October 9, 2012
In 2007, the Hague Conference on Private International Law finished work on a new multilateral convention on the enforcement of child and spousal support. See Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, Nov. 23, 2007 [hereinafter the "Convention"]. The United States signed the Convention, and on November 29, 2010, the Senate ratified it.
The Convention is implemented in a revised article 7 of the Uniform Interstate Family Support Act ("UIFSA"), which some States have already begun to adopt. Adoption of UIFSA is, of course, a condition upon receipt of federal child support enforcement funding, see 42 U.S.C. § 666(f) (Westlaw current through P.L. 112‑142 (excluding P.L. 112‑140 and 112‑141) approved 7‑9‑12), and while the federal statute presently requires adoption of UIFSA only as it existed in 1996, it is likely that the federal statute will ultimately require adoption of the 2008 version as well.
The Convention adopts into international law the principle of continuing exclusive jurisdiction ("CEJ"), which lies at the heart of UIFSA. Article 18 of the Convention provides:
(1) Where a decision is made in a Contracting State where the creditor is habitually resident, proceedings to modify the decision or to make a new decision cannot be brought by the debtor in any other Contracting State as long as the creditor remains habitually resident in the State where the decision was made.
Convention art. 18(1). Thus, when a child support order is entered in the support provider's habitual residence, support proceedings cannot be brought elsewhere unless the support provider's habitual residence changes. Jurisdiction over support matters, once acquired, is exclusive. See also UIFSA § 711 (specifically applying the CEJ concept to orders from nations that have signed the Convention). There is a series of exceptions, Convention art. 18(2), that apply when the parties agree in writing to give another country jurisdiction, when the support provider voluntarily submits to another country's jurisdiction, when the country with CEJ refuses to rule, or when the original support order cannot be recognized in another country.
Article 20 of the Convention is a broad jurisdictional provision, allowing jurisdiction in the habitual residence of the support provider, the habitual residence of the support recipient, or the habitual residence of the child. The latter two bases are fundamentally inconsistent with American law, which provides that the court cannot make a support order unless it has personal jurisdiction over the support provider, even if the support recipient and the child are domiciled within the court's jurisdiction. Kulko v. Super. Court, 436 U.S. 84 (1978). The Senate resolution ratifying the Convention provides as follows:
The advice and consent of the Senate under section 1 is subject to the following reservations, which shall be included in the instrument of ratification:
(1) In accordance with Articles 20 and 62 of the Convention, the United States of America makes a reservation that it will not recognize or enforce maintenance obligation decisions rendered on the jurisdictional bases set forth in subparagraphs 1(c), 1(e), and 1(f) of Article 20 of the Convention.
S. Exec. Doc. No. 111-2 sec. 2(1). The effect of this reservation is that the United States will continue not recognizing support judgments based only upon the habitual residence of the support recipient or the child, where the support provider lacks minimum contacts with the country that rendered the judgment.
The Convention is a rather unusual treaty, in that the subject matter is treated in the United States as a matter of state law. Because federal law cannot directly control child support, the Convention is not self-executing. In other words, the legal effect of the Convention depends upon the enactment of implementing legislation at the state level. To ensure that state legislation is passed, the necessary rules for implementation were stated as an amendment to UIFSA, with the expectation that the amendment would quickly be enacted by the States. Federal legislation is pending to amend § 666(f) so that all States must, as a condition of receiving federal funds, adopt the current (2008) version of UIFSA.
The necessary changes to UIFSA are made in a new article 7. The new article applies only to child support orders from other countries that are parties to the Convention. Additional documents must be provided when enforcement of a foreign order is sought under article 7, including a case abstract, a statement of enforceability, and proof of notice. UIFSA § 706. If the party requesting enforcement resides outside of the United States, the period for objecting to a petition to register is expanded from 30 days to 60 days for support orders from other signatory nations. UIFSA § 707. Certain private support agreements can be enforced as court orders, if they are signed in countries where such agreements are so enforceable. UIFSA § 710. Orders from countries that have not signed the Convention are outside article 7, and they will continue to be enforced under present notions of comity.
The primary means of enforcement under the Convention is a request from a governmental body (the "Central Authority") in one country to the Central Authority in another country. The Central Authority for the United States is the federal Department of Health and Human Services ("DHHS"). The rule of the DHHS, however, is only to transmit documents and facilitate enforcement. In the United States, orders will continue to be issued only at the state level. There will continue to be no federal involvement in setting child and spousal support.
The Convention is expected to materially increase the enforceability of child and spousal support orders across international borders. Only time will tell whether this expectation is justified.