From 1950 until very recently, interstate child support cases followed the procedures established by the Commissioners on Uniform State Laws in the Uniform Reciprocal Enforcement of Support Act (“URESA”) and the Revised Uniform Reciprocal Enforcement of Support Act (“RURESA”) (approved in 1968), both of which were approved for the purpose of resolving the overdue support crisis in this country. In 1988, however, the Drafting Committee on Uniform State Laws, together with members of the United States Commission on Interstate Child Support, initiated a review of these laws, and found that the methods they established for the handling of interstate child support cases actually created even greater problems for the litigants. These laws allowed new child support orders to run concurrently with older ones. They left unresolved issues regarding the modification of support orders. They failed to address or provide for jurisdiction over an out-of-state defendant, precluding the courts from asserting jurisdiction beyond their own borders. They also failed to provide any method for calculating arrears, direct income withholding, or the extradition of non-custodial parents charged with criminal non-support, just to name a few.
To complicate matters even further, different states often enacted significantly different versions of URESA/RURESA. As a result, different states handled interstate child support cases in vastly different manners, and often did not recognize support orders previously issued by a different state involving the same parties. The law of one state may even have conflicted with the law of another state. The chaos that ensued created a serious and immediate need for a much more uniform approach from state to state, where the parties knew which state had jurisdiction, which order had to be followed, and which state could modify the order. The Uniform Interstate Family Support Act (“UIFSA”) intended to completely revise and replace URESA/RURESA and address the problems left untouched by these laws, was approved in August of 1992 by the Uniform Law Conference, and officially ratified in February of 1993 by the American Bar Association. Amendments were adopted and approved for incorporation into the Act in July of 1996 by the Uniform Law Conference. Pursuant to the Child Support Enforcement Legislation within the Personal Responsibility and Work Opportunity Act of 1996, also known as the Welfare Reform Act, all states were required to pass the same version of UIFSA by January 1, 1998 in order to remain eligible for federal funding of child support enforcement. As of April 1998, all United States states and jurisdictions, including New Jersey (the New Jersey statute is codified at N.J.S.A. 2A:4-30.65 et seq.) complied with this mandate.
This article, though not intended to cover all aspects of either the old or new laws, will analyze the overall impact of the new law on the handling of interstate child support cases relative to the old system to gain a perspective on how UIFSA, with its focus upon a uniform approach, has provided the parties with greater certainty throughout the entire process. It will review the procedures established by the old laws, and then discuss the major changes in the new law intended to provide for more efficient proceedings.
The Old System
Under URESA/RURESA, two primary methods for collecting support were established where one party sought to enforce the terms of a child support order issued by the court of another state. The first method involved what was known as a “two state proceeding.” In these cases, the custodial parent initiated the action by filing a petition in either his/her home state or the child's home state (the initiating jurisdiction). This court then determined the absent non-custodial parent's support obligation, and whether the court in the absent non-custodial parent's state had jurisdiction over him or his property. If so, the court in the custodial parent's state then certified the petition and sent it to the absent non-custodial parent's state (the responding jurisdiction), which then assumed full jurisdiction over the case. The court in this state then notified the appropriate state agency, which in turn located the absent non-custodial parent, served the complaint upon him, and went forward with a trial under its own laws. This state then determined the support obligation, if any, that was due the custodial spouse.
The second method involved what was known as the “registration of foreign orders, i.e., the registration of an order in a different state than the state that entered the order. In these cases, the custodial parent obtained a child support order in his/her or the child's home state, and thereafter registered it in the non-custodial parent's home state for the purpose of enforcement. The state where the order was registered then notified the non-custodial parent of the filing and provided him/her with the opportunity to challenge the order based upon lack of personal jurisdiction or by a motion to stay the order pending appeal in the issuing state. If there were no such challenges, the order was then enforced as if it were issued by the court in the state where it was registered.
Although this system had the advantage of not forcing the custodial parent to travel to the non-custodial parent's state of residence, the custodial parent often ended up with a reduced support order resulting from the non-custodial parent having the initial amount reduced in his/her own state court. URESA/RURESA did not provide clear guidance on whether the absent non-custodial parent's state court could modify the order. As a practical matter, the absent non-custodial parent's state often attempted to do so. What resulted were multiple support orders involving the same parties which were in effect simultaneously and which established completely different support obligations. Indeed, arrears might continue to accumulate under the initial order since the order issued by the non-custodial parent's state did not have the effect of invalidating any prior support orders in existence. Parties with multiple child support orders could not be sure which order they had to follow. Compliance with the support orders in effect was often impossible.
As noted above, URESA/RURESA also did not contain any provisions on long-arm jurisdiction, calculating arrears, direct income withholding, administrative enforcement, or the extradition of non-custodial parents charged with criminal non-support. The absence of any such provisions, especially those such as long-arm jurisdiction, further complicated matters because of the “two-state” involvement with all the attendant problems described above.
A Better Approach
UIFSA, which affects every case for child support filed on or after January 1, 1998 involving parties who live in two different states, is applicable whenever a party seeks interstate establishment, modification, or enforcement of child support. It made a number of changes to the old law designed to unify the handling of interstate support cases from state to state. Some of the major changes to the old law are as follows: First, UIFSA gives authority to act to a “tribunal” rather than just a court, with “tribunal” being defined to include a court, administrative agency, or quasi-judicial entity authorized to establish, enforce, or modify support orders or to determine parentage, in recognition of the powers given by states to administrative agencies vis-a-vis child support. Second, UIFSA provides for long-arm jurisdiction over out-of-state defendants. Third, UIFSA does not allow a tribunal to issue a new support order if another order already exists involving the same parties in another state. Where multiple orders already exist, UIFSA legally recognizes only one as the “controlling” order. Fourth, UIFSA allows only one state to have jurisdiction to modify the “controlling” order.
In addition to the above, UIFSA allows for a tribunal to permit an out-of-state party to be deposed or to testify by telephone conference, audiovisual means, or other electronic means; it provides for arrears to be prospective, calculated on the controlling order, but permits arrears established under other orders to also be collected; it provides for the extradition of a non-custodial parent charged with criminal non-support; it provides for enforcement by certain administrative proceedings, including direct income withholding where the order to deduct income is treated the same from state to state; and it provides a much clearer choice of law provision, clearly stating that “except as otherwise provided,” the procedural and substantive law of the forum state applies.
One of the most significant changes incorporated into UIFSA is the principle of long-arm jurisdiction, which allows for a more streamlined and uniform approach, consistent with the other changes in UIFSA. Under UIFSA, in any “proceeding to establish, enforce, or modify a support order … a tribunal of this State may exercise personal jurisdiction over a non-resident individual” under a broad range of circumstances. The intent is for an in-state custodial parent to be able to avoid a two-state proceeding, as would have been required under the old system, by asserting “long-arm jurisdiction” over the out-of-state non-custodial parent in the custodial parent's home state. A state will have long-arm jurisdiction over a non-resident where:
- the individual is personally served with [citation, summons, notice] within this State;
- the individual submits to the jurisdiction of this State by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;
- the individual resided with the child in this State;
- the individual resided in this State and provided prenatal expenses or support for the child;
- the child resides in this State as a result of the acts or directives of the individual;
- the individual engaged in sexual intercourse in this State and the child may have been conceived by that act of intercourse;
- the individual asserted parentage in the [putative father registry] maintained in this State by the [appropriate agency]; or
- there is any other basis consistent with the constitutions of this State and the United States for the exercise of personal jurisdiction.
The incorporation of long-arm jurisdiction into UIFSA, as well as the inclusion of the many diverse bases for such a finding, clearly signify the drafters' intent to uncomplicate the entire interstate support process and facilitate a court's exercise of jurisdiction over an out-of-state defendant. Although several of the bases for long-arm jurisdiction are the traditional ones recognized since the inception of long-arm statutes, other bases clearly go one step beyond. Notably, the “catch-all” provision under subsection (8), which allows for long-arm jurisdiction under any number of unspecified circumstances, gives the courts wide latitude in finding a basis to exercise long-arm jurisdiction over an out-of-state defendant. Indeed, the New Jersey courts have followed suit in the recent case of Grabill v. Grabill, Docket No. FM-14-1053-99, where the Honorable Stephen J. Schaeffer, J.S.C., agreed with plaintiff, Katherine Grabill, that defendant's consent in the parties' “Agreed Order” to allow plaintiff and the parties' children to relocate to the state of New Jersey, gave New Jersey jurisdiction to both enforce and modify the parties' Illinois Divorce Judgment as it pertained to support. Plaintiff had argued that the signing of the Agreed Order by the defendant constituted an “act or directive” which resulted in plaintiff and the parties' children relocating to New Jersey for the purpose of permanent residency under subsection (5) of the long-arm provision, and the Court ultimately agreed.
Such a decision may indeed have far-reaching implications. If an act such as agreeing to the removal/relocation of children to another state qualifies as a basis for that other state court's assertion of long-arm jurisdiction over an out-of-state defendant, this may in fact demonstrate that an impediment to the lingering jurisdictional problems of the old system has been eroded. Complications routinely involved in two-state proceedings should diminish. With the court asserting long-arm jurisdiction having the same authority over the out-of-state defendant as if that party were a resident of the state, the problems which have historically arisen may be resolved.
An equally significant change in UIFSA, which similarly allows for a more streamlined and uniform approach, is the establishment of the prioritization scheme for support orders where there has been more than one order issued. The intent is for every state to recognize only one valid support order, i.e. the “controlling order,” as being in effect at any given time. The order issued by the tribunal with what is known as “continuing, exclusive jurisdiction” is deemed “controlling” and therefore must be recognized. Where two or more states each claim to have continuing, exclusive jurisdiction, the following priorities control:
- the order in the child's home state;
- the most recently issued order as long as one of the parents continues to reside in the state that issued the order.
Where neither of the above circumstances exist, there must be a de novo determination of support in an appropriate state having jurisdiction
The controlling order and continuing exclusive jurisdiction principles apply to modification proceedings as well in that a state issuing a support order retains continuing, exclusive jurisdiction if any of the parties (including the child) continue to live in that state. Under such circumstances, the order may be modified only by the state that originally issued the order. Where another state attempts to modify the order, the attempted modification will be deemed invalid as long as the initial state retains continuing, exclusive jurisdiction. The initial state will lose such jurisdiction only where all parties have left the state or have consented in writing to transfer continuing, exclusive jurisdiction to the new state. Where the parties and child have all moved from the issuing state and currently live in the same state, that state will then have continuing, exclusive jurisdiction over the support order and hence be able to modify it. On the other hand, where all parties have left the state that issued the order and do not reside in the same state, no state will have continuing, exclusive jurisdiction, although the order remains “controlling.” A party who wishes to modify the order in these circumstances must then register the order for modification in the other party's state and attempt modification there.
With regard to enforcement, UIFSA includes several significant changes which again help to simplify the proceedings. It allows for direct income withholding from state to state where a tribunal need not become involved absent a challenge to the income withholding order. It also allows for registration for enforcement, where an order issued by a tribunal of one state may be registered in any other state, with the order becoming enforceable in the second state as if it were issued in that state. Although a non-registering party may contest the registration under the procedures and upon the bases set forth in UIFSA, the second state may not modify the registered order.
Other provisions of UIFSA similarly uncomplicate the proceedings and work side by side with each other. As noted above, the “controlling order” and continuing, exclusive jurisdiction provisions work closely together to clarify which court has jurisdiction at any given time, which order is legally enforceable, and which order may be modified by which court. The provision allowing litigants to testify by telephonic or other electronic means seemingly work in conjunction with the long-arm jurisdictional provision, making it easier for an out-of-state defendant to give testimony without physically appearing in the other state. The choice of law provision seemingly works in connection with the long-arm provision as well, since (except as otherwise provided in the statute), it makes clear that the procedural and substantive law of the forum state applies. This new system does, in theory, set out a detailed scheme to implement the goals that the drafters set out to achieve. Although the courts have yet to delve into the nuances of the new system, they will, if they follow the New Jersey court's lead in these unchartered waters, establish a system consistent with the drafters' goals — to provide clear guidance to all parties involved, maintain uniformity in interstate support cases from state to state, and, ultimately, to significantly increase child support collections nationwide.
Some Extra Help
UIFSA alone cannot establish the goals it has set out to achieve without provisions for giving full faith and credit by each state to the orders of other states. To this end, the Legislature has drafted the Full Faith and Credit for Child Support Orders Act (FFCCSOA), codified at 28 U.S.C. §1738B, which was enacted into law in October of 1994. In 1996, again within the Welfare Reform Act, Congress passed legislation to correct inconsistencies between UIFSA and the FFCCSOA. It amended the FFCCSOA to include a definition of “home state” identical to that in UIFSA; to make the bases for continuing, exclusive jurisdiction identical in both; to make rules for determining the controlling order, continuing exclusive jurisdiction to modify, and choice of law consistent in both laws; and to provide for modification of a foreign state order by registration where there is no continuing, exclusive jurisdiction state, again consistent with UIFSA. With this legislation, Congress has ensured itself of a remedy to the interstate support problems by now requiring under federal law that each state give full faith and credit to the orders entered by the courts of other states consistent with the Act.
Whether UIFSA, implemented with a little help from the FFCCSOA, actually cures the overdue support crisis in this country remains to be seen over time. Certainly, the effects of these remedies will not be felt overnight. These laws do, however, provide for much needed uniformity in the establishment, modification, and enforcement of support laws from state to state. Hopefully, these laws will discourage relocations for the purpose of avoiding a particular court's jurisdiction, eliminate reductions by other states of an original state's order, and increase collections of child support in interstate cases, just as the drafters intended.