Birth Abroad

Birth Abroad to Two U.S. Citizen Parents in Wedlock A child born abroad to two U.S. citizen parents acquires U.S. citizenship at birth under section 301(c) of the Immigration and Nationality Act (INA) provided that one of the parents had a residence in the United States or one of its outlying possessions prior to the child’s birth. The child is considered to be born in wedlock if the child is the genetic issue of the married couple. Birth Abroad to One Citizen and One Alien Parent in Wedlock A child born abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth under Section 301(g) of the INA provided the U.S. citizen parent was physically present in the United States or one of its outlying possessions for the time period required by the law applicable at the time of the child’s birth. (For birth on or after November 14, 1986, a period of five years physical presence, two after the age of fourteen, is required. For birth between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen, is required for physical presence in the United States or one of its outlying possessions to transmit U.S. citizenship to the child.) The U.S. citizen parent must be genetically related to the child to transmit U.S. citizenship. Birth Abroad Out-of-Wedlock to a U.S. Citizen Father – “New” Section 309(a) A person born abroad out-of-wedlock to a U.S. citizen father may acquire U.S. citizenship under Section 301(g) of the INA, as made applicable by the “new” Section 309(a) of the INA provided: 1.    A blood relationship between the person and the father is established by clear and convincing evidence; 2.    The father had the nationality of the United States at the time of the person’s birth; 3.    The father was physically present in the United States or its outlying possessions prior to the child’s birth for five years, at least two of which were after reaching the age of 14. 4.    The father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and 5.    While the person is under the age of 18 years — o    the person is legitimated under the law of his/her residence or domicile, o    the father acknowledges paternity of the person in writing under oath, or o    the paternity of the person is established by adjudication of a competent court. Birth Abroad Out-of-Wedlock to a U.S. Citizen Father – “Old” Section 309(a) of the INA- A child born out-of-wedlock to a U.S. citizen father may acquire U.S. citizenship under the former Section 301(a)(7) of the INA as made applicable by the “old” Section 309(a) of the INA if the U.S. citizen father, prior to the child’s birth, had been physically present in the United States or one of its outlying possessions for ten years, five of which were after the age of 14, and if the paternity of the child had been established by legitimation prior to the child reaching the age of 21. The “old” Section 309(a) of the INA is applicable to individuals who were 18 on November 14, 1986 and to individuals whose paternity had been established by legitimation prior to that date. Individuals who were at least 15 on November 14, 1986, but under the age of 18, could opt to have their claim determined in accordance with the provisions of either the “old” or the “new” Section 309(a). Birth Abroad Out-of-Wedlock to a U.S. Citizen Mother: A person born abroad out-of-wedlock to a U.S. citizen mother may acquire U.S. citizenship under Section 309(c) of the INA if the mother was a U.S. citizen at the time of the person’s birth and if the mother was physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the person’s birth. The mother must be genetically related to the person in order to transmit U.S. citizenship.

 

Child Support 2

UPDATE: #1 Employing Early Intervention State: Tennessee – Knox County Practice: Case Stratification The Tennessee Department of Human Services, Division of Child Support Services, developed an innovative project modeled after early intervention and case assessment techniques that had been used successfully in Australia. The early intervention techniques for project cases commenced prior to order establishment. Once the order was established, Tennessee based case stratification on an assessment that identified the financial circumstances and parental characteristics that might predict the likelihood of compliance. The case stratification was also used to identify which interventions might be appropriate for the case, such as more frequent personal contact with NCPs, prompt modification of orders if necessary, and additional reminders to NCPs (including monthly reminders by mail or telephone). Case stratification allowed the child support agency to better align enforcement techniques to individual case circumstances, enabling the County to use staff resources more effectively and efficiently in addition to identifying NCPs who were in need of services. NCPs that were unemployed or underemployed were referred to the Child Support Employment and Parenting Partnership, an existing program designed to address barriers to child support payment. Time Frame: The grant period was September 30, 2004 through August 2006, which included a six month no cost extension. Results: The early intervention strategies used in the project cases, such as joint meetings with the parties prior to order establishment and appointment reminders, were generally successful in producing positive child support enforcement outcomes as compared to the control group. Project cases were significantly more likely to have an order established than control cases. After a year, 56 percent of project cases had an order established compared to 41 percent of control cases. The project had the greatest impact on public assistance cases. Fifty percent of public assistance project cases had orders established as compared to only 22 percent of the public assistance control cases. Project cases also paid more than control cases on average. Payments, which are measured as a percent of current support due, averaged 86 percent among all project cases and 73 percent among all control cases. Again, the difference was greatest for public assistance cases. The percent paid among project cases receiving public assistance averaged 81 percent compared to 44 percent for control cases. In total, after a year, there were fewer arrears among project cases than control cases. The median amount of arrears was $942 among project cases and $2,442 among control cases. There was a larger gap between the mean of arrears: $1,365 among project cases and $4,002 among control cases. Costs: Total project expenditures were $214, 828, which included the Federal grant, the state share and other Federal matching funds. Of this amount, the majority of the funds were spent on the contractors for technical assistance and evaluation ($195,828) while some funds ($18,000) went to pay the State grant manager and travel expenses ($1,000). Contact: Charles Bryson Charles.bryson@state.tn.us 615.313.4880 For further information on the Project to Avoid Increasing Delinquencies (PAID), please contact your Regional Program Specialist. UPDATE: #2 Managing Existing Arrears State: Massachusetts Practice: Focus on the Cases with the Highest Arrears After an analysis showed 10% of obligors owed more than 50% of the total debt, Massachusetts initiated a Top Ten Arrears project, where caseworkers regularly review the ten cases in their caseloads owing the highest amount of arrears to see what actions could be taken. Caseworkers were asked to track whether these cases were eligible for case closure, increased enforcement or some other action. Continuous updating of the Top Ten lists allows a systematic way to address this small group of obligors who owe more than half the total arrears. Time Frame: The results reflect the period June 1, 2005 through August 31, 2006. Results: The first Top Ten list distributed to the team leaders included a total of 260 obligors. The arrears balances for these obligors were reduced by $9.2 million, which was 14% of the total $67.7 million owed by this group. When the project was expanded to every caseworker, the arrears balances for almost 1600 Top Ten cases were reduced by $48 million either through collections, updated case data or case closure. Furthermore, 282 of these obligors are making monthly payments on time and in full; another 115 have made some payments after the caseworker contacted them; 859 have been referred for specific enforcement actions such as license suspension and contempt actions; case closing letters have been sent in 242 cases; and 174 cases have been closed. In one case, the caseworker secured payment of more than $92,000. Costs: No additional costs. This project is incorporated into standard casework. Contact: Dolores O’Neill Director, Special Litigation Massachusetts Dept. of Revenue oneilld@dor.state.ma.us (617) 626-4208 For further information on the Project to Avoid Increasing Delinquencies (PAID), please contact your Regional Program Specialist. UPDATE: #3 Improving Locate and Enforcement State: Oklahoma Practice: Automating Workers’ Compensation Intercept The Oklahoma Child Support Enforcement Division (CSED) Center for Coordinated Programs has automated its Workers’ Compensation (WC) match and intercept process. Data exchanges are conducted with three State entities and a vendor and then liens are automatically printed in local offices throughout the State. Oklahoma formed a WC Process Improvement Team, which included experts from child support, data services, Oklahoma University’s Center for Professional Management, CSED Center for Coordinated Programs, and CSED Center for System Technology. Representatives met, coordinated, and corresponded with State officials at Compsource (a State WC fund for small and middle-sized businesses), WC Court, and the State Insurance Commission. Compsource sends data to CSED on a weekly basis. The WC Court sends data monthly. Then, every day CSED sends data to its vendor to intercept WC personal injury claims for obligors with child support debts of $50 or more. Time Frame: The Improvement Team met twice a month over a two year period, from January 2004 until January 2006. Two months prior to statewide rollout in January 2006, the team chose two pilot child support offices to test the lien automation process. Prior to implementation, the team members conducted training for all child support offices. Results: By using multiple data sources and consolidating them into one comprehensive collection process, CSED has saved money, time, and effort in working what had been a troublesome part of the Division’s enforcement caseload. In 2006, WC collections increased to more than $3.1 million compared to $1 million each year prior to the automation. Costs: Start-up costs for the project were approximately $300,000 which covered the cost of programming so the different systems could share data. The continuing costs of the program are $55 per match, which ends up costing the State approximately $6,000-$7,000 per month. Given that the match is bringing an additional $150,000-$200,000 per month in collections, the State feels that the cost is well worth it. Contact: Ronald D. Smith, Program Manager, Special Collections Oklahoma Department of Human Services/Child Support Enforcement Division 2409 N. Kelley Ave. Oklahoma City, Oklahoma 73111 (405) 522-2576 Phone (405) 522-4570 Fax Ronald.Smith@OKDHS.org For further information on the Project to Avoid Increasing Delinquencies (PAID), please contact your Regional Program Specialist. PAIDPAIDPAIDPAID UPDATE #4 Order Review and Modification State: Michigan Practice: Audio and Video Teleconferencing for Incarcerated Parents The Michigan Supreme Court’s Prisoner Support Adjustment Project studied prisoners’ use of review and modification processes and tested the effectiveness of using audio and video technology to allow prisoners access to Michigan child support proceedings. The Michigan Office of Child Support (OCS) provided monthly data-match reports on child support cases and prisoner records. The Department of Corrections (DOC) coordinated prisoner appearances by electronic means. Local circuit courts supplied facilities, equipment, and staff to fulfill support modification and judicial duties. In addition to quickly identifying prisoner cases, modifying orders during imprisonment and implementing prospective support orders that are effective upon the prisoners’ release, the project also sought to overcome procedural barriers. Using administrative processes to review cases and holding electronic-appearance hearings only when a party objects to a proposed outcome (which happened in fewer than 3 percent of the cases) permits faster modifications and reduces the number of support modification hearings. Upon request, prisoners in the project were able to receive free legal representation to modify support obligations with assistance from two Michigan law schools. Prisoners requested free legal representation in 838 cases. Supervised by a licensed attorney, law students gained valuable experience preparing cases and representing clients. The project also developed user-friendly materials for inmates to request modification of their support obligations without hiring an attorney. Time Frame: The project ran 17 months from start to finish. For the first six months, work focused on planning; creating a database, reports, and forms; negotiating with courts; and, working with law school legal clinics. The time spent working the cases and collecting data lasted about 10-11 months. Results: Statewide, support orders were modified in 3,370 prisoner-related cases and support amounts were reduced, on average, from $220 per month to $19 per month. For one year, these modifications should prevent the accumulation of over $8 million in uncollectible past-due support and surcharges. In pilot counties 367 hearings were conducted with the prisoner appearing via telephone conferencing or interactive video technology. The DOC estimates that it saves at least $170 per hearing when prisoners “attend” without the need for transport and escorts. Electronic appearances saved the State over $60,000 in transportation and prisoner escort costs during the project. Costs: The Michigan Supreme Court received a SIP grant of $100,000 which helped pay for start-up and the costs of coordinating the project. Additional costs were absorbed by the Court and by using existing local resources. If a State were to undertake a similar project, costs would include the coordination of the project, increased staff time and administrative costs for reprioritizing review and modification work as well as telephone or video conference equipment and connections for those sites that don’t already have such equipment. For example, a video teleconference unit that was purchased for one county, along with a year’s connection service, cost about $20,000. Some counties were able to do telephone conferences using existing equipment. Contact: Bill Bartels (517) 373-2468 bartelsb@courts.mi.gov For further information on the Project to Avoid Increasing Delinquencies (PAID), please contact your Regional Program Specialist. PAIDPAIDPAIDPAID UPDATE: #5 Setting Appropriate Orders State: California – San Francisco Practice: Enhanced Parental Involvement Collaboration (EPIC) EPIC was designed to reduce the large number of cases in which imputed or presumed income was used to establish child support orders. The City and County of San Francisco did a special project testing the impact that enhanced customer service through proactive, intensive, and early engagement with noncustodial parents would have on both increasing the amount of child support payments collected on behalf of children and avoiding the accumulation of unpaid debt. The project also sought to increase the efficiency of the order establishment procedure. The EPIC project emphasized personal contact with NCPs when possible, using easy-to-understand written communication followed by telephone contact if no response was received. These were supplemented by enhanced education and follow-up activities such as customized service-of-process and status conferences. These activities were aimed at increasing the level of involvement of NCPs in the order establishment process, thereby reducing the need to rely on default judgments and/or presumed levels of NCP income. With NCP involvement, orders could be set at an appropriate amount and on-going compliance with child support obligations over the long term could be promoted. Time Frame: The SIP grant period was from July 1, 2004 through June 30, 2006. Case information was tracked over three consecutive quarters from January 1, 2006 through September 30, 2006. Results: The project produced dramatic results in the approximately 850 cases in which support orders were obtained. Telephone contact with NCPs was particularly effective. Among the nearly 400 experimental group cases with orders, the project saw an increase in collections of $53,000 over the 439 control group cases during the 9-month period in 2006 as well as a slowing in the growth rate of arrears by $129,432. As of June 2007, the gap between unpaid current support in non-EPIC and EPIC cases grew to $139,423. The unpaid current support in the EPIC cases represents about 1/3 of the total unpaid current support. Further, since the project ended, between June 2006 and June 2007, 65 percent of the original test cases have been paying current support and have no arrearages so they require no enforcement. The cumulative total of FFY2004 Collections on Current Support at the end of June 2004, before the project started, was 59 percent. By June 2006, when the project ended, that figure increased to 61 percent. In June 2007, it had increased again to 62 percent. Additional positive results included a dramatic reduction in default orders (11 percent in the experimental group versus 65 percent in the control group) and virtual elimination of reliance on presumed income to calculate order amounts (compared to a reliance rate of approximately 20 percent in control group cases) and an overall improvement in the department’s performance in collection on current support. Personal assessments with NCPs have driven down the cost of outsourcing process service and reduced the number of staff assigned to case establishment for an overall cost savings in salaries and consultant services of $120,145. Costs: The costs of this initiative exceeded the $200,000 SIP grant with one time design and implementation costs. However, the performance improvement was considered to be well worth the investment. Currently, the number of staff needed to manage all new cases for the department has been cut in half. There are also fewer support staff needed to follow-up on locate tasks. Contact: Karen M. Roye Director, San Francisco Department of Child Support Services karen.roye@sfgov.org 415.356.2919 For further information on the Project to Avoid Increasing Delinquencies (PAID), please contact your Regional Program Specialist or PAID@acf.hhs.gov. PAIDPAIDPAIDPAID UPDATE: #6 Employing Early Intervention State: Pennsylvania – Crawford County Practice: Employment Training Services for Noncustodial Parents Many noncustodial parents (NCPs) do not have the ability to meet their financial responsibilities to their children because of job dislocation, literacy issues, and other barriers to employment. Pennsylvania’s State Department of Labor and Industry office (Career Link) in Crawford County has the resources to help NCPs overcome these barriers. The Crawford County Domestic Relations Section (DRS) has developed an effective collaboration with Career Link to help NCPs meet their child support obligations. The partnership provides the resources and monitoring necessary to meet the goals of the program: • Provide NCPs with the tools to become employable and better provide for their families. • Increase collections for the children and provide a non-punitive enforcement tool that is productive for the parent and the community. The program has several distinct components: 1. The NCP receives a court order to search for work at Career Link. 2. Career Link provides the NCP with tools to assist in his or her job search (e.g., attendance at job search workshops, job placement assistance). 3. There is a weekly communication process between DRS and Career Link staff. Career Link staff is assisting DRS staff to understand how their employment website and job referral process work, enabling DRS staff to better manage client job search efforts. Also, DRS now obtains copies of sign in sheets from Career Link for chronically unemployed clients to better assess both how much time the client actually spends in job search and what services the client may need in order to become employed. Time Frame: The program started in September 2006 and continues to the present. Results: Crawford County is a rural county with approximately 4,000 cases. Similar to other rural counties, Crawford faces many economic challenges (e.g. job dislocation). The result of the collaboration between DRS and Career Link are impressive. From October 2006 through June 2007: : • 144 NCPs have been ordered to participate in the program • 87 NCPs have been employed or removed from the program – 77 are employed and 10 were removed • 57 NCPs are active participants • 80 NCPs would have been scheduled for contempt if not for their participation in the program while only 3 NCPs were actually scheduled for contempt after failure to participate in the program As a direct result of the collaboration, collections between October 2006 and June 2007 totaled $86,536 for the county. Projected over the Federal Fiscal Year, this one initiative will increase collections by almost 2%. Costs: There are no specific costs associated with this project. The monitoring and job training costs are paid from existing budgets. Contact: Carla Smith CarlaSmith@PACSES.com For further information on the Project to Avoid Increasing Delinquencies (PAID), please contact your Regional Program Specialist or PAID@acf.hhs.gov. PAIDPAIDPAIDPAID UPDATE: #7 Improving Locate and Enforcement State: Illinois Practice: Working with the Address Change Service In 2002, the Illinois Department of Healthcare and Family Services, Division of Child Support Enforcement (DCSE), initiated an investigation to determine the feasibility of interfacing with the United States Postal Service’s (USPS) Address Change Service (ACS) in an effort to reduce the amount of undeliverable mail returned from the USPS. Illinois estimated that of the 3,000,000 mail pieces sent annually by DCSE, 300,000 pieces (10 percent) were returned as undeliverable. Recognizing the need to improve mail processing, Illinois implemented an automated interface with ACS in January 2003. Although the initial focus was to reduce the manual effort of processing undeliverable mail, Illinois also programmed its child support database, Key Information Delivery System (KIDS), to update addresses automatically from the electronic notices received from ACS. Time Frame: The testing of the interface with ACS started in September 2002 and went into full production January 2003. Results: The total annual savings for Fiscal Year 2007, which include postal discount savings of $292,030 and mail processing savings of $225,053, are $517,083. These savings are based on the elimination of forwarding fees and the reduction of staff and work hours to process undeliverable mail and update participant addresses manually. Additional savings realized but not included in this analysis are the reduction in postage gained by not sending mail to an undeliverable address, reduction in mailroom staff time required to sort undeliverable mail and mail forwarded notices, elimination of mailing Address Information Requests to post offices to validate addresses, and elimination of manually validating addresses. Also not included in the annual savings are the efficiencies and benefits from the KIDS interface with ACS, which has allowed Illinois to accomplish the following: • Reduce staff in the mail processing unit from 17 workers to 2 workers. • Electronically enter an end date to old addresses based on the undeliverable reason codes provided by USPS. If a new change of address is provided, the address where the mail was originally sent is electronically end dated and the new address is activated. • Electronically enter new mail addresses provided by USPS. • Mail an address verification letter directly to the new mail address. • Eliminate backlog of undeliverable mail. • Assist with the reduction of undistributed receipts. Illinois is planning to expand the interface with ACS to update employer addresses. Costs: The programming required to develop the interface with ACS was 350 hours. There were approximately another 200 hours involved in getting the more than 250 documents generated by the automated system to be ACS compliant. Contact: Mike Troesch Mike.Troesch@illinois.gov 217-782-1380 For further information on the Project to Avoid Increasing Delinquencies (PAID), please contact your Regional Program Specialist or PAID@acf.hhs.gov. NOTE : Given Illinois’ success with ACS, the Federal Office of Child Support Enforcement (OCSE) conducted an analysis to determine if ACS could be implemented at a national level. Based on this analysis, ACS was not considered a viable option for OCSE since it required the user to send a piece of mail to match against the ACS system. With the exception of Federal Offset notices, OCSE does not send mail. However, the analysis offered insight into another product offered by the USPS, called the National Change of Address (NCOA). OCSE initiated analysis of the NCOA since it offered similar benefits to ACS. Whereas the ACS system was developed to assist the mail process in the forwarding of mail pieces, NCOA was developed to help private sector and Federal/State agencies manage their mailing lists. The NCOA offers States an opportunity to receive change of address information prior to sending mailings thus reducing costs associated with sending mail to incorrect addresses. OCSE is expecting to implement the NCOA interface in the Fall of 2008. PAIDPAIDPAIDPAID UPDATE #8 Employing Early Intervention State: Missouri Practice: Sorting Cases to Improve Collections Missouri’s Family Support Division implemented a new approach to the enforcement of child support and medical support obligations. Previously, cases were divided into individual caseloads by alphabetic split. Under the new structure, the Missouri Automated Child Support System (MACSS) automatically assigns cases to a particular category based on the noncustodial parent’s circumstance and specific criteria. Rather than individual caseloads, the cases in each category are worked by a team of individuals. Work activities for each category are generated to the appropriate team via system alerts, auto-generated forms, and category reports. If there is a change in circumstances, such that the case meets the criteria for a different category, MACSS automatically moves the case to the new category without worker intervention. The four categories are as follows. 1. NCP not paying, no enforcement remedies exist (e.g., NCP is receiving SSI or TANF benefits, s/he is incarcerated with no resources, cannot be located). These cases are monitored for changes in circumstances and/or location of NCP or NCP resources. Once enforcement action can be taken, the case moves to Category Two. 2. NCP not paying, enforcement remedies exist (i.e., the agency has taken enforcement action, however the case has not paid for three consecutive months so it does not yet meet the criteria for Category Four; or the case has an enforcement remedy available that has not yet been completed). 3. NCP resides in another State and interstate referral is or should be completed. 4. NCP paying for a minimum of three consecutive months. Because staff teams are now assigned to a specific category of cases, they can develop specialized expertise related to that type of case. For example, a person assigned to Category Three can become an expert on interstate case processing while Category One staff focus on locate processes. The specialization leads to more efficient handling of work as well as improved performance. Time Frame: This new approach was piloted in four of Missouri’s child support offices for six months between January and June 2006. Statewide implementation began in October 2006 and was completed in December 2006. Results: Pilot results showed an average 10 percent increase overall in enforcement actions taken and a 7 percent increase in cases meeting the criteria for, and moving to, Category Four. In the first six months of statewide implementation, as compared to the previous six months, enforcement actions increased by approximately 14 percent. Category Four cases increased by 2 percent between January and May 2007 while cases paying towards arrears increased by 9 percent. Costs: Missouri estimates that about 2000 hours of programming were required to make the required system changes. These changes included identifying triggers from known information in the system (such as employment, address, interstate referral) to “move” the case to the appropriate category. Also, on certain screens in their automated system, there is a category field which displays the category that the case is in. Contact: Alyson Campbell Alyson.F.Campbell@dss.mo.gov 573-522-2106 For further information on the Project to Avoid Increasing Delinquencies (PAID), please contact your Regional Program Specialist or PAID@acf.hhs.gov.

 

Child Support

This Guide is intended for use by States, Tribes, and Territories as a tool to foster discussions of policies and practices, along with implementation criteria, that may be employed to increase the collection of current support and prevent and reduce arrears. The questions under each topic are intended to assist readers in looking for methods to optimize their processes.   Future topics will be distributed as separate documents and numbered accordingly. The Federal Office of Child Support Enforcement (OCSE) hopes you will find this material us eful in thinking about new approaches you might take in your jurisdiction to improve your program results. . If you would like more information about PAID, please contact your Regional Program Specialist or email PAID@acf.hhs.gov to join the PAID Workplace to learn more and share your ideas.   PAID In Full is a compilation of early intervention, order establishment, locate, enforcement, and arrears management practices, along with implementation criteria, that facilitate successful outcomes.  The questions under each practice are intended to assist readers in looking for methods to optimize their processes.  The questions are organized into three categories for consideration:  Organizational, Process, and Automation. Organizational Considerations Ö        Will your State system issue an automated income withholding order ( IWO ) even though the noncustodial parent (NCP) or c us todial party (CP) has a Family Violence Indicator? Ö        Has your State developed a policy for dealing with an NCP who has a second job? For example, when income is reported from a new employer and payments from a current employer are still being received, what action is performed by the caseworker/system? Ö        Does your State have a process for identifying and handling reports of self-employment income?  Is self-employment income handled differently if regular wages are already being withheld and collected? Ö        Has your State identified a means for identifying and attaching bonuses paid to the obligor? Ö        Policy Interpretation Question PIQ 03-10 (seehttp://www.acf.hhs.gov/programs/cse/pol/PIQ/2003/piq-03-10.htm) permits use of debit authorization (automatically withdrawing payments from NCP financial account) in lieu of wage withholding.  In addition, the programming code from Washington State ’s web-based debit authorization is available on the OCSE website.  Has your State considered debit authorization as a collection method for self employed? Ö        When the obligor falls behind in current support payments, does your State have a policy that provides for automatic issuance of an IWO that will increase the child support obligation to include an amount to be applied toward arrears?  Are there legal barriers or system barriers that could prevent such an automatic process? Ö        Does your State centralize processes or have a specialized unit to handle IWO ? Ö        Has your State held discussions with your State Workforce Agency (SWA) to ensure all available data is being submitted to the National Directory of New Hires (NDNH)?  For example: –     Does the SWA send in Quarterly Wage (QW) reports from prior quarters? –     Does the SWA submit the IWO address (ADDRESS 3) in addition to the physical address (ADDRESS 1) of the employer? –     Does the SWA send in full names of employees so that the Social Security Number (SSN) name combination can be verified?  Does the SWA report a phone number for the employee? –     Does the SWA have a process in place to contact employers when a wage report sent to the NDNH returns results that the SSN is unverified? Process Considerations Ö        Have you recently reviewed the selection criteria that is applied to reported income or New Hire reports to determine whether to automate the IWO or to alert the caseworker so that you can ensure you are making the best use of automation and staff resources? Ö        Does the State system notify the caseworker of the cases that do not meet the automated IWO criteria and track the case action for compliance? Ö        Does your State have processes in place to ensure all available data is captured from the New Hire reports?  For example: –     Does the State Directory of New Hires (SDNH) have a process in place to contact employers when a New Hire report sent to the NDNH returns results that the SSN is unverified? –     Does your new hire system have edits to ensure all necessary data is reported by the employer?  Is the wage report still sent to the NDNH, even with some missing data? –     Can employers readily report the IWO address (ADDRESS 3) or the employer’s contact phone number? –     Are you monitoring employer compliance with the new hire reporting requirements?   If so, what processes are in place? –     Have you identified an effective strategy for encouraging employer compliance? Ö        Does your State system monitor employer compliance with IWO ? Is there an automated process in place to detect an employer’s notification that the IWO cannot be enforced? Ö        How do caseworkers deal with income reported via the FPLS Annual Wage Record (AWR) response from the Social Security Administration (SSA) match? This information is reported to States as a result of an SSA external locate request and is returned in the Federal Case Registry (FCR) Locate Response record as Agency Code E01. Ö        Do you have a way to ensure that payment for a non-IV-D order can be recognized at the State Disbursement Unit (SDU)? Ö        Does your State have a policy for how to handle arrears only cases?  Do you use the same enforcement techniques in arrears only cases as in cases that owe current support?   Automation Considerations Ö        Does your State system receive matches from your SDNH and the NDNH and determine, without staff intervention, which matches are eligible for automated IWO based on your State’s criteria? Ö        Does your State system generate IWO notices without caseworker intervention within two business days of receiving matches eligible for IWO , or track to ensure caseworkers have taken timely action? Ö        Will your State system implement electronic income withholding orders (e-IWO), or are you making plans for e-IWO?   What actions remain before your State can participate in e-IWO? Ö        Does your State system automatically generate IWO notices when the court ordered amount is modified?  Does your State system generate a “stop IWO ” when the case is closed? Ö        Does your State system use ADDRESS 3, which is specifically designated for income withholding, from the QW and New hire (W4) reports from the NDNH for IWO notices? Ö        Does your State system generate IWO notices for out-of-state employers? Ö        Does your State system automate income withholding when the SSA/State Verification and Exchange System (SVES) Title II income is reported? Ö        How does your State system determine the SSA address to use for sending the IWO notice? Ö        Does your State system send an IWO to the Prison when SVES Prisoner data is reported? Ö        Does your State system automatically generate IWO notices to other States’ Unemployment Insurance (UI) agencies that accept direct IWO ?  How do you maintain the list of States that will accept direct IWO for UI benefits? Ö        Does your State system compare the employment data on the QW report to data resident in your State system to determine if increased /decreased income is being reported?  Is an automated IWO or review and adjustment notice issued? Ö        Does your State system recognize that the Federal Employer Identification Number (FEIN) on QW records changes for Reservists when they have been activated, and automatically issue the IWO ? Ö        Does your State system process SVES Title XVI information to pick up on reduced Supplemental Security Income (SSI) payments due to employment or other income?  Does your State try to set up income withholding on unearned income? Ö        How is an employer linked to a person in your State system?  Does your State system maintain an employer table?   Employer Table Considerations: –     Does your State system uniquely identify the employer us ing the FEIN as a searchable attribute, or us e the FEIN as the unique identifier? –     How does your State system identify an employer as a duplicate of one already reported?  Are there processes in place to prevent adding a duplicate employer? –     Does your State system allow multiple addresses for an employer?  (e.g., site, IWO , medical support, etc.) –     Is your State aware that some employers, for example, Department of Defense (DoD), require documentation be directed to different addresses based on purpose (e.g, IWO , NMSN)? –     Does your State system allow more than one employer for a specified FEIN? –     Does your State system allow multiple FEINs for a single employer? –     Does your State system have sufficient data elements to indicate that income being reported has been previously reported so that duplicative information is filtered? (e.g., FEIN, Unique identifier, Zip code) –     Does the employer data include an “effective date”?  Is this date updated when the same employment is reported in successive quarters? –     Does your State system (and caseworkers) distinguish among NDNH data returned from the different matching processes: NDNH-to-FCR, FCR-to-NDNH, NDNH locates?  Do they recognize that current data is returned from the first and more historical data in the latter two? –     Does your State system have sufficient data elements to indicate that income being reported has already been previously end-dated (e.g., FEIN, End-Date, Unique identifier)?   Benefits:   Automating IWOs http://www.acf.hhs.gov/programs/cse/newhire/library/training/tipstechniques.htm     Additional resources:   Employer Database Conference call http://www.acf.hhs.gov/programs/cse/pol/DCL/2002/dcl-02-11a.htm PAID In Full is a compilation of early intervention, order establishment, locate, enforcement, and arrears management practices, along with implementation criteria, that facilitate successful outcomes.  The questions under each practice are intended to assist readers in looking for methods to optimize their processes.  The questions are organized into three categories for consideration:  Organizational, Process, and Automation. Organizational Considerations Ö        Has your State considered the option of Cost of Living Adj us tments (COLAs) for review and adj us tment of child support orders? –     Does your State permit COLAs if both parties agree? –     For States opting to us e COLAs, does your State system us e indexes such as CPI to re-calculate the COLAs? Ö        Does your State require personal service of process for the non-requesting client or can a notice be sent to the last known address? –     If personal service of process is required, does your State have no or a low fee for personal service of process and other costs related to review and adj us tment? Ö        Does your State publicize the criteria for modification of orders to reduce the number of requests that don’t meet the minimum criteria? –     Has your State considered a web-based Qualifying for Review and Adj us tment calculator tool to assist clients in determining if their case is eligible for modification? (e.g., Iowa ) Ö        Has your State worked with your courts to develop a streamlined process for review and adj us tment? Ö        Does your State allow consideration of downward modifications for incarcerated individuals? Ö        Have you provided training to staff on review and adjustment policies and procedures? Ö        Have you considered paying incentives (e.g., $100) to counties or local offices for every support order reviewed? Minnesota paid an incentive and saw an increase from 204 orders reviewed before incentives to 1596 orders reviewed after incentives of which 70% were on TANF cases. Ö        If your State is judicial-based, have you looked for opportunities to administratively streamline parts of your process? Process Considerations Ö        Does your State send more frequent notices to Temporary Assistance for Needy Families (TANF) clients of the right to review than the required notices sent to clients once every three years? Ö        If there are differences between how you handle review and adjustment for TANF and non-TANF clients, have you reassessed if those differences are needed? Ö        Does your State have a policy of only processing downward adj us tments upon request by a client or are downward adj us tments processed automatically if the State system notes a change in earnings? Ö        Does your State provide any specialized training or guidance to the caseworker related to processing downward adj us tments to the child support order? Ö        Does your State law or process permit downward modifications for incarcerated parents? –     If State law permits it, do you have an automated way to perform these downward modifications? –     Does your State offer pro se services to low-income individuals to assist in the modification process? Ö        Have you analyzed the ease of access for an NCP to modify an order based on a change in circumstances? Do you provide a pro se option to the NCP that does not meet State criteria? Automation Considerations Ö        How is the review and adj us tment process triggered in your State? –     Does the State system automatically review updated wage information for the case to see if it exceeds State triggers for upward or downward modification? –     Does the State system search State New Hire and Quarterly Wage information or use national databases such as the NDNH (e.g., for seasonal workers)?  What other sources are us ed to verify changes in income? –     Does the State system automatically review your database (monthly batch runs) for cases that meet review and adj us tment criteria? –     Does the State system look for criteria that may result in downward as well as upward adj us tments? Ö        Does the State system have screens for caseworkers to enter requests for review and adj us tment from a party to the case? Ö        Does the State system automatically generate the right to review notice or does the caseworker first have to enter a code into the system? Ö        Does the caseworker have to c us tomize the letter informing parties of their right to review? Ö        How does your State system select a case for potential modification? Ö        Does the State system conduct preliminary data analysis or coding? Ö        Does the State system enter codes for TANF cases to monitor timelines? Ö        How are non-TANF cases selected for potential modification? How are caseworkers notified about potential adj us tments in support amounts? –     Does the State system send an alert?  Generate a report? –     If not automated, does the worker enter a code to the State system to have the system generate notices to parties or employers regarding the potential for the order to be modified?  To request financial data from case parties? Ö        How does the State system support guideline or COLA calculations? –     Does the State system us e imported wage data and then re-calculate? Ö        How does the State system support modifying the support order? –     Is there a difference between administrative (e.g., enter a code) and judicial orders (e.g., caseworker m us t prepare a package)? –     Does the State system determine if the case in question has been submitted to automated locate sources?  Or does the caseworker have to conduct a manual assessment? –     Does the State system or caseworker generate the notice of intent to close the case? –     Does the State system generate letters for submission to manual locate sources or does the caseworker have to generate letters to nonautomated locate sources? –     Does your State system support notification of worker, parties, courts, and employers about guideline calculation results? Ö        If the decision is not to modify the order, how are the parties informed? Ö        Does your State system update the case with the new order amount? Ö        Does your State system match prison files and child support cases and automatically send a notice to the c us todial party (CP) and noncustodial parent (NCP) that the order will be modified unless the CP objects?   Benefits:   Alaska had a Special Improvement Project (SIP) grant for Electronic Modification of Orders (ELMO).  Prior to this enhancement, the State reviewed 7,000 orders annually.  After implementing ELMO, they reviewed 23,655 annually. More than 68% of these reviews resulted in modification.  Most (90%) are upward modifications. The average percentage change between prior and modified support award was 181%.   Alaska reduced the number of days to complete their administrative process from 130 days to 85 days.  Judicial reviews were reduced from more than 180 days to 160 days.   Minnesota automated its COLA and has seen an increase in order modifications every year since 2001.  The average annual increase in obligations ranged between $163 and $319   Additional resources:   For a more detailed automation disc us sion guide, please see Automated Systems for Child Support Enforcement: A Guide for Enhancing Review and Adj us tment Automation. http://www.acf.hhs.gov/programs/cse/stsys/dsts_auto_review.html   PAID In Full is a compilation of early intervention, order establishment, locate, enforcement, and arrears management practices, along with implementation criteria, that facilitate successful outcomes.  The questions under each practice are intended to assist readers in looking for methods to optimize their processes.  The questions are organized into three categories for consideration:  Organizational, Process, and Automation. Organizational Considerations Ö        Have you considered the benefits of centralizing the Financial Institution Data Match freeze and seize process? –     If your local offices are reluctant to agree to a centralized freeze and seize process, have you considered centralizing j us t the issuing of notices, c us tomer service, or the processing of FIDM freeze and seize responses? Ö        Do you provide a centralized point of contact for Financial Institutions related to the FIDM process? Ö        Do you have training for workers to help them determine which matches are appropriate or require action to initiate freeze and seize? Ö        Have you considered asking for additional legislative authority? For example, after its pilot, Florida requested early levy authority for noncustodial parents who were willing to waive the statutory wait period between lien and levy. Process Considerations Ö        Have you considered eliminating or lowering your threshold for freeze and seize action? Twenty-six percent of States/Territories have no minimum delinquency threshold. Another 26 percent have a threshold between $100 and $500. Ö        Have you reviewed the types of financial accounts that you initially exempted from FIDM freeze and seize or the threshold you have set to determine if these thresholds or exemptions are still valid? Ö        Has your State developed a process with those States that do have laws requiring financial institutions to process out-of-state notices to have the financial institutions’ resident State affirm that your notices meet the due process requirements of those States? Ö        Does your State accept and process a Uniform Interstate Family Support Act (UIFSA) Transmittal #3 or an Automated Enforcement of Interstate (AEI) request from a State that is requesting assistance in the FIDM freeze and seize process? Ö        Does your State send Transmittal #3 requests to facilitate freeze and seize actions when financial institutions are not doing b us iness in your State, not required by law to accept out-of-state notices, nor on the Federal Office of Child Support Enforcement’s (OCSE’s) report of financial institutions that accept out-of-State notices? Ö        Were your staff initially reluctant to process FIDM freeze and seize beca us e of concern over the accuracy of the arrears balance? If so, have you considered using the same thresholds as offset which have certified arrears?  If you initially required an audit of arrears balances, have you re-visited this requirement? Ö        If your State exempts joint accounts from freeze and seize, have you considered requiring the joint account holder to appear in Court in order to obtain a release after the 2nd freeze and seize action to discourage us ing the joint account to hide NCP assets? Ö        Does your FIDM process require one or two steps for issuing the notice?  Do you have to send a notice to freeze and a separate notice to seize? If two steps are required, is this by State law or based on State process? Ö        Have you considered the ability of the customer service unit and/or caseworkers to handle the influx of calls when you schedule sending Freeze and Seize notices? Ö        If capacity to handle an influx of FIDM related inquiries is not a factor, have you considered increasing the frequency of your FIDM freeze and seize processing?   Automation Considerations Ö        Does your State system maintain a table indicating whether financial institutions outside the State will accept a direct levy? Ö        Does your State system receive matches from your in-State or the Federal multistate match process and determine, without staff intervention, which matches are eligible for freeze and seize based on your State’s criteria? Ö        Does your State system generate freeze and seize notices without caseworker intervention as quickly as possible after receiving eligible matches in order to avoid changes in the arrears and account amounts? Ö        Have you automated the “back-end” of the FIDM freeze and seize process? –     Does your State system automatically search to determine if payment(s) has been made on the case? –     Does your State system automatically remove the case from the FIDM match file, release the freeze action and/or stop the seizure based on changes in the NCP’s circumstances? Ö        Does your State system track compliance of in-state financial institutions and generate notices to those out of compliance and a tickler for staff follow up if the financial institution is unresponsive to the notice? Ö        Does your State system electronically transmit freeze and seize notices to financial institutions? Ö        Does your State system generate freeze and seize notices for financial institutions doing b us iness in your State with out-of-state freeze and seize addresses? Ö        Does your State system generate freeze and seize notices for financial institutions not doing b us iness in your State, when the State the financial institution resides in requires them to process out-of-state notices? Ö        Does your State system generate freeze and seize notices for financial institutions not doing b us iness in your State if the financial institution is listed on OCSE’s report of financial institutions that accept out-of-state notices? Ö        If the other State where out-of-state FIDM assets have been located does not accept a direct notice and levy, do you use an AEI process?  If so, is this automated? Ö        Have you developed a filtering mechanism to ensure that your AEI FIDM freeze and seize request meets the criteria of the State in which the assets are located? Ö        Have you considered using the FIDM match data for other purposes such as locate of delinquent obligors?  This has proven cost effective for States that are required to pay the financial institution a fee for each match. Ö        Have you considered having your State system save every FIDM document generated as a PDF file to avoid having the caseworker make hard copies of the document for the official file? Ö        Have you considered automating the process of sending Freeze and Seize notices to avoid the caseworkers having to fold, stuff and postage each letter? Ö        Does your State system accept Electronic Funds Transmittal/Electronic Data Transmittal (EFT/EDI) from Financial Institutions? Ö        Have you considered using the core programming for FIDM freeze and seize for other enforcement remedies? For example, MS-FIDM is based on the offset process and in Florida , both lottery intercepts and driver’s license suspensions are based on the core programming for FIDM.   Benefits:   Significant efficiency to the collections of arrears can be realized by maximizing the technology available and streamlining the use of the functional processes of FIDM freeze and seize.  This has been accomplished using a variety of approaches.  Colorado has enhanced automation of the match and accompanying freeze and seize process within their Automated Child Enforcement System (ACSES) which also provides obligor locate information to the Child Support Enforcement program.  The system has provided over $6.5 million in collections since inception.  Notable enhancements to the system provided freeze and seize actions on joint accounts, sole proprietorship accounts, and adjustment of the target arrears threshold to $1,000 across all orders.  Another enhancement excluded obligors who were currently paying from the process, thereby minimizing the appeals process on Freeze and Seize actions.  These enhancements alone provided a 65% increase in collections after implementation over the previous highest monthly collection totals.   New York contracts with a vendor to conduct Financial Institution (FI) matches with a state-supplied weekly inquiry file prepared by the State’s Child Support Management System (CSMS).  This file is built using front end selection criteria.  The vendor conducts matches with FIs via Method 1 and Method 2 practices, handles all FI outreach efforts, agreements and customer service.   New York has 100% instate FI participation and over $50 million in collections since inception.   New York ranked 9th in average quarterly returned matches through MSFIDM and 1st in voluntary reported collections in 3Q2006 though 2Q2007.  Collections totaled $14.6 million in that time frame.   Additional Resources:   The Federal Office of Child Support Enforcement is developing additional guidance on enhancing the level of automation related to FIDM freeze and seize processes.  We have conducted on-site case studies of the process in Florida and New York and plan additional case studies.  The guidance document will be available in Fall 2007.  Please contact Robin R us hton at Robin.Rushton@acf.hhs.gov for additional information. PAID In Full is a compilation of early intervention, order establishment, locate, enforcement, and arrears management practices, along with implementation criteria, that facilitate successful outcomes.  The questions under each practice are intended to assist readers in looking for methods to optimize their processes.  The questions are organized into three categories for consideration:  Organizational, Process, and Automation. Organizational Considerations Ö        Does your front line staff have access to training on case closure? Is there clear guidance provided on what the acceptable criteria are and the requirements for each criterion before a case can be closed? Ö        Do you concentrate your training and/or automation on the case closure reasons us ed in the majority of the cases?  According to the Office of Inspector General, 95 percent of cases that are closed fall under only 6 of the Federal criteria, and they represent 96 percent of the errors.  The number one case closure criterion,   (i.e., no longer an order and arrearage less than $500) represents 26 percent of the closed cases.  It is also the most easily automated. Ö        Do you concentrate your training and/or automation on the most frequent case closure errors? According to OIG, the most common error is failure to provide the mandatory 60 day notification prior to case closure.  An analysis of the State self-assessment reports for case closure indicate that other common errors are ca us ed when staff us e inappropriate reason codes, cases do not meet all of the requirements for closure, and there is insufficient documentation.   Process Considerations Ö        What is your self assessment compliance score for closing cases?  If you aren’t meeting the target, do you have a corrective action plan to address deficiencies? Ö        Do supervisors review cases before or following closure to determine if the case was properly closed?   Automation Considerations Ö        Have you considered convening a foc us group with stakeholders from policy, systems, training, self-assessment and field staff to pool their caseload and b us iness practice knowledge and experience to identify the most desirable and feasible case closure criteria for automation? Ö        How does your State search for cases that meet the regulatory case closure criteria? –     Does the State system automatically review your database (monthly batch runs) for cases that meet certain case closure criteria? –     If your case closure process is not automated, and your caseworkers determine readiness for case closure through case review, interviews and other manual procedures: ·           Can the caseworker enter a case closure reason code into the State system? ·           Does the State system provide a look up table of applicable closure criteria and its requirements? ·           Does the caseworker need to enter information about the review and interview into the State system?  One screen or multiple screens? Ö        How does your State generate and mail a notice of intent to close the case? –     Does the State system automatically generate and mail the notice of intent to close? –     If the case closure process is not automated, does the caseworker have to first enter a code into the State system before the system generates the notice of intent? –     If the case closure process is not automated, does the caseworker have to c us tomize the letter for notice of intent to close the case? –     Does the State system search for valid Custodial Parent (CP) mailing addresses? Ö        How does your State track case closure criteria timeframes? –     Does the State system track the required 60 days or longer notice timeframe before closing the case? –     Does the State system prevent the case from being closed if the 60 days (or longer) notice timeframe has not been met? –     Does the State system check to determine that the client has not responded to the notice before closing the case? –     Does the caseworker have to re-review the case after the 60 day timeframe has elapsed before submitting for closure? Ö        For the most commonly us ed case closure criteria (i.e., no current order and arrears less than $500) how does your State close the case? –     Does the State system search for cases with no support order and arrearages under $500?  If so, does the State system automatically start the case closure process or does it send an alert or report to a central unit, supervisor, or individual caseworkers? –     If the case closure process is not fully automated, does the caseworker have to review his/her caseload for cases that meet these criteria?  Is there any ad hoc reporting capability available to the caseworker to assist in the review of his/her caseload? –     Does the State system or the caseworker search for additional State criteria (e.g., $0 balance, child over 18 or emancipated)? –     Does the State system or caseworker verify that no other notice of intent to close has been sent on this case? Ö        For the 2nd most commonly us ed case closure criteria [i.e., unable to locate noncustodial parent (NCP)] how does your State process the case closure? –     Does the State system review all cases where location of NCP (residence or employment) has been unsuccessful for at least a 3-year period and flag those cases for possible case closure? –     Does the State system review all cases in which information on the NCP is insufficient to submit to automated locate sources and flag those cases for possible case closure? –     Does the State system or the caseworker determine if a case has been submitted to automated locate sources? –     Is there a requirement in your State for the caseworker to submit to un-automated manual locate sources before closure? Ö        Does your State system conduct matches to determine if the NCP or putative father is deceased? Ö        Does your State system check to see if a genetic test or court process has excluded a putative father? Ö        Even if case closure is automated in your State, can a caseworker manually initiate case closure? For what reasons is manual closure allowed? Ö        Have you considered giving caseworkers a “veto” providing a “do not close” code for us e on a case by case basis that overrides automated closure procedures for one year? For another period of time?   Benefits:   The Commonwealth of Virginia conducted an analysis that showed a high number of inactive child support cases in 1999.  In response, the Commonwealth using a combination of manual and automated case closure processes closed 472,000 cases from December 1999 through September 2006.  Workers’ individual caseloads dropped from an average of 1,400 to 1,000 cases.  Benefits include improving self-assessments and reducing the denominator in performance incentives calculations.   Oregon automated the case closure criteria in 2002 when the case closure regulations were finalized.  In the first five months after programming, the system closed five times the number of cases than it had the previo us year.  In 2006, 50,841 cases were closed. This has saved labor hours for caseworkers.     Additional Resources:   For a more detailed automation disc us sion guide, please see Automated Systems for Child Support Enforcement: A Guide for Automating Case Closure. Additional resources include an OIG report and PowerPoint presentation athttp://www.acf.hhs.gov/programs/cse/stsys/dsts_auto_closure.html

 

Child Custody

1  UCCJA, Hague Convention & Felony Child Stealing CHILD CUSTODY JURISDICTION  How to Decide Which Court Decides  by Michael L. Oddenino  ODDENINO & GAULE (www.oandglaw.com)  Introduction The Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA) are legislative responses to the child custody jurisdiction problem.  The Hague Convention on the Civil Aspects of International Child Abduction is the international response.  The UCCJA began as a model act which became virtually universal state law.  The PKPA, on the other hand, is federal law.  The UCCJA creates a two-prong approach to determining which court decides a custody case.  First, a general class of jurisdiction is established for custody cases.  Second, the law provides a mechanism intended to vest the right to exercise jurisdiction in only one state at any given time.  The UCCJA and the PKPA supersede all conflicting or contradictory laws.The UCCJA, the PKPA, and the Hague Convention apply only to those who have a right to custody. 1 The UCCJA and the PKPA each prescribes four bases for jurisdiction: (1) home state; (2) significant connection, plus evidence regarding the best interests of the child; (3) emergency; and (4) default jurisdiction (no other state has jurisdiction or has declined it).  The bases may overlap, so concurrent jurisdiction is common and conflicts of jurisdiction often occur.  For example, the “home state” may not be the same state as 1 Johnson v. Johnson , 493 S.E.2d 668 (Va. Ct. App. 1997); In re Prevot , 59 F.3d 556, 560 (6 th Cir. 1995); Caban v. Healey , 634 N.E.2d 540 (Ind. Ct. App. 1994); 42 U.S.C. 11603(3)(1)(A) (1994). 2 UCCJA, Hague Convention & Felony Child Stealing the one in which the parties have “significant connections” and where there is “substantial evidence” about the child’s best interests. 2 The UCCJA, the PKPA, and the Hague Convention on Child Abduction are all designed to prevent child abduction as well as providing a mechanism for determining which court has the right to decide a custody case.  These laws address the problems arising when one parent breaches another’s right to custody by removing the child from his “home state” or “habitual residence” and takes him to another jurisdiction, or when the parent retains the child in violation of another’s custodia l rights or interests. The primary factor for determining if a state has jurisdiction to decide a custody case is the “home state” status, where it is assumed that one will find the maximum amount of evidence on the child’s interests.  The “home state” is the jurisdiction in which the child has lived with his or her legal custodian for at least six months or a state which was the “home state” within six months of filing.  (For example, if a family lives in state A for one year, state A is the home state.  If the same family lived in state A for one year and then one parent moved to state B with the children and filed in state B after living in state B for only four months, state A is still the home state). 2 See, e.g. , In re Joseph D. , 23 Cal.Rptr.2d 574 (Cal. Ct. App. 1994); In re Marriage of Alexander , 623 N.E.2d 921 (Ill. App. Ct. 1993). 3 UCCJA, Hague Convention & Felony Child Stealing The UCCJA also allows a state to exercise jurisdiction on the basis of the children having “significant connections” with that state.  Thus, under the UCCJA, even though state A is the home state, state B might exercise initial jurisdiction on the basis of significant connections.  The PKPA intended to eliminate this possibility by making the “home state” the exclusive state to exercise initial jurisdiction notwithstanding that some other state had “significant connections.”  This is a major distinction between the UCCJA and the PKPA. These laws are also designed to avoid forum shopping, jurisdictional competition, and duplicative litigation.  They establish a scheme for determining which court among one or more state courts has jurisdiction, or, if more than one has jurisdiction, which should claim it. The UCCJA and the PKPA are also designed to facilitate and promote communication among courts which have or may have concurrent jurisdiction.  They require all states to honor prior custody orders.  A court that receives information on possible ongoing custody litigation in another state should communicate with the appropriate court in that state.  The law actually calls for a judge in state A to communicate with a judge in state B. The Jurisdictional Scheme The UCCJA provides subject matter jurisdiction and is the exclusive method of obtaining it in child custody cases.  Subject matter jurisdiction is determined by statutory definition (e.g., certain length of residence) and may not be conferred by consent of the parties.  Absence of subject matter jurisdiction may be raised by the trial court or the 4 UCCJA, Hague Convention & Felony Child Stealing parties at any stage of the proceedings. 3 3 Cordie v. Cordie , 538 N.W.2d 214, 216 (N.D. 1995). 5 UCCJA, Hague Convention & Felony Child Stealing The UCCJA establishes a system of concurrent and potentially conflicting jurisdiction.  The bases for jurisdiction are hierarchical and continuing jurisdiction always prevails.  Home state jurisdiction predominates over significant connection jurisdiction.  Emergency jurisdiction will trump either of those bases, but it is temporary.  Finally, if no state has jurisdiction on the basis of UCCJA or PKPA rules, the state in which the child and a party are domiciled may claim it. The law eliminates potentially endless procedural custody litigation by placing the bases of jurisdiction in the aforementioned descending preferential order and by providing for virtually exclusive continuing jurisdiction in the original decree state. 4 In addition, to achieve fairness and cooperation, mechanisms for communication and for declining jurisdiction were included. Continuing Jurisdiction 4 See, e.g. , Kessenich v. Kessenich , No. FA-96053295S, 1996 LEXIS 1517 (Conn. Super. Ct. June 11, 1996) (The fact that Connecticut had become the home state and had most significant connection and most evidence were not sufficient for Connecticut courts to modify a Michigan custody decree, where former husband continued to live in Michigan.  Michigan resolved the problem by declining jurisdiction.); McDow v. McDow , 908 P.2d 1049, 1051 (Alaska 1996) (a court may not modify another state’s custody decree if the latter court retains jurisdiction). 6 UCCJA, Hague Convention & Felony Child Stealing Once a court properly exercises jurisdiction in a child custody matter, that state is deemed “the decree rendering state.”  For example, if state A were the home state and the judge in state A conferred with the judge in state B where a parent filed after only four months claiming significant connections, and those judges determined that state A should exercise initial jurisdiction, state A would then have a hearing and render a custody decree.  Assume one parent continues to reside in state A while the other parent resides in state B with the children pursuant to state A’s decree.  Two years later the parent in state B wants to modify the custody or visitation schedule.  What happens? State B is now the home state as the children have lived there for two years.  State A is the decree rendering state as the initial and current order was rendered in state A.  Only state A has the right to exercise jurisdiction even though state B has home state jurisdiction because state A enjoys the continuing jurisdiction of the decree rendering state.   Thus, state B cannot properly exercise its jurisdiction unless state A specifically declines to exercise its continuing jurisdiction. Continuing Jurisdiction in the International Arena The dominance of continuing jurisdiction also applies to international cases 5 where a custody order has been rendered under a law consistent with the UCCJA. 6 For instance, 5 See, e.g., Chapoteau v. Chapoteau , 659 So.2d 1381 (Fla. Dist. App. Ct. 1995). 6 In re Stephanie M. , 867 P.2d 706 (Cal. 1994); In re Fischer , 666 So.2d 724, 725 (La. App. 4 th Cir. 1995); Koester v. Montgomery , 886 S.W.2d 432 (Tex. Ct. App. 1994) (UCCJA applies internationally as far as due process notice and similar requirements are concerned); Ruppen v. Ruppen , 614 N.E.2d 577 (Ind. Ct. App. 1993) (deferred to Italy). 7 UCCJA, Hague Convention & Felony Child Stealing a California decision decided by a California Family Court and affirmed by the Appellate Court held that the California courts had jurisdiction, under the UCCJA, to determine the custody of a minor Mexican national. 7 The minor, although a Mexican national, had resided in California for several years with her Mexican national parents.  The Court stated that one of the primary objectives of the UCCJA is to “avoid the disruption t o the life of a child involved in relitigation of custody matters . . . [O]nce a custody order is entered by a court with jurisdiction under [the UCCJA], that court has continuing exclusive jurisdiction [which prevails over any other basis].” 8 The court also held that no treaty or other source of international law precludes California courts from claiming jurisdiction in a case properly brought.  California was “home state” and the state “with the most significant connection” to the parents and the minor child and substantial evidence relating to the minor child’s well -being.  Some courts construe the UCCJA to apply internationally only when a foreign custody order is at issue. 9 Other states apply the general policies and objectives of the UCCJA to all custody jurisdiction disputes, including those in the international context. 10 7 In re Stephanie M. , 867 P.2d 706 (Cal. 1994), cert. denied sub nom. See also Mendez v. San Diego County Dep’t of Soc. Servs. , 513 U.S. 937, 115 S. Ct. 337 (1994). 8 Id. 9 E.g., Ivaldi v. Ivaldi , 672 A.2d 1226 (N.J. Super. Ct. App. Div. 1996); Koons v. Koons , 615 N.Y.S.2d 563, 567 (N.Y. Sup. Ct. 1994). 10 E.g., Black v. Black , 441 Pa. Super. 358, (1995) (applying UCCJA to international child custody disputes and construing the definition of “state” to encompass foreign nations); Dincer v. Dincer , 666 A.2d 281, 284 (Pa. Super. Ct. 1995); In re Stephanie M. , 867 P.2d 706 (Cal. 1994); Zenide v. Superior Ct. , 27 Cal.Rptr.2d 703 (Cal. Ct. App. 1994); Ruppen v. Ruppen , 614 N.E.2d 577, 582 (Ind. Ct. App. 1993). 8 UCCJA, Hague Convention & Felony Child Stealing Child Abduction Since the 1970s, the State Department says it has been contacted for help in about 11,000 international child abductions where a parent was involved. 11 The Justice Department reports some 354,100 cases of parental abductions a year, but fails to identify how many are international. 12 The State Department estimates an average of 400 to 500 new international cases per year, a number critics charge is a vast underestimate.  A recent study by the American Bar Association Center on Children and the Law shows that in 60 percent of international abduction cases, the children are never returned even though their whereabouts are known. 13 This study shows that parents spent an average of $33,500 in search and recovery of their children, and a quarter of left-behind parents spent $75,000 or more. 14 UCCJA section 23 provides that the general policies of UCCJA extend to the international arena.  The provisions of UCCJA relating to the recognition and enforcement of custody decrees of other states apply to custody decrees and decrees involving legal institutions similar in nature to custody institutions rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons.  The same goes for the general policies and objectives 11 Timothy W. Maier, Insight on the News: Kids Held Hostage , News World Communications, Inc., March 8, 1999. 12 Id. 13 Id. 14 Id. 9 UCCJA, Hague Convention & Felony Child Stealing of the UCCJA and the PKPA. 15 15 Winton-Ibanez v. Ibanez , 690 So.2d 1344, 1346 (Fla. Dist. Ct. App. 1997) (the general policies of the UCCJA apply internationally). 10 UCCJA, Hague Convention & Felony Child Stealing Parental kidnaping is a federal felony, calling for up to three years imprisonment. 16 It is also a felony in most states. 17 The federal felony provides at least three affirmative defenses: (1) custody or visitation award to defendant pursuant to UCCJA; (2) flight from a pattern of domestic violence; and (3) defendant had proper physical custody and failed to return the child for reasons beyond his control. 18 The Hague Convention The UCCJA and the PKPA are not the only laws on international jurisdiction over child custody.  In 1980, the Hague Convention on the Civil Aspects of International Child Abduction was formed to complement our UCCJA and PKPA in the international arena. 19 The Hague Convention is different from the UCCJA and PKPA in that it does not create recognition and enforcement standards, but demands the prompt restoration of the custody that existed before the alleged abduction. 20 16 18 U.S.C. 1204 (1994). 17 In California, the applicable statute is Penal Code Section 278, which states “Every person, not having a right to custody, who maliciously takes, entices away, keeps, withholds, or conceals any child with the intent to detain or conceal that child from a lawful custodian shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment.” 18 18 U.S.C. 1204 (1994) provided that the defendant make reasonable efforts to notify the other legal custodian of the problem within 24 hours of the end of his visitation period. 19 Hague International Child Abduction Convention, 51 Fed. Reg. 10498 (1986); Department of State, Treaties in Force 328 (1989); Exec. Order No. 12,648, 53 Fed. Reg. 30637 (1988). 20 See Martin J. Bodzin, Comment, International Parental Child Abduction: The Need for Recognition and Enforcement of Foreign Custody Decrees, 3 Emory J. Int’l 11 UCCJA, Hague Convention & Felony Child Stealing Dispute Res. 205, 212 (1989). 12 UCCJA, Hague Convention & Felony Child Stealing The United States ratified the Hague Convention in 1986.  It went into effect in 1988, upon the enactment of its enabling legislation, the International Child Abduction Remedies Act (ICARA). 21 This Act provides that it “shall apply to a ny child who was habitually resident in a contracting state immediately before any breach of custody or access rights.” 22 The Convention’s stated purpose is “to secure the prompt return of children wrongfully removed to or retained in any Contracting State ,” and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” 23 The Hague Convention’s underlying policy is primarily to ascertain a speedy return of an abducted child to the state in which he or she was an habitual resident, without undertaking a full investigation of the case’s merits. 21 42 U.S.C. 11601-11610 (1994). 22 Hague Convention on the Civil Aspects of International Child Abduction, Ch. I, art. 4. 23 Hague Convention on the Civil Aspects of International Child Abduction, Ch. I, art. 1, (a), (b); Merideth v. Merideth , 759 F. Supp. 1432, 1434 (D. Ariz. 1991). 13 UCCJA, Hague Convention & Felony Child Stealing The remedies of the Hague Convention may be invoked when two threshold issues have been satisfied by a preponderance of the evidence. 24 First, the moving party must establish that he or she had lawful custody rights when the child was wrongfully removed or retained.  Second, the removal or retention must be from the child’s “habitual residence.”  Articles 3 and 5(a) of the Convention provide that the removal or retention is wrongful when “(a) it is in breach of rights of custody attributed to a person . . . under the law of the state in which the child was a habitual resident immediately before the removal or retention; and (b) at the time of the removal or retention, those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.”  Custody rights are determined by the law of the child’s “habitual residence,” a term left u ndefined in the Convention and in the United States’ implementing legislation, leaving the issue to be decided upon the facts and circumstances of the case. 25 United States courts have held that the terms of the Convention are to be construed narrowly. 26 Conclusion The framework of laws determining proper exercise of custody jurisdiction is sufficient to answer most custody dispute problems.  While some judges create problems by not knowing or following the jurisdictional guidelines, forum shopping in custody cases is not nearly the problem it was before the implementation of these laws.  Armed with the knowledge of the “off the rack” dictates of the jurisdictional laws, an attorney 24 In re Prevot , 59 F.3d 556, 560 (6 th Cir. 1995). 25 Merideth v. Merideth , 759 F. Supp. 1432, 1434 (D. Ariz. 1991). 26 E.g., Rydder v. Rydder , 49 F.3d 369 (8 th Cir. 1995). 14 UCCJA, Hague Convention & Felony Child Stealing can provide clients with advice well worth the fees charged.

Hello world!

Welcome to WordPress.com. This is your first post. Edit or delete it and start blogging!