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Lame Duck Jurisdiction

Lame Duck Jurisdiction. Kelly Peiper and Jeff Ball. URESA 1950 to UIFSA 2008. The USDL and (R)URESA were post-World War II attempts to civilly deal with the new mobility of Americans and the increasing numbers of non-intact families

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Lame Duck Jurisdiction

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  1. Lame Duck Jurisdiction Kelly Peiper and Jeff Ball

  2. URESA 1950 to UIFSA 2008 • The USDL and (R)URESA were post-World War II attempts to civilly deal with the new mobility of Americans and the increasing numbers of non-intact families • When Title IV-D was enacted in 1975, every state had all or some parts of URESA enacted, either from the 1950, 1952, 1958 or 1968 (RURESA) versions. There was no uniformity requirement.

  3. URESA 1950 to UIFSA 2008 • URESA allowed new orders to be entered in the residential state of the NCP, even if there was an existing divorce or support order in one or more other states. • E.g., could have enforceable orders in three states for three different amounts – MI - $200/mth; OH - $300/mth; WI - $150/mth

  4. URESA 1950 to UIFSA 2008 • The NCCUSL (ULC) and the U.S. Commission on Interstate Child Support worked together to come up with a new uniform interstate law. The idea was to consolidate all the existing orders so that going forward there was “one order at one time in one place.” • UIFSA was first promulgated in 1992, and PRWORA required every state to have the 1996 version.

  5. URESA 1950 to UIFSA 2008 • In October 1994, before most states had UIFSA, Congress passed FFCCSOA, which was a plenary law that superseded state law (28 USC 17318B) • FFCCSOA required states to follow UIFSA’s standard of one-order, one place at one time (also there were 1996 &1997 changes) • (d) Continuing Jurisdiction.--A court of a State that has made a child support order consistently with this section has continuing, exclusive jurisdiction over the order if the State is the child's State or the residence of any individual contestant unless the court of another State, acting in accordance with subsections (e) and (f), has made a modification of the order

  6. URESA 1950 to UIFSA 2008 (e) Authority To Modify Orders.--A court of a State may modify achild support order issued by a court of another State if-- (1) the court has jurisdiction to make such a child support order pursuant to subsection (i); and (2)(A) the court of the other State no longer has continuing, exclusive jurisdiction of the child support order because that State no longer is the child's State or the residence of any individual contestant; or (B) [parties consent]. (f) [Determination of Controlling Order] (g) Enforcement of Modified Orders.--A court of a State that no longer has continuing, exclusive jurisdiction of a child support order may enforce the order with respect to nonmodifiable obligations and unsatisfied obligations that accrued before the date on which a modification of the order is made under subsections (e) and (f).

  7. URESA 1950 to UIFSA 2008 • UIFSA was modified in 2001 and in 2008 • Continuing exclusive jurisdiction – the power to modify an order’s modifiable terms and to coordinate enforcement • Controlling order – the order that currently controls the amount and scope of the terms that are to be followed – can be enforced in multiple states

  8. The Lame Duck • “Lame Duck” – An injured duck, or politicians, managers, etc., who are retiring or whose term of office will soon be up.

  9. What is Lame Duck Jurisdiction? • Occurs when all the parties and the child have left the state that issued the controlling order

  10. Where Did CEJ Go? • Where is CEJ? • Not really an issue until someone requests a modification • Controlling order state continues to be “in charge” of the case, but can’t modify

  11. Lame Duck – Who Does What? • What are the responsibilities of a state with lame-duck jurisdiction? • Orchestrate the case • If there is income withholding in place, you can continue it so as not to disrupt the collection flow • Figure out if other enforcement remedies are needed, which state is best to enforce • Continue to be the state through which payments are routed • Once another state that has CEJ enters a new controlling order, and that order is registered in your state, you can enforce your old order up to the date of modification and enforce the new order under the orchestration of new CEJ state

  12. Lame Duck – Who Does What? • What should other states do? • If your state is the residence or place of employment of the NCP, you may have an enforcement role (unless DIWO used) • If your state has potential jurisdiction to modify, • Register the controlling order and the petition w/ request for review, go through R&A, and if and when an order is entered, send copies to parties and to the old CEJ state for registration • Reroute payments through new CEJ state • Take over all enforcement and modification decisions

  13. When is the Lame Duck over? When another tribunal assumes jurisdiction and issues a new order (and sends a copy to the old CEJ state)

  14. Lame Duck and Modification • Sections §§ 609-614 contain modification rules • Play away rule or consent (611) • Exception to play away (613) • Non-modifiable aspects (duration) • File request for mod at same time as registration request

  15. Newly-acquired CEJ State Duties • § 614 – • 30 days to file a certified copy in the former controlling order tribunal and all other tribunals where the old order was registered • Responsibility on the moving party • Sanctions apply for failure to do so, but does not affect the validity of the registration or modification

  16. Lame Duck – Who Does What? • What happens when mod only is requested? • Until the entry of the new controlling order, the lame-duck CEJ state controls enforcement • A state that properly assumes CEJ and issues a new controlling order is in charge of modification AND enforcement going forward • A state that requests modification only shouldn’t ask the new CEJ state to leave enforcement control to the old CEJ state • Contra, see, e.g., CO – accepts this in mod only because IWO flow is not disrupted – long-term not a good practice

  17. IV-D cases and court cases • In some states a court case remains open until the court closes the case (last child of a support order emancipates and there are no arrearages or the arrearages are paid off and there are no justiciable issues) – in some states they never “close” and issues can be later raised if the court has jurisdiction to still hear the issue and defenses like laches do not preclude additional litigation • Particularly in divorce cases, sometimes the court does not close cases and they just become inactive (divorces after kids and property settlements are no longer issues, e.g.)

  18. IV-D cases and court cases • IV-D cases are closed when federal case closure criteria are met (45 CFR §303.11): • Traditional closing criteria (b)(1)-(12) • (b)(13) The initiating agency has notified the responding State that the initiating State has closed its case under §303.7(c)(11)*; • (b)(14) The initiating agency has notified the responding State that its intergovernmental services are no longer needed *45 CFR §303.7(c)(11) Notify the responding agency within 10 working days of case closure that the initiating State IV-D agency has closed its case pursuant to §303.11 of this part, and the basis for case closure;

  19. IV-D cases and court cases • Best practices: • If you have a case in lame-duck jurisdiction status, keep open your IV-D case unless you meet the other case closure criteria (e.g., arrears under $500 and no current support) • If another state has assumed CEJ and you can either enforce the arrears in state in your former controlling order, or the new CEJ state has asked you to enforce the new controlling order in your state, keep it open • If another state has assumed CEJ from you, you do not have any party in your state, the new CEJ state has not asked you to assist with the enforcement of the new order, and you are not enforcing on old arrears, ask the other state if your services are not needed [45 CFR §(b)(14)] and then proceed with case closure of the IV-D case – local court case remains

  20. Payment Routing Do I really have to keep that lame duck tribunal in the payment loop??? • § 319 – tribunal shall distribute payments • However, if all parties left, redirection is permissible as long as the issuing tribunal is kept informed (2001 amend.) • § 307 – if requested, the IV-D agency shall request the lame duck tribunal to redirect payment through issuance of an order

  21. Whose laws apply? • When modifying another states order when properly assuming CEJ, the tribunal: • Must incorporate non-modifiable provisions, particularly the duration of support, using the law of the state that issued the initial controlling order for support [UIFSA §611(d)] • May set a new current support amount, arrearage payback amount, medical support order, and any other modifiable term under the laws of the new CEJ state • Find an amount of arrearage owing as of the order’s date, and if the court chooses, reduce it to judgment • Require that the payments go through the new CEJ state’s SDU

  22. International • § 611(f) – Exception to lame duck if one party lives in another state and the other one lives in another country (2008) • § 615 – Exception to CEJ - foreign order can be modified by a U.S. tribunal if the foreign country’s laws do not allow modification in the foreign country • § 616 – Authority to register foreign order

  23. Questions? Any questions? Thanks! Kelly Pieper – kpeiper@csgdelivers.com Jeff Ball – jball@ywcss.com

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