Friday, August 26, 2016

Interstate Child Support - Virginia Law

As always, before reading this post please review my disclaimer by clicking on the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

In my last blog post, I discussed the issues that come up in custody and visitation cases involving parents who live in different states.  It might not surprise you, then, to learn that similar issues arise frequently involving child support.  Child support is in many ways, however, more complicated, because it is not enough for a court to have control over (or "jurisdiction over") the child, but rather the parents also must be under the jurisdiction of the court in a child support proceeding.

In today's post, I will discuss how issues of interstate child support are handled.

UIFSA

Like the UCCJEA in custody and visitation cases, the field of child support also has a uniform law that's been adopted by all fifty states.  The Uniform Interstate Family Support Act (UIFSA) was first proposed in 1992 but was slow to be adopted by the states.  Then, in 1996, Congress passed the Personal Responsibility and Work Opportunity Act (known colloquially as "welfare reform,") which put into place rules for how states can recover welfare funds it pays to needy families from non-paying, non-custodial parents.  Since the law had a great deal of interplay with UIFSA, it also required all states to adopt UIFSA by the start of 1998 or else lose all federal child support enforcement funding.  As a result, UIFSA has been the law in all fifty states for a bit over 18 years now.

In Virginia, UIFSA was adopted in 1994 and can be found beginning at Title 20, Chapter 5.3 in the Virginia Code.

Initial Support Order

Unlike in the UCCJEA for custody and visitation, UIFSA does not attempt to designate a single state that is appropriate to issue the "first" order.  Instead, a support petition under UIFSA can be initiated in any state, so long as the court has jurisdiction over both parents.  A court will always have jurisdiction over the parent that files the petition, as filing the petition is a voluntary submission to a court's jurisdiction.  A court will also always have jurisdiction in support over a parent who is a resident of the same state where the court is located.  If, however, the non-petitioning parent is not a resident of the state where the support petition is filed, then the court will have jurisdiction over that parent under the following circumstances:

  • The non-petitioning parent is personally served with process in the state where the petition was filed;
  • The non-petitioning parent consents to jurisdiction, either expressly or by implication or waiver;
  • The non-petitioning parent has ever resided with the child in the state where the petition was filed;
  • The non-petitioning parent has ever resided in the state where the petition was filed and paid for pre-natal expenses or supported the child while living there;
  • The non-petitioning parent directly caused the child to become a resident of the state where the petition was filed;
  • The parents had sexual intercourse in the state where the petition was filed at a time that it is reasonably likely the child was conceived in that state;
  • The non-petitioning parent asserted parentage of the child in the putative father registry of the state where the petition was filed;
  • The non-petitioning parent has signed a contract in the state where the petition was filed agreeing to pay support; or
  • There is another basis under the laws of the state and the constitution to allow for jurisdiction.
If jurisdiction over the non-petitioning parent is present, then any state can issue the initial support order.

Simultaneous Proceedings

Since, unlike custody and visitation cases, UIFSA does not usually give us a clear-cut "proper" first state for support orders, it is entirely possible for petitions to be filed in multiple states, and have both states be proper forums (assuming there is no already existing support order, which I'll get to in a moment).

In the case that more than one proceeding to establish an initial support order is pending at the same time, then the state that is proper to hear the case goes in the following order of priority:
  1. If one state has jurisdiction over both parents and the other doesn't, then the one having jurisdiction gets to make the initial order.
  2. If 1 does not apply, then if either state is the UCCJEA "home state" of the child, that state gets to make the initial order if the non-petitioning parent in the other state challenges that state's jurisdiction within the deadline to do so.
  3. If 1 does not apply and 2 does not apply (either because neither state is the child's "home state" or because the non-petitioning parent did not challenge jurisdiction in time), then the state where a petition was filed first gets to make the initial order.
I actually did encounter a case once where both states had jurisdiction over both parents, the non-petitioning parent in the state that was not the child's "home state" failed to challenge jurisdiction in time, and the Virginia court ended up dismissing the case (despite Virginia being the child's "home state") because the Virginia petition was filed 23 minutes after the petition was filed in the other state - so this is stuck to pretty tightly.

Continuing, Exclusive Jurisdiction

As with custody and visitation, once that initial order is entered, it generally stays in that state.  The state that entered the original order has what's called "continuing, exclusive jurisdiction," meaning only that state can modify the order.  A state will continue to have continuing, exclusive jurisdiction for so long as either parent or the child still resides in that state unless all parties consent to the case being moved to another state.  Additionally, even if no one remains in the state, it will still have continuing, exclusive jurisdiction if all parties consent to the state continuing to have it.

Conflicting Orders

Now, here's an odd thought.  What if two states have jurisdiction to enter an initial order, neither non-petitioning parent ever objects to jurisdiction, and so both states end up issuing orders and having continuing, exclusive jurisdiction?  Well, then it's up to the state where the modification or enforcement proceeding is being initiated to determine which order "controls."  The rules on this are fairly simple.  If only one state would have continuing, exclusive jurisdiction, that state's order controls.  If neither state would have continuing, exclusive jurisdiction, then neither order is controlling and the state trying to sort it all out must issue its own support order.  If both states have continuing, exclusive jurisdiction, then the order issued by the child's current home state controls, and if neither state is the child's current home state, then the last order entered controls.

Enforcement of Orders

As with custody and visitation, the unanimous adoption of UIFSA means that once a valid support order is entered, as long as it is the controlling order, all states will enforce it.  As a practical matter, this means the state where the payor lives, since that's the one that will have the most ability to conduct effective enforcement.

Modification of Orders

A state always has the power to modify its own support orders so long as that order remains the controlling order.  Of course, as long as a state has continuing, exclusive jurisdiction, it is also the only state that can modify its controlling order.  If, however, the state that issued the controlling order does not have continuing, exclusive jurisdiction anymore, then modification proceedings can be held in the following states:
  • The state that issued the controlling order;
  • The state both parents reside in if they both reside in the same state (as long as the child does not reside in the state that issued the controlling order, since that state would then still have continuing, exclusive jurisdiction);
  • Any state the parent seeking to modify child support does not reside in so long as no parties reside in the state issuing the currently controlling order and the state where the modification petition is filed has jurisdiction over the non-petitioning parent; or
  • A state where the child resides or either parent is subject to jurisdiction if both parents have filed a consent in the state that has issued the current controlling order agreeing to the new state having power to modify the order.
Conflict of Laws

One of the biggest issues we face when modifying another state's support orders is that different states have vastly different laws about how child support is calculated.  As a result, UIFSA takes into account that different states modifying other states' orders can create some unfairness.  As a result, it lays out the following rules to determine which laws to use when modifying the support order of another state:
  • If a provision of the original support order cannot be changed under the laws of the state issuing that order, that provision cannot be changed in another state's modification proceedings either.
  • The amount of support, the frequency in which it is paid, and the manner in which it is paid is determined by the law of the state issuing the new, modified order unless any of those provisions cannot ever be changed under the laws of the state issuing the original order.
  • The duration of support (as in, how long it lasts) is determined by the law of the state issuing the original order.
Federal Law

Unlike in custody and visitation, there is no particular federal law you need to know here.  The federal government mostly stays out of child support.  The only real exceptions are the aforementioned welfare reform laws requiring states to adopt UIFSA and a federal law making it a federal crime to willfully fail to pay your child support obligations if you owe that support obligation across state lines.  Neither of these laws directly affect the substance of the laws on establishment and modification of support across state lines.

Conclusion

If you feel like this all sounds even more complicated than the rules for interstate custody and visitation disputes, you're right, it is.  This is why is it critical to have an attorney who knows and understands these laws if you are involved in an interstate support dispute.  If you are involved in an interstate support dispute and would like legal assistance, please call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation (though please do read my initial consultation policy first).  Our initial consultations are free for up to half an hour!

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