Transcript PowerPoint
UIFSA
What does the future of UIFSA Look like for CA?
Presenters: Alisha Griffin, Director - DCSS Kristen Erickson Donadee, Attorney - DCSS Elizabeth Pak, Attorney - Los Angeles LCSA
UIFSA 2008 - Background
■ UIFSA 1996 (CA presently operates under this) ■ UIFSA 2001 (CA adopted this but it’s not operative) ■ 11/23/2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance ■ UIFSA 2008 (basically UIFSA 2001 + Convention)
UIFSA 2008 - Mandate
On September 19, 2014, President Obama signed HR4980 the
Preventing Sex Trafficking and Strengthening Families Act
which requires all states to enact UIFSA 2008 no later than: ✷ ✷ “…the first day of the first calendar quarter beginning after the close of the first regular session of the State Legislature that begins after the date of the enactment of this Act.” If a State has a 2 Legislature.” year legislative session, “each year of the session shall be deemed to be a separate regular session of the State
Where are we now?
CA has introduced legislation (Senate Bill 646) to comply with HR 4980 ■ UIFSA 2008 will have its own Part in the Family Code ✷ Family Code §4900 et seq. will be repealed ✷ UIFSA will fall under Family Code 5700 et seq.
✷ Sections will be renumbered to match UIFSA 2008 • Example FC §5700.101 will correspond with UIFSA §101
Where are we going?
Once all states enact UIFSA 2008 … ■ President must sign the instrument of ratification ■ Then US must deposit its instrument of ratification with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, the depository for the Hague Conference ■ Treaty will be effective for the US on the 1 of the 1 st month that is not less than 3 months after the date of the deposit.
st day
UIFSA 2008 Changes
UIFSA 2008 - builds on UIFSA 2001 & Implements the Hague Article I – General Provisions Article II – Jurisdiction Article III – Civil Provisions of General Application Article IV Parentage – Establishment of Support Order or Determination of Article V – Enforcement of Support Order without Registration Article VI – Registration, Enforcement & Modification of Support Order Article VII – Support Proceeding Under Convention Differences in documents, timeframes and defenses Non-Hague orders: Articles I through VI Hague orders: Article VII
UIFSA 2008: Changes
Section 102: “State” now means a U.S. state, territory, or Indian nation or tribe. But remember that in terms of the Convention, a “state” is a country 1.
2.
3.
4.
“Foreign country” means: Bi-Lateral agreement for Federal reciprocity State-level agreement for reciprocity Enacted law or established procedures which are substantially similar to UIFSA; or Convention Country Courts can recognize foreign orders under Comity § 204(a).
UIFSA 2008: Changes
Modification Provisions: Order-issuing state can modify if no party lives there but parties consent. (UIFSA § 205 (a)(2)) US tribunal can modify a US order if one person resides in another US state and the other person resides outside the US. (UIFSA § 611) US can modify a foreign order if the foreign country cannot or will not modify its order (UIFSA § 615)
UIFSA 2008 Changes
Section 312 Judicial Non-Disclosure Order no longer needed. Party must allege in an affidavit or declaration that the health, safety or liberty of a party or child would be jeopardized by disclosure of specific identifying information, for information to be sealed and not disclosed.
May be disclosed after hearing after considering health, safety or liberty of party or child if in the interest of justice.
UIFSA 2008: Changes
Section 316: Physical presence of nonresident party Courts now must allow for the telephonic or other electronic testimony of non-resident party. UIFSA 1996 language indicated the court
may
permit.
*Keep time difference in mind when setting hearings, particularly for international cases
UIFSA 2008: Changes
Section 316: Affidavit “Under oath” replaced with “under penalty of perjury” requirement for documents and affidavits.
UIFSA 2008: Changes
Section 319: Redirection of Payments and Change of Payee Where parties no longer live in the order-issuing state, the IV-D agency where CP resides and receives services may request that the issuing state obtain orders which redirect payment to their SDU. Redirection by IWO or administrative notice of change of payee
UIFSA 2008 Changes
Section 501: Direct Income Withholding Employers do not have to honor Direct Income Withholding orders from foreign countries; no change in that they must honor them for orders issued in another state.
UIFSA 2008: Changes
Section 506: Contest by Obligor of Out-of-State IWO Clarifies that Obligor may register to challenge direct IWO
UIFSA 2008: Changes
Section 602: Registration “Support order…may be registered in this state by sending the following
records
to the appropriate tribunal…” The word “document” changed to “record” expands meaning to include electronic transmission of documents.
UIFSA 2008: Changes
Section 604: Choice of Law Issuing state’s law governs: 1.
2.
nature, extent, amount, duration of current payments, computation and payment of arrearages and accrual of interest on arrearages, 3.
existence & satisfaction of other obligations Responding state’s law governs: enforcement After a state has determined Controlling Order Determination, that state’s laws prospectively applies, including its law on interest, current and future support and on consolidated arrears
UIFSA 2008: Changes
Section 307: Convert currency at registration.
Example of currency conversion recommended wording for Notice of Registration of Foreign Order:
The amount of the alleged arrearages is 900 Euros as of date having a United States of America Dollar equivalence of $___ as of date.
Hague Maintenance Convention Background
71 countries participated in the negotiations Different legal traditions Diverse approaches to delivery of child support (maintenance) services Result: One convention document, forms, and caseworker practice handbook
Hague Convention Background
United States participated in negotiations and is a signatory to the treaty.
Senate gave advice and consent to ratify on September 29, 2010, and the President signed the treaty Public Law Number 113-183 (HR 4980): Congress approved implementing legislation on September 29, 2014 All states must adopt UIFSA 2008 prior to ratification by President
Hague Convention Status
32 countries have ratified: Norway Albania Bosnia and Herzegovina Ukraine European Union countries (except Denmark) (as of 8/1/2014) See HCCH.net for updated status, recommended forms, Country Profiles, and Caseworker’s Guide
Countries Slated to Ratify
United States Anticipated Summer 2016 Brazil Belarus Kazakhstan New Zealand Recent new movement All ratifications by a state (country) are dependent on each country’s passage of state-level legislation
Potential Impact of the Convention
International Case Research 2013 Compared international caseloads in 9 jurisdictions Diverse jurisdictions; diverse sizes Some conclusions: Caseloads highest with states in close geographic proximity International cases have longer lives than domestic cases The cases look similar to domestic cases
International Cases & the Hague Convention
Non-Hague Foreign Support Order
Transmittal letter 2 copies of order (1 certified) Sworn or certified arrears statement Certain obligor/obligee info Name/address of person to whom support payments will be sent Request for Determining Controlling Order, if appropriate
Hague Foreign Support order
Transmittal letter Complete text of order or abstract by issuing tribunal Record: order is enforceable in issuing country For a default order, record attesting to due process Record: arrears and automatic adjustment of support Record of receipt of free legal assistance in issuing country (if necessary)
International Cases & the Hague Convention
Timeline to Contest Registration Non-Hague Foreign Support Order (Section 605): within 20 days after notice of registration Hague Foreign Support Order (Section 707) Not later than 30 days after notice of registration Not later than 60 days after notice if contesting party does not reside in US
International Cases & the Hague Convention
Acceptable Contests to Hague Foreign Support Orders Procedural fraud Proceeding between same parties with same purpose is pending before a tribunal of state and that proceeding was filed first.
Issuing tribunal lacked personal jurisdiction consistent with § 201.
Order is not enforceable in issuing country If an order was obtained by default, it lacked due process re: notice and opportunity to be heard Registration manifestly incompatible with public policy, including the failure of the issuing tribunal to observe minimum standards of due process
Non-Recognition of Hague Order
If a tribunal does not recognize a Hague order because of: Lack of personal jurisdiction, Procedural fraud, or The order is a default order in which Respondent neither appeared nor was represented, then Court must allow a reasonable time for a party to request establishment of a new Convention order, and DCSS shall take all appropriate measures to facilitate that request.
Role of Central Authority
Entity under the Hague Convention which performs specific functions The Central Authority in the US is the Secretary of Health and Human Services HHS will designate CA IV-D agency to perform many of the CA functions
Forms
2014 Intergovernmental Forms Revision Project (OCSE): Addresses sensitive/confidential information (PII) Forms adjusted for UIFSA 2008 The Hague Conference website has the mandatory and recommended forms for the Convention, Country Profiles, and a Caseworker’s Guide
www.hcch.net
Practical Handbook
Practical Handbook for Caseworkers Contains procedures, flowcharts and guides Available on HccH website (http://www.hcch.net/index_en.php?act=publicatio ns.details&pid=6095&dtid=3 )
iSupport
Case management application to assist Central Authorities in processing Convention applications and EU regulation cases Expected implementation: Summer, 2016 See iSupport page on HccH website (http://www.hcch.net/index_en.php?act=text.dis
play&tid=192)
iSupport Key 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
DCSS Efforts to Implement UIFSA 2008
DCSS Project Management Team Executives, Legal, Policy, Intergovernmental Services, Training Established UIFSA 2008 Forum CA CS Central Workgroup with LCSA Volunteers (Feb-March) Reviewed RFCs to Update CSE Reviewed DCSS, Judicial Council, OCSE Forms Discussed Impact to LCSA procedures Discussed Training Approach
Impact on LCSA
DCSS is developing training to address multiple groups: LCSA, Court, Private bar Section 319: Redirection of Payment and Change of Payee DCSS will receive incoming redirect requests LCSA training will focus on when and how to request redirect from other states Telephonic appearance mandatory Non-Disclosure Declaration or Affidavit Judicial Council and OCSE Forms Updates to come International Cases: Training will focus on long-term impacts and increase in cases