CHANGES IN INTERSTATE CHILD SUPPORT LAWS

By Sari M. Friedman,
General Counsel FRANY and FRALI


The new Uniform Interstate Family Support Act (UIFSA), replacing the former Uniform Support of Dependents Law (USDL), is now used in New York State for interstate establishment, enforcement and modification of both child and spousal support. But it's not easy to nderstand.

Nevertheless, a Federal mandate has required every state to enact nearly identical legislation.

The new law covers child support, spousal support, health care provisions, arrears in payments, reimbursements and interest. It also covers income execution and deduction orders, as well as attorney fees.

Eight Ways to Establish Jurisdiction The United States Supreme Court has ruled that it is unconstitutional for a state to assert jurisdiction over a non custodial parent when that parent has no contact with that state even if the child and mother live in that state. When then, can a court of another state establish jurisdiction over a non state resident? The UIFSA has established these standards:
  1. If you are served court papers while visiting that state;
  2. If you are served in a different state than the one in which the action had been filed and you appear in court for that action;
  3. If you have ever lived in that state with your child;
  4. If you have ever lived in that state and provided parental care or support for the child;
  5. If you caused the child to live in that state;
  6. If you and the child's mother had sex resulting in the conception of the child in that state;
  7. If you have registered with that state's putative father's registry;
  8. If there is any other way to obtain personal jurisdiction consistent with the U.S. constitution and that state's constitution.
Two ways this new law can work:

A petitioner can force you to come to the courts in his or her own state, or can force you to go to court in your own state, depending on which state's laws are more beneficial to the petitioner. If the Mother and Father each files an initial support proceeding in their respective state, then the state in which the child has resided for the last six months will have jurisdiction over support. If the child has resided there or less than six months, then the state in which the child has lived since birth will have jurisdiction. Once a state has issued an order of support, another state cannot modify that order as long as the support payer, receiver or child remain as a resident of that state. The one exception, of course, is if the payer and receiver give written consent to another state to modify the order of support.

The Two State System Under the UIFSA If the petitioner files in his or her own state forcing you to go to court in your own state, then the ourt in the state where the application is made is called the "initiating tribunal" and the court in the state where the non resident lives is called the "responding tribunal." In this instance, responding state is the state where the litigation occurs and whose laws will apply. Obviously, this is important because states vary in support calculations, a child's age of emancipation, and "add on" expenses such as child care, education, college tuition, and medical expenses. Let's say, for example, you and the mother of your child are separated, and she now lives in another state with the child for at least six months.

What if the state she is living in provides a lower percentage for child support than New York, or has a lower age of emancipation than 21? There is every incentive in this situation for you to file to pay child support in her state before she files in New York. How can you do this?

Actually, you can file in New York as the initiating tribunal to send the petition to the responding tribunal to apply the laws of that state where the mother resides. You do not have to be present in the responding tribunal. Verified or sworn petitions and other specified documents not considered hearsay, are admissible into evidence and may be transmitted by fax or other electronic means by the court here in New York. Further depositions or court testimony by telephone or video conferencing from a designated location are also acceptable.

Conclusions

As long as you or the child remain in the original state that issued the child support order, only that state can modify the order based upon its own laws. Faxes, telephones and video conferencing may be used to cut down the need for interstate travel in order to litigate an out of state child support order. Out of state income execution orders for child support are now valid in all states.

The good news is that if the mother of your child disappears out of state with your child without obtaining a support order in this state, she may not file a support action against you from the other state if you have no connection to that state. Furthermore, if you have immediately

filed in this state for custody and visitation, the other state will not be able to issue a valid custody order, absent special circumstances.

By the same token, if you have a child living out of state with a custodial parent and support has not yet been set, you may want to investigate if the laws of the other state are more beneficial to you to when establishing support. If they are, then in one of the two ways
described above, file in that state to have support established, before she files to have it established under New York State law. Remember, the law is new; the provisions are complicated. The wisest thing to do is to consult with an attorney.