TEMPO

The "IV-D" child support enforcement program is a cooperative initiative involving Federal, State, and local governments. The program began in 1975 when Congress amended Title IV of the Social Security Act to include the child support enforcement program as a new Part D. Today, all States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and an increasing number of Native American Tribes participate in the IV-D program.

The Federal Office of Child Support Enforcement (OCSE) is the agency responsible for providing this Federal program oversight. In addition, OCSE is responsible for providing technical assistance to the State and local IV-D agencies, to coordinate an efficient, effective, and uniform implementation of the nation's child support enforcement program.

OCSE publishes this Techniques for Effective Management of Program Operations (TEMPO) on the Determination of Controlling Order (DCO) as a technical assistance tool for the State and local IV-D agencies. This TEMPO considers the DCO from the viewpoint of the IV-D caseworker or IV-D attorney. The purpose of this TEMPO is to assist the IV-D community in taking full advantage of the DCO process, thereby realizing UIFSA's overriding goal of a "one-order system."

This TEMPO uses the following definitions:

For years, interstate child support enforcement has been plagued with problems. Establishment and collection rates for interstate cases lagged well behind the rates for intrastate cases. Throughout the 1980s, these problems became more pronounced as the nation's interstate caseload continued to grow. The laws that governed the interstate child support enforcement process during these years were the Uniform Reciprocal Enforcement of Support Act (URESA) and the Revised Uniform Reciprocal Enforcement of Support Act (RURESA).

URESA's main failing was that it authorized the entry of de novo (new) child support orders in cases where support orders already existed. As a result, it became common to see interstate cases with multiple support orders for the same parents and child. Unfortunately, these multiple orders rarely set the support obligation at the same amount. As a result, parents and the State child support enforcement programs frequently disagreed as to the correct child support amounts. By the late 1980s, it was apparent that the inefficiencies and confusion resulting from URESA's multiple order system had to be addressed.

In 1990, the U.S. Commission on Interstate Child Support and the National Conference of Commissioners on Uniform State Laws (NCCUSL) began a reevaluation of URESA. After two years of intense scrutiny and debate, NCCUSL developed a new model law for interstate child support enforcement -- the Uniform Interstate Family Support Act (UIFSA). In its 1992 report to Congress, the Interstate Commission recommended that Congress require all States to enact UIFSA as a condition of receiving Federal funds. The American Bar Association approved UIFSA in early 1993.

In 1993, States began to enact UIFSA as a replacement for URESA. Because there was no federal mandate, Congress in 1994 enacted the Federal Full Faith and Credit for Child Support Orders Act (FFCCSOA). See 28 U.S.C. § 1738B. Section 321 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), Pub. L. No. 104-193, amended § 466 of the Social Security Act to require that all States have UIFSA in effect by January 1, 1998, as a condition of receiving Federal child support funds. All States had enacted UIFSA by June 1998.

UIFSA's most revolutionary concept is its "one-order system" to resolve the problems associated with URESA's multiple orders. Under UIFSA, once a support order is entered, that order controls the child support obligation regardless of whether the parents or child later move to another State. This "one order" is called the Controlling Order.

Because we have inherited a world where multiple support orders exist in many interstate cases, UIFSA contains rules for a tribunal to apply in determining which existing support order will control current support prospectively. This process is called the Determination of Controlling Order (DCO).

UIFSA contemplates that the DCO need only be made once in the life of a case. That is, once a tribunal with proper jurisdiction determines the Controlling Order in a multiple order case, that case remains a one-order case for the life of the child support obligation. Any subsequent change to the support obligation must be through modification, following UIFSA rules regarding continuing, exclusive jurisdiction (CEJ) and registration for modification. Thanks to the interrelation of UIFSA's CEJ rules and DCO procedures, today we have the opportunity to relegate to the past the long-standing problems associated with multiple support orders in child support cases.

Under UIFSA, only a tribunal may make a determination as to which order is controlling. UIFSA allows each State to define "tribunal." In many States, the definition of tribunal is limited to a court. In those States, only a court can determine a controlling order; a child support caseworker cannot determine the controlling order. In other States, the tribunal is the court and the child support agency; in those States, either the court or the agency may make a binding determination of controlling order.

In determining the Controlling Order in a multiple support order case, it is important to limit your review to child support orders that qualify for Controlling Order status. An order that "qualifies" for Controlling Order status is a child support order containing a set or determinable support obligation that is prospectively enforceable; the obligation includes a requirement to provide medical support or health insurance. The key to remember is that the result of the DCO must be an order that is prospectively enforceable.

For example, many orders deal with child support but do not contain a month-to-month obligation for the child's on-going support. Examples of orders that should not be included in the DCO include:

Only cases with two or more valid child support orders that contain a month-to-month current support obligation and are enforceable throughout the child's minority are viewed as multiple support order cases. Only these cases require a tribunal to determine the Controlling Order to bring them into UIFSA's "one-order system."

UIFSA provides a straightforward decision-tree to identify the Controlling Order. Section 207 of the Model Act contains the process. According to § 207, if there is only one order in a case, that order controls and must be recognized. This is true even if no party or child to that order continues to reside in the Issuing State. It is important to note this distinction between CEJ and the DCO.

According to UIFSA, if there is only one child support order in the case and no party or child named in that order continues to reside in the State that issued the order, then the Issuing State has lost CEJ. According to the Act's comments, "the issuing state no longer has an appropriate nexus with the parties or child to justify exercise of jurisdiction to modify." (See the Model Act, Official Comment to § 205). However, in this same scenario, the Issuing State's child support order must be recognized as the Controlling Order because it is the only order in the case. This example shows that under UIFSA it is possible for an Issuing State to lose CEJ (because no party or child continues to reside in that State), but its order continues to be recognized as the Controlling Order.

If there are two or more child support orders in a case, but only one State can claim CEJ, then the order of the State that can claim CEJ is the Controlling Order. If there are two or more child support orders involving the same obligor and child(ren) and two or more States can claim CEJ, UIFSA provides two "tie-breakers" to determine the Controlling Order. In cases where two or more Issuing States can claim CEJ, the first tiebreaker goes to the child's home State. If one of the Issuing States has been the child's State of residence for a period of six consecutive months immediately preceding the filing date of the UIFSA action, then that State is the child's home State. It is important to note that the child's current State of residence will not always qualify as the child's home State under UIFSA. The official comment to UIFSA explains that UIFSA "borrows the concept of home State of a child from the Uniform Child Custody Jurisdiction Act (UCCJA)" to "resolve certain conflicts in the exercise of jurisdiction." (See the Model Act, Official Comment to § 101(4).)

If there are two or more child support orders in a case and two or more States can claim CEJ, but no CEJ State is the child's home State, then the second tiebreaker goes to the most recent order. If there are two or more child support orders in a case, but no State can claim CEJ, then there is no controlling order. In that situation, UIFSA requires a tribunal with jurisdiction over the parties to issue a new order and this new order becomes the Controlling Order.

UIFSA expects the DCO to only occur once in the life of a case. That is, once a multiple order case is brought into the "one-order system," UIFSA's CEJ and modification rules ensure that it remains a one-order case. There are three practical impacts of a DCO. First, the amount of the Controlling Order will govern the support obligation prospectively until such time as the amount is properly modified. Second, arrears under "old" orders can no longer continue to accrue; arrears are locked in as of the date of the DCO. Third, the Controlling Order locks in which State law governs certain aspects of future modification actions. Section 611(c) of UIFSA provides that the law of the State that issued the Controlling Order under § 207 "establishes the aspects of the support order which are nonmodifiable." According to the Comment to that Section, duration of support is a nonmodifiable support term in many States. Therefore, if under the law of the State that issued the Controlling Order the duration of support is until age 21, modification by a tribunal in the Responding State cannot change that duration 8211 even if the support obligation ends at age 18 in the Responding State.

Now that we have examined the relatively simple DCO process, the next question we face is, "When do we undertake this process?" Section 207 of the Model Act (the DCO "decision-tree" section) prefaces the DCO process discussed above with the words, "[I]f a proceeding is brought under this Act8230." A policy requiring a DCO the first time a UIFSA action is taken on a case is a reasonable interpretation of these words. A UIFSA action is taken on a case whenever a remedy or proceeding contained within UIFSA is pursued on a case. This interpretation avoids the wholesale DCO performance across a State's entire interstate caseload and allows each State to conduct the DCO on a case-by-case basis, when normal case processing involves a UIFSA action. In addition, a policy requiring a DCO the first time a UIFSA action is taken on a case promotes the primary objective of UIFSA by expediting the advent of the "one-order system." OCSE therefore suggests that the States adopt a policy requiring a DCO in multiple order cases the first time a UIFSA action is taken on the case.

In a recent Action Transmittal, OCSE suggests that the States conduct a DCO in multiple order cases before pursuing administrative enforcement remedies. (See OCSE-AT-9830, Q&A #18.) This policy statement is consistent with the Federal Full Faith and Credit for Child Support Orders Act. FFCCSOA provides that if one or more child support orders have been issued with regard to an obligor and a child, the court or administrative agency authorized to establish or modify support must apply the same rules as those set forth in

§ 207 of UIFSA to determine which order to recognize for enforcement; in other words, FFCCSOA does not limit a DCO to UIFSA actions.

Section 207(c) of UIFSA also provides for a "stand-alone" DCO. That is, in multiple order cases, it is possible for one of the parties to initiate the DCO. (The TEMPO discusses the stand-alone DCO in detail below.) However, in interstate case processing, a DCO is most likely to occur in the context of a registration for enforcement proceeding; it may also arise in the context of a modification action.

As the UIFSA drafters note in the Official Comment to § 603, "[A]lthough the registration procedure under UIFSA is nearly identical to that of RURESA, the underlying intent of registration is radically different." Under URESA/RURESA, the registration of an out-of-state order resulted in the "domestication" of the foreign order. That is, when State A registered State B's child support order under URESA/RURESA, the State B order was treated for all intents and purposes as if it was entered in State A. As the drafters point out in the Official Comment to § 603, once the order was domesticated under URESA/RURESA, "the next logical step was to modify the order as the court deemed appropriate. This rationale resulted in yet another order in the multiple-order system. UIFSA mandates an end to this process, except as modification is authorized in this article."

Under UIFSA, only one order in a case is entitled to prospective enforcement. In their Official Comment to § 601, the UIFSA drafters state, "[U]nder the one-order system of UIFSA, only one existing order is to be enforced prospectively (if more that one child support order exists, refer to § 207 for resolution of the conflict)." Therefore, in multiple order cases, UIFSA contemplates the DCO as a step preliminary to, or concurrent with, a registration action. As a result, in the majority of multiple order cases, the IV-D agency addresses the DCO process at the time of registration.

The Act does not discuss what type of jurisdiction is required in order for a tribunal to make a binding DCO. The "stand-alone" DCO provision of § 207(c) of the Model Act authorizes the performance of a DCO by a tribunal in the State of residence of either party. However, the final sentence to UIFSA's Official Comment to § 207 states: "Assuming that the parties were accorded notice and opportunity to be heard by the tribunal, a final decision on the subject [DCO] is entitled to full faith and credit."

Many judges and attorneys that work with UIFSA equate a DCO to a declaratory judgment proceeding. In their opinion, the ultimate decision of the controlling order affects the rights and responsibilities of the parties, i.e., one of several child support orders becomes "locked in" (subject to later modification) as the order controlling future enforcement of support. Because they view a DCO as analogous to a declaratory judgment, these judges and attorneys believe that personal jurisdiction over both the obligor and individual obligee is required in order for a DCO to be entitled to full faith and credit. (NOTE: There is no reported case law on this point). In order for a State to have personal jurisdiction over a party, the party must have received notice of the proceeding and the party must have sufficient minimum contacts with the State conducting the hearing so that due process is satisfied.

The Initiating State's tribunal generally does not have personal jurisdiction over an out-of-state party. In the absence of personal jurisdiction, the Initiating State's tribunal may not consider it appropriate to make a DCO unless the out-of-state party voluntarily submits to the jurisdiction of the initiating tribunal. As a result, in most cases a tribunal in the Responding State makes the DCO. The Responding State usually has personal jurisdiction over both parties because one of the parties lives in the State and the other party has initiated the action and thereby consented to that State's exercise of jurisdiction.

It follows that both the obligor and the individual obligee are necessary parties to a DCO and need to receive notice. That fact is recognized by § 207(c), which requires that a party requesting a DCO provide notice of the request to each party whose rights may be affected by the determination. The request includes a certified copy of every support order in effect. Clearly the individual obligee and obligor are affected by a determination as to which support order will control prospectively.

Is a child support agency a necessary party in all DCO actions? There is not a universally agreed upon answer. In some States, there is law providing that the child support agency is a necessary party in any action involving a IV-D case. See, for example, Iowa Code § 598.21(8). In such States, the IV-D agency would be a necessary party to a DCO and should receive notice. In other States without such legislation, arguably the child support agency is not a necessary party to a DCO. In those States, a failure to provide notice to the child support agency regarding an upcoming DCO should not affect the validity of the DCO. An exception would be where the CP is currently receiving or has previously received TANF, in which case the agency may be considered an "obligee." One cannot rely upon the caption of an order nor upon the IV-A status of the obligee to determine whether the State IV-D agency is a necessary party. It may therefore be advisable to give notice of an upcoming DCO not only to individual parties, but also to any IV-D agency that is currently enforcing the order or is otherwise connected with support orders in the case. The best way to identify these agencies is to check the Federal Case Registry. CAVEAT: Some States are only reporting active cases to the Federal Case Registry. In those States, if the case has been closed it will not "show up" on the Federal Case Registry.

There is no UIFSA provision that requires the determination of arrears in conjunction with a DCO. However, UIFSA does require a determination of arrears in the context of either a registration for enforcement or registration for modification action. If the registration for enforcement or modification action is the first UIFSA action taken in a multiple order case, then the seemingly independent determinations of Controlling Order and arrears become bound closely together by practical application. They will be jointly addressed the first time that a IV-D agency undertakes a UIFSA registration action in a multiple order case.

In seeking registration, the petitioner must include the amount of any arrears. Pursuant to § 605(a) of the Model Act, the tribunal notifies the non-requesting party. According to

§ 605(b)(4), the Notice of Registration "must inform the nonregistering party of the amount of any alleged arrearages." At least one appellate court has held that confirmation of an order registered under UIFSA must include a determination of arrears. Slawski v. Dept. of Social Services, 514 S.E.2d 773 (Va. Ct. App. 1999).

A dispute regarding the arrears calculation is one of the few defenses that UIFSA allows to the registration action. However, if the nonregistering party receives notice of the alleged arrears and fails to pursue a contest, the registered support order(s) and related arrears amount are confirmed by operation of law, under § 605(b)(3) of the Model Act. Pursuant to § 608, upon confirmation of the registration, both the order and the arrears are fixed and may not be challenged later.

It is important to note that the DCO does impact the accrual of arrears. By its very nature, once a tribunal determines an order to be the Controlling Order for prospective enforcement of support, "old" non-controlling orders can no longer run prospectively. The result is that arrears under "old" orders are locked in as of the date of the DCO. No additional arrears accrue under those orders.

A determination of arrears under one or more support orders pursuant to a registration for enforcement or modification is analogous to a proceeding to determine a sum certain money judgment. As such, personal jurisdiction over all necessary parties is required. It follows that both the obligor and the obligee are necessary parties to an arrears determination and should receive notice.

Is a child support agency a necessary party that must receive prior notice of an action to determine arrears? The answer is "It depends." Where public assistance is involved, the State is a necessary party since it has been assigned support rights of the obligee. In fact, in public assistance cases, there is case law holding that in any action to establish a judgment or compromise the arrears, the interests of the custodial parent and the agency, although common in many instances, are separate and distinct. In such a situation, both the agency and the individual obligee should receive notice. There may be a State statute specifying that the agency is a real party in interest. See, e.g., NDCC § 14-09-09.26(3) that designates the State as the real party in interest to enforce a support order of another State.

NCCUSL revised UIFSA in 1996 to add (among other things) a new procedure allowing a party in a multiple order case to request a DCO. Section 207(c) provides:

If two or more child support orders have been issued for the same obligor and child and if the obligor or the individual obligee resides in this State, a party may request a tribunal of this State to determine which order controls and must be so recognized under [the Act]. The request must be accompanied by a certified copy of every support order in effect. The requesting party shall give notice of the request to each party whose rights may be affected by the determination.

This § 207(c) procedure is referred to as the "stand-alone" DCO, because it is not necessarily connected to another UIFSA proceeding. However, if a non-IV-D individual contacts the State IV-D agency to request a stand-alone DCO, the IV-D agency must provide all appropriate IV-D services in that case, and not limit its involvement to the DCO action. A DCO should be undertaken in the context of the State's enforcement or modification of a case.

UIFSA requires an individual requesting a "stand-alone" DCO to provide a certified copy of every child support order in effect. In addition, the party requesting this DCO must notify any other party whose rights may be affected by the decision. In current or former public assistance cases, the party requesting the DCO must notify the State(s) that have provided public assistance to the family. The State(s) is/are entitled to notice because they may have an assigned interest in the decision.

Anecdotal evidence suggests that the "stand-alone" DCO is, at least for now, a relatively rare occurrence. It appears that either most parties in multiple order cases are not aware of this right or, if aware of it, they are not interested in exercising it. As a result, few

IV-D practitioners have experience with the "stand-alone" DCO. Nevertheless, all IV-D practitioners should be aware of its existence and understand that UIFSA places important requirements (notice and order production) upon the party requesting the "stand-alone" DCO.

The overall UIFSA duties of the support enforcement agency appear at § 307. Although UIFSA avoids the "attorney-client" issue by stating that the Act does not create or negate such a relationship between the agency and the individual receiving agency services, it does require the support enforcement agency to provide services, upon request, to a petitioner; the petitioner may be the obligee or the obligor. These services include facilitating the UIFSA process and keeping the service recipient informed of notices and communications.

It is important to keep in mind that the "support enforcement agency" under UIFSA is not necessarily the State IV-D agency. That is, some of the activities included in UIFSA are not IV-D services (e.g., establishment and modification of spousal support). In the majority of States that have identified the IV-D agency as the support enforcement agency, the IV-D agency provides UIFSA services to the extent that the agency is providing IV-D services in the case.

One way the IV-D agency can facilitate the DCO process is to ensure that interstate documents are properly completed. OCSE has developed Federal forms that IV-D agencies must use in interstate cases. The Child Support Enforcement Transmittal # 1 8211 Initial Request is a form that the Initiating State completes for every case that is forwarded to a Responding State. Among the information that must be provided is a case summary that details every support order in the case. If the worker in the Initiating State believes that a particular order is the controlling order, the worker should check the "presumed controlling order" box beneath the appropriate support order. If the worker knows that the DCO has been completed, the worker should check the "determined controlling order" box. In order for the worker to check "determined controlling order," a tribunal must have decided the controlling order.

In its facilitation of the DCO process, the IV-D agency should also have policy and procedures addressing these elements:

UIFSA requires the party obtaining the DCO to notify the other parties and tribunals that have issued or registered orders in the case of the DCO's outcome. In OCSE-AT-97-06, OCSE distributed a Federal form, Notice of Determination of Controlling Order, with the packet of Federal UIFSA forms. The Notice of Determination of Controlling Order includes the following DCO information:

Although UIFSA places responsibility for notification on the "party," the IV-D agency in the State making the final DCO should "follow up" to ensure that the appropriate tribunals have been notified. The States should use CSENet 2000 to coordinate the transmission of this DCO information to the appropriate State IV-D agencies. The notified State child support agency should in turn notify the appropriate tribunal(s) in its State of the DCO. UIFSA requires tribunals to recognize the DCO. State child support agencies and tribunals must determine how to implement that recognition both within their automated systems and hard copy case files.

As the IV-D community heads into the new century, it does so with the opportunity to bring about tremendous improvements to interstate child support enforcement. UIFSA offers solutions to many of the long-standing problems that have plagued interstate IV-D collections since 1975. However, Federal, State, and local IV-D agencies will not realize these potential gains without a truly cooperative and coordinated effort. Central to these potential gains is the IV-D program's arrival into the "one-order system."

The "one-order system" cannot be reached overnight, but it gets closer with each DCO. OCSE pledges to continue to provide the leadership and resources to assist the States in this effort. OCSE will continue to enhance the Federal Case Registry by improving its reliability as a resource to identify all orders for a given case. The States must work with each other and OCSE to identify and resolve any hurdles blocking UIFSA's potential.