Enforcing Interstate Child Support and Obtaining Jurisdiction
Enforcing child support can be difficult and complicated. Throw an out-of-state order in the mix and it can get even muddier. In 2011 alone, there was roughly 37.9 billion dollars of child support owed to custodial parents in the United States. Only 62.3% of that amount owed was actually paid, which leaves about 14.3 billion dollars of unpaid child support. That’s a ton of money! Now these numbers aren’t all based on a two-state family, but our guess is that it’s a contributing factor.
So what can you do to ensure you get child support from a parent who lives in another state?
The Uniform Interstate Family Support Act (“UIFSA”) was created specifically so that child support orders can be enforced between parents living in different states. Under UIFSA, a State can proceed directly against an out-of-state parent if the State can establish personal jurisdiction over that parent.
We’ll try not to bore you with too many logistics of personal jurisdiction and keep it simple. A court must have the legal authority to make decisions which directly affect an individual and cannot get that authority without establishing minimum contacts with the forum in which the court sits. Generally speaking, a State has personal jurisdiction over all of its residents, but what happens when a party is a nonresident?
The most common way a State can obtain personal jurisdiction over a nonresident is through the use of “long-arm” jurisdiction. This is where UIFSA comes in. UIFSA allows for a State to assert personal jurisdiction over a nonresident for the purposes of enforcing child support. Under I.C. 31-18-2 (Indiana has incorporated UIFSA into its statutes), if one of the following 8 factors exist, personal jurisdiction is met:
- The individual is personally served in Indiana;
- The individual submits to the jurisdiction of Indiana by:
- by entering an appearance, except for the purpose of contesting jurisdiction; or
- filing a responsive document having the effect of waiving contest to personal jurisdiction;
- The individual resided in Indiana with the child;
- The individual resided in Indiana and provided prenatal expenses or support for the child;
- The child resides in Indiana as a result of the acts or directives of the individual;
- The individual engaged in sexual intercourse in Indiana and the child:
- Has been conceived by the act of intercourse; or
- may have been conceived by that act if the proceeding is to establish paternity;
- The individual asserted paternity of the child in the putative father registry administered by the state department of health; or
- There is any other basis consistent with the Constitutions of the State of Indiana and the United States for the exercise of personal jurisdiction.
To enforce child support, Indiana won’t have personal jurisdiction over an Illinois resident unless one of the above “long-arm” factors are met. Think of it as Indiana reaching its long arm over in to Illinois and establishing a minimum contact with the Illinois resident.
What if you don’t want to just enforce, but you want to modify an order that is already in place? Can you do so? The good news is, yes! However, the downside is that it can get even trickier than just enforcing a support order. If two support orders are in place, then how do you know which one is the controlling order?
In order to modify an order, personal jurisdiction and subject matter jurisdiction must be established. Now we promised we would try not to bore you too much on those logistics. Simply stated, the court that issues the first order is going to have continuing exclusive jurisdiction and their order will control. The original issuing State will control as long as one parent or child continue to live in the State that issued the order or until written notice of consent is provided.
Here are some quick examples to illustrate everything we’ve stated above:
Mother and Father get divorced in Florida. Mother moves to Indiana and wants to enforce the child support order that came out of the divorce in Florida. Can she do so? Yes! She needs to establish one of the 8 “long-arm” factors above and Indiana will have the authority to enforce the child support order.
Same facts, but what if Mother wants to modify the Florida order? If Father still lives in Florida and has not consented, Mother cannot do so because Florida maintains continuing exclusive jurisdiction. If both Mother and Father move to Indiana, then modification is possible because Indiana would have both personal and subject matter jurisdiction.
Same facts, Mother still wants to modify the Florida order, but Father moves to Illinois. Florida no longer has continuing exclusive jurisdiction, but neither does Indiana. Now what? If there is no State with continuing exclusive jurisdiction, the Mother would have to file in Illinois because under UIFSA, modification cannot take place in the State the petitioning party lives (here the Mother).
Enforcing or modifying an out-of-state court order is all factually based and goes on a case-by-case basis. If you find yourself facing this issue, you will likely need an experienced family law attorney to determine whether an order can be enforced or modified. The attorneys at Banks & Brower will work hard to make sure you collect some of that 14.3 billion dollars!
Contact our Indianapolis Family Law Attorneys at Banks & Brower, LLC, 24/7/365 at email@example.com or by calling us at 317.870.0019.