1 UNIQUE CHALLENGES TO OBTAINING AND ENFORCING INTERSTATE CASES Presented by: Victor V. Urso, Attorney, San Bernardino County Diane Brower, Attorney, Los Angeles County Patricia Erb, Attorney, Los Angeles County September, 2007

2 DETERMINE THE ISSUES & THE LAW Before you call or send a Transmittal Request, be sure you can advise the other Jurisdiction (OJ) of the “Issues” & the applicable “Law” that determine you are entitled to the “REMEDY” you are requesting. Don’t expect the OJ to do the homework on your Request, just as you wouldn’t want them to expect you to do the homework on their Request.

3 DO YOU HAVE A VALID ORDER? TEMPORARY OR PENDENTE LITE ORDERS FC4909(e): A temporary order issued ex parte or pending resolution of a jurisdictional conflict does not create continuing, exclusive jurisdiction in the issuing tribunal. But note: CCP : No petition filed pursuant to FC 2330 shall be dismissed pursuant to this chapter if any of the following conditions exist: (a) An order for child support has been issued in connection with the proceeding and the order has not been terminated…

4 DO YOU HAVE A VALID ORDER? DISMISSALS Was the action dismissed entered after your Order originated? FOREIGN ORDERS Was there a “Final Judgment” for Child Support in the Action you are Registering (Whether another State or Other County in Your State)? Was the Child Support Action CONSOLIDATED into a Family law Action? Did a Judgment “RESERVE CHILD SUPPORT” or “RESERVE JURISDICTION ON ALL OTHER ISSUES”?

5 RULES TO REMEMBER: First: There is no such thing as a “SIMPLE” question regarding an Interstate Case. Second: “NEVER” assume you are given “CORRECT” or “COMPLETE” information from the party or “AGENCY” (LCSA) requesting DCSS services.

6 Third: (A) The ISSUING STATE always retains the “DURATION” law regarding EMANCIPATION (FC4953). (B) The ISSUING STATE INTEREST LAW always applies on arrears accrued while that order was the controlling order (FC 4953). (C) The ISSUING STATE always retains JURISDICTION over SPOUSAL SUPPORT, including any modification or termination. (FC 4914).

7 Fourth: Though it may sound silly, before reviewing the Orders for CEJ and CONTROLLING ORDER, “always” verify who you are! INITIATING JURISDICTION or RESPONDING JURISDICTION This will help you properly focus on your course of action to remedy or answer the problem/question.

8 THE FOLLOWING INTERNET SITES SHOULD BE HELPFUL IN ACQUIRING THE LAW TO REVIEW IN MAKING YOUR DECISIONS REGARDING UIFSA QUESTIONS INTERNET SITES

9 Click on any state for that state’s information.

10 California State Profile Updated on 17 Apr 2007 Certified on 16 Dec 2004 Visitor No A. General / State-At-A-Glance B. UIFSA C. Reciprocity D. Age of Majority E. Statute of Limitations F. Support Details G. Income Withholding H. Paternity I. Support Order Establishment J. Support Enforcement K. Modification and Review/Adjustment L. Lump Sum Payments

11 THE UNITED STATES CODE CALIFORNIA FAMILY LAW CODE OF FEDERAL REGULATIONS

12 Interstate Scenarios Scenario 1 CA LCSA files a child support order for $400 per month in In 2002 CP mother moves to State A and NCP Dad moves to State B. CA sends State B an enforcement transmittal requesting registration and enforcement of current support and $3500 in arrears. In 2003 Dad states he has custody and State B ceases enforcement of current support and applies all incoming payments to arrears. In 2003 Dad files an arrears motion in State B and State B finds that Dad is paid in full. $400

13 Interstate Scenario 1 (continuation) Is this proper? State B was enforcing the arrears and had jurisdiction to determine the arrears. FC4955: NCP can contest amount of any alleged arrearages pursuant to FC4956. FC4956(a)(6): NCP can contest registration and has burden to prove full or partial payment has been made. 28 U.S.C. 1738B Full Faith and Credit for Child Support Orders Act (FFCCSOA)

14 However, FC 4953: Choice of law. The law of the issuing state governs the nature, extent, amount, and duration of current payments, the computation and payment of arrearages. UIFSA 2001 adds to 4953:… and accrual of interest on the arrearages, and the existence and satisfaction of other obligations under the support order. Interstate Scenario 1 (continuation)

15 UIFSA 2001 Comment: Ultimate responsibility for enforcement and final resolution of the obligor’s compliance with all aspects of the order belongs to the issuing state. Thus, the calculation of whether the obligor has fully complied with the payment of current support, arrears and interest is the duty of the issuing state. For example, the law of the issuing state governs whether a Social Security payment for a child of a disabled obligor should be credited against the support obligation. Interstate Scenario 1 (continuation)

16 Should the LCSA file a motion to modify current support? FC : The LCSA shall monitor child support cases and seek modifications when needed. Interstate Scenario 1 (continuation)

17 Variation of Scenario 1 but these facts were changed/added: State B court finds that NCP made direct payments to CP when she was aided and gives NCP credit for same. State B LCSA admits they did not serve CA LCSA with the motion. Interstate Scenario 2

18 Family Code § 4921(b)(5) states that a support agency shall within 14 days, exclusive of Saturdays, Sundays, and legal holidays, after receipt of a written communication in a record from the respondent or the respondent’s attorney, send a copy of the communication to the petitioner. 28 USC 1738B (c) requires the issuing court to have subject matter jurisdiction to hear the matter, personal jurisdiction over the contestants, and reasonable notice and opportunity to be heard to the contestants. Interstate Scenario 2 (continuation)

19 Minor is in foster care in State A. State A petitions LCSA in CA via transmittal #2 to establish a child support order. However, an existing support order is already established in State A in a dissolution. It is a “blanket” order (non- severable order) for 5 children. IJ states its law requires a new order when a minor is in foster care. Interstate Scenario 3

20  TN has CEJ and must modify their own order, establishing independent amounts for each child.  FC §4909(a): a tribunal that has issued a support order shall have continuing, exclusive jurisdiction to modify its support order as long as the state is the residence of the obligor, obligee, or the child (any one of the participants) at the time of the filing of the request for modification. Interstate Scenario 3 (continuation)

21 However, FC 4909(b)(1) allows CEJ to be waived if both parties file written consent with the state that has CEJ to allow another state that has jurisdiction over at least one of the parties to modify the support order and assume CEJ. Interstate Scenario 3 (continuation)

22 IJ sends CA LCSA a petition for paternity and support. NCP denies paternity. IJ refuses to set up genetic tests, citing UIFSA that it is CA’s responsibility. IJ indicates they will reimburse. However, we must pay for any draw that we schedule with our contracting lab. How can this be resolved? Interstate Scenario 4

23 TX is technically correct: 45 C.F.R (d)(2) requires the IJ to pay the costs of genetic testing. 22 CA CCR and require IJ to pay cost of genetic test costs and RJ to schedule the participants. Realistically, we as RJ request IJ to set up the genetic tests and pay for them. Sometimes, we front the cost with no reimbursement. Interstate Scenario 4 (continuation)

24 CA LCSA files a court order in 1992 for $300 per month. CP obtains CA disso in 1998 for $500 per month. Which order prevails? This is not a UIFSA CEJ situation! Interstate Scenario 5

25 FC §17404(d) permits parties to bring an independent action under other provisions of the Family Code and litigate the issues of support, custody, visitation, or protective orders. In that event, an order issued by the court in this action shall continue in effect until modified by a subsequent order. To the extent that the orders conflict, the court order last issued shall supersede all other orders and be binding upon all parties in that action. Interstate Scenario 5 (continuation)

26 What if CP’s dissolution judgment commencement date is prior to its filing? Is this a prohibited retro mod? Family Code §§ 3651(c)(1) and 3603: An order modifying or terminating a prior child support order may not apply to any amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate. Interstate Scenario 5 (continuation)

27 How do you audit the case? What if CP obtains dissolution in NV and NCP still resides in CA?  Remember, FC §4909(a): a tribunal that has issued a support order shall have continuing exclusive jurisdiction to modify its support order. Interstate Scenario 5 (continuation)

28  Best practice: controlling order determination Family Code § 4911(b)(2): if two or more child support orders have been issued by tribunals of this state or another state with regard to the same obligor and same child, a tribunal of this state having personal jurisdiction over both the obligor and individual obligee shall determine which order controls. Interstate Scenario 5 (continuation)

29 Germany petitions CA for enforcement of a German order. CA registers but NCP files timely objection, stating he never resided in Germany and has no / minimum contacts with Germany. How do we respond? International Scenarios Scenario 1

30 Germany is considered a state due to the bilateral agreement. FC4901(s): “State” means a state of the US, District of Columbia, etc. The term “state” also includes any of the following: (2) A foreign jurisdiction that has enacted a law or procedures substantially similar to this chapter, URESA or RURESA. International Scenario 1 (continuation)

31 German law only requires DP residence to obtain jurisdiction over NCP. German CCP 640(a). FC 4905 Bases for jurisdiction over non-resident: personally served, submits to jurisdiction, conception, general appearance, residence, etc. These do not apply in our scenario. International Scenario 1 (continuation)

32 Meet requirements of Kulko v. Superior Court, 436 U.S. 84 (1978), International Shoe (1945) 326 U.S. 310? FC4956 Contest of registration of enforcement. (a) Any party contesting registration has the burden to prove any of following defenses: (1) The issuing tribunal lacked personal jurisdiction over the contesting party. International Scenario 1 (continuation)

33 CP resides in the Philippines. We have no bilateral agreement. (For bilateral agreements, see for federal, and for state (click on reciprocity). Can we require CP to complete a UIFSA petition to make it easier for our courts/NCP to understand the request and respond? International Scenario 2

34 Where do I find international forms? Does every word of every order and birth certificate require translation or may I complete an abstract? Who can translate? International Scenario 2 (continuation)

35 Canada sends a petition to CA LCSA for enforcement of their 1990 order, ordering 100 Canadian dollars per month. International Scenario 3

36 Do we convert to American dollars before registering or only specify Canadian dollars on the registration statement? How do we convert money to determine arrears if there is a dispute? International Scenario 3 (continuation)