Table of Contents
Abstract
This OCSE TEMPO leads the child support worker through all the options and through the one-state and limited-services interstate processes, with the hope of improving the lives of children through more flexible, effective and responsive child support programs.
One-state and limited-services interstate child support case activities are relatively new areas for child support professionals[1]. They hold much promise in terms of time savings and productivity. However, because they are actions that have not been available historically, their use needs to be approached methodically, based on sound decision-making at the start when faced with alternatives for working an interstate case.
This OCSE TEMPO leads the child support worker through all the options and through the one-state and limited-services interstate processes, with the hope of improving the lives of children through more flexible, effective and responsive child support programs.
Take a snapshot and one in every four children lives in a single-parent home.[2] Take a time-lapse series of photos and you will find one in every two children will live with only one or no parent at some time during the child's youth.[3] With almost one-third of the child-support cases having an interstate connection, this means that for every six American children, one child is receiving or will be entitled to receive support from a parent who lives or works in another State at some time during the child's minority.[4]
Overall, about 19.4 million child support cases are handled by child support agencies around the country.[5] These agencies (known as "IV-D agencies" after Title IV, Part D of the Social Security Act)[6] are responsible for processing a large portion of the interstate child support cases.[7] A recent study of Federal Tax Offset cases found that in 13 States, over 40% of their child-support agency caseload consisted of interstate cases, and another 12 States had over 30% while only three States had under 20%.[8]
In general for the U.S. population, about 16% of us move every year.[9] About three of five persons move within a county, one in five to another county, and one in five to another State (about 3% of all of us each year). So even if a case starts out as an in-state case, there is an increasing chance over time that it may develop into an interstate case.
How is an "interstate" case defined for the purpose of this TEMPO? An interstate case is one in which at some time while the agency handled the case or a person received public assistance for which reimbursement is sought:
the custodial parent (CP), noncustodial parent (NCP) and the child(ren) do not all reside in the same State: or
the IV-D agency requests enforcement action in or other assistance from another State.
How one approaches each interstate case is dependent on the analysis of the options available. Congress has provided IV-D agencies with many options over the past several years.
In 1994, Congress passed the Full Faith and Credit for Child Support Orders Act[10] (FFCCSOA) to make sure that States and Tribes honor judicial and administrative paternity and child support orders issued by other States and Tribes. FFCCSOA, as amended in 1996, also requires State tribunals (courts or administrative agencies) to recognize that one order governs a case for the present and the future, until it is appropriately modified. FFCCSOA outlines which State tribunal has the power to make modifications.
From the 1950s until the 1990s, there were often several orders for the same CP and NCP, all equally enforceable. Under the Uniform Reciprocal Enforcement of Support Act (URESA), an NCP was subject to the highest of any of the valid orders. Even if one State was enforcing a lower-amount order, a State with a higher order could register its order and seek enforcement of the difference.[11] URESA was a uniform law and was eventually adopted by all States.[12] However, neither its passage nor its uniformity was mandated by federal law, and several different versions were in effect until a few years ago.
Congress wanted one set of terms to govern a case.[13] When Congress adopted a new approach through FFCCSOA, it heralded the beginning of the consolidation of many cases for the same families. It also meant that States needed to coordinate establishment and enforcement efforts, since one State's order controlled the terms and one State (often the same State) managed the case-processing and enforcement decision-making.[14]
Over the years Congress has required States to pass certain laws to streamline how IV-D agencies can work their interstate cases. Congress has required States to have and use laws and procedures that include:
the verbatim passage of the Uniform Interstate Family Support Act (UIFSA), promulgated by the National Conference of Commissioners on Uniform State Laws in 1992 and amended in 1996. This successor to URESA lays the groundwork for determining which order governs a case when there is more than one order, which State or States have the power to take certain actions, and what procedures are used to make interstate case processing uniform. Between 1992 when UIFSA was first promulgated and 1996 when Congress required all States to pass UIFSA, about half of the country voluntarily passed UIFSA.[15]
Full faith and credit for past-due child support installments, to be treated as money judgments. This means that other States in which the NCP resides or has property must recognize that when child support is past due and unpaid in one State it is an automatic money judgment. This makes the periodic support payment at the point it is past due an enforceable judgment, to be honored and made payable in another State based on a certified payment record, without the need for a court in either State to make a finding about the amount owing.
Full faith and credit for liens based on past-due support. After the money judgment occurs "by operation of law," a lien arises against the real and personal property of the NCP in that State for that amount. States are required to give full faith and credit to liens arising in another State where enforcement is sought. The lien law of the State in which the property is located governs how the lien is perfected (made effective against any buyer of the property, usually through some form of public notice or recording and notice to the property holder).
The power to send, and the requirement to honor, an administrative subpoena or request for information. A IV-D agency has the power to request information related to a child support case from a public or private entity in-state or in another State, and to have that entity honor that request. If a State IV-D agency wants to find out income information on a NCP's credit application in another State, the agency can send a request for information directly to the company that has the credit application and the company must honor the request.
Uniform forms for notice of liens, administrative supoenas and interstate income withholding. Based on a 42 U.S.C. section 652(a)(11), OCSE published notice of lien and subpoena forms in 1997 for use by IV-D agencies.[16] The law also required that OCSE develop an interstate income withholding order/notice to be used in interstate income withholding.[17] The income withholding form also includes all the common data elements required for income withholding through the State disbursement units (SDUs).[18] The interstate income withholding form OCSE developed is to be used in all income withholding cases, in-state and interstate.
High-volume, automated administrative enforcement in interstate cases (AEI). PRWORA amended the Social Security Act by adding 42 U.S.C. 666(c)(14), which requires a State to match files from another State with financial institutions and other entities when assets may be found. If a match occurs, the State that conducted the match uses its own execution/levying procedures to collect support. This process is known as Automated Enforcement for Interstate cases (AEI).
The U.S. Constitution is based on the power ceded by citizens of States to form a Federal Government.[19] The Constitution gave the Federal Government certain powers, and reserved powers to the States. While the Constitution is the glue among the States, it also limits how far one State can go in trying to assert its powers over persons or property in another State. Over the past two centuries, the U.S. Supreme Court has wrestled with this issue and has issued some principles to determine a State's reach.[20]
This issue is important in interstate child support cases because one State cannot just require a person in another State to appear at its local hearing, give evidence, turn over money belonging to someone else or pay support, unless that State has a significant contact with that person. The question is: What kinds of contacts allow a State to make a binding decision about a person living in another State?
When it comes to establishing paternity or establishing or modifying a child support order, a State must have personal jurisdiction over the person who is named as the father of the child and/or the person who is expected to pay child support. This means that there has to be a significant connection between the State and the individual that has to do with the child owed support. A State has to show why it can reach its "long arm of the law" across a State border and bind a person in another State to its paternity determination and/or support orders.
The test is that the individual should be able to reasonably foresee that the State where the decision is to be determined (the Long-arm or Forum State) could bind the individual to its orders because of the individual's acts or omissions in the Forum State.[21] There has to be a nexus, or tie, between the act of the individual and the conduct over which the forum State wants to issue an order.
This means that if a State wants to make a binding decision against an individual in a paternity or support order case, the State must show the individual had "minimum contacts" in that State.
UIFSA lists the generally accepted contacts:
living with the child in the Forum State;
providing prenatal expenses or support for the child while the individual lived in the Forum State;
asserting parentage of the child in the Forum State through a putative father registry;
having intercourse with the mother, during the likely period of the child's conception, in the Forum State;
the child is residing in the Forum State as a result of the acts or directives of the individual;
submitting to the jurisdiction of the Forum State tribunal to hear the case (by agreeing to let the Forum State tribunal hear the case by entering a general appearance or by filing a responsive document having the effect of waiving any contest to personal jurisdiction); or
being served with process (e.g., complaint or summons) in the Forum State.
If a State cannot show these minimum contacts, then it must request that a State that has these contacts or, more likely, the State where the individual lives, act on its behalf.
If the Forum State can allege any of these minimum contacts, and then serves the individual with process according to its laws, the individual will be bound by a determination by the tribunal in the Forum State.
Importantly, even if a Forum State does have the constitutional power to bind someone from another State for an act done in the Forum State, UIFSA has a set of rules to follow to determine which State may establish or modify an order if more than one State can constitutionally hear the case.[22] In other words, just because a State can assert jurisdiction doesn't mean it may assert jurisdiction. It has to be a State that can claim continuing, exclusive jurisdiction (CEJ).
Once a court or administrative agency enters a child support order (or determines the controlling order under UIFSA rules if there is more than one order), a IV-D agency can enforce that order by seeking income and assets of the NCP.
If the NCP works in an office for a company in a second State, the enforcing State can send an Order/Notice to Withhold Income to the employer in the second State, regardless of the State in which the NCP lives. The key here is that the Order is against the source of income and not the NCP. The enforcement is against the income source and not the person.
When enforcing against real or personal property, a State needs to reach out to the State in which the assets are located (the Responding State), which may or may not be the State where the NCP lives.
If a State wants to pursue contempt or criminal prosecution, or any other remedy for nonsupport that may result in jail time or compelling the NCP to take certain steps, the Initiating State may need to involve the State in which the NCP lives through a two-state UIFSA registration action. This is an action against the person him- or herself and not against property, and as such may require local action by the court where the NCP is located. Since full faith and credit is not given to a contempt finding in another State, the local court would begin its own contempt proceedings if appropriate under local law.
An NCP may be extradited to a State in which he or she may be wanted on a nonsupport charge or an outstanding warrant. (This usually occurs only in felony nonsupport cases.) The two States must coordinate the transfer after a hearing in the State in which the NCP is detained to determine if he or she should be extradited.[23]
Outside of child support, in most situations a State tribunal cannot require a person, a company or a government agency in another State to take an action upon its request. The rules are different in child support cases. Under Federal child support statutes and regulations, UIFSA, and mandated administrative remedies, IV-D agencies must take certain actions when requested to by another State's IV-D agency.[24] Also, public and private entities must honor Order/Notices to Withhold Income,[25] medical enrollment forms and requests for financial information received from an out-of-State IV-D agency. Every State has this reciprocal requirement that the entity honor the out-of-State request. The reciprocal language was made mandatory by provisions in PRWORA.[26] There is also a UIFSA provision regarding one tribunal assisting another tribunal to obtain information.[27]
When processing interstate cases, one can:
attempt to work the case without the assistance of another State IV-D agency; or
send to another State's central registry:
The first category has commonly been called "One-state Interstate" case processing because the first State is trying to take all actions necessary to work an interstate case without the assistance of another State. For example, one-state interstate case processing occurs when one State:
uses its own resources to attempt to locate an individual in another State;
directly retains the process server to serve the individual in another State with court or hearing papers;
coordinates with the individual genetic testing and/or acknowledgment signing without the aid of another State;
attempts to adjudicate the issues of paternity and/or support order establishment and modification using long-arm jurisdiction against an individual who resides in another State;
attempts to secure evidence by using administrative supoenas or requests for information by sending the subpoena or request to a person or entity in another State;
attempts to enforce a child support order by sending an income withholding order/notice and/or medical support order/notice to an employer in another State; or
attempts to enforce a child support order by sending an notice of lien to the appropriate recording office in another State.
The second category of cases requires a State IV-D agency to seek limited services from another State. Since 1988,[28] OCSE has required States to operate a central registry for incoming IV-D interstate cases. The central registry acts as the incoming funnel for those cases. The central registry staff reviews the forms received, seeks clarification or more information, conducts any centralized function needed such as locate, and forwards the case to the appropriate office for further processing.[29] The central registry monitors case progress and makes sure that the State looking for assistance receives the appropriate services. Limited-services requests should be sent to the central registry.
When a State wants limited assistance from another State, the case is called a "limited-services case." The State wanting assistance is called the "Initiating State" and the State providing assistance is called the "Responding State." The idea is to help the Initiating State process its case by providing a one-time service, such as process-serving or locating. The Responding State does not open up a case that it works to its natural conclusion -- it performs a discrete task to further the Initiating State's efforts.
A limited-services case occurs when a State IV-D agency requests that the IV-D agency in the Responding State conduct or secure, for example, one of the following:
a "quick locate;"
service of process in a long-arm case;
genetic tests in a long-arm case;
automated enforcement of interstate cases (AEI);
enforcement or modification of the State's own controlling order;
certified payment records (if the State once had an enforceable order);
assistance with discovery for court or hearing purposes;
The limited-services cases are ones in which the Initiating State looks for one or two specific interventions by another State to help work the case. There is no intention of involving the Responding State throughout the life of the case. Generally, in a limited-services case, the Initiating State just needs a small but often crucial part of the case processing activity completed by another IV-D agency.
For record-keeping purposes, the Responding State does not open a formal case, which can only be closed based on case closure criteria. However, AEI cases are tracked and incentives are given to both States based on any collections.
The traditional use of the central registry is to process two-state cases. In this situation, the Initiating State sends an interstate form packet to the Central Registry of the Responding State (State that establishes and/or enforces the order at the request of the Initiating State).
The Responding State opens a case and takes all steps necessary to:
determine paternity;
establish and enforce a child support order; or
enforce an existing controlling order.
An initiating State can also ask a Responding State to review, and if appropriate adjust (modify), a controlling order if either:
all the parties agree in writing to the Responding State reviewing (and if appropriate, adjusting) the case;
all the parties have left the State with the controlling order and the parent not seeking modification lives in the Responding State; or
both parents and the child(ren) now live in the Responding State.
With three roads to take, which one is best?
It is simpler to keep a case in one State whenever possible. However, cases with multiple orders for the same NCP or cases in which the NCP is self-employed often require the assistance of the State in which the NCP resides.
The advantages of one-state case-processing are:
One State conducting the case-processing offers greater efficiency and time-savings than if two States share the tasks;
One-state case-processing does not require another State to become familiar with the case facts and history;
One-state case-processing allows the Long-arm State's laws to govern the amount and duration of the support if it is establishing the controlling order for the family; and
If the State is seeking enforcement and it is the State managing the case, it can implement the enforcement strategy itself, and be the primary point of receipt for payments.
The disadvantages of one-state case-processing are:
Unfamiliarity with the child support partners in another State (sheriff's department, clerk's offices, etc.);
Difficulty dealing with an evasive individual;
Difficulty gathering evidence in another State due to unfamiliarity with process, rules and knowledge of local activities and behavior;
Difficulty when contempt or criminal prosecution is probably necessary (e.g., self-employed NCP who appears to under-report income).
The more routine and simple a case, the more one should favor one-state case processing as long as the State is able to take the necessary actions. The more complicated the case and the harder it is to enforce from across State lines, the more one favors using either limited assistance or two-state case processing for the full gamut of services for establishment and enforcement.
The following activities originate in one State and affect an individual or his or her property or income in another State, without that other State's IV-D agency's or court's involvement.
A child support agency has the power to issue a request for information (e.g., a subpoena) to gather information from an "entity" from another State (See Federal administrative subpoena form). All entities must honor the out-of-State request for information as if it were issued in-State. Entities include State and local government agencies, financial institutions, individuals, corporations, partnerships or solely-owned proprietorships.
Child support agencies must use the administrative subpoena form developed by OCSE.[30] The typical practice is to mail the subpoena by first class or registered mail to the subpoenaed entity, and ask for a response within a certain number of days.
Once the entity responds, the agency may use the information to verify earnings for proposed support order levels and to determine if the proposed level would exceed the State garnishment ceiling under the Consumer Credit Protection Act (CCPA). States have different laws regarding apportioning support among orders when there is not enough after-tax income to satisfy all the orders. While current support must be satisfied first, and every order due current support should receive some of the income, the exact apportioning among the orders is based on State law or guidance of the NCP's principal place of employment.
In most States, the information may also be used as evidence in a hearing in place of live testimony if agreed to by both sides, or if the information is provided under oath or affirmation. Usually, there is no hearsay issue (asserting what another person said as the truth). The person giving the information cannot be compelled to testify in person at the hearing because there is no administrative supoena power to command someone's physical presence in a hearing in another State).[31] Telephonic hearings are also available.
Section 466 (b) of the Social Security Act and UIFSA allow a State to serve the income source in the other State directly.[32] The entity in the State in which the order is served must honor the out-of-State withholding order/notice to the same extent it would an in-state one.[33]
This means that a IV-D agency can serve an employer with a withholding notice in another State without first going through the IV-D agency in the State in which the employer is located. The employer provides a copy of the withholding order to the employee/NCP.
The employee/NCP may contest the withholding due to mistake of fact such as an incorrect arrearage or current support amount, or based on the fact that he is not the person named in the order. The NCP may also challenge the order on the basis that it is not the Controlling Order. That hearing may be conducted telephonically with the Initiating State.
Alternatively, the hearing may be held locally in the State in which the employer was served, with the newly enlisted support of the employer-State IV-D agency, according to the latter State's income withholding contest hearing procedures.[34] Since the employer-State IV-D agency has been out of the loop and likely does not know that this income withholding order/notice was served, it may not make practical sense to request that the IV-D agency hold a contest hearing in that State based on the direct income withholding.
The Initiating State (or the NCP) may register the withholding order with the local tribunal for the purpose of the contest hearing; then the tribunal will conduct the hearing according to the procedures of the State in which the employer was served.
The best method is for the State IV-D agency that sent out the direct income withholding order/notice to enforce the order/notice and to try a telephonic hearing or an informal phone call to work out any misunderstandings or issues capable of easy resolution. If the issue is complicated and not easily resolved, the IV-D agency should attempt to enforce the Order/Notice to the extent it is not disputed. For instance, if the State says the NCP owes $1,000 in past-due support, the NCP says he owes $800, and the Order/Notice to Withhold Income is for $100 per week in current support and $25 per week in support arrearages payback, the Order could continue in force pending resolution. If a full-blown hearing in the employer's State is likely, it may wish to withdraw the Order/Notice regarding the disputed amount, issue an Order/Notice for the undisputed amount, and register the underlying support order in the employer's State to begin a registered enforcement action in which a hearing will be held on the disputed amount.
If identity or the underlying order's validity is truly at issue, it may be best to register the support order immediately in the employer's State.
The law of the State that issued the underlying support order governs the duration of the support, the amount of current support and arrearage payback, interest, medical support, and court costs.
The law of the employee's principal place of employment governs CCPA limits (maximum percentage of net pay that can be withheld), employer fees and the methodology for handling more than one Order/Notice to Withhold Income against the same obligor when there is not enough net pay to fully satisfy all orders. Note that the employee's principal place of employment may be a different State from the State in which the employer was served, the State of the employer's payroll-processing, or the State of the employer's headquarters.
Withheld child support should be directly remitted to the State Disbursement Unit (SDU) of the State that issued the Order/Notice unless another State is coordinating enforcement efforts and the State that issued the order has changed the order to indicate that withheld amounts go directly to the other State.
Employers may send withheld amounts through the Federal Reserve automated clearinghouse system using Electronic Funds Transfer/Electronic Data Interchange (EFT/EDI) to the SDU, in a layout format prescribed by OCSE.
Employers must also respond to a medical support order. The medical support order is based on an underlying support order requirement that the NCP: 1) pay for a health insurance policy obtained by the CP for the children; or 2) cover the children owed support with a health insurance policy if reasonably available through the NCP's employer.[35]
Employers who offer insurance to their employees are then ordered to enroll the employee/NCP. Some State tribunals will order the CP to obtain the coverage for the children if it makes better sense (more comprehensive coverage, better geographic coverage area, less expensive policy, etc). The NCP in that case is not liable for obtaining the policy but is responsible for paying all or a portion of the premium payment, which is deductible through income withholding.
Often the available insurance carriers have limited geographic coverage, which may not include where the children live. The State seeking insurance coverage should work with the employer and carrier to come up with reciprocal coverage in the children's geographic area. The degree to which a State IV-D agency is involved in orchestrating insurance cards, deductibles, coverages, etc., varies from State-to-State.
Liens prevent the transfer of property, making sure a creditor who timely places a lien is satisfied out of the proceeds of a sale of the property before anyone else who does not have a prior claim.
In child support, liens attach by operation of law to all property owned by the NCP in the State of the underlying order. The lien must be perfected to have its full force, which means it needs to be recorded in the appropriate office and notice given to the property holder and any third party who may have an interest in the property. In some States, notice may be "constructive" by the filing of the lien in the appropriate office or "actual," where notice is sent to the property holder. Rules for perfecting a lien are State-specific.
Sometimes child support will have a statutory priority that is second only to a mortgage or purchase money security interest (a lien in return for lending money to buy a good). This means that persons with non-priority claims against the property holder will receive distributions from a sale only after the priority claims are satisfied.
Once a child support lien is perfected, it has priority over all other later filed liens. This is generally true even if the child-support installments become past due after another lien is filed. This result is that the lien value on the property will likely vary over time -- larger when current support is not paid in full in the future or if interest accrues, or smaller if a large payment is received to offset part of the arrearages. The amount of the lien is a data element that every statewide system should include, representing the total arrearages owed in a case.
Liens are filed centrally in a few States such as New Jersey, but most States file liens in county recorder offices.[36] OCSE has a list of recording offices. Sometimes a lien on real property (real estate, homes) is filed in a separate office from a lien on personal property (such as motor vehicles, boats, airplanes, or security interests for furniture and appliances). Sometimes the lien is on the title of the personal property, such as a car. If so, the lien must be satisfied before a clear title can be given to a purchaser. Often, the Department of Motor Vehicles issues the clear title after proof of satisfaction that the lien is paid off.
Liens are filed where the property, not the person who owns the property, is located. Child support practitioners who impose liens against property in another State must use the Notice of lien form OCSE developed, and file it in the appropriate office.[37] Perfection of the lien is based on the law of the State where the lien is to be recorded. This is a one-state interstate action because liens do not go through the central registry of the State in which the property is located and no action is taken by that State IV-D agency.[38]
If the lien is satisfied through sale proceeds or payment through other means, the State should send a release to the recorder's office to unencumber the property. The law of the State of the property will govern the exact procedures for "accord and satisfaction."
If a dispute arises, the State that sent the lien can try to resolve the issue. However:
to execute or foreclose on the property to satisfy the child support lien; or
to be appropriately represented in a hearing regarding the property (contract for sale issue, partition, probate, local bankruptcy action, a levy or foreclosure action), the State that sent the lien should register the underlying order in the State of the property and seek assistance from the IV-D agency in that State.
Every State is to maintain the NCP's arrearage balance and the amount of any lien imposed to enforce the order as data elements that are to be available to other States' IV-D agencies to use to determine the value of the lien and the amount needed to be paid to satisfy it.[39]
In a non-assistance case, the State in which the application for services was received is the State that submits the case to the U.S. Treasury Department for tax offset.[40] The submitting State must inform any other State involved in the enforcement of the order and the State that issued the order at the time of submittal and again when the offset is received.
In a TANF (Temporary Assistance for Needy Families) case or IV-E foster care case, any State with an assignment may submit an offset application to the Treasury Department for its assigned arrears, although the best practice is that the State managing the case is in the best position to submit it.
All TANF and IV-E foster care cases' arrearages are satisfied before any non-TANF cases' arrearages are.[41] Among TANF arrearage cases from several States, the first submittal certified by OCSE for offset has priority. The State with the highest TANF/IV-E foster care arrearage is next in line, and so forth down to the case in the State with the lowest certified TANF/IV-E foster care arrearage.
The laws of the State that submitted the notice govern the tax-refund offset procedure and review. If a NCP wants to contest an offset after the pre-offset notice or post-offset notice is received, and the case is an interstate case, the NCP may request a hearing in the submitting State, and then if the issues remain unresolved, in the State that issued the order.
OCSE has become a facilitator of multi-state Financial Institution Data Match (MSFIDM).[42] Upon request of a State, OCSE can act on behalf of the State to enter into agreements with financial institutions that do business in two or more States. OCSE has sent letters to the more than 3,000 multi-State financial institutions, asking them if they elect to participate at the Federal or individual State level.[43] OCSE regularly distributes a list to the IV-D Directors identifying the financial institutions that have opted to participate at the Federal level.
States update OCSE weekly with a list of delinquent obligors through a dedicated transmission line. OCSE edits the lists to ensure that only one case with the same name and Social Security Number is forwarded to the multi-state financial institution. The financial institutions match the OCSE data with their account information. OCSE sends matches to all States that submitted cases with identical names and Social Security Numbers.[44] OCSE informs the financial institutions to which States the match information was sent.
When matches occur, the participating State is notified and the appropriate procedures are followed for freezing and seizing. If the financial institution does business in the participating State, the account can be frozen even if the account is physically in another State and/or the account-holder resides in another State. If the financial institution does not do business in the participating State, the participating State may need to request assistance from the State where the account is located.
If an NCP works for a multi-state company that does business locally, a IV-D agency may serve an Order/Notice to Withhold Income on the company's local resident agent for service of process. This is true even if the income is derived in another State, the company is headquartered in another State, payroll is in another State, or the NCP lives or works in another State.
The resident agent should be listed with the State Secretary of State. Sometimes a local office or branch of the multi-state business will voluntarily accept the Order/Notice and forward it to the payroll office, or provide information regarding an in-state company official who will.
The advantage to serving a multi-state employer locally is that the State seeking enforcement can use in-state service of process and is in a better position to handle contested issues than if the same State issued a direct income withholding order served on the employer in another State.
As with direct income withholding, interpretation of the terms of the order is based on the law of the State that issued the underlying support order. Employer fees, CCPA limits and multiple order allocation are based on the laws of the State of the employee's principal place of employment.
A State IV-D agency can reach Federally controlled income regardless of the State in which it is located. The Federal government will honor process served against it if is served according to Federal rules.[45] For income withholding against Federal civilian employees, and for garnishment against Social Security Retirement or Disability benefits and other non-means tested Federal benefits, check the agents for service of process listed in the Code of Federal Regulations.[46] For military involuntary allotment[47] and garnishments,[48] serve Defense Finance Accounting Service (DFAS) in Cleveland, Ohio.[49]
For more information about serving process against a service member to establish paternity and/or a support order, to start a review and adjustment procedure, or to initiate contempt proceedings, see OCSE's military support enforcement publication, A Caseworkers' Guide to Child Support Enforcement and the Military Personnel.
OCSE's military liaison may provide additional information about serving service members, the Soldiers' and Sailors' Civil Relief Act of 1940, genetic testing involving service members and the pros and cons of involuntary allotment versus garnishment. Call 202.401.9370 and ask for the military liaison.
If a IV-D agency worker needs the assistance of a IV-D agency in another State to complete a task or two, but does not need the other agency to work the case continuously, the IV-D agency worker can ask for limited services. Interstate Transmittal #3 can be used to request that certain actions be taken that do not require the Responding State to open up a "case."
These are the kinds of limited services that one may seek from another State, using the check-off boxes on Transmittal #3. The request may be transmitted through CSENet 2000, the electronic network for IV-D agency case communication, to the Central Registry in the other State.
A "quick locate" may be requested to find or verify if a parent is in another State. One may also search for sources of income, wages and assets of the parent.[50] OCSE has developed a locate data sheet.[51] It may be sent to the Responding State's Central Registry, which will send it to the State Parent Locator. You can also send the information via the electronic child support network known as CSENet. You should provide as much descriptive information about the parent or the income source as possible, including violence potential, military/veteran status, etc. Also, you should provide the person's last known address(es) or relatives or friends who may reside in the other State. The Responding State has 75 days to conduct a locate search, using the State Parent Locator Service and any other tools.[52]
If the person is found, the information is verified if possible and sent to the Initiating State. If the person or income/asset is not found, that information is sent to the Initiating State. Again, no case is opened in the Responding State as a result of the quick locate request.
States provide new hire and quarterly wage reporting information to the National Directory of New Hires, a component of the Federal Parent Locator Service (FPLS). Also certain information from each State's Case Registry is sent to the Federal Case Registry (FCR), another component of the FPLS. The FCR has skeletal information about each case from every State. This information is available to States. This way, a State can find out if another State has an open case concerning the same family members. This is, of course, vital information when determining the controlling order in a case, and if any arrears are owed to other States or to the family under another order. Detailed information about the cases is not available through FCR, but the pointer information will give the IV-D agency the necessary lead to begin. The State can then seek a copy of the order and case history from the other State. The State may submit a CSI transaction via CSENet to obtain details on an order in another State.
An Initiating State may ask for the assistance of a IV-D agency in another State to serve process (the child support summons, complaint, petition, motion, etc.) in that State. The Responding State will find the appropriate process server (staff, private company, sheriff, constable, etc.) and ensure that the papers are served. Once service is accomplished, a proof or return of service is sent to the Initiating State to show that the papers were served according to the laws of the Responding State.
The Initiating State may require more stringent proof that the individual received the papers. For instance, in many States it is sufficient to leave the papers with someone over the age of 18 at the individual's residence. An Initiating State: 1) may have the same law; 2) will accept proof of service if it shows that the service standards of the other State were met even if different from its own; or 3) require that the process server hand the papers to the individual him- or herself.
If the Initiating State's service requirements are more stringent than those of the Responding State, it is important to let the Responding State know of the requirement so that the process server serves according to the laws of the Initiating State. In the case where actual service is required, the return of service should indicate that the papers were served on the individual him- or herself. The service of process required by the Initiating State's laws will govern whether the service method was sufficient and whether the return of service information is adequate proof of appropriate service.
Special attention should be given to serving process on a military base or ship, on tribal lands or internationally.[53] Check with a specialist for that particular area for the best way to proceed.
Coordinating genetic testing when the mother, putative father and the child reside in different States is no longer a difficult matter. Genetic test laboratories under State contract are familiar with the process and rarely need assistance from another State's IV-D agency.
There may be circumstances when genetic testing coordination requires another State to assist. Court orders may be necessary when someone actively resists genetic testing or repeatedly does not show up at the test site. An Initiating State may want to turn the case into a limited services case in that situation.
One State's administrative or judicial genetic testing order in a pending case may not necessarily be given full faith and credit by another State in which a citizen of the other State is compelled to provide samples for testing. A genetic testing order is an ancillary order in an ongoing case, rather than a final order or an execution on a final order, and is not guaranteed enforcement in the Responding State.
Like service of process, special rules may apply to the coordination of genetic testing when a person is stationed on a military base or a naval vessel, or lives on tribal land or overseas. If the person does not voluntarily submit to genetic testing, one must serve a genetic testing order according to the respective rules of the military facility, tribe or country.[54]
In military cases, the Soldiers' and Sailors' Civil Relief Act of 1940[55] (SSCRA) affects the availability of the service member for the tissue sampling. The SSCRA is not a bar to proceeding on a case; it limits actions against service members who are temporarily unavailable due to their military assignment. As long as the service member has leave and is not in a combat or "sensitive" situation, genetic testing can occur and a paternity and support hearing can be held at a time when the service member may take leave.[56]
Under UIFSA section 318, a State's tribunal (court or administrative agency hearing UIFSA cases) may request another State's tribunal to gather evidence by requiring someone in the second State to answer questions or divulge information. (This is called "discovery" in law.)
A reciprocal provision requires the tribunal that is the recipient of the request to provide the discovery for the Initiating State's tribunal. This means that the court or agency in another State will issue an order to a person compelling him or her to show up in person to answer questions, produce physical evidence, or to answer mailed written questions.
If an entity (individual, State or local government agency or private business) in a State does not respond to a request for information, the entity may be sanctioned. A sanction may be a fine, penalty, an order to produce what was requested, or even contempt proceedings.
The complication in interstate cases is that the recipient of the request for information (administrative supoena) issued in another State cannot be forced to comply until a local agency or court requires compliance. While a State has a law that an entity must honor the subpoena, most States do not have a direct sanction for disobeying the out-of-State subpoena.
In other words, while an administrative supoena must be honored in another State, there is no national or uniform law that empowers either State's sanctioning agency or court to compel compliance. To enforce the subpoena, one must involve local authorities (agency or court). These local authorities have the power to sanction for noncompliance in the State where the subpoena was served.
A State that sent an administrative supoena to an entity in another State and has been unsuccessful in securing compliance can seek the help of the State in which the entity was served. While a limited-services action is the most likely method to enlist the other State, the Initiating State may ask the tribunal in the Responding State to enforce the subpoena.
The Responding State must follow its own procedures and due process rules to determine the appropriate course to ensure compliance. Often, an informal call explaining the situation may lead to compliance with the request. If the noncompliance persists, the agency or court will use its own instate procedures to secure compliance (fines, contempt, etc).
Again, a State may choose to aid another State through section 318 of UIFSA. This section applies to one-state, long-arm cases as well as to limited-services cases. Section 318 directs a Responding State tribunal upon request to use its discovery powers and sanctions to obtain information for the Initiating State tribunal concerning a child support case.
The Responding State may choose to issue a new subpoena on behalf of the Initiating State. If the new request for information/subpoena is not honored, then the Responding State can use its local administrative and/or judicial sanctioning powers.
A State IV-D agency has the authority to send electronic files to another State's IV-D agency for matching against asset data to which the other IV-D agency has access for the purpose of enforcing a case.[57] AEI allows an Initiating State to send data regarding NCPs who presumably have a connection to the Responding State. Once the AEI case data are received by the Responding State, the Responding State IV-D agency matches the data against its in-state databases with the same regularity as it would with in-state cases.
If there is a match indicating assets or property in the Responding State, then the Responding State freezes the property and seizes it: 1) after notice and a hearing opportunity are given to the NCP; or 2) contemporaneously with the notice being sent and a prompt hearing opportunity afforded to the NCP. In the latter case, States have a mechanism in place to return the account money quickly if the agency or a court determines it was seized in error. State due process governs the degree to which seizure can occur before notice is sent to the NCP.
A key provision of AEI is that the Assisting State cannot open up an official case, but must track its collection efforts for reporting purposes. The Assisting State does receive incentive dollars for its collections.
The United States has a unique legal relationship with Indian tribal governments as set forth in the Constitution of the United States, treaties, statutes, Executive Orders and court decisions. The United States has recognized Indian tribes as domestic dependent nations under its protection. As domestic dependent nations, Indian tribes exercise inherent sovereign powers over their members and territory. The Federal government has a special government-to-government relationship with the federally recognized tribes. On most Indian reservations, the authority of State and local governments is limited or non-existent. However, Tribes and States may enter into cooperative agreements to provide child support services.
In order for child support enforcement to succeed in Indian country, it is important for State and Tribal governments to work together. States should cooperate in giving full faith and credit for Tribal child support orders. Likewise, Tribes should cooperate with States in giving full faith and credit for State child support orders. FFCCSOA applies to both States and Tribes.
For more information about Tribal child support enforcement, call the Native American Child Support Enforcement Program at (202) 205-4554. To find out more about direct funding of Tribal Child Support Enforcement programs, review the NPRM and Interim Final Rule at 65 Federal Register 50786, dated August 21, 2000. Also review OCSE's publication on its web site: Strengthening the Circle: Child Support For Native American Children.
Interstate case processing offers several options, all requiring some thought regarding which procedure best promotes a combination of efficiency, accuracy and speed.
Since many of the one-state and limited-services remedies are unique to child support, a IV-D worker should be patient with someone on the receiving end who is not used to honoring out-of-State requests. The IV-D worker should have statutory and regulatory citations ready to fax to someone who wants proof that he or she must comply with the out-of-State request.
Also, while best practices may dictate that more one-state actions be undertaken, one should not stop processing a limited-services or two-state request and return the forms to the Initiating State. In fact, Federal regulations require that the case be worked with the information provided to the greatest extent possible. Returning forms to the Initiating State and telling them to use long-arm jurisdiction is prohibited.[58]
After some experience with one-state and limited-services procedures, practitioners will soon develop a list of the types of cases that seem to work best using these tools and those cases that seem to be better served through each of those processes and those that are better served through a two-State process.
Interstate case processing has always been difficult; while these procedures may add more decision-making to the mix, they should also lead to a higher level of compliance with support orders.
The enforcement technique that allows a State to send an automated file to another State for enforcement purposes. The Responding State matches the Initiating State's case data against the same data bases against which it matches its case data. If a match occurs, the Responding State takes the appropriate steps under its law to freeze and seize the asset.
(see Noncustodial Parent).
A single unit or office for receiving, disseminating and overseeing incoming IV-D cases from other States. The Central Registry concept started in 1988. The Central Registry checks each case's documents for completeness, monitors the case, and forwards it to the appropriate office for further processing.
The order that a tribunal determines to be the one that controls the child support terms in the case. That order controls duration, amount, and health insurance coverage.
means the State that issued the order determined to be controlling pursuant to section 207 of UIFSA. If there is only one order, that order is the controlling order and the State that issued that order is the Controlling Order State.
An issuing tribunal of a State has Continuing, Exclusive, Jurisdiction (CEJ) over its child support order: 1) as long as the State remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or 2) until each individual party has filed written consent with the issuing tribunal for a tribunal of another State to modify the order and assume CEJ.
The parent or guardian with whom the child(ren) primarily reside(s).
- The 1994 Federal law that required all States to honor orders issued from other States for ongoing and past-due child support, whether issued by a court or another decision-making authority with the power to do so in that State. FFCCSOA was amended in 1996 and incorporated UIFSA's one-order principles and made them the law of the land.
The State that seeks assistance from another State to process a child support case. It is often but not always the State that issued the original or controlling order.
A child support case in which the NCP resides, works or has reachable assets in a State other than the State in which the CP resides or the State in which a child support order was originally entered.
The State that issued the controlling order. Sometimes, Original Issuing State is the term used for a State that issued the first order in a case and subsequently lost CEJ when the order was modified by another State that legitimately exercised CEJ. The Original Issuing State's duration of support term cannot be modified by any subsequent issuing State, as it is a nonmodifiable term.
The power of a tribunal to make a binding decision about someone or something. Subject-matter jurisdiction empowers the tribunal to hear that kind of case (such as child support as opposed to traffic infractions). Personal jurisdiction empowers the tribunal to bind someone or something because of that person's or thing's contacts with the State of the tribunal.
The process of lawfully taking an asset belonging to someone and transferring, selling or liquidating the asset, giving the proceeds to a person owed money by the original asset owner. For example, in a child support case, a financial institution data match may lead to the levying of a NCP's bank account and the transfer of some or all of the account's balance to pay delinquent child support.
A lien is an encumbrance on real or personal property. A lien acts as an "I.O.U." that attaches to the property. With titled property like cars or houses, the lien (or mortgage) has to be paid off before the seller can complete the transfer to the buyer who wants a "clear title."
An interstate case in which an Initiating State requests a Responding State to perform an isolated or discrete task to further the Initiating State's ability to process a child support case.
The person responsible for paying child support.
An interstate case activity done by one State in another State without the assistance of the IV-D agency in the other State.
Referral of a request to another State, using the locate data sheet, to find an individual, or property of a NCP.
Also known as the Welfare Reform Act, this is the 1996 Congressional Act that contained provisions requiring States to pass UIFSA, use uniform forms in certain interstate cases, acknowledge notice of liens and subpoenas, and have certain procedures for AEI, passport revocation, and lump-sum attachments.
The State in which an order from another State is officially registered or filed for enforcement action, or if appropriate, for modification. Registration is accomplished by filing pleadings, usually with the local Clerk of Court or sometimes with an administrative agency. This makes the existing order's terms enforceable by the Registering State tribunal.
see Custodial Parent.
The State that receives pleadings or an electronic or form request from the Initiating State to take an action in a case. The Responding State may provide a limited service for the Initiating State, such as service of process, or it may provide all the services needed, from establishing an order to enforcing it, using the Responding State's child support laws and procedures.
A court, quasi-judicial official or administrative agency officer with the power to enter binding determinations of paternity and/or orders of support, and has the power to order enforcement and/or modification of the order. The word was first used in a child support context in UIFSA to allow a State to designate which decision-making body in its State would hear and decide interstate cases. Decisions by tribunals empowered by their State to render them are to be given full faith and credit (honored) by other States under FFCCSOA regardless of the type of tribunal that issued the order.
Case-processing in which the Initiating State asks a Responding State to take all actions necessary to further the goals of the case, which could include paternity determination, order establishment, enforcement or modification, if the Responding State has jurisdiction to do so. The Responding State opens up a case and if it collects money, is credited with the collection, as is the Initiating State.
The universal interstate case-processing law adopted in all States; it replaced URESA during the 1990s. Every State must have the 1996 amended version of the 1992 uniform law promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL) as a condition of continued Federal funding for its child support program. UIFSA applies to nonIV-D as well as IV-D cases. Highlights include the controlling order, continuing, exclusive jurisdiction, long-arm jurisdiction and "direct" income withholding.
The predecessor to UIFSA, it was first promulgated by NCCUSL inx 1950 and amended in 1952, 1958 and 1968 (Revised Uniform Reciprocal Enforcement of Support Act). Originally used by district attorneys in the days before there was a Title IV-D program, its revolutionary approach allowed the district attorney (and later IV-D agencies) to send pleadings to a district attorney or agency in another State and use those pleadings as evidence to establish an order in the other State. Generally, that new order did not modify any existing order in another State. Under URESA, many cases resulted in NCPs being subject to different orders for different amounts, all of which were valid and ongoing.
[1] One-state Interstate cases became the subject of extended scrutiny in the last few years. The first conference devoted to the discussion of the issue was sponsored by OCSE in 1997. Those original discussions are summarized in OCSE Information Memorandum (IM) 97-05 (1997). One-state interstate issues have been extensively discussed at UIFSA conferences, including OCSE-sponsored interstate/UIFSA retreats in 1994, 1995, 1997, 1998 and 1999 (a summit). Interstate forms including transmittals and registration under UIFSA were issued by OCSE in 1997 (AT 97-06), and updated in 2000 (AT 00-11). They are now available on the OCSE web site WWW.ACF.DHHS.GOV/PROGRAMS/CSE. Forms for notice of liens and subpoenas can be found at AT 97-19 (1997), and for the income withholding order/notice at AT 98-03 (1998). The Interstate Roster and Referral Guide (IRG) is a compendium of useful state information about their laws as they affect interstate case processing. The IRG is accessible through the OCSE web site or see DCL 00-02 (2000) and DCL 00-51 (2000).
[2] U.S. Department of Commerce, Bureau of the Census, Current Population Reports: Household Family Characteristics, P20-515 (October 1998). About 27.3% of family households with children under age 18 were headed by a single parent.
[3] U.S. General Accounting Office, Child Support Enforcement: Families Could Benefit from Stronger Enforcement Program (GAO/HEHS-95-24, December 1994).
[4] Based on 1 in 2 children living with one parent at some point during childhood (endnote 2, supra), and about I in 3 child support cases having an interstate component (endnote 7, infra).
[5] Twenty-third OCSE Annual Report to Congress (FY98) (2000), Table 1.
[6] 42 U.S.C. Sections 651 et seq (2000).
[7] Persons with a paternity or child support case may apply for IV-D services as an alternative to using private attorneys or handling the matter themselves. Persons receiving public assistance under any one of several programs have their cases automatically referred to the State IV-D agency for child support services. Most State IV-D agencies operate their child support programs statewide. However, a significant portion of State programs (particularly some with large populations) are run at the county level. The local office plays a significant role in interstate case processing in most States, but especially in county-operated States.
[8] J. Crook, Interstate Caseload Migration Patterns, Child Support Report (OCSE June 2000).
[9] U.S. Census Bureau, July 2000.
[10] P.L. 103-383, codified at 28 U.S.C. 1738B (1994) (amended subsequently).
[11] D. Dodson and M. Haynes, eds., Interstate Child Support Remedies (OCSE 1989).
[12] New York, Iowa, and Connecticut had the Uniform Support of Dependents Law, a cousin of URESA, as their main interstate law for most of the pre-UIFSA period. URESA was promulgated in 1950, and was revised in 1952, 1958 and 1968 by the National Conference of Commissioners on Uniform State Laws.
[13] See Findings and Statement of Policy in Section 2 of FFCCSOA, S.922, enrolled as P.L. 103-383, codified at 28 U.S.C. 1738B (1998).
[14] See OCSE's Controlling Order Determination TEMPO.
[15] It is important to note that UIFSA also contains provisions for interstate income withholding that allow for direct income withholding as an alternative to two-state interstate income withholding. By requiring UIFSA's passage, Congress has made the direct withholding provision a legitimate IV-D option. See 42 U.S.C. section 666(b) and (c).
[16] The liens and subpoena forms may also be available for nonIV-D child support use IF use is consistent with the law of the sending and receiving States. Although the lien and subpoena requirements are mandated for State IV-D agency and their subcontractors' (local agencies or private contractors) use, States may expand who may use them, including private, nonIV-D attorneys. (It should be noted that Congress required that OCSE develop forms for use in notice of lien and subpoena cases, without limiting their use to IV-D agencies.)
[17] UIFSA already required both IV-D and nonIV-D practitioners to use federally approved interstate forms, which include transmittal sheets, petition, parentage affidavit, and general testimony. Section 311(b) of UIFSA states: "The [petition] must specify the relief sought. The [petition] and accompanying documents must conform substantially with the requirements imposed by the forms mandated by federal law for use in cases filed by a support enforcement agency."
[18] See OCSE PIQ 99-02 (1999), interpreting 42 U.S.C. section 666(b)(6)(A)(ii) (1998).
[19] U.S. Constitution, Preamble.
[20] See, e.g., Kulko v. Superior Court, 436 U.S. 84 (1978); Burnham v. Superior Court, 495 U.S. 604 (1990),
[21] See Kulko, supra.
[22] UIFSA Sections 207, 611, 612, 613.
[23] Also called rendition in UIFSA, sections 801, 802.
[24] See, e.g., 42 U.S.C. section 666 ( a )(14),( c ), 45 CFR. 303.7, UIFSA section 305.
[25] 42 U.S.C. section 666 ( c ) (1) (B), UIFSA section 501.
[26] 42 U.S.C. sections 666 (b) (5), 666 ( c )(1).
[27] UIFSA section 318.
[28] 45 CFR section 303.7 (2000).
[29] 45 CFR 303.7 (2000).
[30] OCSE AT 98-03 (1998)
[31] This is a general rule. State laws for evidence admissibility should be followed. If made part of the UIFSA packet, it is arguably admissible along with other testimony and affidavits that are admissible under UIFSA section 316(b). Also, interstate telephonic hearings are allowed under UIFSA, which provide for live testimony during a hearing subject to cross-examination. UIFSA section 316(f). UIFSA sections 316 and 318 are the only two UIFSA provisions that apply to long-arm interstate cases.
[32] UIFSA sections 501-507.
[33] UIFSA section 502; see also 42 U.S.C. 666(b)(6).
[34] UIFSA section 506.
[35] 45 CFR 303.31 (2000).
[36] OCSE DCL 99-48 (1999).
[37] OCSE AT 98-03 (1998).
[38] See OCSE PIQ 99-06 (1999).
[39] Data elements for the State Case Registry, 45 CFR 307.11(e)(4)(ii), (vi) (2000).
[40] OCSE AT-99-14 (December 2, 1999)
[41] Id.
[42] 42 U.S.C. sections 652(l), 666(a)(17), 669A (1999); OCSE AT-98-29 (October 13, 1998)
[43] OCSE, Financial Institution Data Match Handbook for Financial Institutions (September 2000).
[44] Id.
[45] See 5 CFR 581, DCL 95-17 (1995) (announcing Executive Order 12953, 60 Federal Register 11013 (February 27, 1995)). Note that OCSE issued DCL 98-07 (1998) to state that IV-D agencies did not have to send the underlying child support order or send the income withholding notice by certified mail to Federal agencies.
[46] 5 CFR 581 (2000).
[47] 42 U.S.C. section 665 (1999).
[48] 42 U.S.C. sections 659, 661, 662 (1999).
[49] See OCSE DCL 00-49 (2000).
[50] OCSE Action Transmittal (AT) 97-06 (1997).
[51] OCSE's form is: OMB No. 0970-0085. It is available on OCSE's web site.
[52] 45 CFR 303.3(b)(3), (4) and 303.7(c)(4) (2000).
[53] For more about service on military personnel on vessels or bases, see OCSE's A Guide to Child Support Enforcement Against Military Personnel (1996) or A Caseworker's Guide to Child Support Enforcement and Military Personnel (2000). For more information about service on tribal lands, contact the tribe itself, or the appropriate Federal Regional ACF CSE office. For more information about international service of process and use of the Hague Convention's rules, contact OCSE's International Child Support Liaison.
[54] Id.
[55] 50 U.S.C. section 501 et seq.
[56] Contact the OCSE military liaison for more information (202) 401-9370.
[57] 42 U.S.C. 666(a)(14) (1999)
[58] See AT-98-30 (December 28, 1998).