UIFSA 2008 It’s Time Has Come! Margaret Campbell Haynes Center for the Support of Families

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.

Hague Maintenance Convention: Current Status 31 Countries have ratified European Union countries (27) Norway Albania Bosnia and Herzegovina Ukraine

US Ratification in 2016? The pigs are flying! 6/20/2013

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.

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.

UIFSA – Tell Me More! Three current versions in use among states 1996 2001 2008 All versions built around two major concepts Controlling Order Continuing, Exclusive Jurisdiction

Changes from 1996 to 2001 - DCO Determination of Controlling Order Jurisdiction Who can request and when it occurs Notice Findings - consolidation of arrears

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

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

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

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

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

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

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)

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

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.

Registration for Enforcement Procedure for non-Hague foreign support orders UIFSA 2001 Procedure for Hague foreign support orders New Article 7 Major differences Documents Time frames Defenses

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 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 U.S.

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

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

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.

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

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].

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

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

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

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

Practical Handbook for Caseworkers Contains procedures, flowcharts and guides

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

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

Questions?? Margaret (Meg) Campbell Haynes mhaynes@csfmail.org 240-743-8007