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Modifying Out-of-State Child Support Orders
Facts

New York child support order (as part of a judgment of dissolution of marriage). Mother is obligee; father is obligor. Several years after divorce, mom and child move to California and dad moves to Arizona. Neither parent nor the child any longer reside in New York.

Generally (but subject to certain limited exceptions) court-ordered child support obligations continue to accrue under state law, as follows:

In New York, so long as the child is under age 21.

In California, so long as the child is (1) under age 18 or (2) under 19 and a full-time high school student.

In Arizona, so long as the child is (1) under age 18 or (2) under 19 and a full-time high school student.

Your Questions

1. Which state (Arizona or California) has jurisdiction to modify the New York child support judgment?

2. Which state's laws now regulate the duration of the child support obligation?

Short Answer

It all depends on which party is the petitioning (moving) party in the modification proceeding. This is because, under the facts presented here, the party seeking the modification must be a non-resident of the state in which the modification is sought, and the opposing party must be subject to the personal jurisdiction of the state in which the modification is sought.

So, in the case under discussion, if mother is now living in California and wants to modify the New York support judgment, she will have to register the New York judgment in Arizona (the state in which dad now resides and that presumably has personal jurisdiction over dad) and then file her motion for modification in Arizona.

And if dad, now living in Arizona, wants to modify the New York support judgment, he will have to register the judgment in California (the state in which mom now resides and that presumably has personal jurisdiction over her) and then file his modification motion in California.

But in no event may either California or Arizona (both of which have a durational age limit of 18 for child support orders) modify the duration of support (21 years in this case) as established pursuant New York law, which is the state that issued the order being modified.

Long- Winded Answer

Under the Uniform Interstate Family Support Act (UIFSA), 205, as long as one of the individual parties, or the child, continues to reside in the state that issued the original support order (the "issuing state"), and as long as the parties do not agree to the contrary, the issuing tribunal has "continuing, exclusive jurisdiction" (CEJ) over its child-support order. This includes exclusive authority to modify the order, which in practical terms means that no other state may do so. The statute attempts to be even-handed. The identity of the remaining party - obligor or obligee - does not matter. If the individual parties have left the issuing State but the child remains behind, continuing, exclusive jurisdiction remains with the issuing State. Even if all parties and the child no longer reside in the State, the support order continues in existence and is fully enforceable unless and until a modification takes place in accordance with the requirements of UIFSA Article 6.

The authority of a state to modify a child support order issued by another state is controlled by UIFSA Article 6, codified in Oregon as ORS 110.405 to 110.438.

Under UIFSA 611 [ORS 110.432], if a child support order issued by New York been registered in a another State, a tribunal of the state in which the New York order was registered may modify the order only if, after notice and hearing the "registering tribunal" (as defined in UIFSA 102) finds either that:

(1) (a) neither the child, nor the obligee who is an individual, nor the obligor resides in the issuing State;

AND (b) the party seeking modification is a nonresident of the state in which the modification is sought;

AND (c) the non-moving party (i.e., the party against whom the modification is sought) is subject to the personal jurisdiction of the tribunal of the state in which the modification is filed.

OR

(2) the State in which modification is sought 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 the State in which modification is sought, and all of the parties who are individuals have filed consents in a record in the issuing tribunal (New York, in the case under discussion) for a tribunal of the registering state to modify the support order and then assume continuing, exclusive jurisdiction.

Thus, under UIFSA 611 [ORS 110.432], before a tribunal in a new forum may modify the controlling order three specific criteria must be satisfied.

First, the individual parties affected by the controlling order and the child must no longer reside in the issuing State.

Second, the party seeking modification must register the order in a new forum, almost invariably the State of residence of the other party. A colloquial (but easily understood) description of this requirement is that the modification movant must "play an away game on the other party's home field." This rule applies to either obligor or obligee, depending on which of those parties seeks to modify. Proof of the fact that neither individual party nor the child continues to reside in the issuing State may be made directly in the registering State; no purpose would be served by requiring the petitioner to return to the original issuing State for a document to confirm the fact that none of the relevant persons still lives there.

Third, the forum must have personal jurisdiction over the parties. This is supplied by the movant submitting to the personal jurisdiction of the forum by seeking affirmative relief, almost always coupled with the fact that the respondent resides in the forum. On rare occasion, the personal jurisdiction over the respondent may be supplied by other factors, see UIFSA 201 and the official comment thereto.

So, in sum, a registering tribunal has authority to modify a child support order if (1) the petitioner is not a resident of the registering State; the respondent is subject to the personal jurisdiction of the registering tribunal; and the original issuing State lacks CEJ because the child, individual obligee, and obligor no longer reside in the issuing State, or (2) an individual party or child is subject to the personal jurisdiction of the registering tribunal and all of the individual parties have filed written consent in the issuing State providing that the registering State can modify the order and assume CEJ.

The following cases are examples of decisions where the tribunal has correctly resolved CEJ issues:

  • The Arkansas court held that under UIFSA, the court lacked jurisdiction to modify a Florida support order. Florida retained CEJ to modify child support because the mother and children remained there and the mother had not consented to modification in Arkansas. Office of Child Support Enforcement v. Cook, 60 Ark. App. 193, 959 S.W.2d 763 (1998).
  • A Colorado court, with jurisdiction under the UCCJA (Uniform Child Custody Jurisdiction and Enforcement Act), could not modify a Montana support order because the mother remained in Montana and had not consented to modification in a Colorado court. In re Marriage of Zinke, 967 P.2d 210 (Colo. Ct. App. 1998).
  • The mother's petition to modify an Ohio child support order was dismissed, for lack of subject matter jurisdiction. The issuing court retained CEJ because, although the mother and child had relocated to Florida, the father remained in Ohio. Lawlor v. Rasmussen, 745 So.2d 561 (Fla. Ct. App. 1999).
  • New York lacked subject matter jurisdiction to modify a New Hampshire child support order because the father continued to live there. New Hampshire maintained CEJ to modify its support order. Further, the mother could not seek modification in New York because she was a New York resident and therefore failed to meet the petitioner nonresidency requirement. Chisolm-Brownlee v. Chisholm, 177 Misc. 2d 185, 676 N.Y.S. 2d 818 (N.Y. Fam. Ct. 1998).
  • A Connecticut court could modify a New Jersey child support order since none of the parties remained in New Jersey, the mother and child were residents of Connecticut, and the petitioner father was a resident of New York. Parry v. Bellinson, 1998 WL727894 No. FA 980163453, 1998 Conn. Super. LEXIS 2830 (Conn. Super. Ct. Oct. 3, 1998).
  • A Wisconsin court can modify a foreign support order only if the petitioner is not a Wisconsin resident. Cepukenas v. Cepukenas, 221 Wis. 2d 166, 584 N.W.2d 227 (1998); Oimoen v. Oimoen, 581 N.W.2d 594 (Wis. Ct. App. 1998).
Now, as to the case under discussion:

First, New York no longer has CEJ because neither parent nor the child any longer reside in that state.

Second, if mother, now living in California, wants to modify the New York support order, she will have to register the order in Arizona (where dad now resides) and then move for modification in Arizona. Arizona would have modification jurisdiction because (1) the moving party (mom) is a non-Arizona resident; and (2) dad (the non-moving party) is subject to the personal jurisdiction of Arizona.

Third, if dad, now living in Arizona, wants to modify the New York support order, he will have to register the order in California (where mom now resides) and then move for modification in California. California would have modification jurisdiction because (1) the moving party (dad) is a non-California resident and (2) mom (the non-moving party) is subject to the personal jurisdiction of California.

It is to be noted that the fact that the support obligee (custodial mom) is residing in California, and that California is the child's "home state" for UCCJEA custody purposes, is wholly irrelevant to the question of child support modification. Having UCCJEA jurisdiction does not mean that California also has UIFSA jurisdiction. They are two separate and distinct statutory schemes and must be so understood. (And, yes, this may result in the awkward situation of one state having modification jurisdiction over custody and visitation but not over support, while another state has modification jurisdiction over support but not over custody and visitation. Hey, don't blame me. I'm just the messenger here; I didn't draft these laws.)

Also, under UIFSA 304-319 [ORS 110.349 to 110.391], each state is required to act as a "responding state" (as defined in UIFSA 101(17)) for support modification purposes when so requested by the support enforcement agency of another state. The action taken by the responding state may be for either enforcement only, or for modification only, or for both. So, for example, if mom is in California and dad is in Arizona, mom can request the appropriate California child support enforcement agency to initiate a proceeding whereby California requests Arizona child support enforcement to register the New York support order and then proceed with modification through the Arizona child support system. Arizona will then proceed to do so (either administratively or judicially), providing the jurisdictional prerequisites of UIFSA 611 are met, thus allowing Arizona to go forward.

Same process happens in reverse if the Arizona dad seeks modification of the New York support order against the California mom. Dad could request Arizona support enforcement to initiate the proceeding and send the modification request, accompanied by all the required legal papers, to California, with California then acting as a responding state. Again, California can do so if all of the jurisdictional prerequisites of UIFSA 611 are met.

(Caveat: Experience teaches that child support enforcement agencies are sometimes a bit slow, to say the least, in their passion and aggressiveness in prosecuting modification actions that seek to reduce or terminate child support obligations. Persons seeking support reduction or termination may be well-advised to utilize the services of private counsel rather than the public child support enforcement agencies.)

Duration of Child Support Obligation

Under UIFSA 604 [ORS 110.411(1)], "the law of the issuing State governs the nature, extent, amount, and duration of current payments." Further, pursuant to UIFSA 611(c) [ORS 110.432(3)], "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."

Thus, the duration of a child support obligation is determined pursuant to the law of the issuing state. If and when a different state exercises modification jurisdiction, it may not change the duration of the obligation (either upwards or downwards) if such modification could not be done under the law of the issuing state. See Robdau v. Commonwealth, Virginia Dept. Social Serv., 543 S.E.2d 602 (Va. App. 2001); State ex rel Harnes v. Lawrence, 538 S.E.2d 223 (N.C. App. 2000).

In Oregon, the issue was squarely dealt with in Cooney and Cooney, 150 Or App 323, 946 P2d 305 (1997), in which father, a Tennessee resident, filed a motion in the Oregon court against mother, now an Oregon resident, seeking to modify the parties' Nevada support order. The Oregon trial court reduced the support amount, as father requested, but refused mother's request that the obligation be extended to age 21 (the maximum duration under Oregon law). Mother appealed. The Court of Appeals, citing ORS 110.432(3) [UIFSA 604(a)(1)] ("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"), concluded that Oregon lacked authority to extend the support obligation to age 21 when the upper limit for child support under the law of Nevada (the state that issued the original support order) was 18.

In sum, when a court takes jurisdiction to modify a child support order under UIFSA, it may NOT modify the order to change the duration of the obligation from that which was established by the issuing state pursuant to the laws of the issuing state.

Thus, given that the New York child support order extends to age 21, pursuant to New York law, a modification of the New York order by either California or Arizona, both of which have an upper limit of age 18 for child support obligations, could not change the duration from that which was established by the law of the issuing state.

And Don't Forget About FFCCSOA

Finally, and superseding and preempting state law, is the FFCCSOA., a federal law with which every family law lawyer and judge is, of course, familiar and conversant. Never heard of it? Well, OK. It's the Full Faith and Credit for Child Support Orders Act. 28 USC 1738B. And let's not forget the Supremacy Clause of the US Constitution (Art VI), requiring state court judges to be bound by the mandates of federal law.

Under the FFCCSOA, 28 USC 1738B(d):

"A court of a State that has made a child support order consistently with this section has continuing, exclusive jurisdiction over the order if the State is the child's State or the residence of any contestant ***."

And 28 USC 1738B(e) says:

"A court of a State may make a modification of a child support order with respect to a child that is made by a court of another State if--

(1) the court has jurisdiction to make such a child support order; and

(2)(A) the court of the other State no longer has continuing, exclusive jurisdiction of the child support order because that State no longer is the child's State or the residence of any contestant; or (B) each individual contestant has filed written consent with the State of continuing, exclusive jurisdiction for a court of another State to modify the order and assume continuing, exclusive jurisdiction over the order."

In sum, under FFCCSOA, neither Arizona or California would have jurisdiction to modify the New York child support order so long as New York has CEJ over the order because New York is the child's state of residence or the residence of any contestant. However, if and when New York no longer has CEJ because New York is no longer the child's state of residence or the residence of any contestant, the NY order may then be modified by a court of another state, so long as the court of the other state "has jurisdiction to make such a child support order." (And such jurisdiction is usually determined by the state's UIFSA law.) One exception, however: Under FFCCSOA, even if New York continues to have CEJ, the support order may be modified by a court of a different state "if each individual contestant has filed written consent with the State of continuing, exclusive jurisdiction [New York] for a court of another State [e.g., Arizona or California] to modify the order and assume continuing, exclusive jurisdiction over the order."

NOTE: Cites to UIFSA sections in this article refer to the 2001 version of the Act.


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