INTERNATIONAL CHILD SUPPORT: WHERE ARE WE NOW? ERICSA 50 th Annual Training Conference & Exposition ▪ May 19 – 23 ▪ Hilton Orlando Lake Buena Vista, Florida

International Update Margaret Campbell Haynes Center for the Support of Families ERICSA 50 th Annual Training Conference & Exposition ▪ May 19 – 23 ▪ Hilton Orlando Lake Buena Vista, Florida

Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance U.S. Goals – Minimal burden on IV-D agencies – Procedures that produce results and are accessible, prompt, efficient, cost-effective, responsive, and fair – Cost-free services in international child support cases

Countries Involved in Negotiations from

Negotiation Process 55 Hague member countries + 15 “observer” (non-Hague-member) countries and non- Governmental Organizations (e.g., NCSEA) Key Partners – OCSE, NCSEA, Department of State, Hague Permanent Bureau

Two Tracks 1)Applications through Central Authorities (CAs) – Children under the age of 21 (or 18 reservation) – Spousal support combined with child support if State has made a declaration to extend scope – Other maintenance obligations if State has made a declaration to extend scope 2)Direct request to a competent authority – Direct requests possible for any procedure available under internal law including establishment and modification – Convention procedures for recognition and enforcement available subject to some limitations

Current Status of Ratification Convention is in Effect! – Norway – Albania – Bosnia and Herzegovina

US Ratification in 2015? One can only hope!

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.

Goals of UIFSA 2008 Implement the Hague Convention Address international cases in general Build upon UIFSA 2001

Guiding Realities 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 UIFSA concepts – CEJ and DCO - do not fit neatly in international arena

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:

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.

Other Definitions “State” – a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession under US jurisdiction. Term includes an Indian nation or tribe.

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.

Article 7 Application solely to proceedings under the Hague Convention Definitions – Central Authority Secretary of US Dept of Health and Human Services with delegated functions to state child support agencies Foreign support agreements (maintenance arrangements) Procedure for registration, recognition and enforcement Limited modification

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.

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

Required Documents Non-Hague Foreign Support Orders Transmittal letter Two 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)

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

“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

Non-Recognition of Hague Order If a tribunal 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

Non-Recognition of Hague Order 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.

Modification of US Support Order A US tribunal retains jurisdiction to modify an order it has issued if: (1) one party resides in another US state (as defined by UIFSA); and (2) the other party resides outside the United States.

Modification of Foreign Child Support Order Procedure for registration & modification of foreign support orders from non-Convention foreign countries Except as otherwise provided..., if a foreign country lacks or refuses to exercise jurisdiction to modify its child-support order pursuant to its laws, a state may assume jurisdiction to modify the child- support order and bind all individuals subject to the personal jurisdiction of the tribunal whether the consent to modify the order has been given or whether the individual seeking modification is a resident of the state or of the foreign country.

Modification of Hague Child Support Order Register for Modification using new Article 7

Translation Incoming cases – Section 713 of UIFSA – record must be in original language, accompanied by an English translation.

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].

Heidelberg Conference Held March 2013 Organized by German Institute for Youth Human Services and Family Law (DIJuF) Partners - Universities of Aberdeen and Heidelberg, the German Federal Ministry of Justice, The Hague Conference on Private International Law, the University of Lyon, and NCSEA Attended by over 200 people representing > 40 countries

Heidelberg Conference Attended by over 200 people representing more than 40 countries conference2013.de/Presentations.html. conference2013.de/Presentations.html

ROLE OF THE CENTRAL AUTHORITY Barbara C. Addison ERICSA 50 th Annual Training Conference & Exposition ▪ May 19 – 23 ▪ Hilton Orlando Lake Buena Vista, Florida

Authority for International Case Processing  PRWORA of 1996  Section 459A of the Social Security Act  Section 454(32) of the Act  Section 466(f) of the Act  45 CFR 303.7

Key Players  OCSE – Delegated U.S. Central Authority by the Secretary of HHS  Department of State  State Child Support Agencies  NCSEA

Profile of U.S. International Child Support  Central Authority: U.S. Office of Child Support Enforcement  States process individual cases through their child support program  International Caseload: Approx. 1% of U.S. Caseload (approx. 158,000 cases)  Bilateral Agreements: 26 Foreign Reciprocating Countries (including 12 Canadian Provinces & Territories)

Requirements for Bilateral Agreements (§ 459A of the Social Security Act)  Child support procedures are substantially similar – Procedures to establish paternity and support and enforce support orders to obligees who are residents of the U.S.  Services provided at no cost  Designated Central Authority

Other Ways to Provide Services for International Cases  State-level Agreements  Direct Applications  Principle of Comity  Multilateral Convention

26 Foreign Reciprocating Countries (FRCs) Australia Czech Republic El Salvador Finland Hungary Ireland Israel Netherlands Norway Poland Portugal Slovak Republic Switzerland The United Kingdom of Great Britain and Northern Ireland

FRCs (continued)  Canada  Alberta  British Columbia  Manitoba  New Brunswick  Newfoundland/ Labrador  Northwest Territories  Nova Scotia  Nunavut  Ontario  Prince Edward Island (PEI)  Saskatchewan  Yukon

Department of State’s Role The Private International Law Office negotiates with foreign countries, with the assistance of state IV-D directors, academic experts, representatives of professional organizations, and OCSE. A declaration of a reciprocal agreement by the Secretary of State can only be made with the concurrence of the Secretary of Health and Human Services.

U.S. Central Authority’s Role  Locate services for FRCs searching for the state location of an individual in the U.S. who is involved in a child support case  Case Processing Assistance  Policy guidance, tools, and training to both State child support workers and International countries.

Types of Policy Guidance  Case Processing Guides  International Dear Colleague Letters (IDCLs) to FRCs  DCLs on International Topics to States  Intergovernmental Reference Guide (IRG)  Case Processing Teleconferences  Policy Guidance  Training at Conferences

Other International Activities in OCSE  Customer Service Inquiries from:  Parents living in other countries  Parents from the U.S. when the other parent lives in another country  State and/or local Child Support offices  FRCs  Congressional Inquiries on behalf of parents  Other inquiries (attorneys, researchers, etc.)

OCSE Resources  OCSE Website :  U.S. Child Support  Handbook on Child Support Enforcement  U.S. International Child Support  OCSE International Page:  International  List of Foreign Countries with reciprocal agreements

OCSE Resources (continued) Intergovernmental Reference Guide International Case Processing Legislation and Regulations

Where to go for help? If an FRC is not responsive or a case has stalled, contact OCSE (see last slide) Please provide – Names of parties – Case number from each country (if available)

OCSE International Team  Anne Miller –  Liza Lowe –  Barbara Addison –  Katie Donley –  Dvora Wilensky –  Locate Requests/Inquiries –

Practice Tips Rob Velcoff ERICSA 50 th Annual Training Conference & Exposition ▪ May 19 – 23 ▪ Hilton Orlando Lake Buena Vista, Florida

International Issues: Reciprocity. Outgoing – use the federal forms. Incoming – international forms. Incoming – forms that are “close enough”. IV-D vs. non-IV-D. Communications. Links on ERICSA website. Be patient.

International Issues: Know the common practices of the other country, i.e., Canada’s provisional order and indexation. Be willing to explain your state’s common practices to the other country. Other countries do not have UIFSA. However, countries with reciprocity should have laws that are substantially similar to ours.

Keep These Things in Mind: Time zones and dates (5/1/13). Oanda.com, XE.com, x-rates.com Foreign currency: Oanda.com, XE.com, x-rates.com. Language barrier. Extra costs (translations, etc.). Telephonic Testimony (limited option). Age of emancipation – self supporting. Administrative vs. judicial actions. Enforcement limitations. Modification of another state’s order.

Keep These Things in Mind: Formality. Medical Support (dollar amount in lieu). “New” countries, due to the Hague.

International Customer Service: On initial referrals, contact the foreign jurisdiction within days. Continue with status requests at appropriate intervals. Contact appropriate state and/or federal OCSE staff where such contact has failed.

International Customer Service: The party in your state should contact the appropriate office in your state. Send all outgoing correspondence directly to the other country’s child support agency, not to the party who resides there. The party in the other country should contact their child support agency, not your office.

One-state international cases: outgoing. Miscellaneous: Long-arm. One-state international cases: incoming. Service of process (at no cost). Direct enforcement to other countries (without UIFSA). Assets within the U.S. Limited services: Quick Locates.

Determination of controlling order. Miscellaneous: What do you do if a foreign country improperly “modifies” your order? Cannot charge costs or fees. Orders from countries with no reciprocity. Where do we go from here? Direct applications.