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Interstate Family Support (UIFSA)

Contents: Background - URESA & RURESA - UIFSA #Long Arm Statute Interpreted

Background

The enforcement of family support, when the mother, father or children all live in the same state, is difficult enough. When it comes to interstate enforcement, things get downright complicated.

Prior to 1950, a US parent who wanted to ensure support against the other parent who lived in another US state had to travel to the support debtor's state to take legal action.

Since 1950, a uniform act has existed that allowed for those states which subscribed to it, to enforce each other's support orders. The 1950 act, prepared under the auspices of the National Conference of Commissioners on Uniform State Laws, was called "URESA", short for Uniform Reciprocal Enforcement of Support Act.

In 1968, URESA was amended and the new act was called "RURESA", short for Revised Uniform Reciprocal Enforcement of Support Act. By 1992, all US states had enacted RURESA or URESA. Even American Samoa, Puerto Rico, Guam and the Virgin Islands had adopted a version of either URESA or RURESA.

A January 1992 US General Accounting Report concluded that 30% of all child support cases are interstate and that children in interstate cases are less likely than in-state children to receive support payments. In fact, 34% of custodial mothers in interstate cases report that they have never received a penny.

The federal government decided to take the lead and again sponsored the revision of the uniform interstate support legislation. The result was the Uniform Interstate Family Support Act, or "UIFSA". In announcing the uniform legislation, the federal government announced its intention to attach considerable federal funding to the adoption of the uniform act by the 52 American states, but this inducement has not yet been legislated.

Still, as of May, 1996, more than half of the US states have enacted UIFSA including Alaska, Arizona, Arkansas, Colorado, Delaware, Idaho, Illinois, Kansas, Louisiana, Maine, Massachusetts, Minnesota, Montana, Nebraska, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, South Dakota, South Carolina, Texas, Utah, Virginia, Washington, Wisconsin and Wyoming. Indiana, Maryland and Mississouri are expected to incorporate UIFSA into their statute books on January 1, 1997.

URESA & RURESA

The URESA system was much like the British Commonwealth reciprocal enforcement of maintenance orders (REMO) system. Under URESA, a two-stop system was developed: a custodial parent would file a petition in the "initiating" state, which would be then sent to the "responding state", where the support debtor lived or owned property. A government-paid attorney would represent the out-of-state mother in the court hearing in the responding state. The responding state's court would then establish and enforce an order and forward payments received to the mother in the initiating state. In this way, the custodial parent was spared the travel and legal costs associated with having to defend the support petition in a distant state. But by the same token, the debtor could succeed in having the amount of the initiating state's support order reduced by his representations before the court in state of residence.

One of the greatest failings of URESA was the latitude left to individual state legislators to amend the uniform act, while adopting other parts of it. In addition, RURESA or URESA petitions took time: four to eight months. URESA/RURESA applications require considerably more paper and administration than do UIFSA applications. One lawyers said that filing a RURESA or URESA action was like sending the case "into a black hole." Nor were the earlier interstate acts designed to work with modern American support enforcement programs.

The UIFSA system is based on the primacy of just one support order. Under URESA or RURESA, the order developed through the interstate process could co-exist with non-interstate orders, so there could be more than one valid support order at the same time, between the same parties. Proliferation of orders made enforcement a nightmare.

Under URESA, if a parent had an existing support order, she would have two options. She could have the order registered in the state where the support debtor resided and it would then be enforced. Or she could, as mentioned above, send an interstate petition to the responding state, in which case a new order would be issued consistent with the support guidelines of the responding state. Even if the new order was lesser than the original order, arrears would continue to accrue under the initiating state's order so that, if the debtor or his property were ever to come under the jurisdiction of the initiating state, the arrears could be enforced as if the URESA order never existed.

UIFSA

UIFSA opted for a "one-stop shopping" approach, giving a state "long-arm" jurisdiction over a child support debtor even where nonresident. This is an exception to the normal rules of law where a court would not have jurisdiction over a nonresident. A state would have this jurisdiction, essentially, if one party or child resides in the state or if the parties agree to transfer continuing exclusive jurisdiction to another state (there are other "long-arm jurisdiction" grounds listed at section 201 of UIFSA).

The first state to impose a support order retains "continuing exclusive jurisdiction" as long as one of the parties continues to reside in that state or if both parties agree to transfer jurisdiction to another state. Until one of those events occurs, only the state which authorized the original support order can modify the award. In this way, all parties, courts and enforcement officials are assured that, between UIFSA states, there can only be one support order in effect at any given time.

In modification proceedings, it will be the law of the "continuing exclusive jurisdiction" state which will govern whether or not the nonresident has a duty of support. Note, however, that for enforcement purposes, it will be the law of the enforcing state that will govern enforcement proceedings.

Once issued, an support order may be sent to any other UIFSA state for registration. The exclusive power to modify a support order is of little use if the order cannot be enforced on an interstate basis. Registration gives the debtor's state enforcement authorities the jurisdiction to set all of their enforcement methods and agents loose against the debtor as if the order were an order of their own tribunal.

Registration does not give the enforcing state any authority to modify the order. The initiating state maintains continuing exclusive jurisdiction even though the debtor lives, or the order is being enforced, elsewhere.

Under UIFSA, a state can lose continuing exclusive jurisdiction if, for example and as discussed above, if none of the children or parents live in the state or if there is an agreement to transfer the file to another state. In those circumstances, it is possible to transfer continuing exclusive jurisdiction in order to modify the support award.

With the overlap of URESA/RURESA, it will be many years before all the non-UIFSA orders are flushed out of the system. UIFSA has a special section (207) which calls for a priority in the case of multiple RURESA/URESA orders, with precedence given to the most recent order issued by a tribunal of the child's home state. In addition, a new federal Full faith And Credit For Child Support Orders Act will greatly facilitate situations where URESA or RURESA orders conflict with a more recent UIFSA order.

One enforcement aspect of UIFSA is the ability to send an income withholding order directly to an employer in another UIFSA state. Other enforcement-friendly aspects of UIFSA include the judicial recognition of documents transmitted electronically (including facsimile copies) and testimony given by teleconference or by videotape. This alleviates any concerns over the economic burden placed on debtors which would otherwise have to travel to give evidence in modification proceedings under the "continuing exclusive jurisdiction" rule. UIFSA also comes with a set of federally-developed standard forms which are expected to be published in 1996.

For more information about UIFSA or insterstate enforcement of support orders, each state has a "central registry" for the reception of interstate documents. Check for your state's central registry under the headings "child support" in your state's government phone book or call the Office of Child Support Enforcement, Department of Health and Human Services in Washington, D.C.

Uniform Interstate Family Support Act
Long Arm Statute Interpreted

by Major Janet Fenton

Editor’s note: this article originally appeared in the February 1999 issue of the Army Lawyer, an Army JAG School monthly publication. It is reprinted here with permission.

Among the major changes to child support enforcement under the Uniform Interstate Family Support Act¹ (UIFSA), are the broad long-arm jurisdiction provisions.² A court must have in personam jurisdiction over the obligor before it can order a support obligation.³ If a state can meet one of the long-arm provisions under the UIFSA, it gains personal jurisdiction over a non-resident obligor and alleviates many of the cumbersome aspects of enforcing support interstate.

An interesting aspect of the UIFSA’s long-arm provision is that it allows a state to assume personal jurisdiction based on the residence of the child in the state “as a result of the acts or directives of the non-resident obligor.”⁴ Only two cases have interpreted this particular long-arm provision. Both cases agree that this provision would be sufficient to establish jurisdiction and meet the Constitutional requirements of due process. The question becomes, what conduct is going to fall within the language of “acts or directives?”

In Windsor v. Windsor,⁵ the Massachusetts Court of Appeals refused to find jurisdiction under this provision of the UIFSA. James Windsor and Beverly Windsor married at Otis Air Force Base in 1959.⁶ The couple lived in several military locations, eventually ending up in Florida in 1975. Mrs. Windsor left Florida in June 1977, returning to Massachusetts where she delivered their fourth child in September 1977.⁷ In 1995, she filed for divorce in Massachusetts based on cruel and abusive treatment by Mr. Windsor and requested child support for their youngest child.⁸ Mr. Windsor, who lived in Florida since 1975, filed a special appearance challenging the jurisdiction of Massachusetts to award child support.⁹

The trial court found jurisdiction based on the UIFSA provision that Mrs. Windsor and the child lived in Massachusetts due to the “acts and directives” of Mr. Windsor.¹⁰ On appeal, the court reversed the trial court’s finding because the record did not allege sufficient facts to establish acts or directives by Mr. Windsor.¹¹ Specifically, the record did not set out any information that Mrs. Windsor and her children fled” Florida for Massachusetts based on cruel treatment or the directives of Mr. Windsor.¹²

In contrast, the Court of Appeals of Virginia affirmed a case based on the same long-arm jurisdiction provi-sion in Franklin v. Virginia.¹³ Mr. and Mrs. Franklin married in 1981 and had two children. Mr. Franklin took a job with John Snow, Inc., a Boston-based company with a field office in Arlington, Virginia. Mr. Franklin’s job sent the family to Africa, where they lived from 1991 to 1994.¹⁴ Before leaving Africa, the family resided for three brief months in Arlington, Virginia. While in Africa, the marriage deteriorated and, in January 1994, Mr. Franklin ordered his wife and children out of their home.¹⁵ His company paid to return the family to Virginia.¹⁶ Through several years of support and custody hearings, Mr. Franklin maintained that Virginia did not have personal jurisdiction over him.¹⁷

Mr. Franklin argued that the UIFSA’s long-arm provision’s plain meaning only confers jurisdiction if an individual takes an affirmative act, exerts power or influence, or gives instructions, orders or commands to his spouse or children to reside in a particular geographical location.¹⁸ The court found that this reading of the UIFSA was far too restrictive. The court found that after several physical altercations, Mr. Franklin told his family to leave Africa. Mrs. Franklin reasonably returned to Virginia, the family’s home immediately prior to their departure for Africa. In addition, Virginia was Mr. Franklin’s employer’s field office that distributed his mail. Accordingly, the court found that the family resided in Virginia as a result of Mr. Franklin’s acts.¹⁹

By their nature, jurisdiction questions revolving around the issue of “acts and directives” of the nonresident are fact specific. Marshalling the facts and articulating whether they establish “acts and directives” is a true test of advocacy skills. The facts in Franklin easily fit into a military setting where families find themselves far from traditional support groups when marriages get into trouble. The military may help pay travel expenses for the family especially if they are living overseas. The court was not specific about whether any one fact was more persuasive than the others. Under a totality of the circumstances approach, Franklin indicates that very little is required to satisfy the UIFSA’s “acts and directives” requirement.

The UIFSA significantly changes the “ground rules” to support awards. Consequently, legal assistance attorneys must understand its provisions. The long-arm provisions are particularly important because the old interstate support statutes do not contain such provisions. The long-arm provisions can enable a state that the client may never have set foot into exercise jurisdiction over support issues. Military families may find themselves in this situation in a variety of ways given mobility of our communities. Legal assistance attorneys need to con-sider all the options and facts before advising a client about the jurisdiction of a court to impose a support obligation.

Major Janet Fenton serves in the Administrative and Civil Law Division, the Judge Advocate General School, U.S. Army.

¹9U.L.A. 229 (1993) (amended 1996). In 1998 all states adopted the UIFSA. Each state has it's own citation to their UIFSA depending into which state code the legislature passed the act. All references in this article are to the sections of the uniform act.

²UIFSA 201 2 U.L.A. 229 (amended 1996).

³Windsor v Windsor. 700 N.E.2d 838 (Mass. App. Ct. 1998) (citing Vanderbilt v Vanderbilt. 354 E.S. 416 (1957). Kulko v Superior Court of California. 436 U.S. 84 (1978)).

⁴UNIf. Interstate Family Support Act 201(9U.L.A. 229 (1993) (amended 1996).

⁵700 N.E.2d 838 (Mass. App. Ct. 1998)

⁶Id. at 841

⁷Id.

⁸Id. at 839-40.

⁹Id.

¹⁰Id.

¹¹Id. at 842.

¹²Id. at 842-43.

¹³497 S.E.2d 881 (Va. Ct. App. 1998). Virginia's Department of Social Services, Division of Child Support Enforcement is the party in the case because Franklin received public assistance for herself and her children. In addition, she requested that this agency establish and enforce support. This agency was established under section IV-D of the Social Securities Act. These agencies, known as [V-D agencies, are available to help clients in cases of child support regardless of where the family receives public assistance.

¹⁴Id. at 883

¹⁵Id.

¹⁶Id.

¹⁷Id. at 844

¹⁸Id at 885

¹⁹Id at 886