Introduction to the Problem
Child Support and the Judiciary – A Continuing Collaboration
Background: the Child Support Enforcement Program
The Child Support Enforcement Program has been at work since 1975. It was established by Congress under Title IV-D of the Social Security Act to collect child support payments for children in single-parent or single-guardian families – hence the common reference to the “IV-D program.” Although the program has expanded greatly since its inception, the goals of the Federal, State, local, and Tribal partnership that comprise today’s IV-D program remain. These goals are to ensure that both parents financially and emotionally support their children.
The role of the Federal Office of Child Support Enforcement (OCSE) is to set program standards and policy, evaluate State and Tribal performance in conducting their child support enforcement programs, offer technical assistance and training to States and Tribes, and conduct audits of State and Tribal child support enforcement program activities. The Federal government pays the predominant share of the cost of funding the Child Support Enforcement Program through State and Tribal child support enforcement agencies (also called “IV-D agencies”). These agencies are housed in varying locations at the election of State or Tribal government.
All families may obtain child support services. Families that are receiving public assistance must cooperate with the State or Tribal child support agency to establish paternity and collect child support, except for “good cause” reasons, such as a serious threat of physical violence. Families that do not receive public assistance may apply, at little or no cost, to receive child support services.
The six basic child support enforcement services provided by State, local, and Tribal programs are:
· Locating noncustodial parents
· Establishing paternity
· Establishing child support and medical support orders
· Collecting and distributing child and medical support
· Enforcing child and medical support orders, and
· Modifying child support orders.
Although family law has traditionally been the almost exclusive domain of the States and Tribes, Congress has made major incursions into this legal arena in the past several years, primarily by making Federal funding of certain State and Tribal programs contingent upon the enactment of State and Tribal laws that conform to Federal specifications. However, many of these “Federal mandates” evolved from innovative laws and programs created and tested by many States and Tribe. Through this ongoing process of State and Tribal innovations and federally required adoption of similar, and in some cases uniform laws, the judicial, legislative, and administrative branches of Federal, State, local, and Tribal government have joined to facilitate child support collection and the enforcement of custody and visitation orders across State and Tribal lines. For intrastate and intratribal child support litigations, IV-D requirements have similarly focused on relieving congested court dockets, expediting the resolution of these legal matters, and ensuring full and timely payment of all support obligations.
The Evolution of the Child Support Program
When Congress established the IV-D program back in 1975, the primary focus was the establishment of paternity and the establishment and enforcement of child support orders. The program’s focus was narrow because, as originally envisioned, the IV-D program’s mission was to recoup state and federal welfare expenditures. The focus was clear to even the most casual observer because the majority of paternity establishments and support collections occurred in welfare cases.
With Congressional oversight, the IV-D program continues to evolve. Today it is much less of a welfare recoupment tool because the program’s focus has widened to include early intervention by offering preventative services to families. While the IV-D program continues to expect parents to support their children, in collaboration with interested partners (like the courts) the IV-D program now offers a wide range of remedies with the goal of helping parents become more involved with their children. One of the more notable examples of Congressional direction in the shaping of family law matters is the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 (Public Law 104-193 and as subsequently amended by the Balanced Budget Act of 1997), known as “welfare reform.” Focused on self-sufficiency and personal responsibility, PRWORA made child support enforcement a cornerstone of its social revolution.
In addition to toughening the enforcement of financial obligations, PRWORA recognized the importance of parental involvement in children’s lives by providing grants to States for development of noncustodial parent (NCP) access and visitation programs. The goal of the access and visitation program is to “…enable States to establish and administer programs to support and facilitate non-custodial parents’ access to and visitation of their children…” (See 42 U.S.C. §669b)
States are directed to accomplish this goal through the provision of services including, but not limited to:
· Mediation (mandatory and voluntary)
· Counseling
· Education (e.g., parent education)
· Development of parenting plans
· Visitation enforcement (including monitored supervision and neutral drop-off/pick-up), and
· Development of guidelines for visitation and alternative custody arrangements.
Under this program, States have the discretion to decide what services to provide, organizations to be funded, geographic areas to be covered, and persons to be served.
The Act also reflected judicial and legislative concerns about disclosing information in cases of domestic violence, by requiring States to include a Family Violence Indicator, where appropriate, to prohibit release of locate data, and by placing override responsibility in the State courts.
In addition, PRWORA authorized the direct funding of Tribes and Tribal organizations interested in operating child support enforcement programs. This direct Federal funding provisions allows Tribes to establish and operate their own IV–D programs just as the States had done since 1975.
With the active participation and cooperation of State and Tribal court judges and administrators, progress continues toward achieving the shared goals of promoting self-sufficiency and economic stability in single-parent homes, fostering parental responsibility – both financial and emotional – and supporting the rule of law through enforcement of court orders. With these goals in mind, this packet is designed to introduce judges, court administrators, and clerks of the court to the Federal and State and Tribal locate and enforcement resources available under the nation’s child support enforcement program. It also highlights the cooperative effort between the executive, legislative, and judicial branches of government, to establish paternity and to secure adequate and timely child support payments.
Problem-Solving Courts
In its efforts to improve outcomes for children and families, one of the issues the National Judicial/Child Support Enforcement (CSE) Task Force (Task Force) is investigating is the applicability of problem-solving courts to the family court venue. Problem-solving State courts date back to the 1980s, when they first appeared in Miami, Florida. The focus in Miami was ending the cycle of recidivism in drug cases by improving the effectiveness and efficiency of court interventions in repeat offender cases. The results of these pioneering efforts were impressive so the problem-solving techniques were expanded to other venues.
By 2004, the Conference of Chief Justices (CJC) partnered with the Conference of State Court Administrators (COSCA) resolved to support and foster the use problem-solving court principles in all courts. As original members of the Task Force, representatives from the CJC and COSCA made certain that the Task Force investigated the use of problem-solving court techniques in the child support arena. In its 2006 Strategic Plan the Task Force identifies its problem-solving courts goal as follows: “Expand the use of problem-solving court techniques and practices by child support enforcement courts to improve the outcomes of these court cases and measurably reduce the number of subsequent court actions involving the same families.”
Currently, problem-solving courts have been applied to the child support arena when dealing with low income noncustodial parents (NCP) and have been used by judges as a case management tool in cases where the NCP is confronting multiple barriers that are preventing payment of child support. These judges are ordering eligible NCPs to assessment services, where the specific barriers are identified on a case-by-case basis. Then, the judges order the NCPs to take advantage of available remedies for their specific barriers (e.g., substance abuse treatment, mental health services, housing assistance, job readiness, job placement, etc.).
The Task Force believes that the application of problem-solving court principles in child support cases has the potential for a number of desired payoffs. Besides an anticipated increase the amount of support collected for children, the use of problem-solving courts promises to result in reduced arrearages and help parents remain engaged in the lives of their children. In short, by introducing problem-solving court principles and procedures into the variety of child support trial courts and tribunals, the judiciary and its child support partners can better ensure that children receive the financial, medical, and emotion support of both parents.
Judicial and Child Support Collaborations
Collaborative efforts between the courts and the IV-D program are not new. Since the inception of the IV-D program, the courts have played an important role in the shared goal of improving the lives of children. The creation of the Judicial/Child Support Enforcement (CSE) Task Force was a logical outgrowth of this collaboration.
In September of 1998, OCSE worked with the National Center for State Courts (NCSC) to host a national judicial symposium titled "Children, Courts and the Federal Child Support Enforcement Program." It addressed the integral role of the courts and judiciary in the child support enforcement process. Teams of state court/judicial and IV-D representatives joined to evolve strategies to deal with child support issues in their own jurisdictions.
In May 2003, OCSE hosted the 2nd National Symposium on Children, Courts and the Federal Child Support Enforcement Program. The goal was to improve collaboration between child support agencies and the courts and judiciary. As a result, the Conference of Chief Justices (CCJ) and Conference of State Court Administrators (COSCA) recognized the following priorities: (1) uncollectible arrears, (2) default orders, and (3) interstate case processing - along with resolutions identifying collaborative strategies for dealing with them.
In response to these resolutions, in 2004 OCSE formed the National Judicial/CSE Task Force (Task Force) to take the next steps. The approximately 40 core members from 20 states representing a wide cross-section of national court/judicial organizations, trial, and appellate judges, state/tribal child support agencies, and OCSE.
The Task Force is committed to working collectively to make the changes in child support, court, and other processes, procedures and/or rules that will improve outcomes for children and families.
The Uniform Interstate Family Support Act
UIFSA Background
For much of the last half of the twentieth century, the Uniform Reciprocal Enforcement of Support Act (URESA) was the primary mechanism used to resolve interstate litigation of family support cases. Recognizing dramatic changes in child support enforcement over the years, the National Conference of Commissioners on Uniform State Laws (NCCUSL) promulgated the Uniform Interstate Family Support Act (UIFSA) in 1992 to replace URESA and [R]URESA. UIFSA was drafted over 3½ years with substantial input from judges, private and public attorneys, State legislators, and the professional child support enforcement community. During the summer of 1996, NCCUSL approved amendments to UIFSA, mostly designed to correct misinterpretations and fill in oversights. The Federal Social Security Act requires all States to implement UIFSA. In 2001, NCCUSL revised UIFSA once more. UIFSA citations appearing in this document reference the 2001 version of the Act.
The Federal Full Faith and Credit for Child Support Orders Act
The Full Faith and Credit for Child Support Orders Act (FFCCSOA) (Public Law 103-383, 108 Stat. 4063, codified at 28 U.S.C. §1738B (1994)), as amended by PRWORA, was enacted at the recommendation of the U.S. Commission on Interstate Child Support to impose UIFSA’s limitations on the ability of jurisdictions to modify the orders of sister States. This Federal law (requiring States and Tribes to give full faith and credit to valid child support orders) has been in effect and controlling on all States and Tribes since October 20, 1994. Until August 22, 1996, however, when welfare reform was signed into law, FFCCSOA did not comport with UIFSA in several critical areas:
· FFCCSOA did not contain UIFSA’s priority scheme for determining the controlling order and continuing exclusive jurisdiction (CEJ) when multiple orders exist.
· FFCCSOA thus required recognition of orders that would not be prospectively enforced under UIFSA.
· The term originally used in FFCCSOA to determine whether a State had lost CEJ was “contestant,” which included the child support agency. Thus, unlike UIFSA, a State would retain CEJ (precluding modification elsewhere) even if the individual parties and the child had left the State where the IV-D agency was a contestant.
· The writing evidencing an agreement to vest jurisdiction in another State was to be filed in the State that would assume CEJ. UIFSA requires a filing in the State that loses CEJ.
· Absent a CEJ State, under UIFSA a party seeking modification must litigate in the opposing party’s State. FFCCSOA contained no similar requirement of non-residency, allowing a court to assert jurisdiction in a modification filing under any long-arm basis.
The amendments to FFCCSOA contained in welfare reform addressed these differences. Thus, as of August 22, 1996, FFCCSOA ensured that UIFSA’s “one order, one time, one place” principles controlled, even in jurisdictions that had not yet enacted UIFSA.
The Top Ten Things to Know about UIFSA
1. One-State and Two-State Proceedings
Key to UIFSA is its applicability to all cases where the individual seeking an order resides in a different State from that of the responding party. The UIFSA drafters sought a “one-stop shop” approach to the Act. UIFSA thus has both one-State and two-State procedures under which either the custodial party or the noncustodial parent can obtain a support order.
· Long-Arm Jurisdiction: The UIFSA drafters stopped short of adopting the “child’s home state” jurisdictional model contained in the Uniform Child Custody Jurisdiction Act (UCCJA). But §201 of the Model Act incorporates virtually every other basis that was believed to be constitutionally permissible. Jurisdiction over non-residents may be based on one or more of the following circumstances. Of course, jurisdiction under these sections is still subject to challenge, based on due process claims that the nexus between the act involved and the jurisdiction is too remote to pass the “fundamental fairness” test: