Pretzel Logic: Handling the Twists and Turns of

UIFSA Modification

Jeff Ball, J.D.Kelly Peiper, J.D., PMP

Andrew J. Schweller, Esq. - Moderator

ERICSA 50th Annual Training Conference & Exposition ▪ May 19 – 23 ▪ Hilton Orlando Lake Buena Vista, Florida 

UIFSA Modification Provisions

• Sections 609-615– A state retains CEJ to modify its order as long as

one of the parties or the child remain in that state– Procedure when registering another state’s order,

if above does not apply– Requirements, procedures and defenses of the

modifying state apply – Non-modifiable Provisions

• Duration

UIFSA Modification Provisions

• Section 611– To modify another state’s order, the tribunal must

find that no one resides in the issuing state– The person seeking the modification is not a

resident of the modifying state (play-away)– The respondent is subject to PJ of modifying state

UIFSA and FFCCSOA

• 28 USC 1738B• FFCCSOA Provisions

– Effective 10/20/94– Controlling Order– Modifications

• Establishes modification rules• FFCCSOA (Apparent) Discrepancies with UIFSA

UIFSA and UCCJEA• Jurisdiction to hear a case = subject matter (court can hear this

type of case) + personal or in rem or quasi-in-rem jurisdiction• Child support personal jurisdiction is based on personal

jurisdiction over the defendant• Child custody jurisdiction is based on the location of the child –

more of an “in rem” jurisdiction • UIFSA borrowed some concepts from UCCJA (later UCCJEA)

such as “home state” (child’s last residence for 6 cons. mths.)• Since child support program did not adopt the “child state”

model, support and custody cases may be appropriately heard in two different states depending on the circumstances

UIFSA and UCCJEA - example• CP and NCP have a child and live in State 1; child and

CP move to State 2 and have been there for two years; Dad now lives in State 3 and has never visited State 2.

• Child Custody under UCCJEA – State 2 is forum state

• Child Support under UIFSA – State 3 is forum state (unless the parties otherwise agree in writing)

UIFSA and IV-D Review and Adjustment Regulations45 CFR 303.8•Review and, if appropriate, adjust, every 3 years a TANF case or upon the request of a parent, or more frequently•30 days to contest the review – jud v. admin•Covers child support and medical support orders•R&A takes place in the controlling order state

Modification v. Not a Modification?What is a modification?•Change to the child support amount•Change to the health care provisions•Change from obligor to obligeeWhat is not a modification?•COLA•Other “automatic” changes to an order•Arrears determinations

The Controlling Order

• Based on the principle of ONE order in effect at a time

• This is the ONE order used for prospective enforcement

• By this time, should only be one order for prospective enforcement in every case that includes an arrears judgment

One Party Remains in Controlling Order State • To modify, must determine which state has

Continuing, exclusive jurisdiction• Does anyone (obligor, obligee, child) live in

the state with the order?• If yes, that tribunal has CEJ and that is the

controlling order

One Party Remains in Controlling Order State - scenario• Order in Florida• NCP resides in Florida• Where does the modification take place?

Parties Agree to Move CEJUIFSA, Section 611(a)(2)•Parties may agree, in a record, to allow another state to acquire CEJ•Applies if someone lives in original issuing state, or if all parties have left and want CEJ in the petitioner’s state•The agreement must be filed in the record of the issuing tribunal for another state to assume CEJ

Parties Move to the Same StateUIFSA, Section 613•Allows an exception to the “play away” rule•Both parties, and the child, do not reside in the issuing state•Jurisdiction can be assumed by the state where everyone lives•Cannot modify the non-modifiable provisions, as determined by the issuing state

Notification to Issuing TribunalUIFSA, Section 614•Within [30] days after issuance of a modified order, the party obtaining the modification shall file a certified copy of the order with the issuing tribunal that had CEJ•Failure to do so subjects the party to sanctions by the tribunal•Failure to do so does not affect the validity of the modified order

IV-D agency wants to modify and no one lives in controlling order state

• Under fed. rule (45 CFR §303.8(b)(6)(f)), review and adjustment must be done in state with legal authority to adjust the order. Which state will ultimately have jurisdiction to modify? That state does the review, and if appropriate, the adjustment.

• UIFSA - §611– If seeking an upward modification, go to NCP’s state– If seeking a downward modification, go to CP’s state– What if seeking mod in case against both parents (new

caregiver or foster care situation)?

Parent wants to modify and no one lives in controlling order state

• IV-D case - (45 CFR §303.8(b)(6)(f)), review and adjustment must be done in state with legal authority to adjust the order. Which state will ultimately have jurisdiction to modify? That state does the review, and if appropriate, the adjustment.

• UIFSA – §611 – applies to IV-D and non-IV-D cases– If seeking an upward modification, go to NCP’s state– If seeking a downward modification, go to CP’s state

Family make-up changes: adding a child

• Adding a child – UIFSA and federal rules are silent – – most states add a child to the existing case – state with power to modify because it has the controlling

order and a party lives in the state may add a child– If no party lives in the state of the controlling order, the

modification to add a child is heard in responding party’s state

Family make-up changes: changed, switched or split custody

• Changing custody, switched custody, or split custody –– Some states will use the same child support case to change support

when there is a custody change from a CP to a NCP, when children are swapped between parents, or when children are split between parents; some states create new cases for these events

– However, since the parties (parents and children) are the same, they are treated as the same family unit for the purposes of modification

– state with power to modify because it has the controlling order and a party lives in the state may modify old order or create order under new case number

– If no party lives in the state of the controlling order, the modification activity takes place in responding party’s state, by modifying old order or creating order under a new case number

Caregiver Cases• Caregiver cases – who is a party?• Check local laws regarding physical or legal custody• UIFSA recognizes caregivers as obligees (see UIFSA 2008 comments)

• If caregiver is a party, then modification rules apply to caregiver situation, i.e., if caregiver & child live in State 1, and Mom in State 2 and Dad in State 3 –– If State 1 issued controlling order, it has jurisdiction to modify– If State 2, then 2 has juris.; if State 3, then 3 has juris. to modify– If 1, 2 or 3 does not have CO, modification in resp. state(Parties can agree in writing to a state that would have jurisdiction over one of the parties)

Active Duty Military• Servicemember Civil Relief Act – active-duty servicemember or

reservist - notice and an opportunity to be heard at a hearing that is scheduled when servicemember available

• Can stay CSE activity for at least 90 days after attorney is appointed and two letters prepared by commanding officer and service-member explaining why stay is needed - stateside or overseas

• Residence – is a servicemember’s duty post his or her residence?– Difference between domiciliary and residence – UIFSA needs residence status (§611 uses “resides”)– Majority view – is he or she stationed for a definite period (not on TDY)?– Minority view – look at voluntary actions - car registration, driver’s license,

tax filing, house– http://www.acf.hhs.gov/programs/css/resource/applying-the-servicememb

ers-civil-relief-act

Tribal – State Cases• IV-D Tribes are not required to have UIFSA • Tribes are subject to FFCCSOA• Bottom line – full faith and credit accorded to one

another’s orders whether or not the tribe is OCSE-recognized as a IV-D tribal program

• Modifications are governed by FFCCSOA (similar rules to UIFSA 1996)– CEJ state/tribe with party residing there may modify– “Play away” in responding party’s state or tribe for modification

purposes if no one resides in CEJ state or within tribal area

International Cases - I• PRWORA gave the federal government power to negotiate

bilateral orders with other countries. UIFSA 2001 redefined “state” to encompass foreign countries with a bilateral agreement with the United States.

• UIFSA 2008 revised the act to integrate the appropriate provisions of the Hague Convention into state law.

• UIFSA added an Article 7, which constitutes a stand-alone portion of the act designed to direct a “tribunal of this state” on limited special practices and handling deemed to be necessary for establishing or enforcing a Hague Convention support order.

Excerpted from the UIFSA 2008 comments

International Cases - II• UIFSA - §611(f) - Notwithstanding subsections (a) through (e) and Section

201(b), a tribunal of this state retains jurisdiction to modify an order issued by a tribunal of this state if: – (1) one party resides in another state; and – (2) the other party resides outside the United States.

• UIFSA - §615(a) Except as otherwise provided in Section 711, if a foreign country… will not or may not modify its order lacks or refuses to exercise jurisdiction to modify its child-support order pursuant to its laws, a tribunal of this State may assume jurisdiction to modify the child-support order and bind all individuals subject to the personal jurisdiction of the tribunal whether or not the consent to modification of a child-support order otherwise required of the individual pursuant to Section 611 has been given or whether the individual seeking modification is a resident of this State or of the foreign country or political subdivision.

International Cases - III• UIFSA - §615(b) An order issued by a tribunal of this state

modifying a foreign child-support order pursuant to this section is the controlling order.

• UIFSA - §616. A party or support enforcement agency seeking to modify, or to modify and enforce, a foreign child-support order not under the Convention may register that order in this state under Sections 601 through 608 if the order has not been registered. A [petition] for modification may be filed at the same time as a request for registration, or at another time. The [petition] must specify the grounds for modification.

International Cases - IV• Questions to ask (pre-Hague Convention):• To modify an existing U.S. order:

– Where do the parties live?– Does a state retain jurisdiction to modify in the international case based on

traditional UIFSA modification principles?– If not, do the enhanced modification principles in UIFSA for international

cases allow the state to modify the order?

• To modify an existing foreign country order:– Who has jurisdiction to modify under any state reciprocal agreement or a

federal bilateral agreement? Does your state have UIFSA 1996 or 2001?– Can written consent lead to stateside modification?– If modification jurisdiction cannot be gained in U.S., what steps are needed

for modification in the other country?

“Lame Duck” Jurisdiction• What goes on when everyone has left the state with the

controlling order? What is the lame-duck state IV-D agency’s responsibility?– It has continuing, exclusive jurisdiction (CEJ) to enforce its order – It has a responsibility to enforce its order– It is responsible for coordinating payments and any redirection requests– Once another state assumes CEJ by issuing a new order, the state that just

lost CEJ may still enforce the terms of the old order up to the new CEJ state’s order issuance date – new CEJ state may also enforce arrears

– If all the parties leave the CEJ state, and then one party returns before another state assumes CEJ, the original CEJ state regains its power to modify the order – where do parties live at the time of the modification action?

Changing Payees • Not the “kid-swap” scenario• Scenario:

– Dad ordered to pay mom– Child goes to live with grandma

• Query if this is a modification or an establishment action

• Is this a “change of payee” so that we can do it administratively?

Changing Payees • Scenario:

– Florida order for dad to pay mom– Child goes to live with grandma in GA and

requests IV-D services– GA asks FL to modify its order to reflect grandma

as the obligee

• How to obtain order for mom to pay grandma?

COLAs and Other Adjustments• COLAs are automated changes to the support order

based on the national inflation rates and economic indicators

• Terms are established in the initial order, therefore when a COLA is applied, it is not considered a modification

• Other states have other terms – older child ages out is common example

• The terms kick in regardless of where parties reside

Terms of Other State’s Order• Duration

– System setting– Listing on the IRG

• Age listed in the order, by operation of law, exceptions, child marries, child disabled, etc… very detailed

• Other Terms– UIFSA, Section 317 – Communications between

Tribunals– IRG

Contact• Kelly Peiper, J.D., PMP, Principal, CSG Government

Solutions– kpeiper@csgdelivers.com– 515-868-1538

• Jeff Ball, J.D., Project Manager, YoungWilliams, PC– jball@ywcss.com– 719.208.8288

• Andrew J. Schweller, Esq, Chief Civil Division, Allen County Prosecutor's Office– Andrew.Schweller@co.allen.in.us