1. Pretzel Logic: Handling the Twists and Turns of UIFSA Modification50
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Pretzel Logic: Handling the Twists and Turns of UIFSA Modification
ERICSA
Jeff Ball, J.D.
Kelly Peiper, J.D., PMP
Andrew J. Schweller, Esq. - Moderator
ERICSA 50th Annual Training Conference & Exposition ▪ May 19 – 23 ▪ Hilton Orlando Lake Buena Vista, Florida

2. UIFSA Modification Provisions
Sections
A state retains CEJ to modify its order as long as one of the parties or the child remain in that state
Procedure when registering another state’s order, if above does not apply
Requirements, procedures and defenses of the modifying state apply
Non-modifiable Provisions
Duration

3. UIFSA Modification Provisions
Section 611
To modify another state’s order, the tribunal must find that no one resides in the issuing state
The person seeking the modification is not a resident of the modifying state (play-away)
The respondent is subject to PJ of modifying state

4. UIFSA and FFCCSOA 28 USC 1738B FFCCSOA Provisions
Effective 10/20/94
Controlling Order
Modifications
Establishes modification rules
FFCCSOA (Apparent) Discrepancies with UIFSA

5. UIFSA and UCCJEA
Jurisdiction to hear a case = subject matter (court can hear this type of case) + personal or in rem or quasi-in-rem jurisdiction
Child support personal jurisdiction is based on personal jurisdiction over the defendant
Child custody jurisdiction is based on the location of the child – more of an “in rem” jurisdiction
UIFSA borrowed some concepts from UCCJA (later UCCJEA) such as “home state” (child’s last residence for 6 cons. mths.)
Since child support program did not adopt the “child state” model, support and custody cases may be appropriately heard in two different states depending on the circumstances

6. UIFSA and UCCJEA - example
CP and NCP have a child and live in State 1; child and CP move to State 2 and have been there for two years; Dad now lives in State 3 and has never visited State 2.
Child Custody under UCCJEA – State 2 is forum state
Child Support under UIFSA – State 3 is forum state (unless the parties otherwise agree in writing)

7. UIFSA and IV-D Review and Adjustment Regulations
45 CFR 303.8
Review and, if appropriate, adjust, every 3 years a TANF case or upon the request of a parent, or more frequently
30 days to contest the review – jud v. admin
Covers child support and medical support orders
R&A takes place in the controlling order state

8. Modification v. Not a Modification?
What is a modification?
Change to the child support amount
Change to the health care provisions
Change from obligor to obligee
What is not a modification?
COLA
Other “automatic” changes to an order
Arrears determinations

9. The Controlling Order
Based on the principle of ONE order in effect at a time
This is the ONE order used for prospective enforcement
By this time, should only be one order for prospective enforcement in every case that includes an arrears judgment

10. One Party Remains in Controlling Order State
To modify, must determine which state has Continuing, exclusive jurisdiction
Does anyone (obligor, obligee, child) live in the state with the order?
If yes, that tribunal has CEJ and that is the controlling order

11. One Party Remains in Controlling Order State - scenario
Order in Florida
NCP resides in Florida
Where does the modification take place?

12. Parties Agree to Move CEJ
UIFSA, Section 611(a)(2)
Parties may agree, in a record, to allow another state to acquire CEJ
Applies if someone lives in original issuing state, or if all parties have left and want CEJ in the petitioner’s state
The agreement must be filed in the record of the issuing tribunal for another state to assume CEJ

13. Parties Move to the Same State
UIFSA, Section 613
Allows an exception to the “play away” rule
Both parties, and the child, do not reside in the issuing state
Jurisdiction can be assumed by the state where everyone lives
Cannot modify the non-modifiable provisions, as determined by the issuing state

14. Notification to Issuing Tribunal
UIFSA, Section 614
Within [30] days after issuance of a modified order, the party obtaining the modification shall file a certified copy of the order with the issuing tribunal that had CEJ
Failure to do so subjects the party to sanctions by the tribunal
Failure to do so does not affect the validity of the modified order

15. IV-D agency wants to modify and no one lives in controlling order state
Under fed. rule (45 CFR §303.8(b)(6)(f)), review and adjustment must be done in state with legal authority to adjust the order. Which state will ultimately have jurisdiction to modify? That state does the review, and if appropriate, the adjustment.
UIFSA - §611
If seeking an upward modification, go to NCP’s state
If seeking a downward modification, go to CP’s state
What if seeking mod in case against both parents (new caregiver or foster care situation)?

16. Parent wants to modify and no one lives in controlling order state
IV-D case - (45 CFR §303.8(b)(6)(f)), review and adjustment must be done in state with legal authority to adjust the order. Which state will ultimately have jurisdiction to modify? That state does the review, and if appropriate, the adjustment.
UIFSA – §611 – applies to IV-D and non-IV-D cases
If seeking an upward modification, go to NCP’s state
If seeking a downward modification, go to CP’s state

17. Family make-up changes: adding a child
Adding a child – UIFSA and federal rules are silent –
most states add a child to the existing case
state with power to modify because it has the controlling order and a party lives in the state may add a child
If no party lives in the state of the controlling order, the modification to add a child is heard in responding party’s state

18. Family make-up changes: changed, switched or split custody
Changing custody, switched custody, or split custody –
Some states will use the same child support case to change support when there is a custody change from a CP to a NCP, when children are swapped between parents, or when children are split between parents; some states create new cases for these events
However, since the parties (parents and children) are the same, they are treated as the same family unit for the purposes of modification
state with power to modify because it has the controlling order and a party lives in the state may modify old order or create order under new case number
If no party lives in the state of the controlling order, the modification activity takes place in responding party’s state, by modifying old order or creating order under a new case number

19. Caregiver Cases Caregiver cases – who is a party?
Check local laws regarding physical or legal custody
UIFSA recognizes caregivers as obligees (see UIFSA 2008 comments)
If caregiver is a party, then modification rules apply to caregiver situation, i.e., if caregiver & child live in State 1, and Mom in State 2 and Dad in State 3 –
If State 1 issued controlling order, it has jurisdiction to modify
If State 2, then 2 has juris.; if State 3, then 3 has juris. to modify
If 1, 2 or 3 does not have CO, modification in resp. state
(Parties can agree in writing to a state that would have jurisdiction over one of the parties)

20. Active Duty Military
Servicemember Civil Relief Act – active-duty servicemember or reservist - notice and an opportunity to be heard at a hearing that is scheduled when servicemember available
Can stay CSE activity for at least 90 days after attorney is appointed and two letters prepared by commanding officer and service-member explaining why stay is needed - stateside or overseas
Residence – is a servicemember’s duty post his or her residence?
Difference between domiciliary and residence
UIFSA needs residence status (§611 uses “resides”)
Majority view – is he or she stationed for a definite period (not on TDY)?
Minority view – look at voluntary actions - car registration, driver’s license, tax filing, house

21. Tribal – State Cases IV-D Tribes are not required to have UIFSA
Tribes are subject to FFCCSOA
Bottom line – full faith and credit accorded to one another’s orders whether or not the tribe is OCSE-recognized as a IV-D tribal program
Modifications are governed by FFCCSOA (similar rules to UIFSA 1996)
CEJ state/tribe with party residing there may modify
“Play away” in responding party’s state or tribe for modification purposes if no one resides in CEJ state or within tribal area

22. International Cases - I
PRWORA gave the federal government power to negotiate bilateral orders with other countries. UIFSA 2001 redefined “state” to encompass foreign countries with a bilateral agreement with the United States.
UIFSA 2008 revised the act to integrate the appropriate provisions of the Hague Convention into state law.
UIFSA added an Article 7, which constitutes a stand-alone portion of the act designed to direct a “tribunal of this state” on limited special practices and handling deemed to be necessary for establishing or enforcing a Hague Convention support order.
Excerpted from the UIFSA 2008 comments

23. International Cases - II
UIFSA - §611(f) - Notwithstanding subsections (a) through (e) and Section 201(b), a tribunal of this state retains jurisdiction to modify an order issued by a tribunal of this state if:
(1) one party resides in another state; and
(2) the other party resides outside the United States.
UIFSA - §615(a) Except as otherwise provided in Section 711, if a foreign country… will not or may not modify its order lacks or refuses to exercise jurisdiction to modify its child-support order pursuant to its laws, a tribunal of this State may assume jurisdiction to modify the child-support order and bind all individuals subject to the personal jurisdiction of the tribunal whether or not the consent to modification of a child-support order otherwise required of the individual pursuant to Section 611 has been given or whether the individual seeking modification is a resident of this State or of the foreign country or political subdivision.

24. International Cases - III
UIFSA - §615(b) An order issued by a tribunal of this state modifying a foreign child-support order pursuant to this section is the controlling order.
UIFSA - §616. A party or support enforcement agency seeking to modify, or to modify and enforce, a foreign child-support order not under the Convention may register that order in this state under Sections 601 through 608 if the order has not been registered. A [petition] for modification may be filed at the same time as a request for registration, or at another time. The [petition] must specify the grounds for modification.

25. International Cases - IV
Questions to ask (pre-Hague Convention):
To modify an existing U.S. order:
Where do the parties live?
Does a state retain jurisdiction to modify in the international case based on traditional UIFSA modification principles?
If not, do the enhanced modification principles in UIFSA for international cases allow the state to modify the order?
To modify an existing foreign country order:
Who has jurisdiction to modify under any state reciprocal agreement or a federal bilateral agreement? Does your state have UIFSA 1996 or 2001?
Can written consent lead to stateside modification?
If modification jurisdiction cannot be gained in U.S., what steps are needed for modification in the other country?

26. “Lame Duck” Jurisdiction
What goes on when everyone has left the state with the controlling order? What is the lame-duck state IV-D agency’s responsibility?
It has continuing, exclusive jurisdiction (CEJ) to enforce its order
It has a responsibility to enforce its order
It is responsible for coordinating payments and any redirection requests
Once another state assumes CEJ by issuing a new order, the state that just lost CEJ may still enforce the terms of the old order up to the new CEJ state’s order issuance date – new CEJ state may also enforce arrears
If all the parties leave the CEJ state, and then one party returns before another state assumes CEJ, the original CEJ state regains its power to modify the order – where do parties live at the time of the modification action?

27. Changing Payees Not the “kid-swap” scenario Scenario:
Dad ordered to pay mom
Child goes to live with grandma
Query if this is a modification or an establishment action
Is this a “change of payee” so that we can do it administratively?
UIFSA, Section 319
Permits re-direct of payments when no party lives in issuing state – a mechanism to get the issuing state out of the mix, but that is purely an administrative procedure

28. Changing Payees Scenario: How to obtain order for mom to pay grandma?
Florida order for dad to pay mom
Child goes to live with grandma in GA and requests IV-D services
GA asks FL to modify its order to reflect grandma as the obligee
How to obtain order for mom to pay grandma?

29. COLAs and Other Adjustments
COLAs are automated changes to the support order based on the national inflation rates and economic indicators
Terms are established in the initial order, therefore when a COLA is applied, it is not considered a modification
Other states have other terms – older child ages out is common example
The terms kick in regardless of where parties reside

30. Terms of Other State’s Order
Duration
System setting
Listing on the IRG
Age listed in the order, by operation of law, exceptions, child marries, child disabled, etc… very detailed
Other Terms
UIFSA, Section 317 – Communications between Tribunals
IRG
Section 317. A tribunal of this state may communicate with a tribunal of another state in a record or by telephone or other means, to obtain information concerning the laws, the legal effect of a judgment, decree or order of that tribunal, and the status of a proceeding in the other state or foreign country. A tribunal of this state may furnish similar information by similar means to a tribunal of another state, or foreign country or political subdivision.

31. Contact Kelly Peiper, J.D., PMP, Principal, CSG Government Solutions
Jeff Ball, J.D., Project Manager, YoungWilliams, PC
Andrew J. Schweller, Esq, Chief Civil Division, Allen County Prosecutor's Office