OLR Bill Analysis

sHB 6973

AN ACT ADOPTING THE UNIFORM INTERSTATE FAMILY SUPPORT ACT OF 2008.

SUMMARY:

This bill makes numerous changes to Connecticut's Uniform Interstate Family Support Act (UIFSA) to adopt the 2008 revisions recommended by the National Council of Commissioners of Uniform State Laws and required by federal law (P. Law 113-183) to remain eligible for continued federal IV-D funding for child support enforcement (see BACKGROUND). UIFSA generally seeks to establish rules for determining which order should be given effect when two or more jurisdictions have issued conflicting support or modification orders involving the same parties. The 2008 revisions incorporate provisions from the Hague Maintenance Convention (Convention) into state law (see BACKGROUND).

The bill repeals the current UIFSA and replaces it with similar provisions. It makes several existing procedures for child support orders issued out-of-state or to parties residing out-of-state applicable to orders issued in a foreign country or parties residing in a foreign country ( 1-78 & 94). Among the other changes it makes to UIFSA, the bill:

1. adds several new definitions to conform with the 2008 revisions ( 2);

2. replaces, throughout UIFSA, references to (1) “paternity” with “parentage of a child” and (2) “family support magistrate” and “Family Support Magistrate Division (FSMD) of the Superior Court” with “tribunal”;

3. broadens the state tribunals' (i.e. the Superior Court and its FSMD) authority to modify child support orders ( 55);

4. requires tribunals to adhere to UIFSA for support proceedings involving a foreign (a) support order, (b) tribunal, or (c) resident who is an obligee, obligor, or child in the proceedings ( 5);

5. adds provisions to UIFSA that directly address how the Superior Court and Department of Social Services' Bureau of Child Support Enforcement (BCSE) must handle Convention support orders (i.e., orders issued in a country that is a Convention signatory) and foreign support agreements ( 61 – 73);

6. establishes that the BCSE and the Superior Court's Support Enforcement Services (SES) are the state's support enforcement agencies ( 5);

7. requires SES, in UIFSA-related proceedings, to (a) perform clerical, administrative, and other nonjudicial functions on FSMD's behalf, (b) maintain a support orders and judgments registry, and (c) assist BCSE in performing its functions when handling Convention support orders and foreign support agreements ( 89); and

8. specifies that the act's provisions are severable (i.e., if any provisions or their application are found to be invalid, the invalidity does not affect the rest of the act)( 78).

The bill also makes technical and conforming changes, including to statutory provisions that govern child support and parentage proceedings, support services and enforcement, and income withholdings.

EFFECTIVE DATE: July 1, 2015

2 – DEFINITIONS

New Definitions

Under the bill:

1. “Convention” means the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, which concluded at the Hague on November 23, 2007;

2. “foreign country” means a country or a country's political subdivision, other than the United States, that authorizes the issuance of support orders and (a) has been declared under federal law to be a foreign reciprocating country, (b) has established a reciprocal arrangement for child support with Connecticut, (c) has enacted a law or established procedures for issuing and enforcing support orders that are substantially similar to UIFSA, or (d) in which the Convention is in force with respect to the United States; and

3. “foreign tribunal” means a foreign country's court, administrative agency, or quasi-judicial entity, including a competent authority under the Convention, that is authorized to establish, enforce, or modify support orders to determine a child's parentage.

Initiating and Responding Tribunals

The law authorizes tribunals to act as either initiating or responding tribunals in proceedings to establish, enforce, or modify support orders or to determine parentage. Currently, the tribunal that requests another state's assistance is the initiating tribunal and the tribunal that provides the assistance is the responding tribunal. To conform with the 2008 revisions, the bill broadens the definition to “initiating tribunal” and “responding tribunal” to include tribunals that request assistance from or provide assistance to a foreign country.

55, 58, & 60 – ORDER MODIFICATION

The law allows a tribunal to modify another state's child support order if (1) the parties live in Connecticut and the child (who need not live here) does not live in the state that issued the order or (2) at least one party or child lives in Connecticut and the parties consent in the issuing state to transfer the case to Connecticut. The bill also allows a tribunal to modify an order it issued if one party resides in Connecticut and the other resides outside the United States.

Under the bill, a party that obtains a modification must file a certified copy of the new order with the issuing tribunal that had jurisdiction over the earlier order within 30 days after the modification is issued. A party that fails to file the certified copy is subject to sanctions by the tribunal in which the issue of the failure to file arises. Failure to file does not affect the modified order's validity or enforceability.

In the case of a foreign child support order that is not under the Hague Convention (i.e., issued by a country that is not a signatory to the Convention), the bill allows a party or support enforcement agency seeking to modify, or modify and enforce, to register the order in Connecticut if it has not already been registered. The party or agency may make a motion for modification at the same time it registers the order or at another time. The motion must specify the grounds for modification.

61 - 73 – CONVENTION SUPPORT PROCEEDINGS

Sections 61 – 73 of the bill apply only to Convention support proceedings. The bill specifies that these provisions control in such proceedings even if they are inconsistent with another part of UIFSA.

Convention Procedures - 63 & 64

In a support proceeding under the Convention, the bill gives BCSE the authority to (1) transmit and receive applications and (2) initiate or facilitate the establishment of a proceeding regarding an application in a tribunal in Connecticut.

Obligee. The following procedures are available to a party entitled to or seeking child support (an obligee) under the Hague Convention:

1. foreign support order recognition or recognition and enforcement;

2. enforcement of a support order issued or recognized in Connecticut;

3. establishment of a support order if there is no existing order, including, if necessary, determination of a child's parentage; and

4. modification of a Connecticut tribunal's support order or such an order from another state's or foreign country's tribunal.

Under the Convention, obligees are also able to seek a new support order if the court refuses to recognize a foreign support order because (1) the issuing tribunal lacked personal jurisdiction and (2) the order was obtained by fraud in connection with a procedural matter.

Obligees may also seek a new support order if a court refuses to recognize a foreign order in a case in which the respondent did not appear and was not represented in the issuing foreign country's proceedings and:

1. if the law of that country provides for prior notice of proceedings, the respondent did not have proper notice of the proceedings and an opportunity to be heard or

2. if the law of the country does not provide for prior notice of proceedings, the respondent did not have proper notice of the order and an opportunity to be heard in a challenge or appeal on the facts or law before a tribunal.

Obligor. The following procedures are available under the Convention to a party responsible for paying support (an obligor) under an existing support order:

1. recognition of an order suspending or limiting enforcement of an existing support order from a Connecticut tribunal and

2. modification of a support order from a tribunal in Connecticut, another state, or a foreign country.

Additionally, in proceedings under the Convention, a tribunal may not require security, bond, or deposit to guarantee payment of associated costs and expenses.

Direct Requests - 65

Under the bill, a “direct request” is a petition filed by an individual in a Connecticut tribunal in a proceeding involving an obligee, obligor, or child residing outside the United States.

Establishment or Modification. The bill allows a petitioner to file with a tribunal a direct request seeking establishment or modification of a support order or a determination of a child's parentage. Connecticut law applies to such proceedings.

Recognition or Enforcement. A petitioner may also file a direct request seeking recognition or enforcement of a support order or agreement. UIFSA applies to such proceedings.

In a direct request for recognition and enforcement of a Convention support order or foreign support agreement:

1. a security, bond, or deposit is not required to guarantee the payments of costs and expenses and

2. an obligee or obligor that benefited from free legal assistance in the issuing country is entitled, at least to the same extent, to any free legal assistance provided for by state law under the same circumstances.

Under the bill, a petitioner filing a direct request is not entitled to assistance from BCSE. The provisions of the bill pertaining to direct requests do not prevent tribunals from applying state laws that provide simplified, more expeditious rules regarding a direct request for recognition and enforcement of a foreign support order or foreign support agreement.

Convention Order Registration - 66, 73

An individual or a support enforcement agency seeking recognition of a Convention support order generally must register the order in Connecticut, as is the case for non-Convention orders under UIFSA.

Generally, a request for Convention support order registration must be accompanied by:

1. the order's complete text;

2. a record, in its original language with a certified English translation, stating that the order is enforceable in the issuing country;

3. if the respondent did not appear and was not represented in the proceeding in the issuing country, a record attesting, as appropriate, that he or she had proper notice and an opportunity to be heard either in the proceedings or in a challenge or appeal on fact or law before a tribunal;

4. records showing (a) the amount of any arrears and the information necessary to make the appropriate calculations and (b) any requirement for automatic adjustment of a support amount and the information needed to make the appropriate calculations; and

5. if necessary, a record showing any free legal assistance the applicant received in the issuing country.

A party seeking to register a Convention support order may seek recognition and partial enforcement of the order.

Vacating an Order - 66

Under the bill, a tribunal may vacate a Convention support order's registration without a party contesting it if, acting on its own motion, it finds that the order's recognition and enforcement would be manifestly incompatible with public policy.

The tribunal must promptly notify the parties of a Convention support order registration or an order vacating such registration.

Contesting a Registered Convention Order - 67-69

Deadline for Contesting Orders. The bill gives parties contesting registered Convention support orders more time to file the contest than allowed for contesting registered non-Convention orders under UIFSA (typically within 20 days of receiving notice of registration). A party contesting a registered Convention support order must file a contest within (1) 30 days after notice of the registration or (2) if the contesting party lives outside the United States, within 60 days after the notice. Under UIFSA, a party must file a contest within 20 days after notice of registration. If the nonregistering party fails to contest the order within the appropriate time period, the order is enforceable.

Grounds to Contest Order. Under current law, a party may contest a support order's validity on several enumerated grounds for which he or she bears the burden of proof, including if the tribunal lacks personal jurisdiction or the order was obtained by fraud. Under the bill, a party may contest a Convention support order on similar grounds in addition to grounds specific to international agreements, for which he or she has the burden of proof, such as:

1. the order's enforcement and recognition is manifestly incompatible with public policy, including the issuing tribunal's failure to observe minimum standards of due process, which include notice and an opportunity to be heard;

2. the issuing tribunal lacked personal jurisdiction;

3. the order is unenforceable in the issuing country or was obtained by fraud in connection with a procedural matter;

4. a record accompanying a registration request is inauthentic or lacks integrity;

5. a proceeding between the same parties with the same purpose is pending before a tribunal and was filed first;

6. the order is incompatible with a more recent support order involving the same parties with the same purpose if the more recent order is entitled to enforcement and recognition under UIFSA;

7. the amount in arrears has been fully or partially paid;

8. if the respondent did not appear and was not represented in the proceeding in the issuing foreign country, he or she did not have proper notice and an opportunity to be heard either in the proceedings or in a challenge or appeal on fact or law before a tribunal; or

9. a tribunal modified the order even though the obligee is still a resident of the foreign country where the support order was issued and none of the bill's exceptions apply.

In a Convention order contest, the tribunal (1) is bound by the factual findings on which the foreign tribunal based its jurisdiction, (2) may not review the order's merits, and (3) must promptly notify the parties of its decision.

A challenge or appeal of a Convention order does not suspend the order's enforcement unless there are exceptional circumstances.

Refusal to Enforce and Recognize an Order. Under current law, a tribunal must generally recognize and enforce a support order from another state. Under the bill, a tribunal may refuse to recognize and enforce a Convention order on any of the above grounds if the contesting party meets the burden of proof.

The court may not dismiss the proceeding without providing the parties a reasonable time to request a new support order if the order is not recognized in Connecticut because (1) the issuing tribunal lacked personal jurisdiction, (2) the order was obtained by fraud in connection with a procedural matter, or (3) it is a case in which the respondent did not appear and was not represented in the proceeding in the issuing country and he or she did not have proper notice and an opportunity to be heard either in the proceedings or in a challenge or appeal on fact or law before a tribunal. Also, when a Convention order is refused on these grounds, BCSE must take all appropriate measures to request a child support order for the obligee if the bureau received an application for recognition and enforcement.

Under the bill, if a tribunal does not recognize or enforce a Convention support order in its entirety, it must enforce any part of it that it can. An application or direct request may seek recognition and partial enforcement of such an order.

Convention Order Modification - 71

The bill prohibits a tribunal from modifying a Convention child support order if the obligee is still a resident of the foreign country where the order was issued unless (1) the obligee submits to the tribunal's jurisdiction, either expressly or by defending the case on its merits without objecting to the jurisdiction at the first available opportunity or (2) the foreign tribunal lacks or refuses to exercise jurisdiction to modify or issue a new support order.

Foreign Support Agreements - 61, 70

A foreign support agreement is (1) a maintenance arrangement or authentic instrument under the Convention or (2) an agreement for support in a record that:

a. is enforceable as a support order in the country of origin;

b. has been either informally drawn up or registered as an authentic instrument by a foreign tribunal or authenticated by, or concluded, registered or filed with a foreign tribunal; and

c. may be reviewed and modified by a foreign tribunal.

Under the bill, tribunals must generally recognize and enforce foreign support agreements registered in Connecticut. Applications or direct requests for agreement recognition must be accompanied by (1) the agreement's complete text and (2) a record stating that the agreement is enforceable as a support order in the issuing country.

A tribunal may only vacate the agreement's registration if, acting on its own motion, it finds that recognizing and enforcing the agreement would be manifestly incompatible with public policy.

In a foreign support agreement contest, a tribunal may refuse to recognize and enforce an agreement if it finds:

1. recognizing and enforcing the agreement is manifestly incompatible with public policy;

2. the agreement (a) was obtained by fraud or falsification or (b) is incompatible with a recognizable and enforceable support order involving the same parties and with the same purpose in Connecticut, another state, or a foreign country; or

3. the record stating that the agreement is enforceable lacks authenticity or integrity.

A proceeding for foreign support agreement recognition and enforcement must be suspended while a challenge to or appeal of the agreement is pending before another state's or foreign country's tribunal.

Personal Information - 72

Under the bill, personal information gathered for Convention support proceedings may only be used for the purposes for which it was gathered or transmitted.

BACKGROUND

UIFSA

UIFSA's general purpose is to create uniform rules and procedures, simplifying child support enforcement when the parties live in different states. In some cases, its provisions supplant state laws. In others, they specify which state's procedural and substantive laws are controlling.

All states had enacted some form of UIFSA by 1998, due in part to a provision in the 1996 federal welfare law that restricted states' eligibility for matching federal child support enforcement funds to those states that had enacted it. Prior to this latest revision, the UIFSA was most recently revised in 2001. Connecticut adopted most of those revisions in 2007.

IV-D Funding and P. Law 113-183

By law, “IV-D child support cases” are those cases where BCSE is providing child support enforcement services under Title IV-D of the Social Security Act related to cases where children are the beneficiaries of temporary family assistance (TFA), Medicaid, or foster care. BCSE was established and authorized to administer the child support program mandated by Title IV-D of the Social Security Act (CGS 46b-231(13)).

The federal Preventing Sex Trafficking and Strengthening Families Act (P. Law 113-183) requires all states to adopt the 2008 revisions to UIFSA to remain eligible for continued federal Title IV-D funding for child support enforcement.

Hague Maintenance Convention

From June 2003 to November 2007, more than 70 countries, including the United States, met in The Hague, Netherlands, to establish a new Hague Convention on the Enforcement of Child Support and Other Forms of Family Maintenance. The Convention's purpose was to standardize the child support processes countries follow when handling child support issues that involve parties in different countries. The United States signed the Convention on November 23, 2007, but the changes have not yet been incorporated into federal law. The Convention's changes to child support enforcement are incorporated into the most recent revision of UIFSA.

Related Bill

SB 1030, favorably reported by the Judiciary Committee, makes numerous changes to state laws related to child support enforcement. Among the changes, it:

1. appropriates funds to BCSE and SES for staffing;

2. expands the authorized means of serving child support warrants or capias orders (i.e., orders to compel someone to appear in court); and

3. establishes a 10-member task force to study technology and other initiatives to maximize child support collection.

COMMITTEE ACTION

Human Services Committee

Joint Favorable

Yea

14

Nay

4

(03/19/2015)