ERICSA is a 40-year old professional child support association, whose members are from the 33 states and territories bordering on and east of the Mississippi River, as well as the District of Columbia. Our membership is comprised of individuals representing federal, state, and local jurisdictions in the establishment and enforcement of child support obligations; public and private lawyers; judges and judicial officers; individuals from the private sector; and others who, by their profession or interest, are involved in the child support program. Representatives of ERICSA participated as official observers in the drafting of the 1992 Uniform Interstate Family Support Act. We have been members of each subsequent UIFSA Drafting Committee, including the one that drafted the 2001 amendments. ERICSA fully supports enactment of the 2001 amendments to the Uniform Interstate Family Support Act.
The most significant result of UIFSA is one order between parties that controls the amount of current support. UIFSA achieves this by prohibiting a tribunal from establishing a new order when there is already a support order entitled to recognition. It also limits a tribunal’s ability to modify an order. In older cases, where there are already multiple conflicting support orders, UIFSA establishes clear rules for deciding which of the orders is the controlling order prospectively.
The 2001 amendments to UIFSA are not major substantive changes. However, they are important because they clarify issues that had resulted in litigation and further strengthen UIFSA’s main provisions. This document highlights some of the more significant changes and how state constituents will benefit from them.
· Determination of Controlling Order (DCO)
The 2001 amendments clarify issues that have faced court and administrative tribunals, such as what type of jurisdiction is required to issue a legally binding DCO and who can request a DCO. Recognizing that noncustodial parents, custodial parents, and decision-makers will all benefit from knowing which of multiple support orders is controlling, the 2001 UIFSA also places new responsibilities on support enforcement agencies and tribunals to be proactive in moving toward the goal of one controlling support order. The 2001 amendments require that a tribunal state in its order the bases upon which it made its determination of the controlling order, the amount of any prospective current support, and the total amount of consolidated arrears and accrued interest, if any, under all of the “old” orders. These changes ensure better communication between the tribunal and the parties. They also result in all issues being addressed in one proceeding – a determination of which order will control support in the future and a determination of arrears owed under all past orders. The noncustodial parent benefits from the amendment because other states are bound by the consolidated arrearage determination.
· Evidentiary Provisions
The amendment with the most significant impact is a simple word change from “may” to “shall” in Section 316 (f). Under the 1996 UIFSA a tribunal has discretion in permitting testimony by telephone. The 2001 amendments require a tribunal to permit a nonresident party or witness to testify by telephone, audiovisual means, or other electronic means at a location designated by the tribunal. The amendment is beneficial in many ways: (1) it ensures that a nonresident can participate in a hearing without the expense of travel to the forum state (and that your state residents cannot be required to travel to other jurisdictions that have adopted UIFSA 2001); (2) it will therefore likely reduce the number of default orders; and (3) it ensures that the tribunal has access to more complete and current information than can be conveyed in paper pleadings.
· Duration of Support
Prior to the 2001 amendments, one needed to read the Official Comments to Section 611 of UIFSA to learn that duration of support is an example of a nonmodifiable term under most state laws. Since most courts lack access to NCCUSL’s Official Comments, the 2001 amendment to subsection (c) now specifically lists “duration of the obligation of support” as an example of a nonmodifiable term. Additionally, the new subsection (d) clarifies that it is not the “first ever” order that “locks in” duration, but the law of the State that is determined to have issued the initial controlling order. For example, if a state resident has fulfilled the support duty under the controlling order, which was issued by your state, a tribunal in another state with a longer duration cannot impose a further support obligation through an establishment proceeding. The amendment was in reaction to a few state court decisions which had, according to NCCUSL, “sought to subvert” UIFSA’s intent.
· Modification Jurisdiction
The 2001 Amendments allow an issuing tribunal to modify an order, even if no one resides in the state, if both parties consent to the exercise of jurisdiction. This change will allow the same tribunal to retain issues over spousal support, property settlement, and child support if the parties so desire.
· Redirection of Payments
One of UIFSA’s goals is get support payments to a relocated custodial parent as quickly as possible while ensuring that there is an accurate accounting record. The 2001 UIFSA amendments to Section 319 (Receipt and Disbursement of Payments) further this goal.
· International Cases
The 2001 amendments focus on international cases much more than the original Act, providing welcome guidance to decision-makers and the child support enforcement agency.
· Choice of Law
One of the questions that had confused child support agencies is which state’s law applied in the calculation of interest. 2001 amendments to section 604(a), (c), and (d) specifically address interest on arrears.
Projects\ericsa\ERICSA 2001 UIFSA.doc