Bill Text: HI HB871 | 2011 | Regular Session | Introduced
Bill Title: Uniform Interstate Family Support Act
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2011-02-17 - (H) The committee(s) recommends that the measure be deferred. [HB871 Detail]
Download: Hawaii-2011-HB871-Introduced.html
HOUSE OF REPRESENTATIVES |
H.B. NO. |
871 |
TWENTY-SIXTH LEGISLATURE, 2011 |
|
|
STATE OF HAWAII |
|
|
|
|
|
|
||
|
A BILL FOR AN ACT
RELATING TO THE UNIFORM INTERSTATE FAMILY SUPPORT ACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Chapter 576B, Hawaii Revised Statutes, is amended to read as follows:
[[]CHAPTER
576B[]]
UNIFORM INTERSTATE FAMILY SUPPORT ACT
ARTICLE 1. GENERAL PROVISIONS
§576B-101 Short title. This chapter may be cited as the Uniform Interstate Family Support Act.
[§576B-101] §576B-102
Definitions. In this chapter:
""Child" means an individual, whether over or under the age of majority, who is or is alleged to be owed a duty of support by the individual's parent or who is or is alleged to be the beneficiary of a support order directed to the parent.
"Child support order" means a support
order for a child, including a child who has attained the age of majority under
the law of the issuing state[.] or foreign country.
"Convention" means the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, concluded at The Hague on November 23, 2007.
"Duty of support" means an obligation imposed or imposable by law to provide support for a child, spouse, or former spouse, including an unsatisfied obligation to provide support.
"Foreign country" means a country, including a political subdivision thereof, other than the United States, that authorizes the issuance of support orders and:
(1) Which has been declared under the law of the United States to be a foreign reciprocating country;
(2) Which has established a reciprocal arrangement for child support with this State as provided in section 576B-308;
(3) Which has enacted a law or established procedures for the issuance and enforcement of support orders which are substantially similar to the procedures under this chapter; or
(4) In which the Convention is in force with respect to the United States.
"Foreign support order" means a support order of a foreign tribunal.
"Foreign tribunal" means a court, administrative agency, or quasi-judicial entity of a foreign country which is authorized to establish, enforce, or modify support orders or to determine parentage of a child. The term includes a competent authority under the Convention.
"Home state" means the state or foreign country in which a child lived with a parent or a person acting as parent for at least six consecutive months immediately preceding the time of filing of a petition or comparable pleading for support and, if a child is less than six months old, the state or foreign country in which the child lived from birth with any of them. A period of temporary absence of any of them is counted as part of the six-month or other period.
"Income" includes earnings or other periodic entitlements to money from any source and any other property subject to withholding for support under the law of this State.
"Income withholding order" means an order or other legal process directed to an obligor's employer as defined by sections 571-52, 571-52.2, 571-52.3, and 576D-14, to withhold support from the income of the obligor.
["Initiating state" means a state
from which a proceeding is forwarded or in which a proceeding is filed for
forwarding to a responding state under this chapter or a law or procedure
substantially similar to this chapter, the Uniform Reciprocal Enforcement of
Support Act, or the Revised Uniform Reciprocal Enforcement of Support Act.]
"Initiating tribunal" means the [authorized]
tribunal [in an initiating state.] of a state or foreign country from
which a petition or comparable pleading is forwarded or in which a petition or
comparable pleading is filed for forwarding to another state or foreign
country.
"Issuing foreign country" means the foreign country in which a tribunal issues a support order or a judgment determining parentage of a child.
"Issuing state" means the state in
which a tribunal issues a support order or [renders] a judgment
determining parentage[.] of a child.
"Issuing tribunal" means the tribunal
of a state or foreign country that issues a support order or [renders]
a judgment determining parentage[.] of a child.
"Law" includes decisional and statutory law and rules and regulations having the force of law.
"Obligee" means:
(1) An individual to whom a duty of support is or is
alleged to be owed or in whose favor a support order [has been issued]
or a judgment determining parentage of a child has been [rendered;]
issued;
(2) A foreign country, state, or
political subdivision of a state to which the rights under a duty of
support or support order have been assigned or which has independent claims
based on financial assistance provided to an individual obligee[; or] in
place of child support;
(3) An individual seeking a judgment determining
parentage of the individual's child[.]; or
(4) A person that is a creditor in a proceeding under Article 7.
"Obligor" means an individual, or the
estate of a decedent[:] that:
(1) [Who owes] Owes or is alleged to
owe a duty of support;
(2) [Who is] Is alleged but has not
been adjudicated to be a parent of a child; [or]
(3) [Who is] Is liable under a support
order[.]; or
(4) Is a debtor in a proceeding under Article 7.
"Outside this State" means a location in another state or a country other than the United States, whether or not the country is a foreign country.
"Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
"Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
"Register" means to file in a tribunal
of this State a support order or judgment determining parentage [in the
family court of this State.] of a child issued in another state or a
foreign country.
"Registering tribunal" means a
tribunal of the state in which a support order or judgment determining
parentage of a child is registered. [The
child support enforcement agency of this State shall be deemed the registering
tribunal for the receipt and processing of all registration requested by
another child support enforcement agency or an individual who has applied for
child support enforcement agency services, and the child support enforcement
agency of this State shall register the request in the appropriate tribunal.
The family court shall be the registering tribunal for all other requests for
registration.]
"Responding state" means a state in
which a [proceeding] petition or comparable pleading for support or
to determine parentage of a child is filed or to which a [proceeding]
petition or comparable pleading is forwarded for filing from [an
initiating state under this chapter or a law or procedure substantially similar
to this chapter, the Uniform Reciprocal Enforcement of Support Act, or the
Revised Uniform Reciprocal Enforcement of Support Act.] another state or
foreign country.
"Responding tribunal" means the
authorized tribunal in a responding state[.] or foreign country.
"Spousal support order" means a support order for a spouse or former spouse of the obligor.
"State" means a state of the United
States, the District of Columbia, Puerto Rico, the United States Virgin
Islands, or any territory or insular possession [subject to] under
the jurisdiction of the United States. The term includes[:
(1) An] an Indian nation or tribe[;
and
(2) A foreign jurisdiction that has enacted
a law or established procedures for issuance and enforcement of support orders
which are substantially similar to the procedures under this chapter, the
Uniform Reciprocal Enforcement of Support Act or the Revised Uniform Reciprocal
Enforcement of Support Act].
"Support enforcement agency" means a
public official [or], governmental entity, or private agency
authorized to [seek]:
(1) [Enforcement] Seek enforcement of
support orders or laws relating to the duty of support [pursuant to chapters
576D and 576E];
(2) [Establishment] Seek establishment
or modification of child support [pursuant to chapters 346, 576D, 576E, 580,
and 584];
(3) [Determination] Request determination
of parentage of a child [pursuant to chapter 584]; [or]
(4) [Location of] Attempt to locate obligors
or their assets[.]; or
(5) Request determination of the controlling child support order.
"Support order" means a judgment,
decree, [or] order, decision, or directive, whether temporary,
final, or subject to modification, issued in a state or foreign country for
the benefit of a child, a spouse, or a former spouse, which provides for
monetary support, health care, arrearages, retroactive support, or
reimbursement[, and] for financial assistance provided to an
individual obligee in place of child support. The term may include related
costs and fees, interest, income withholding, automatic adjustment,
reasonable attorney's fees, and other relief."
"Tribunal" means a court,
administrative agency, or quasi-judicial entity authorized to establish, enforce,
or modify support orders or to determine parentage[.] of a child.
"[[§576B-102] Tribunals
of State.] §576B-103 State tribunal and support
enforcement agency. (a) The family court, the child support
enforcement agency as defined by the registering tribunal in section [576B-101,]
576B-102, and the office of child support hearings are the tribunals of
this State.
(b) The child support enforcement agency established by section 576D-2 is the support enforcement agency of this State.
"[[§576B-103]] §576B-104
Remedies cumulative. (a) Remedies provided by this chapter are
cumulative and do not affect the availability of remedies under other law[.],
or the recognition of a foreign support order on the basis of comity.
(b) This chapter does not:
(1) Provide the exclusive method of establishing or enforcing a support order under the law of this State; or
(2) Grant a tribunal of this State jurisdiction to render judgment or issue an order relating to child custody or visitation in a proceeding under this chapter.
§576B-105 Application of chapter to resident of foreign country and foreign support proceeding. (a) A tribunal of this State shall apply Articles 1 through 6 and, as applicable, Article 7, to a support proceeding involving:
(1) A foreign support order;
(2) A foreign tribunal; or
(3) An obligee, obligor, or child residing in a foreign country.
(b) A tribunal of this State that is requested to recognize and enforce a support order on the basis of comity may apply the procedural and substantive provisions of Articles 1 through 6.
(c) Article 7 applies only to a support proceeding under the Convention. In such a proceeding, if a provision of Article 7 is inconsistent with Articles 1 through 6, Article 7 controls.
ARTICLE 2. JURISDICTION
[PART
I. EXTENDED PERSONAL JURISDICTION]
[[]§576B-201[]] Bases
for jurisdiction over nonresident. (a) In a proceeding to
establish[,] or enforce[, or modify] a support order or to
determine parentage[,] of a child, a tribunal of this State may
exercise personal jurisdiction over a nonresident individual or the individual's
guardian or conservator if:
(1) The individual is personally served with summons or notice within this State;
(2) The individual submits to the jurisdiction of
this State by consent[,] in a record, by entering a general
appearance, or by filing a responsive document having the effect of waiving any
contest to personal jurisdiction;
(3) The individual resided with the child in this State;
(4) The individual resided in this State and provided prenatal expenses or support for the child;
(5) The child resides in this State as a result of the acts or directives of the individual;
(6) The individual engaged in sexual intercourse in this State and the child may have been conceived by that act of intercourse;
(7) The individual asserted parentage of a child in the office of health status monitoring maintained in this State by the department of health; or
(8) There is any other basis consistent with the constitutions of this State and the United States for the exercise of personal jurisdiction.
(b) The bases of personal jurisdiction set forth in subsection (a) or in any other law of this State may not be used to acquire personal jurisdiction for a tribunal of this State to modify a child support order of another state unless the requirements of section 576B-611 are met, or in the case of a foreign support order, unless the requirements of section 576B-615 are met.
[[]§576B-202[] Procedure
when exercising jurisdiction over nonresident. A tribunal of this State
exercising personal jurisdiction over a nonresident under section 576B-201 may
apply section 576B-316 to receive evidence from another state, and section
576B-318 to obtain discovery through a tribunal of another state. In all other
respects, Articles 3 through 7 shall not apply and the tribunal shall apply the
procedural and substantive law of this State, including the rules on choice of
law other than those established by this chapter.] Duration of
personal jurisdiction. Personal jurisdiction acquired by a tribunal
of this State in a proceeding under this chapter or other law of this State
relating to a support order continues as long as a tribunal of this State has
continuing, exclusive jurisdiction to modify its order or continuing
jurisdiction to enforce its order as provided by sections 576B-205, 576B-206,
and 576B-211.
[PART
II. PROCEEDINGS INVOLVING TWO OR MORE STATES
[]§576B-203[]] Initiating and
responding tribunal of State. Under this chapter, a tribunal of this State
may serve as an initiating tribunal to forward proceedings to a tribunal of
another state, and as a responding tribunal for proceedings initiated in
another state[.] or a foreign country.
[[]§576B-204[]] Simultaneous
proceedings [in another state]. (a) A tribunal of
this State may exercise jurisdiction to establish a support order if the
petition or comparable pleading is filed in this State after a pleading is
filed in another state or a foreign country only if:
(1) The petition or comparable pleading in this State
is filed before the expiration of the time allowed in the other state or the
foreign country for filing a responsive pleading challenging the exercise
of jurisdiction by the other state[;] or the foreign country;
(2) The contesting party timely challenges the
exercise of jurisdiction in the other state[;] or the foreign
country; and
(3) If relevant, this State is the home state of the child.
(b) A tribunal of this State may not exercise jurisdiction to establish a support order if the petition or comparable pleading is filed in this State before a petition or comparable pleading is filed in another state or a foreign country if:
(1) The petition or comparable pleading in the other state or foreign country is filed before the expiration of the time allowed in this State for filing a responsive pleading challenging the exercise of jurisdiction by this State;
(2) The contesting party timely challenges the exercise of jurisdiction in this State; and
(3) If relevant, the other state or foreign country is the home state of the child.
[[]§576B-205[]] Continuing,
exclusive jurisdiction[.] to modify child support
order. (a) A tribunal of this State [issuing] that has
issued a child support order consistent with the law of this State
has and shall exercise continuing, exclusive jurisdiction [over a]
to modify its child support order[:] if the order is the
controlling order and:
(1) [As long as] At the time of the filing
of a request for modification this State [remains] is the
residence of the obligor, the individual obligee, or the child for whose
benefit the support order is issued; or
(2) [Until all of the parties who are individuals
have filed written consents with the tribunal of this State for a tribunal of
another state to modify the order and assume continuing, exclusive
jurisdiction.] Even if this State is not the residence of the obligor,
the individual obligee, or the child for whose benefit the support order is
issued, the parties consent in a record or in open court that the tribunal of
this State may continue to exercise jurisdiction to modify its order.
(b) A tribunal of this State [issuing] that
has issued a child support order consistent with the law of this State may
not exercise [its] continuing, exclusive jurisdiction to modify
the order if [the order has been modified by a tribunal of another state
pursuant to this chapter or a law substantially similar to this chapter.]:
(1) All of the parties who are individuals file consent in a record with the tribunal of this State that a tribunal of another state that has jurisdiction over at least one of the parties who is an individual or that is located in the state of residence of the child may modify the order and assume continuing, exclusive jurisdiction; or
(2) Its order is not the controlling order.
[(c) If a child support order of this State
is modified by a tribunal of another state pursuant to this chapter or a law
substantially similar to this chapter, a tribunal of this State loses its
continuing, exclusive jurisdiction with regard to prospective enforcement of
the order issued in this State, and may only:
(1) Enforce the order that was modified as
to amounts accruing before the modification;
(2) Enforce nonmodifiable aspects of that
order; and
(3) Provide other appropriate relief for
violations of that order which occurred before the effective date of the
modification.
(d) A tribunal of this State shall
recognize the continuing, exclusive jurisdiction of]
(c) If a tribunal of another state [which]
has issued a child support order pursuant to [this chapter] the
Uniform Interstate Family Support Act or a law substantially similar to [this
chapter.] that Act which modifies a child support order of a tribunal of
this State, tribunals of this State shall recognize the continuing, exclusive
jurisdiction of the tribunal of the other state.
(d) A tribunal of this State that lacks continuing, exclusive jurisdiction to modify a child support order may serve as an initiating tribunal to request a tribunal of another state to modify a support order issued in that state.
(e) A temporary support order issued ex parte or pending resolution of a jurisdictional conflict does not create continuing, exclusive jurisdiction in the issuing tribunal.
[(f) A tribunal of this State issuing a
support order consistent with the law of this State has continuing, exclusive
jurisdiction over a spousal support order throughout the existence of the
support obligation. A tribunal of this State may not modify a spousal support
order issued by a tribunal of another state having continuing, exclusive
jurisdiction over that order under the law of that state.
[]§576B-206[] Enforcement and
modification of support order by tribunal having continuing jurisdiction.]
Continuing jurisdiction to enforce child support order. (a) A tribunal
of this State that has issued a child support order consistent with the law
of this State may serve as an initiating tribunal to request a tribunal of
another state to enforce [or modify a support order issued in that state.]:
(1) The order if the order is the controlling order and has not been modified by a tribunal of another state that assumed jurisdiction pursuant to the Uniform Interstate Family Support Act; or
(2) A money judgment for arrears of support and interest on the order accrued before a determination that an order of a tribunal of another state is the controlling order.
(b) A tribunal of this State that has
continuing[, exclusive] jurisdiction over a support order may act as a
responding tribunal to enforce [or modify] the order. [If a party
subject to the continuing, exclusive jurisdiction of the tribunal no longer
resides in the issuing state, in subsequent proceedings the tribunal may apply
section 576B-316 to receive evidence from another state and section 576B-318 to
obtain discovery through a tribunal of another state.
(c) A tribunal of this State which lacks
continuing, exclusive jurisdiction over a spousal support order may not serve
as a responding tribunal to modify a spousal support order of another state.]
[PART
III. RECONCILIATION OF MULTIPLE ORDERS]
§576B-207 [Recognition]
Determination of controlling child support [orders.] order.
(a) If a proceeding is brought under this chapter and only one tribunal has
issued a child support order, the order of that tribunal controls and must be [so]
recognized.
(b) If a proceeding is brought under this
chapter, and two or more child support orders have been issued by tribunals of
this State [or], another state, or a foreign country with
regard to the same obligor and child, a tribunal of this State having
personal jurisdiction over both the obligor and individual obligee shall
apply the following rules [in determining] and by order shall
determine which order [to recognize for purposes of continuing,
exclusive jurisdiction:] controls and must be recognized:
(1) If only one of the tribunals would have
continuing, exclusive jurisdiction under this chapter, the order of that
tribunal controls [and must be so recognized].
(2) If more than one of the tribunals would have
continuing, exclusive jurisdiction under this chapter[, an]:
(A) An order issued by a
tribunal in the current home state of the child controls [and must be so
recognized, but if]; or
(B) If an order has not been
issued in the current home state of the child, the order most recently issued
controls [and must be so recognized].
(3) If none of the tribunals would have continuing,
exclusive jurisdiction under this chapter, the tribunal of this State [having
jurisdiction over the parties] shall issue a child support order, which
controls [and must be so recognized].
(c) If two or more child support orders have
been issued for the same obligor and same child [and if the obligor
or the individual obligee resides in this State], upon request of a
party [may request] who is an individual or that is a support
enforcement agency, a tribunal of this State [to] having personal
jurisdiction over both the obligor and the obligee who is an individual shall
determine which order controls [and must be so recognized] under
subsection (b). [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.] The
request may be filed with a registration for enforcement or registration for
modification pursuant to Article 6, or may be filed as a separate proceeding.
(d) A request to determine which is the controlling order must be accompanied by a copy of every child support order in effect and the applicable record of payments. The requesting party shall give notice of the request to each party whose rights may be affected by the determination.
For the purposes of this subsection, service of the notice shall be by personal service or certified mail, return receipt requested. After initial service is effected, additional service upon a party shall be satisfied by regular mail to the party's last known address. In any child support enforcement proceedings subsequent to an order, upon a showing that diligent effort has been made to ascertain the location of a party, notice of service of process shall be presumed to be satisfied upon delivery of written notice to the most recent residential or employer address on file with the state case registry.
[(d)] (e) The tribunal that
issued the controlling order under subsection (a), (b), or (c) [is the
tribunal that] has continuing[, exclusive] jurisdiction [under
section 576B-205.] to the extent provided in section 576B-205 or
576B-206.
[(e)] (f) A tribunal of this
State [which] that determines by order [the identity of] which
is the controlling order under subsection (b)(1) or (2) or [which] (c),
or that issues a new controlling order under subsection (b)(3),
shall state in that order [the]:
(1) The basis upon which the tribunal
made its determination[.];
(2) The amount of prospective support, if any; and
(3) The total amount of consolidated arrears and accrued interest, if any, under all of the orders after all payments made are credited as provided by section 576B‑209.
[(f)] (g) Within thirty days
after issuance of an order determining [the identity of] which is
the controlling order, the party obtaining the order shall file a certified
copy of it [with] in each tribunal that issued or registered an
earlier order of child support. A party [who obtains] or support
enforcement agency obtaining the order [and] that fails to
file a certified copy is subject to appropriate sanctions by a tribunal in
which the issue of failure to file arises. The failure to file does not affect
the validity or enforceability of the controlling order.
(h) An order that has been determined to be the controlling order, or a judgment for consolidated arrears of support and interest, if any, made pursuant to this section must be recognized in proceedings under this chapter.
[[]§576B-208[]] [Multiple
child] Child support orders for two or more obligees. In
responding to [multiple] registrations or petitions for enforcement of
two or more child support orders in effect at the same time with regard to the
same obligor and different individual obligees, at least one of which was
issued by a tribunal of another state[,] or a foreign country, a
tribunal of this State shall enforce those orders in the same manner as if the [multiple]
orders had been issued by a tribunal of this State.
[[]§576B-209[]] Credit for
payments. [Amounts] A tribunal of this State shall credit
amounts collected [and credited] for a particular period pursuant to
[a support order] any child support order against the amounts owed
for the same period under any other child support order for support of the same
child issued by a tribunal of this State, another state [must be
credited against the amounts accruing or accrued for the same period under a
support order issued by the tribunal of this State.], or a foreign
country.
§576B-210 Application of chapter to nonresident subject to personal jurisdiction. A tribunal of this State exercising personal jurisdiction over a nonresident in a proceeding under this chapter, under other law of this State relating to a support order, or recognizing a foreign support order may receive evidence from outside this State pursuant to section 576B-316, communicate with a tribunal outside this State pursuant to section 576B-317, and obtain discovery through a tribunal outside this State pursuant to section 576B-318. In all other respects, Articles 3 through 6 do not apply, and the tribunal shall apply the procedural and substantive law of this State.
§576B-211 Continuing, exclusive jurisdiction to modify spousal support order. (a) A tribunal of this State issuing a spousal support order consistent with the law of this State has continuing, exclusive jurisdiction to modify the spousal support order throughout the existence of the support obligation.
(b) A tribunal of this State may not modify a spousal support order issued by a tribunal of another state or a foreign country having continuing, exclusive jurisdiction over that order under the law of that state or foreign country.
(c) A tribunal of this State that has continuing, exclusive jurisdiction over a spousal support order may serve as:
(1) An initiating tribunal to request a tribunal of another state to enforce the spousal support order issued in this State; or
(2) A responding tribunal to enforce or modify its own spousal support order.
ARTICLE 3. CIVIL PROVISIONS OF GENERAL APPLICATION
[[]§576B-301[]] Proceedings
under this chapter. (a) Except as otherwise provided in this chapter,
this article applies to all proceedings under this chapter.
[(b) This chapter provides for the
following proceedings:
(1) Establishment of an order for spousal
support or child support pursuant to Article 4;
(2) Enforcement of a support order and
income withholding order of another state without registration pursuant to
Article 5;
(3) Registration of an order for spousal
support or child support of another state for enforcement pursuant to Article
6;
(4) Modification of an order for child
support or spousal support issued by a tribunal of this State pursuant to
Article 2, part II;
(5) Registration of an order for child
support of another state for modification pursuant to Article 6;
(6) Determination of parentage pursuant to
Article 7; and
(7) Assertion of jurisdiction over
nonresidents pursuant to Article 2, part I.
(c)] (b) An individual
petitioner or a support enforcement agency may [commence] initiate
a proceeding authorized under this chapter by filing a petition in an initiating
tribunal for forwarding to a responding tribunal or by filing a petition or a
comparable pleading directly in a tribunal of another state or foreign
country which has or can obtain personal jurisdiction over the respondent.
[[]§576B-302[] Action] Proceeding
by minor parent. A minor parent, or a guardian or other legal
representative of a minor parent, may maintain a proceeding on behalf of or for
the benefit of the minor's child.
[[]§576B-303[]] Application
of law of State. Except as otherwise provided [by] in this
chapter, a responding tribunal of this State[:] shall:
(1) [Shall apply] Apply the procedural
and substantive law[, including the rules on choice of law,] generally
applicable to similar proceedings originating in this State and may exercise
all powers and provide all remedies available in those proceedings; and
(2) [Shall determine] Determine the
duty of support and the amount payable in accordance with the law and support
guidelines of this State.
[[]§576B-304[]] Duties of
initiating tribunal. (a) Upon the filing of a petition authorized by this
chapter, an initiating tribunal of this State shall forward [three copies of]
the petition and its accompanying documents:
(1) To the responding tribunal or appropriate support enforcement agency in the responding state; or
(2) If the identity of the responding tribunal is unknown, to the state information agency of the responding state with a request that they be forwarded to the appropriate tribunal and that receipt be acknowledged.
(b) If [a responding state has not enacted
this chapter or a law or procedure substantially similar to this chapter,] requested
by the responding tribunal, a tribunal of this State [may] shall
issue a certificate or other document and make findings required by the law of
the responding state. If the responding [state] tribunal is in
a foreign [jurisdiction,] country, upon request the tribunal [may]
of this State shall specify the amount of support sought, convert
that amount into the equivalent amount in the foreign currency under applicable
official or market exchange rate as publicly reported, and provide any
other documents necessary to satisfy the requirements of the responding [state.]
foreign tribunal.
[[]§576B-305[]] Duties and
powers of responding tribunal. (a) When a responding tribunal of this
State receives a petition or comparable pleading from an initiating tribunal or
directly pursuant to section [576B-301(c),] 576B-301(b), it shall
cause the petition or pleading to be filed and notify the petitioner where and
when it was filed.
(b) A responding tribunal of this State, to
the extent [otherwise authorized] not prohibited by other law,
may do one or more of the following:
(1) [Issue] Establish or enforce a
support order, modify a child support order, determine the controlling
child-support order, or [render a judgment to] determine parentage[;]
of a child;
(2) Order an obligor to comply with a child support order, specifying the amount and the manner of compliance;
(3) Order income withholding;
(4) Determine the amount of any arrearages, and specify a method of payment;
(5) Enforce orders by civil or criminal contempt, or both;
(6) Set aside property for satisfaction of the support order;
(7) Place liens and order execution on the obligor's property;
(8) Order an obligor to keep the tribunal informed of the obligor's current residential address, electronic-mail address, telephone number, employer, address of employment, and telephone number at the place of employment;
(9) Issue a bench warrant for an obligor who has failed after proper notice to appear at a hearing ordered by the tribunal and enter the bench warrant in any local and state computer systems for criminal warrants;
(10) Order the obligor to seek appropriate employment by specified methods;
(11) Award reasonable attorney's fees and other fees and costs; and
(12) Grant any other available remedy.
(c) A responding tribunal of this State shall include in a support order issued under this chapter, or in the documents accompanying the order, the calculations on which the child support order is based.
(d) A responding tribunal of this State may not condition the payment of a support order issued under this chapter upon compliance by a party with provisions for visitation.
(e) If a responding tribunal of this State issues an order under this chapter, the tribunal shall send a copy of the order to the petitioner and the respondent and to the initiating tribunal, if any.
(f) If requested to enforce a support order, arrears, or judgment or modify a support order stated in a foreign currency, a responding tribunal of this State shall convert the amount stated in the foreign currency to the equivalent amount in dollars under the applicable official or market exchange rate as publicly reported.
[[]§576B-306[]] Inappropriate
tribunal. If a petition or comparable pleading is received by an
inappropriate tribunal of this State, that tribunal shall forward the pleading
and accompanying documents to an appropriate tribunal [in] of this
State or another state and notify the petitioner where and when the pleading
was sent.
[[]§576B-307[]] Duties of
support enforcement agency. (a) The child support
enforcement agency of this State, upon request, shall provide services to a
petitioner in a proceeding under this chapter.
(b) A support enforcement agency of this
State that is providing services to the petitioner [as appropriate]
shall:
(1) Take all steps necessary to enable an appropriate
tribunal [in this State or another state] of this State, another
state, or a foreign country to obtain jurisdiction over the respondent [and
to process all registration requests received from an individual who has
applied for child support enforcement agency services or support enforcement
agencies in other jurisdictions];
(2) Request an appropriate tribunal to set a date, time, and place for a hearing;
(3) Make a reasonable effort to obtain all relevant information, including information as to income and property of the parties;
(4) Within two days, exclusive of Saturdays, Sundays,
and legal holidays, after receipt of [a written] notice in a record
from an initiating, responding, or registering tribunal, send a copy of the
notice to the petitioner;
(5) Within two days, exclusive of Saturdays, Sundays,
and legal holidays, after receipt of [a written] communication in a
record from the respondent or the respondent's attorney, send a copy of the
communication to the petitioner; and
(6) Notify the petitioner if jurisdiction over the respondent cannot be obtained.
(c) A support enforcement agency of this State that requests registration of a child support order in this State for enforcement or for modification shall make reasonable efforts:
(1) To ensure that the order to be registered is the controlling order; or
(2) If two or more child support orders exist and the identity of the controlling order has not been determined, to ensure that a request for such a determination is made in a tribunal having jurisdiction to do so.
(d) A support enforcement agency of this State that requests registration and enforcement of a support order, arrears, or judgment stated in a foreign currency shall convert the amounts stated in the foreign currency into the equivalent amounts in dollars under the applicable official or market exchange rate as publicly reported.
(e) A support enforcement agency of this State shall issue or request a tribunal of this State to issue a child support order and an income withholding order that redirect payment of current support, arrears, and interest if requested to do so by a support enforcement agency of another state pursuant to section 576B‑319.
[(c)] (f) This chapter does not
create or negate a relationship of attorney and client or other fiduciary
relationship between a support enforcement agency or the attorney for the
agency and the individual being assisted by the agency.
[[]§576B-308[]] Duty of attorney
general. (a) If the attorney general determines that the support
enforcement agency is neglecting or refusing to provide services to an
individual, the attorney general may order the agency to perform its duties
under this chapter or may provide those services directly to the individual.
(b) The attorney general may determine that a foreign country has established a reciprocal arrangement for child support with this State and take appropriate action for notification of the determination.
[[]§576B-309[]] Private
counsel. An individual may employ private counsel to represent the
individual in proceedings authorized by this chapter.
[[]§576B-310[]] Duties of
child support enforcement agency as state information agency. (a) The
child support enforcement agency is the state information agency under this
chapter.
(b) The state information agency shall:
(1) Compile and maintain a current list, including addresses, of the tribunals in this State which have jurisdiction under this chapter and any support enforcement agencies in this State and transmit a copy to the state information agency of every other state;
(2) Maintain a register of names and addresses of tribunals and support enforcement agencies received from other states;
(3) Forward to the appropriate tribunal in the [place]
county in this State in which the [individual] obligee who is
an individual or the obligor resides, or in which the obligor's property is
believed to be located, all documents concerning a proceeding under this
chapter received from [an initiating tribunal, an individual, or the state
information agency of the initiating state;] another state or a foreign
country; and
(4) Obtain information concerning the location of the obligor and the obligor's property within this State not exempt from execution, by such means as postal verification and federal or state locator services, examination of telephone directories, requests for the obligor's address from employers, and examination of governmental records, including, to the extent not prohibited by other law, those relating to real property, vital statistics, law enforcement, taxation, motor vehicles, driver's licenses, and social security.
[[]§576B-311[]] Pleadings and
accompanying documents. (a) [A] In a
proceeding under this chapter, a petitioner seeking to establish [or
modify] a support order, [or] to determine parentage [in a
proceeding under this chapter] of a child, or to register and modify a
support order of a tribunal of another state or a foreign country must [verify
the] file a petition. Unless otherwise ordered under section
576B-312, the petition or accompanying documents must provide, so far as [is]
known, the name, residential address, and social security numbers of the
obligor and the obligee[,] or the parent and alleged parent, and
the name, sex, residential address, social security number, and date of birth
of each child for [whom] whose benefit support is sought[.
The] or whose parentage is to be determined. Unless filed at the time
of registration, the petition must be accompanied by a [certified]
copy of any support order [in effect.] known to have been issued by
another tribunal. The petition may include any other information that may
assist in locating or identifying the respondent.
(b) 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.
[[]§576B-312[]] Nondisclosure
of information in exceptional circumstances. [Upon a finding, which may
be made ex parte, that the health, safety, or liberty of a party or child would
be unreasonably put at risk by the disclosure of identifying information, or if
an existing order so provides, a tribunal shall order that the address of the
child or party or other identifying information not be disclosed in a pleading
or other document filed in a proceeding under this chapter.] If a party
alleges in an affidavit or a pleading under oath that the health, safety, or
liberty of a party or child would be jeopardized by disclosure of specific
identifying information, that information must be sealed and may not be
disclosed to the other party or the public. After a hearing in which a
tribunal takes into consideration the health, safety, or liberty of the party
or child, the tribunal may order disclosure of information that the tribunal
determines to be in the interest of justice.
[[]§576B-313[]] Costs and
fees. (a) The petitioner may not be required to pay a filing fee or other
costs.
(b) If an obligee prevails, a responding
tribunal of this State may assess against an obligor filing fees,
reasonable attorney's fees, other costs, and necessary travel and other
reasonable expenses incurred by the obligee and the obligee's witnesses. The
tribunal may not assess fees, costs, or expenses against the obligee or the
support enforcement agency of either the initiating or the responding state[,]
or foreign country, except as provided by other law. Attorney's fees
may be taxed as costs, and may be ordered paid directly to the attorney, who
may enforce the order in the attorney's own name. Payment of support owed to
the obligee has priority over fees, costs, and expenses.
(c) The tribunal shall order the payment of costs and reasonable attorney's fees if it determines that a hearing was requested primarily for delay. In a proceeding under Article 6, a hearing is presumed to have been requested primarily for delay if a registered support order is confirmed or enforced without change.
[[]§576B-314[]] Limited
immunity of petitioner. (a) Participation by a petitioner in a proceeding
under this chapter before a responding tribunal, whether in person, by
private attorney, or through services provided by the support enforcement
agency, does not confer personal jurisdiction over the petitioner in another
proceeding.
(b) A petitioner is not amenable to service of civil process while physically present in this State to participate in a proceeding under this chapter.
(c) The immunity granted by this section does not extend to civil litigation based on acts unrelated to a proceeding under this chapter committed by a party while present in this State to participate in the proceeding.
[[]§576B-315[]] Nonparentage
as defense. A party whose parentage of a child has been previously
determined by or pursuant to law may not plead nonparentage as a defense to a
proceeding under this chapter.
[[]§576B-316[]] Special rules
of evidence and procedure. (a) The physical presence of [the
petitioner] a nonresident party who is an individual in a [responding]
tribunal of this State is not required for the establishment, enforcement, or
modification of a support order or the rendition of a judgment determining
parentage.
(b) [A verified petition, an] An
affidavit, a document substantially complying with federally mandated forms, [and]
or a document incorporated by reference in any of them, which would
not be excluded under the hearsay rule if given in person, is admissible
in evidence if given under [oath] penalty of perjury by a party
or witness residing [in another state.] outside this State.
(c) A copy of the record of child support payments certified as a true copy of the original by the custodian of the record may be forwarded to a responding tribunal. The copy is evidence of facts asserted in it, and is admissible to show whether payments were made.
(d) Copies of bills for testing for parentage[,]
of a child, and for prenatal and postnatal health care of the mother and
child, furnished to the adverse party at least ten days before trial, are
admissible in evidence to prove the amount of the charges billed and that the
charges were reasonable, necessary, and customary.
(e) Documentary evidence transmitted from [another
state] outside this State to a tribunal of this State by telephone,
telecopier, or other electronic means that do not provide an original [writing]
record may not be excluded from evidence on an objection based on the
means of transmission.
(f) In a proceeding under this chapter, a
tribunal of this State [may] shall permit a party or witness
residing [in another state] outside this State to be deposed or
to testify by telephone, audiovisual means, or other electronic means at a
designated tribunal or other location [in that state]. A tribunal of
this State shall cooperate with other tribunals [of other states]
in designating an appropriate location for the deposition or testimony.
(g) If a party called to testify at a civil hearing refuses to answer on the ground that the testimony may be self-incriminating, the trier of fact may draw an adverse inference from the refusal.
(h) A privilege against disclosure of communications between spouses does not apply in a proceeding under this chapter.
(i) The defense of immunity based on the relationship of husband and wife or parent and child does not apply in a proceeding under this chapter.
(j) A voluntary acknowledgment of paternity, certified as a true copy, is admissible to establish parentage of the child.
[[]§576B-317[]] Communications
between tribunals. A tribunal of this State may communicate with a
tribunal [of another state] outside this State in [writing,]
a record or by telephone, electronic mail, or other means, to
obtain information concerning the laws [of that state], the legal effect
of a judgment, decree, or order of that tribunal, and the status of a
proceeding [in the other state]. A tribunal of this State may furnish
similar information by similar means to a tribunal [of another state.] outside
this State.
[[]§576B-318[]] Assistance
with discovery. A tribunal of this State may:
(1) Request a tribunal [of another state] outside
this State to assist in obtaining discovery; and
(2) Upon request, compel a person over [whom] which
it has jurisdiction to respond to a discovery order issued by a tribunal [of
another state.] outside this State.
[[]§576B-319[]] Receipt
and disbursement of payments. (a) A support enforcement
agency or tribunal of this State shall disburse promptly any amounts received
pursuant to a support order, as directed by the order. The agency or tribunal
shall furnish to a requesting party or tribunal of another state or a
foreign country a certified statement by the custodian of the record of the
amounts and dates of all payments received.
(b) If neither the obligor, nor the obligee who is an individual, nor the child resides in this State, upon request from the support enforcement agency of this State or another state, the support enforcement agency of this State or a tribunal of this State shall:
(1) Direct that the support payment be made to the support enforcement agency in the state in which the obligee is receiving services; and
(2) Issue and send to the obligor's employer a conforming income withholding order or an administrative notice of change of payee, reflecting the redirected payments.
(c) The support enforcement agency of this State receiving redirected payments from another state pursuant to a law similar to subsection (b) shall furnish to a requesting party or tribunal of the other state a certified statement by the custodian of the record of the amount and dates of all payments received.
ARTICLE 4. ESTABLISHMENT OF SUPPORT ORDER
OR DETERMINATION OF PARENTAGE
[[]§576B-401[] Petition to
establish] Establishment of support order. (a) If a
support order entitled to recognition under this chapter has not been issued, a
responding tribunal of this State with personal jurisdiction over the
parties may issue a support order if:
(1) The individual seeking the order resides [in
another state;] outside this State; or
(2) The support enforcement agency seeking the order
is located [in another state.] outside this State.
(b) The tribunal may issue a temporary child
support order if[:
(1) The respondent has signed a verified
statement acknowledging parentage;
(2) The respondent has been determined by
or pursuant to law to be the parent; or
(3) There is other clear and convincing
evidence that the respondent is the child's parent.]
the tribunal determines that such an order is appropriate and the individual ordered to pay is:
(1) A presumed father of the child;
(2) Petitioning to have his paternity adjudicated;
(3) Identified as the father of the child through genetic testing;
(4) An alleged father who has declined to submit to genetic testing;
(5) Shown by clear and convincing evidence to be the father of the child;
(6) An acknowledged father as provided by section 584-3.5;
(7) The mother of the child; or
(8) An individual who has been ordered to pay child support in a previous proceeding and the order has not been reversed or vacated.
(c) Upon finding, after notice and opportunity to be heard, that an obligor owes a duty of support, the tribunal shall issue a support order directed to the obligor and may issue other orders pursuant to section 576B-305.
§576B-402 Proceeding to determine parentage. (a) A tribunal of this State authorized to determine parentage of a child may serve as a responding tribunal in a proceeding to determine parentage of a child brought under this chapter or a law or procedure substantially similar to this chapter.
(b) In a proceeding to determine parentage, a responding tribunal of this State shall apply chapter 584 and the rules of this State on choice of law.
ARTICLE
5. ENFORCEMENT OF SUPPORT ORDER [OF ANOTHER
STATE]
WITHOUT REGISTRATION
§576B-501 Employer's receipt of income
withholding order of another state. An income withholding order issued in
another state may be sent by or on behalf of the obligee, or by the support
enforcement agency, to the person [or entity] defined as the obligor's
employer under sections 571-52, 571-52.2, 571-52.3, and 576E-16, without first
filing a petition or comparable pleading or registering the order with a
tribunal of this State.
[[]§576B-502[]] Employer's
compliance with income withholding order of another state. (a) Upon
receipt of an income withholding order, the obligor's employer shall
immediately provide a copy of the order to the obligor.
(b) The employer shall treat an income withholding order issued in another state which appears regular on its face as if it had been issued by a tribunal of this State.
(c) Except as otherwise provided in subsection (d) and section 576B-503, the employer shall withhold and distribute the funds as directed in the withholding order by complying with the terms of the order which specify:
(1) The duration and the amount of periodic payments of current child support, stated as a sum certain;
(2) The person [or agency] designated to
receive payments and the address to which the payments are to be forwarded;
(3) Medical support, whether in the form of periodic cash payment, stated as a sum certain, or ordering the obligor to provide health insurance coverage for the child under a policy available through the obligor's employment;
(4) The amount of periodic payments of fees and costs for a support enforcement agency, the issuing tribunal, and the obligee's attorney, stated as sums certain; and
(5) The amount of periodic payments of arrearages and interest on arrearages, stated as sums certain.
(d) An employer shall comply with the law of the state of the obligor's principal place of employment for withholding from income with respect to:
(1) The employer's fee for processing an income withholding order;
(2) The maximum amount permitted to be withheld from the obligor's income; and
(3) The times within which the employer must implement the withholding order and forward the child support payment.
[[]§576B-503[] Compliance]
Employer's compliance with [multiple] two or more income
withholding orders. If an obligor's employer receives [multiple] two
or more income withholding orders with respect to the earnings of the same
obligor, the employer satisfies the terms of the [multiple] orders if
the employer complies with the law of the state of the obligor's principal
place of employment to establish the priorities for withholding and allocating
income withheld for [multiple] two or more child support
obligees.
[[]§576B-504[]] Immunity
from civil liability. An employer [who] that complies with
an income withholding order issued in another state in accordance with this
article is not subject to civil liability to an individual or agency with
regard to the employer's withholding of child support from the obligor's income
as to that income withholding order.
[[]§576B-505[]] Penalties
for noncompliance. An employer [who] that wilfully fails to
comply with an income withholding order issued [by] in another
state and received for enforcement is subject to the same penalties that may be
imposed for noncompliance with an order issued by a tribunal of this State.
[[]§576B-506[]] Contest
by obligor. (a) An obligor may contest the validity or enforcement of an
income withholding order issued in another state and received directly by an
employer in this State by registering the order in a tribunal of this State
and filing a contest to that order as provided in Article 6, or otherwise
contesting the order in the same manner as if the order had been issued by
a tribunal of this State. [Section 576B-604 applies to the contest.]
(b) The obligor shall give notice of the contest to:
(1) A support enforcement agency providing services to the obligee;
(2) Each employer that has directly received an
income withholding order[;] relating to the obligor; and
(3) The person [or agency] designated to
receive payments in the income withholding order[;] or, if no
person [or agency] is designated, to the obligee.
[[]§576B-507[]] Administrative
enforcement of orders. (a) A party or support enforcement
agency seeking to enforce a support order or an income withholding order,
or both, issued [by a tribunal of] in another state or a
foreign support order may send the documents required for registering the
order to a support enforcement agency of this State.
(b) Upon receipt of the documents, the support enforcement agency, without initially seeking to register the order, shall consider and, if appropriate, use any administrative procedure authorized by the law of this State to enforce a support order or an income withholding order, or both. If the obligor does not contest administrative enforcement, the order need not be registered. If the obligor contests the validity or administrative enforcement of the order, the support enforcement agency shall register the order pursuant to this chapter.
ARTICLE 6. REGISTRATION, ENFORCEMENT, AND
MODIFICATION
OF SUPPORT ORDER [AFTER REGISTRATION]
PART I. REGISTRATION AND ENFORCEMENT OF SUPPORT ORDER
[[]§576B-601[]] Registration
of order for enforcement. A support order or [an] income
withholding order issued [by a tribunal of] in another state or
a foreign support order may be registered in this State for enforcement.
[[]§576B-602[]] Procedure
to register order for enforcement. (a) [A] Except as otherwise
provided in section 576B‑706, a support order or income withholding
order of another state or a foreign support order may be registered in
this State by sending the following [documents and information] records
to the registering tribunal[:] in this State:
(1) A letter of transmittal to the registering tribunal requesting registration and enforcement;
(2) Two copies, including one certified copy, of [all
orders] the order to be registered, including any modification of [an]
the order;
(3) A sworn statement by the [party seeking] person
requesting registration or a certified statement by the custodian of the
records showing the amount of any arrearage;
(4) The name of the obligor and, if known:
(A) The obligor's address and social security number;
(B) The name and address of the obligor's employer and any other source of income of the obligor; and
(C) A description and the location of property of the obligor in this State not exempt from execution; and
(5) [The] Except as otherwise provided in
section 576B‑312, the name and address of the obligee and, if
applicable, the [agency or] person to whom support payments are to be
remitted.
(b) On receipt of a request for registration,
the registering tribunal shall cause the order to be filed as [a foreign
judgment,] an order of a tribunal of another state or a foreign support
order, together with one copy of the documents and information, regardless
of their form.
(c) A petition or comparable pleading seeking a remedy that must be affirmatively sought under other law of this State may be filed at the same time as the request for registration or later. The pleading must specify the grounds for the remedy sought.
(d) If two or more orders are in effect, the person requesting registration shall:
(1) Furnish to the tribunal a copy of every support order asserted to be in effect in addition to the documents specified in this section;
(2) Specify the order alleged to be the controlling order, if any; and
(3) Specify the amount of consolidated arrears, if any.
(e) A request for a determination of which is the controlling order may be filed separately or with a request for registration and enforcement or for registration and modification. The person requesting registration shall give notice of the request to each party whose rights may be affected by the determination.
[[]§576B-603[]] Effect
of registration for enforcement. (a) A support order or income
withholding order issued in another state or a foreign support order is
registered when the order is filed in a tribunal of this State.
(b) A registered support order issued in another state or a foreign country is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this State.
(c) Except as otherwise provided in this [article,]
chapter, a tribunal of this State shall recognize and enforce, but may
not modify, a registered support order if the issuing tribunal had
jurisdiction.
[[]§576B-604[]] Choice
of law. (a) [The] Except as otherwise provided in subsection
(d), the law of the issuing state or foreign country governs [the]:
(1) The nature, extent, amount, and
duration of current payments [and other obligations of support and the] under
a registered support order;
(2) The computation and payment of
arrearages and accrual of interest on the arrearages under the support
order[.]; and
(3) The existence and satisfaction of other obligations under the support order.
(b) In a proceeding for [arrearages,] arrears
under a registered support order, the statute of limitation [under the
laws] of this State, or of the issuing state[,] or foreign
country, whichever is longer, applies.
(c) A responding tribunal of this State shall apply the procedures and remedies of this State to enforce current support and collect arrears and interest due on a support order of another state or foreign country registered in this State.
(d) After a tribunal of this State or another state determines which is the controlling order and issues an order consolidating arrears, if any, a tribunal of this State shall prospectively apply the law of the state or foreign country issuing the controlling order, including its law on interest on arrears, on current and future support, and on consolidated arrears.
PART II. CONTEST OF VALIDITY OR ENFORCEMENT
§576B-605 Notice of registration of order. (a) When a support order or income withholding order issued in another state or a foreign support order is registered, the registering tribunal shall notify the nonregistering party. The notice must be accompanied by a copy of the registered order and the documents and relevant information accompanying the order.
(b) [The] A notice must inform
the nonregistering party:
(1) That a registered order is enforceable as of the date of registration in the same manner as an order issued by a tribunal of this State;
(2) That a hearing to contest the validity or
enforcement of the registered order must be requested within twenty days after
notice[;] unless the registered order is under section 576B‑707;
(3) That failure to contest the validity or
enforcement of the registered order in a timely manner will result in
confirmation of the order and enforcement of the order and the alleged
arrearages [and precludes further contest of that order with respect to any
matter that could have been asserted]; and
(4) Of the amount of any alleged arrearages.
(c) If the registering party asserts that two or more orders are in effect, a notice must also:
(1) Identify the two or more orders and the order alleged by the registering party to be the controlling order and the consolidated arrears, if any;
(2) Notify the nonregistering party of the right to a determination of which is the controlling order;
(3) State that the procedures provided in subsection (b) apply to the determination of which is the controlling order; and
(4) State that failure to contest the validity or enforcement of the order alleged to be the controlling order in a timely manner may result in confirmation that the order is the controlling order.
[(c)] (d) Upon registration of
an income withholding order for enforcement, the support enforcement agency
or the registering tribunal shall notify the obligor's employer pursuant to
sections 571-52, 571-52.2, 571-52.3, and 576E-16.
[(d)] (e)
For the purposes of this section, service of the notice shall be by personal
service or certified mail, return receipt requested. After initial service is
effected, additional service upon a party shall be satisfied by regular mail to
the party's last known address. In any child support enforcement proceedings
subsequent to an order, upon a showing that diligent effort has been made to
ascertain the location of a party, notice of service of process shall be
presumed to be satisfied upon delivery of written notice to the most recent
residential or employer address on file with the state case registry.
§576B-606 Procedure to contest validity or
enforcement of registered support order. (a) A nonregistering
party seeking to contest the validity or enforcement of a registered order in
this State shall request a hearing within [twenty days after notice of the
registration.] the time required by section 576B‑605. The
nonregistering party may seek to vacate the registration, to assert any defense
to an allegation of noncompliance with the registered order, or to contest the
remedies being sought or the amount of any alleged arrearages pursuant to
section 576B-607.
(b) If the nonregistering party fails to contest the validity or enforcement of the registered support order in a timely manner, the order is confirmed by operation of law.
(c) If a nonregistering party requests a hearing to contest the validity or enforcement of the registered order, the registering tribunal shall schedule the matter for hearing and give notice to the parties of the date, time, and place of the hearing.
(d) For the purposes of this section, service of the notice of a hearing regarding the validity or enforcement of the registered order, shall be satisfied by regular mail to the party's last known address. In any child support enforcement proceedings subsequent to an order, upon a showing that diligent effort has been made to ascertain the location of a party, notice of service of process shall be presumed to be satisfied upon delivery of written notice to the most recent residential or employer address on file with the state case registry.
[[]§576B-607[]] Contest
of registration or enforcement. (a) A party contesting the validity or
enforcement of a registered support order or seeking to vacate the
registration has the burden of proving one or more of the following defenses:
(1) The issuing tribunal lacked personal jurisdiction over the contesting party;
(2) The order was obtained by fraud;
(3) The order has been vacated, suspended, or modified by a later order;
(4) The issuing tribunal has stayed the order pending appeal;
(5) There is a defense under the law of this State to the remedy sought;
(6) Full or partial payment has been made[; or]
(7) The statute of limitation under section 576B-604
precludes enforcement of some or all of the alleged arrearages[.];
or
(8) The alleged controlling order is not the controlling order.
(b) If a party presents evidence establishing
a full or partial defense under subsection (a), a tribunal may stay enforcement
of [the] a registered support order, continue the
proceeding to permit production of additional relevant evidence, and issue
other appropriate orders. An uncontested portion of the registered order may
be enforced by all remedies available under the law of this State.
(c) If the contesting party does not establish
a defense under subsection (a) to the validity or enforcement of [the] a
registered support order, a tribunal of this State shall issue an order
confirming the order.
[[]§576B-608[]] Confirmed
order. Confirmation of a registered support order, whether by
operation of law or after notice and hearing, precludes further contest of the
order with respect to any matter that could have been asserted at the time of
registration.
PART III. REGISTRATION AND MODIFICATION
OF CHILD SUPPORT ORDER OF ANOTHER STATE
[[]§576B-609[]] Procedure
to register child support order of another state for modification. A party
or support enforcement agency seeking to modify, or to modify and enforce, a
child support order issued in another state shall register that order in this
State in the same manner provided in [part I] sections 576B-601
through 576B‑608 if the order has not been registered. A petition
for modification may be filed at the same time as a request for registration,
or later. The pleading must specify the grounds for modification.
[[]§576B-610[]] Effect
of registration for modification. A tribunal of this State may enforce a
child support order of another state registered for purposes of modification,
in the same manner as if the order had been issued by a tribunal of this State,
but the registered order may be modified only if the requirements of section
576B-611 or 576B-613 have been met.
[[]§576B-611[]] Modification
of child support order of another state. (a) [After] If section
576B‑613 does not apply, upon petition a tribunal of this State may
modify a child support order issued in another state [has been] which
is registered in this State[, the responding tribunal of this State may
modify that order only if section 576B-613 does not apply and] if, after
notice and hearing [it], the tribunal finds that:
(1) The following requirements are met:
(A) [The] Neither the child, nor
the [individual] obligee[, and] who is an individual, nor
the obligor [do not reside] resides in the issuing state;
(B) A petitioner who is a nonresident of this State seeks modification; and
(C) The respondent is subject to the personal jurisdiction of the tribunal of this State; or
(2) [The] This State is the state of
residence of the child, or a party who is an individual[,] is
subject to the personal jurisdiction of the tribunal of this State, and
all of the parties who are individuals have filed [written] consents in
a record in the issuing tribunal for a tribunal of this State to modify the
support order and assume continuing, exclusive jurisdiction [over the
order. However, if the issuing state is a foreign jurisdiction that has not
enacted a law or established procedures substantially similar to the procedures
under this chapter, the consent otherwise required of an individual residing in
this State is not required for the tribunal to assume jurisdiction to modify
the child support order].
(b) Modification of a registered child support order is subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by a tribunal of this State and the order may be enforced and satisfied in the same manner.
(c) A tribunal of this State may not modify
any aspect of a child support order that may not be modified under the law of
the issuing state[.], including the duration of the obligation of
support. If two or more tribunals have issued child support orders for the
same obligor and same child, the order that controls and must be so recognized
under section 576B-207 establishes the aspects of the support order which are
nonmodifiable.
(d) In a proceeding to modify a child support order, the law of the state that is determined to have issued the initial controlling order governs the duration of the obligation of support. The obligor's fulfillment of the duty of support established by that order precludes imposition of a further obligation of support by a tribunal of this State.
[(d)] (e) On issuance of an
order by a tribunal of this State modifying a child support order issued
in another state, [a] the tribunal of this State becomes the
tribunal having continuing, exclusive jurisdiction.
(f) Notwithstanding subsections (a) through (e) and section 576B‑201(b), a tribunal of this State retains jurisdiction to modify an order issued by a tribunal of this State if:
(1) One party resides in another state; and
(2) The other party resides outside the United States.
[[]§576B-612[]] Recognition
of order modified in another state. [A] If a child support order
issued by a tribunal of this State [shall recognize a modification of
its earlier child support order] is modified by a tribunal of
another state which assumed jurisdiction pursuant to [this chapter or a law
substantially similar to this chapter and, upon request, except as otherwise
provided in this chapter, shall:] the Uniform Interstate Family Support
Act, a tribunal of this State:
(1) [Enforce the] May enforce its order
that was modified only as to [amounts] arrears and interest accruing
before the modification;
[(2) Enforce only nonmodifiable aspects of
that order;
(3) Provide other] (2) May
provide appropriate relief [only] for violations of [that] its
order which occurred before the effective date of the modification; and
[(4) Recognize] (3) Shall recognize
the modifying order of the other state, upon registration, for the purpose of
enforcement.
[[]§576B-613[]] Jurisdiction
to modify child support order of another state when individual parties reside
in this State. (a) If all of the parties who are individuals reside in
this State and the child does not reside in the issuing state, a tribunal of
this State has jurisdiction to enforce and to modify the issuing state's child
support order in a proceeding to register that order.
(b) A tribunal of this State exercising jurisdiction under this section shall apply the provisions of Articles 1 and 2, this article, and the procedural and substantive law of this State to the proceeding for enforcement or modification. Articles 3, 4, 5, 7, and 8 shall not apply.
[[]§576B-614[]] Notice
to issuing tribunal of modification. Within thirty days after issuance of
a modified child support order, the party obtaining the modification shall file
a certified copy of the order with the issuing tribunal that had continuing,
exclusive jurisdiction over the earlier order, and in each tribunal in which
the party knows the earlier order has been registered. A party who obtains the
order and fails to file a certified copy is subject to appropriate sanctions by
a tribunal in which the issue of failure to file arises. The failure does not
affect the validity or enforceability of the modified order of the new tribunal
having continuing, exclusive jurisdiction.
PART IV. REGISTRATION AND MODIFICATION
OF FOREIGN CHILD SUPPORT ORDER
§576B-615 Jurisdiction to modify child support order of foreign country. (a) Except as otherwise provided in section 576B‑711, if a foreign country lacks or refuses to exercise jurisdiction to modify its child support order pursuant to its laws, a tribunal of this State may assume jurisdiction to modify the child-support order and bind all individuals subject to the personal jurisdiction of the tribunal whether the consent to modification of a child support order otherwise required of the individual pursuant to section 576B‑611 has been given or whether the individual seeking modification is a resident of this State or of the foreign country.
(b) An order issued by a tribunal of this State modifying a foreign child support order pursuant to this section is the controlling order.
§576B-616 Procedure to register child support order of foreign country for modification. A party or support enforcement agency seeking to modify, or to modify and enforce, a foreign child support order not under the Convention may register that order in this State under sections 576B‑601 through 576B-608 if the order has not been registered. A petition for modification may be filed at the same time as a request for registration, or at another time. The petition must specify the grounds for modification.
ARTICLE
7. [DETERMINATION OF PARENTAGE]
SUPPORT PROCEEDING UNDER CONVENTION
[[]§576B-701[] Proceeding
to determine parentage. (a) A tribunal of this State may serve as an
initiating or responding tribunal in a proceeding brought under this chapter or
a law or procedure substantially similar to this chapter, the Uniform
Reciprocal Enforcement of Support Act, or the Revised Uniform Reciprocal
Enforcement of Support Act to determine that the petitioner is a parent of a
particular child or to determine that a respondent is a parent of that child.
(b) In a proceeding to determine parentage, a
responding tribunal of this State shall apply chapter 584 and the rules of this
State on choice of law.] Definitions. In this article:
"Application" means a request under the Convention by an obligee or obligor, or on behalf of a child, made through a central authority for assistance from another central authority.
"Central authority" means the entity designated by the United States or a foreign country described in paragraph (4) of the definition of "foreign country" in section 576B-102 to perform the functions specified in the Convention.
"Convention support order" means a support order of a tribunal of a foreign country described in paragraph (4) of the definition of "foreign country" in section 576B-102.
"Direct request" means a petition filed by an individual in a tribunal of this State in a proceeding involving an obligee, obligor, or child residing outside the United States.
"Foreign central authority" means the entity designated by a foreign country described in paragraph (4) of the definition of "foreign country" in section 576B-102 to perform the functions specified in the Convention.
"Foreign support agreement":
(1) Means an agreement for support in a record that:
(A) Is enforceable as a support order in the country of origin;
(B) Has been:
(i) Formally drawn up or registered as an authentic instrument by a foreign tribunal; or
(ii) Authenticated by, or concluded, registered, or filed with a foreign tribunal; and
(C) May be reviewed and modified by a foreign tribunal; and
(2) Includes a maintenance arrangement or authentic instrument under the Convention.
"United States central authority" means the Secretary of the United States Department of Health and Human Services.
§576B-702 Applicability. This article applies only to a support proceeding under the Convention. In such a proceeding, if a provision of this article is inconsistent with Articles 1 through 6, this article controls.
§576B-703 Relationship of child support enforcement agency to United States central authority. The child support enforcement agency established by section 576D-2 is recognized as the agency designated by the United States central authority to perform specific functions under the Convention.
§576B-704 Initiation by child support enforcement agency of support proceeding under Convention. (a) In a support proceeding under this article, the child support enforcement agency shall:
(1) Transmit and receive applications; and
(2) Initiate or facilitate the institution of a proceeding regarding an application in a tribunal of this State.
(b) The following support proceedings are available to an obligee under the Convention:
(1) Recognition or recognition and enforcement of a foreign support order;
(2) Enforcement of a support order issued or recognized in this State;
(3) Establishment of a support order if there is no existing order, including, if necessary, determination of parentage of a child;
(4) Establishment of a support order if recognition of a foreign support order is refused under section 576B‑708(b)(2), (4), or (9);
(5) Modification of a support order of a tribunal of this State; and
(6) Modification of a support order of a tribunal of another state or a foreign country.
(c) The following support proceedings are available under the Convention to an obligor against which there is an existing support order:
(1) Recognition of an order suspending or limiting enforcement of an existing support order of a tribunal of this State;
(2) Modification of a support order of a tribunal of this State; and
(3) Modification of a support order of a tribunal of another state or a foreign country.
(d) A tribunal of this State may not require security, bond, or deposit, however described, to guarantee the payment of costs and expenses in proceedings under the Convention.
§576B-705 Direct request. (a) A petitioner may file a direct request seeking establishment or modification of a support order or determination of parentage of a child. In the proceeding, the law of this State applies.
(b) A petitioner may file a direct request seeking recognition and enforcement of a support order or support agreement. In the proceeding, sections 576B-706 through 576B-713 apply.
(c) In a direct request for recognition and enforcement of a Convention support order or foreign support agreement:
(1) A security, bond, or deposit is not required to guarantee the payment of costs and expenses; and
(2) An obligee or obligor that in the issuing country has benefited from free legal assistance is entitled to benefit, at least to the same extent, from any free legal assistance provided for by the law of this State under the same circumstances.
(d) A petitioner filing a direct request is not entitled to assistance from the child support enforcement agency.
(e) This article does not prevent the application of laws of this State that provide simplified, more expeditious rules regarding a direct request for recognition and enforcement of a foreign support order or foreign support agreement.
§576B-706 Registration of convention support order. (a) Except as otherwise provided in this article, a party who is an individual or a support enforcement agency seeking recognition of a Convention support order shall register the order in this State as provided in Article 6.
(b) Notwithstanding sections 576B-311 and 576B-602(a), a request for registration of a Convention support order must be accompanied by:
(1) A complete text of the support order or an abstract or extract of the support order drawn up by the issuing foreign tribunal, which may be in the form recommended by the Hague Conference on Private International Law;
(2) A record stating that the support order is enforceable in the issuing country;
(3) If the respondent did not appear and was not represented in the proceedings in the issuing country, a record attesting, as appropriate, either that the respondent had proper notice of the proceedings and an opportunity to be heard or that the respondent had proper notice of the support order and an opportunity to be heard in a challenge or appeal on fact or law before a tribunal;
(4) A record showing the amount of arrears, if any, and the date the amount was calculated;
(5) A record showing a requirement for automatic adjustment of the amount of support, if any, and the information necessary to make the appropriate calculations; and
(6) If necessary, a record showing the extent to which the applicant received free legal assistance in the issuing country.
(c) A request for registration of a Convention support order may seek recognition and partial enforcement of the order.
(d) A tribunal of this State may vacate the registration of a Convention support order without the filing of a contest under section 576B-707 only if, acting on its own motion, the tribunal finds that recognition and enforcement of the order would be manifestly incompatible with public policy.
(e) The tribunal shall promptly notify the parties of the registration or the order vacating the registration of a Convention support order.
§576B-707 Contest of registered convention support order. (a) Except as otherwise provided in this article, sections 576B-605 through 576B-608 apply to a contest of a registered Convention support order.
(b) A party contesting a registered Convention support order shall file a contest not later than thirty days after notice of the registration, but if the contesting party does not reside in the United States, the contest must be filed not later than sixty days after notice of the registration.
(c) If the nonregistering party fails to contest the registered Convention support order by the time specified in subsection (b), the order is enforceable.
(d) A contest of a registered Convention support order may be based only on grounds set forth in section 576B‑708. The contesting party bears the burden of proof.
(e) In a contest of a registered Convention support order, a tribunal of this State:
(1) Is bound by the findings of fact on which the foreign tribunal based its jurisdiction; and
(2) May not review the merits of the order.
(f) A tribunal of this State deciding a contest of a registered Convention support order shall promptly notify the parties of its decision.
(g) A challenge or appeal, if any, does not stay the enforcement of a Convention support order unless there are exceptional circumstances.
§576B-708 Recognition and enforcement of registered convention support order. (a) Except as otherwise provided in subsection (b), a tribunal of this State shall recognize and enforce a registered Convention support order.
(b) The following grounds are the only grounds on which a tribunal of this State may refuse recognition and enforcement of a registered Convention support order:
(1) Recognition and enforcement of the order is manifestly incompatible with public policy, including the failure of the issuing tribunal to observe minimum standards of due process, which include notice and an opportunity to be heard;
(2) The issuing tribunal lacked personal jurisdiction consistent with section 576B‑201;
(3) The order is not enforceable in the issuing country;
(4) The order was obtained by fraud in connection with a matter of procedure;
(5) A record transmitted in accordance with section 576B‑706 lacks authenticity or integrity;
(6) A proceeding between the same parties and having the same purpose is pending before a tribunal of this State and that proceeding was the first to be filed;
(7) The order is incompatible with a more recent support order involving the same parties and having the same purpose if the more recent support order is entitled to recognition and enforcement under this chapter in this State;
(8) Payment, to the extent alleged arrears have been paid in whole or in part;
(9) In a case in which the respondent neither appeared nor was represented in the proceeding in the issuing foreign country:
(A) If the law of that country provides for prior notice of proceedings, the respondent did not have proper notice of the proceedings and an opportunity to be heard; or
(B) If the law of that country does not provide for prior notice of the proceedings, the respondent did not have proper notice of the order and an opportunity to be heard in a challenge or appeal on fact or law before a tribunal; or
(10) The order was made in violation of section 576B‑711.
(c) If a tribunal of this State does not recognize a Convention support order under subsection (b)(2), (4), or (9):
(1) The tribunal may not dismiss the proceeding without allowing a reasonable time for a party to request the establishment of a new Convention support order; and
(2) The child support enforcement agency shall take all appropriate measures to request a child support order for the obligee if the application for recognition and enforcement was received under section 576B‑704.
§576B-709 Partial enforcement. If a tribunal of this State does not recognize and enforce a Convention support order in its entirety, it shall enforce any severable part of the order. An application or direct request may seek recognition and partial enforcement of a Convention support order.
§576B-710 Foreign support agreement. (a) Except as otherwise provided in subsections (c) and (d), a tribunal of this State shall recognize and enforce a foreign support agreement registered in this State.
(b) An application or direct request for recognition and enforcement of a foreign support agreement must be accompanied by:
(1) A complete text of the foreign support agreement; and
(2) A record stating that the foreign support agreement is enforceable as an order of support in the issuing country.
(c) A tribunal of this State may vacate the registration of a foreign support agreement only if, acting on its own motion, the tribunal finds that recognition and enforcement would be manifestly incompatible with public policy.
(d) In a contest of a foreign support agreement, a tribunal of this State may refuse recognition and enforcement of the agreement if it finds:
(1) Recognition and enforcement of the agreement is manifestly incompatible with public policy;
(2) The agreement was obtained by fraud or falsification;
(3) The agreement is incompatible with a support order involving the same parties and having the same purpose in this State, another state, or a foreign country if the support order is entitled to recognition and enforcement under this chapter in this State; or
(4) The record submitted under subsection (b) lacks authenticity or integrity.
(e) A proceeding for recognition and enforcement of a foreign support agreement must be suspended during the pendency of a challenge to or appeal of the agreement before a tribunal of another state or a foreign country.
§576B-711 Modification of convention child support order. (a) A tribunal of this State may not modify a Convention child support order if the obligee remains a resident of the foreign country where the support order was issued unless:
(1) The obligee submits to the jurisdiction of a tribunal of this State, either expressly or by defending on the merits of the case without objecting to the jurisdiction at the first available opportunity; or
(2) The foreign tribunal lacks or refuses to exercise jurisdiction to modify its support order or issue a new support order.
(b) If a tribunal of this State does not modify a Convention child support order because the order is not recognized in this State, section 576B‑708(c) applies.
§576B-712 Personal information; limit on use. Personal information gathered or transmitted under this article may be used only for the purposes for which it was gathered or transmitted.
§576B-713 Record in original language; English translation. A record filed with a tribunal of this State under this article must be in the original language and, if not in English, must be accompanied by an English translation.
ARTICLE 8. INTERSTATE RENDITION
[[]§576B-801[]] Grounds
for rendition. (a) For purposes of this article, "governor"
includes an individual performing the functions of governor or the executive
authority of a state covered by this chapter.
(b) The governor of this State may:
(1) Demand that the governor of another state surrender an individual found in the other state who is charged criminally in this State with having failed to provide for the support of an obligee; or
(2) On the demand [by] of the governor
of another state, surrender an individual found in this State who is charged
criminally in the other state with having failed to provide for the support of
an obligee.
(c) A provision for extradition of individuals not inconsistent with this chapter applies to the demand even if the individual whose surrender is demanded was not in the demanding state when the crime was allegedly committed and has not fled therefrom.
[[]§576B-802[]] Conditions
of rendition. (a) Before making a demand that the governor of another
state surrender an individual charged criminally in this State with having
failed to provide for the support of an obligee, the governor of this State may
require a prosecutor of this State to demonstrate that at least sixty days
previously the obligee had initiated proceedings for support pursuant to this
chapter or that the proceeding would be of no avail.
(b) If, under this chapter or a law
substantially similar to this chapter, [the Uniform Reciprocal Enforcement
of Support Act, or the Revised Uniform Reciprocal Enforcement of Support Act,]
the governor of another state makes a demand that the governor of this State
surrender an individual charged criminally in that state with having failed to
provide for the support of a child or other individual to whom a duty of
support is owed, the governor may require a prosecutor to investigate the
demand and report whether a proceeding for support has been initiated or would
be effective. If it appears that a proceeding would be effective but has not
been initiated, the governor may delay honoring the demand for a reasonable
time to permit the initiation of a proceeding.
(c) If a proceeding for support has been initiated and the individual whose rendition is demanded prevails, the governor may decline to honor the demand. If the petitioner prevails and the individual whose rendition is demanded is subject to a support order, the governor may decline to honor the demand if the individual is complying with the support order.
ARTICLE 9. MISCELLANEOUS PROVISIONS
[[]§576B-901[]] Uniformity
of application and construction. [This chapter shall be applied and
construed to effectuate its general purpose to make uniform] In applying
and construing this uniform act, consideration must be given to the need to
promote uniformity of the law with respect to [the] its subject
[of this chapter] matter among states [enacting] that
enact it.
[[§576B-902] Short title.
This chapter may be cited as the Uniform Interstate Family Support Act.]
§576B-902 Transitional provision. This chapter applies to proceedings begun on or after the effective date of this Act to establish a support order or determine parentage of a child or to register, recognize, enforce, or modify a prior support order, determination, or agreement, whenever issued or entered."
SECTION 3. This Act shall take effect on July 1, 2011.
INTRODUCED BY: |
_____________________________ |
|
|
Report Title:
Uniform Interstate Family Support Act
Description:
Updates Uniform Interstate Family Support Act to reflect requirements of Hague Convention of the International Recovery of Child Support and Other Forms of Family Maintenance. Provides procedures for registration, recognition, enforcement, and modifications of support orders from countries that are parties to the convention.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.