President signed on Sept. 24, 2014 Pub. L. 113-183 Preventing Sex Trafficking and

Strengthening Families Act• Requires a state to enact UIFSA 2008 in its next legislative

session as a condition of federal Title IV-D funding• UIFSA 2008 – state legislation that will implement the

Convention in U.S.

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What Needs to Happen All states must enact UIFSA 2008 by the effective date in

Pub. L. No. 113-183. The President must sign the instrument of ratification. THEN: United States will be able to deposit its instrument

of ratification with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, the depository for the Hague Conference. It will take effect for the U.S. on the first day of the first month that is not less than three months after the date of deposit.

Three current versions in use among states

1996 2001 2008

UIFSA – Tell Me More!

All versions built around two major concepts

Controlling Order Continuing, Exclusive Jurisdiction

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Changes from 1996 to 2001 - DCO

Determination of Controlling Order

Jurisdiction Who can request and when it occurs Notice Findings - consolidation of arrears

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Changes from 1996 to 2001 - Evidence

New definition for “record” allows electronic transmission of testimony

Requires tribunal to allow telephonic or other electronic testimony by non-resident party

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Changes from 1996 to 2001 – Modification Jurisdiction

Issuing state can modify its order even if no party lives there so long as both parties consent

A U.S. state can modify a foreign order, even if country would have CEJ, if issuing country cannot or will not modify its order

Long arm jurisdiction not applicable

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Changes from 1996 to 2001 – Choice of Law Clarification

Law of issuing state governs duration and interest Once arrears under old orders consolidated,

prospective interest is that of controlling order state

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Changes from 1996 to 2001 – Redirection of Payments

Applies when no party or child resides in issuing state

Request must be made by a support enforcement agency

Money sent instead to support enforcement agency of state where obligee now receiving IV-D services

Proposed new intergovernmental form

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Goals of UIFSA 2008

Implement the Hague Convention

Address international cases in general

Build upon UIFSA 2001

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UIFSA 2008 – New Definitions

Definition of “state” includes “tribes”

Separate definition of “foreign country” incl. many but not all foreign nations• Foreign reciprocating country• State reciprocal arrangement• Country with laws substantially similar to UIFSA• Convention country

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Services by Support Enforcement Agency

State legislature may choose between 2 alternatives• Must, upon request, provide services to all

petitioners• Must, upon request, provide services to a petitioner

residing in a state or requesting services thru a Central Authority (Hague or bi-lat case) AND may, upon request, provide services to an individual petitioner not residing in a state (all other foreign cases)

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UIFSA 2008 – Road Map

Articles 1 – 6 apply to support proceeding involving• A foreign support order• A foreign tribunal• An obligee, obligor, or child residing in a foreign country

Articles 1 – 6 may be applied by a tribunal recognizing and enforcing a foreign support order based on comity

Article 7 applies to Convention cases only

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Enforcement Under UIFSA 2008

Direct income withholding only for support orders issued by a state. No longer requires U.S. employers to honor DIWs from foreign countries.

Registration for enforcement is different if request for enforcement comes from a Hague country.

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Registration for Enforcement

Procedure for non-Hague foreign support orders• UIFSA 2001

Procedure for Hague foreign support orders• New Article 7• Major differencesoDocumentsoTime framesoDefenses

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Required Documents

Non-Hague Foreign Support Orders

• Transmittal letter • 2 copies of order, including 1

certified copy• Sworn or certified statement

of arrears• Certain obligor & obligee

information• Name/address of person to

whom support payments to be sent (if applicable)

• Request for DCO, if appropriate

Hague Foreign Support Orders• Transmittal letter• Complete text of order (or

abstract by issuing tribunal)• Record: order is enforceable in

issuing country • Record attesting to due process

(if default order)• Record: arrears and automatic

adjustment of support • Record of receipt of free legal

assistance in issuing country (if necessary)

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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 U.S.

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Defenses to Recognition & Enforcement of Convention Order Include

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

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Non-Recognition of Hague Order

If a tribunal does not recognize a Hague 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; or

The order is a default order but the notice and opportunity to challenge did not satisfy due process

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Non-Recognition of Hague Order (cont’d)

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

and the [governmental entity] must take all appropriate measures to request a child support order for the obligee if the application for recognition and enforcement was received through the Central Authority system.

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Modification of U.S. Support Order

A U.S. tribunal retains jurisdiction to modify an order it has issued if:

(1) one party resides in another U.S. state (as defined by UIFSA); AND

(2) the other party resides outside the United States

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Currency Conversion

Hague Convention does not address. UIFSA says when it must occur and who has

responsibility to prepare conversion but does not specify how to do currency conversion.

Recommended practice re: wording of NOTICE OF REGISTRATION OF FOREIGN SUPPORT ORDER:

The amount of the alleged arrearage is 900 Euros as of [12/25/YYYY] having a United States of America Dollar equivalence of $ 1080 as of [9/1/YYYY].

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U.S. Proposed Intergovernmental Forms

Federal-state workgroup

80 Fed. Reg. 46286 (Aug. 4, 2015)

60 day comment period

Three new forms• Transmittal #1 – Acknowledgment• Personal Identifiable Information (PII) Form• Request for Change of Support Payment Location

Pursuant to UIFSA Section 319(b)

Amendments to other forms

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Hague Convention Forms

Two mandatory forms: Transmittal and Acknowledgment

Number of recommended forms developed by the Forms Working Group

Applications not under penalty of perjury

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OCSE Resources

OCSE international web page: http://www.acf.hhs.gov/programs/css/international

International Case Processing Guides for Caseworkers

International Dear Colleague Letters to FRCs

Policy Guidance to States IM-15-01

http://www.acf.hhs.gov/programs/css/resource/uniform-interstate-family-support-act-2008-and-hague-treaty-provisions

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Convention Resources

From website, www.hcch.net, go to the page for Child Support and Family Maintenance Section

http://www.hcch.net/index_en.php?act=text.display&tid=191

• Convention text• Explanatory report• Mandatory and recommended forms• Country Profiles• Handbook for Caseworkers

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Practical Handbook for Caseworkers

Contains procedures, flowcharts and guides

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I-Support

Case management application to assist Central Authorities in processing Convention applications and EU regulation cases

iSupport Advisory Board

Workgroups – functional, technical and security

RFP – ProTech was selected vendor

Pilot

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I-Support Functionality

Ability to generate required and recommended forms in multiple languages

Secure transmission of messages and documents between Central Authorities

Allows case managers to track cases and complete required Convention tasks

May be able to handle payment transmissions and exchange in the future

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Questions??

Margaret (Meg) Campbell Haynes

mhaynes@csfmail.org

240-743-8007