Enforcing Child Support Orders Across State and Country Lines
By Inna Loring, Esquire
International Child Support is Becoming More Common
The world is flat, wrote Thomas Friedman in 2005. People travel for work and frequently change residences, many companies have offices across the world, many workplaces enable remote work, and most big cities have international schooling options. It stands to reason that a body of law has developed to address international child support enforcement. This blog will address how a foreign resident can enforce a foreign support order against an obligor residing in the United States, and how a US child support order can be enforced in a foreign nation.
The Hague Child Support Convention
The Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (also known as the Hague Maintenance Convention or the Hague Child Support Convention) is a treaty into which 42 partner nations have entered since the Convention’s entry into force on January 1, 2013. This treaty governs the recognition, enforcement, and modification of one country’s child support and/or alimony order in another country. The United States joined in 2017, but only as to child support. You can find a list of all partner nations to the Hague Maintenance Convention here. The US does not have reciprocal recognition with two of the Hague Maintenance Convention entrants, Guyana and Kazakhstan, because the US objected to their accession to the Convention.
It is essential to understand that the Hague Maintenance Convention offers its partner nations flexibility. It need not be adopted wholesale by each a partner nation. For example, partner nations can adopt provisions governing any or all of the following types of support: obligations toward children up until age 21 (or 18, if a partner nation makes that election), spousal support in a case linked to child support, and spousal support unconnected to child support. When adopting the Hague Maintenance Convention, the US opted not to limit the application of the support obligation to age 18. The Convention also provides the option for its contracting nations to expand the support obligation to arise from any family relationship, including support payable to elderly or incapacitated relatives. In sum, contracting nations can, by declaration, choose to expand the application of any part of the Convention (for example, to cover elderly relatives), or to limit, by reservation, the Convention’s application to certain obligations (for example, limiting child support to children under 18). This is essential to understand because, if reciprocal enforcement of a support order is sought between two partner nations, the partner nations themselves must be reciprocal, i.e. the declarations and reservations of the two nations must cover the same type of support obligation that is sought to be enforced.
Other Bilateral Agreements for International Child Support
In addition to the entrants into the Hague Maintenance Convention, other countries have arranged for reciprocal recognition and enforcement of child support orders with the US. This was accomplished by means of bilateral agreements with the US on child support enforcement. Countries with whom the US has an agreement on extraterritorial establishment and enforcement of child support orders are called Foreign Reciprocating Countries (FRCs). A list of all FRCs plus Hague Maintenance Convention partner nations with whom the US has reciprocal enforcement can be found here. As a result of these treaties and agreements, a support order from a Hague Maintenance Convention entrant, or from an FRC, may be given recognition and enforced in state courts in the United States, and vice versa. Again, the declarations and reservations made by the two nations must correspond, for the type of support obligation at issue to be recognized, enforced, and/or modified in either nations’ courts.
The Hague Maintenance Convention requires the partner nations to designate a government entity as a Central Authority to facilitate communication and implement the Convention’s directives. The Office of Child Support Enforcement (OCSE) is the federal government agency that is the Central Authority at the federal level. The Department of Health and Human Services provides technical assistance and funding to the states through the OCSE and operates the Federal Parent Locator Service (FPLS). The FLPS is a joint federal, state, and local partnership that involves 54 separate state and territory programs. It assists states in locating noncustodial parents, putative fathers, and custodial parties for the establishment of paternity and child support obligations, as well as the enforcement and modification of orders for child support, custody and visitation. The FLPS also identifies support orders or support cases involving the same parties in different states. It helps federal and state agencies identify over-payments and fraud, and assists with assessing benefits.
Enforcing Child Support Orders from Foreign Nations in the United States
The governing law that applies to foreign (extraterritorial and out-of-state) child support orders in the US is the Uniform Interstate Family Support Act (UIFSA). Federal law required every state to enact UIFSA, as a condition for receipt of federal funding. UIFSA is the law that allows one state to work with and get assistance from another state’s child support enforcement agency so as to establish, enforce, or modify an existing child support order.
What role does UIFSA play when enforcement a foreign child support order is sought in a state court in the US? The answer depends on which country the foreign decree is from. There are three categories of foreign nations whose residents, tribunals, and decrees are afforded different treatment by UIFSA, depending on the agreements or reciprocity these nations have with the US or the forum state (yes, individual states can have direct, bilateral agreements with foreign nations). The three categories are:
- UIFSA governs support proceedings that involve orders/courts/residents of nations that are parties to the Hague Maintenance Convention, and reciprocal with the US. The provisions of UIFSA that govern such proceedings are somewhat different than proceeding involving orders from other states within the US.
- UIFSA provisions that govern proceedings among the United States also apply to proceedings involving orders/courts/residents of other nations if those nations: a) are Foreign Reciprocating Countries; b) have a reciprocal child support arrangement with the forum state, and c) have laws and procedures governing child support that are substantially similar to UIFSA.
- If a child support order is issued by a nation that does not fall within the above categories, or is sought by a resident of such a nation, then UIFSA does not apply. Individual state courts may choose to recognize and enforce a support order from such a nation based on the common law doctrine of comity, or to apply the UIFSA provisions that govern orders of other states. Comity is the general legal principle that a jurisdiction will recognize and give effect to a judicial degree or decision of another jurisdiction, unless doing so would be contrary to public policy. The state court can also apply its own general child support law, establish a new order, or modify or enforce the foreign order on behalf of the resident of the foreign nation.
If the child support obligor resides in the US, the most expedient way to obviate a two-state action would be to file in the state where the payor resides, especially where the state court would apply its own law on child support rather than UIFSA. When simultaneous proceedings are pending abroad as well as in the US, UIFSA has provisions to determine whether the US tribunal may exercise jurisdiction: it will give priority to the child’s home state.
Enforcing Child Support Orders from the US in Another Country
In some cases, it is possible to obtain a support order in the US against an obligor who resides outside of the US if the obligor made him- or herself subject to service and personal jurisdiction in the state where the support order is sought. Also, a US support order, especially a judgment for arrears, can be enforced against the payor’s property (such as a residence or bank account) located in the US. Some foreign employers that are subsidiaries of US corporations will voluntarily comply with US earnings withholding orders, as will the military, with respect to a service member serving overseas. Another enforcement mechanism against a US national who resides overseas includes freezing or revoking the passport.
In most cases, however, enforcement of a US support order against an individual residing in a foreign nation will have to be sought before that nation’s tribunal. Generally, a US support order will be enforced by a partner nation under the Hague Maintenance Convention, and with reciprocity, but there are some grounds to refuse to enforce a US support order, for example:
- The US order is manifestly incompatible with the public policy of the partner nation;
- The US order has been obtained by procedural fraud;
- A proceeding was already pending in the partner nation when the US court issued its order;
- The US order is inconsistent with another order issued by the partner nation;
- The payor who resides in the foreign nation did not receive notice of the support proceedings in the US.
The Hague Maintenance Convention Will Also Entail
Notably, under the Hague Maintenance Convention, it would not be enough for the payor to get served with the child support pleadings and/or order within the US: this would not, in and of itself, establish US jurisdiction, and enable enforcement of the US order by a foreign tribunal. Instead, the foreign tribunal will analyze the payor’s connections to the US (much like a US court would do, in a corollary case), and would address minimum contacts, habitual residence, and consent. Service alone, even in the United States, does not constitute a sufficient connection between the payor and the US to subject the payor to jurisdiction by a US tribunal and a resulting support order issued by that tribunal.
If enforcement of a US order is sought in an FRC, the payor may assert any defenses available under local applicable law and procedure of the nation where recognition of the support order is sought. If that nation is not an FRC, nor is it a partner nation under the Hague Maintenance Convention, securing local private counsel may be the best option. Local counsel may ascertain the effectiveness of a comity-based argument in the local tribunal.
In preparing this blog, I relied heavily upon Blair, Marianne D. et al., Family Law in the World Community: Cases, Materials, and Problems in Comparative and International Family Law, 3rd Ed. (Carolina Academic Press, 2015).