Family Law

The Uniform Interstate Family Support Act

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Number 8 March 1996

By John L. Saxon and Jacqueline M. Kane*

Interstate child support cases–that is, child support cases in which the noncustodial parent and the custodial parent and child live in different states–pose especially difficult problems. These problems include complex legal issues regarding jurisdiction, choice of law, and remedies, as well as practical problems involving cooperation, communication, and case processing between two or more states. Given the inherent difficulties involved in interstate child support cases, it is not at all surprising that "[i]nterstate child support enforcement takes too long, costs too much, and too often fails to yield enduring, positive results."

As a result of the mobility of both custodial and noncustodial parents, the number and percentage of interstate child support cases has grown in recent years. In 1989, interstate child support cases made up approximately thirty percent of all child support cases in the United States, and an estimated 2.5 million noncustodial fathers were nonresidents of the states in which their children lived. Moreover, the residence of noncustodial fathers has a dramatic impact on the support of their children. Children are almost twice as likely to receive no support from noncustodial fathers in interstate situations than in cases where the noncustodial father and children live in the same state. In addition, fathers in interstate child support cases pay, on average, only sixty percent of the child support that they have been ordered to pay.

The Uniform Reciprocal Enforcement of Support Act (URESA) represented the first comprehensive attempt to deal with the problem of interstate support enforcement. Over the years, however, URESA proved to be an ineffective, cumbersome, and time-consuming remedy.

Looked at in the abstract, URESA and RURESA seem to be ingenious devices for dealing with child . . . support in a federal state having a highly mobile population . . . . In many instances[, however,] the child or spouse may find that in practice URESA just does not work well.

Therefore, in August, 1992, the National Conference of Commissioners on Uniform State Laws (NCCUSL) voted to replace URESA with a new, improved Uniform Interstate Family Support Act (UIFSA). Following the lead of twenty-five other states, the North Carolina General Assembly enacted legislation adopting UIFSA as Chapter 52C of the General Statutes effective January 1, 1996.

This bulletin summarizes the provisions of the new Uniform Interstate Family Support Act; examines the similarities and differences between UIFSA and URESA; describes UIFSA’s provisions for asserting "long arm" jurisdiction over nonresidents in child support and alimony cases; and discusses the establishment, enforcement, and modification of child support and alimony orders in interstate proceedings under UIFSA.

Overview of URESA and UIFSA

Interstate Support Enforcement
Under URESA

URESA was promulgated in 1950 by the National Conference of Commissioners on Uniform State Laws. In 1968, NCCUSL adopted the Revised Uniform Reciprocal Enforcement of Support Act (RURESA). North Carolina adopted the original version of URESA in 1951, and enacted RURESA in 1975. Eventually, all fifty states enacted URESA, RURESA, or legislation that was substantially similar to URESA or RURESA.

URESA established three mechanisms for the interstate enforcement of child support and alimony–(1) initiation of an interstate proceeding requesting another state’s court to establish, enforce, or modify a support order; (2) registration of an out-of-state support order for enforcement and modification; and (3) extradition of persons charged with criminal nonsupport in other states.

Most URESA proceedings used the first mechanism. In this type of URESA proceeding, the individual to whom support was owed (the obligee) filed a civil complaint for support against the obligor (the person who allegedly owed support to the obligee) with a court in the state where the obligee resided (the initiating state). The initiating state’s court then forwarded the complaint and related documents to a court in the state in which the obligor resided (the responding state).

Upon receipt of the complaint, the responding state’s court was required to docket the case, serve a summons and copy of the complaint on the obligor, and schedule the matter for hearing. If the responding state’s court determined that the obligor owed a duty of support, it issued an order requiring the obligor to pay support to the obligee, and retained jurisdiction to enforce or modify the order.

URESA’s second mechanism for interstate support enforcement–registration–was used when the obligor already had been ordered by a court to pay child support or alimony. If the obligor lived in a state other than the state that issued the support order, URESA allowed the obligee to "register" the out-of-state support order in the responding state. Upon registration of the out-of-state support order in the responding (or registering) state, the responding state was required to treat the registered order in the same manner as a support order issued by a court of the responding state. After registration, the registered order could be enforced or modified in the same manner as a support order of the responding state.

The third mechanism–criminal extradition–was used rarely.

By the late 1980’s, it became increasingly clear that there were significant problems with URESA’s procedures for interstate support enforcement. These included lack of uniformity with respect to the versions of URESA enacted by different states; the proliferation of multiple, inconsistent, de novo support orders entered by different states with respect to an obligor’s duty to support a particular obligee or child; and the almost unlimited ability of responding states to modify support orders previously entered by other states.

Adoption of UIFSA

In 1988 the National Conference of Commissioners on Uniform State Laws established a drafting committee to recommend revisions to URESA. The drafting committee first presented a number of rather limited amendments to URESA, and, after additional review, proposed a more significant revision of URESA in 1990. Adoption of the revision, however, was postponed to allow the drafting committee to coordinate its work with the work of the U.S. Commission on Interstate Child Support. In 1992 the drafting committee submitted its proposal for a new, uniform law–the Uniform Interstate Family Support Act (UIFSA)–that would replace, rather than revise, URESA.

The National Conference of Commissioners on Uniform State Laws adopted UIFSA at its annual meeting in August, 1992. On March 12, 1993, Arkansas became the first state to enact UIFSA. As of January 1, 1996, UIFSA was in effect in twenty-six states, including North Carolina.

Comparison of UIFSA and URESA

In some respects, UIFSA is quite similar to URESA. Both UIFSA and URESA establish procedures for the interstate establishment, enforcement, and modification of support orders. UIFSA also retains much of the terminology used by URESA, including the terms "initiating" and "responding state." The procedures for registration of out-of-state support orders under UIFSA are similar to URESA’s registration procedures (although the effect of registration under UIFSA is quite different with respect to the registering state’s authority to modify a registered order). UIFSA, like URESA, authorizes extradition in criminal nonsupport proceedings when civil enforcement is impractical.

The similarities end, however, once this broad picture is painted. The most dramatic differences between URESA and UIFSA are–

· Under URESA a responding state was not required to process an interstate support proceeding on behalf of a nonresident obligee unless the initiating state had enacted URESA, RURESA, or a substantially equivalent law. Reciprocity, however, is not required under UIFSA. Therefore, regardless of whether a sister state has enacted UIFSA, UIFSA requires North Carolina courts to recognize and enforce a support order issued by a court of another state (or a court of an Indian tribe or foreign country) as long as the out-of-state order meets UIFSA’s criteria for recognition and enforcement.

· UIFSA explicitly requires states to recognize and enforce a support order entered by an administrative agency of another state if the agency had jurisdiction to enter the order under the law of the issuing state and the order otherwise is entitled to recognition and enforcement under UIFSA. And by defining "state" to include Indian tribes, UIFSA requires states to recognize and enforce support orders entered by tribal courts to the same extent that they would be required to recognize and enforce support orders entered by the courts of another state.

· Unlike URESA, UIFSA contains provisions for extended "long arm" jurisdiction over nonresidents in paternity and support cases. By exercising long arm jurisdiction over a nonresident in a paternity or support proceeding, the initiating state can retain control and jurisdiction over the litigation and avoid the delay and uncertainty that are often inherent in interstate support proceedings.

· UIFSA establishes new procedures allowing the "direct enforcement" of income withholding orders issued by other states without requiring registration of the order in the responding state or the issuance of an order by the responding state’s court.

· The most revolutionary difference between URESA and UIFSA, however, is UIFSA’s establishment of a "one order" system that
(1) requires states to recognize and enforce one, and only one, order requiring an obligor to support a particular obligee or child;
(2) establishes criteria for determining which order should be recognized when multiple support orders have been issued by different states; (3) limits simultaneous support proceedings in different states; and (4) precludes the modification of an out-of-state support order if the order is entitled to recognition under UIFSA and the issuing state has "continuing exclusive jurisdiction" over the order.

Interstate Support Remedies
Under UIFSA

UIFSA creates a broad array of remedies for the establishment, enforcement, and modification of support orders in cases in which the parties live in different states. Section 301 of UIFSA [G.S. 52C-3-301] provides a "road map" showing the seven different types of civil actions authorized by UIFSA–

1. Assertion of long arm jurisdiction by North Carolina courts over nonresidents in paternity and support actions [G.S. 52C-2-201 et seq.]

2. Determination of parentage [G.S. 52C-7-701]

3. Establishment of child support or spousal support orders by North Carolina courts on behalf of nonresident obligees [G.S. 52C-4-401]

4. "Direct enforcement" of out-of-state support orders in North Carolina without registration [G.S. 52C-5-501 et seq.]

5. Registration of out-of-state support orders in North Carolina for enforcement [G.S. 52C-6-601 et seq.]

6. Enforcement and modification of support orders issued by North Carolina courts [G.S. 52C-2-206]

7. Registration of out-of-state child support orders in North Carolina for modification [G.S. 52C-6-611]

All of the actions listed in section 301 are civil–not criminal–proceedings. However, like URESA, UIFSA also authorizes the extradition of North Carolina residents who are charged with criminal nonsupport in other states.

The remedies provided by UIFSA are cumulative, and do not affect the availability of other legal remedies that may be available to a party in connection with actions involving paternity, child support, or spousal support.

Duties of Support Enforceable
Under UIFSA

Like URESA, UIFSA does not create any substantive, legal duty of support. Instead, UIFSA simply establishes a procedural mechanism for enforcing duties of support that are imposed (or imposable) under other state statutes (such as G.S. 50-13.4(b) or 50-16.3A), the common law, case law, or court orders.

Section 101(3) of UIFSA defines a "duty of support" as a legal obligation to provide support for a child, a spouse, or a former spouse. Therefore, the procedures under UIFSA may be used only in cases involving the support of a child or spouse (or former spouse) of an obligor, and not to enforce other types of support obligations, such as "palimony" claims or actions to enforce an adult child’s obligation to support a disabled or needy parent.

Child or spousal support obligations enforceable under UIFSA include (to the extent authorized by the applicable substantive law) an obligor’s duty to pay monetary support; to provide or maintain health insurance or otherwise pay medical expenses or provide for the health care of a child, spouse, or former spouse; to provide reimbursement for support provided to a child, spouse, or former spouse; and to pay arrearages, attorney’s fees, interest, costs, or fees under a support order.

UIFSA authorizes the enforcement of the legal obligation of either parent (or, if state law so provides, of a step-parent or other person standing in loco parentis) to support his or her minor children. In addition, UIFSA may be used to enforce a parent’s obligation to support a child who is over the age of majority if (1) the applicable substantive law imposes a duty of support with respect to children over the age of majority, or (2) the adult or emancipated children are the beneficiaries of a support order directed to the obligor. For example, under North Carolina law, a noncustodial parent may be required to support his or her child beyond the child’s eighteenth birthday if the child is still in primary or secondary school when the child turns eighteen. North Carolina law, however, does not require a parent to support a disabled child who is over the age of eighteen and is not attending school. Nonetheless, a support order issued by a New York court requiring an obligor to support his thirty-two-year-old, permanently disabled daughter would be an enforceable child support order under UIFSA if New York’s support law requires parents to support disabled, adult children.

UIFSA’s definition of "obligee" also includes a state or county to which an obligee’s support rights have been assigned. State and county social services agencies therefore may use UIFSA to collect child support that has been assigned to the state or county on behalf of children who are receiving public assistance. UIFSA also may allow a state or county to prosecute its claim against an absent parent under a state law that requires an absent parent to reimburse the state or county for public assistance paid on behalf of a dependent child.

As noted above, UIFSA’s definition of "duty of support" includes a legal obligation to support a spouse or former spouse. Therefore, UIFSA (like URESA) may be used to establish or enforce an order for alimony or spousal support, and most of UIFSA’s provisions apply equally to proceedings for spousal support and proceedings for child support. It should be noted, however, that UIFSA’s rules regarding the recognition and modification of spousal support orders are very different from its rules regarding the modification of child support orders.

Choice of Law Under UIFSA

In general, UIFSA requires a responding court to apply the procedural and substantive law of the responding state in UIFSA proceedings involving the determination of paternity or the establishment, enforcement, or modification of support.

Therefore, when North Carolina is the responding state in a UIFSA proceeding seeking the establishment of a child support order, the district court should apply the procedural and substantive law of North Carolina–including North Carolina’s child support guidelines–to determine the existence, scope, amount, and duration of the obligor’s duty of support. Or, if a North Carolina court is the responding court in a UIFSA proceeding involving paternity, North Carolina’s law regarding civil paternity actions will govern the petitioner’s burden of proof, the admission of evidence of paternity based on blood or genetic tests, and other legal issues. Similarly, if a nonresident obligee files a UIFSA petition seeking spousal support from an obligor in North Carolina, the district court should apply North Carolina law to determine whether the obligee is a dependent spouse; whether the obligor is a supporting spouse; whether the obligee is entitled to alimony or post-separation support; the amount and duration of the award of alimony or post-separation support; and the award of attorneys fees.

When a North Carolina court is the responding state in a UIFSA proceeding involving the modification of a registered child support order, North Carolina law governs the procedures by which a party may request modification, the moving party’s burden of proof, whether the petitioner has proved a substantial "change of circumstances" warranting modification of the order, and the amount of the modified order of support. A North Carolina court, however, may not modify any aspect of the registered child support order that could not be modified under the law of the issuing state. For example, if California law required that child support be paid until a child reaches the age of twenty-one, a North Carolina court could not modify a registered California child support order by terminating the obligor’s duty of support under North Carolina law when the child reached his or her eighteenth birthday or ceased attending high school.

In a UIFSA proceeding to enforce a registered alimony or child support order, the law of the registering state (the state in which the order is registered and enforced) governs the remedies available to enforce the order and the procedures for enforcement of the registered order. The law of the issuing state, however, "governs the nature, extent, amount, and duration of current payments and other obligations of support" as well as the payment of arrearages under the registered order. In addition, if the issuing state’s statute of limitations governing collection of support arrearages is longer than the applicable statute of limitations under the registering state’s law, the registering state’s court must apply the issuing state’s statute of limitations.

Continuing Exclusive Jurisdiction Under UIFSA

In order to understand UIFSA’s "one order" system and its limits on the modification of support orders issued by other states, one first must understand the concept of "continuing, exclusive jurisdiction."

If a court that issued an alimony or child support order has continuing, exclusive jurisdiction under the standards set forth in section 205 of UIFSA, the issuing court retains continuing, exclusive jurisdiction to modify the order. Conversely, courts in North Carolina or other UIFSA states are prohibited from modifying an alimony or child support order issued by another court as long as the issuing court has continuing, exclusive jurisdiction under the standards set forth in section 205.

The term continuing, exclusive jurisdiction, however, may be somewhat misleading to the casual reader.

First, continuing exclusive jurisdiction does not mean that the issuing state’s court is the only court that has jurisdiction to enforce the order. Under UIFSA, a court that issues a recognized child support order retains the authority to enforce its own order as long as it retains continuing, exclusive jurisdiction pursuant to section 205. However, as discussed below, UIFSA also requires the courts of other states to exercise their jurisdiction over the obligor or the obligor’s property when necessary to enforce a recognized child support order issued by a court that has continuing, exclusive jurisdiction. Therefore, the primary effect of continuing, exclusive jurisdiction is to limit the authority of the courts in one state to modify a support order issued by a court in another state (or to enter a de novo support order) if the issuing state’s court has continuing, exclusive jurisdiction over the order under the principles set forth in section 205.

Second, it is important to note that the mere fact that an issuing court has continuing, exclusive jurisdiction over a child support order does not mean that the order is necessarily the "one order" entitled to recognition and enforcement under UIFSA. As discussed below, during the transition period between URESA and UIFSA, there may be instances in which two states have issued child support orders and both states have continued, exclusive jurisdiction under section 205 based on the continued residence of one of the parties. Section 207 of UIFSA, however, provides that only one of the two orders (or perhaps neither of the two orders) can be recognized, and the other order will, in effect, be modified or superseded despite the fact that it was issued by a court that has continuing, exclusive jurisdiction under section 205.

Third, although familiarity with the concept of continuing, exclusive jurisdiction is necessary for an understanding of UIFSA, answering the question "does a state have continuing, exclusive jurisdiction?" almost never provides a complete answer to the question of whether, in a particular case, a court may issue, enforce, or modify a support order. Instead, section 205’s provisions regarding continuing, exclusive jurisdiction must be read in conjunction with the provisions of section 207 regarding recognition of out-of-state support orders and section 611 regarding registration and modification of out-of-state child support orders.

Continuing Exclusive Jurisdiction
in Child Support Cases

Although an issuing state’s court always retains continuing, exclusive jurisdiction over a spousal support order, UIFSA provides that an issuing state’s court may lose continuing, exclusive jurisdiction over a child support order under certain circumstances.

Under section 205(a) of UIFSA, a court that issues a child support order (other than a temporary support order issued ex parte) retains continuing, exclusive jurisdiction over the order–

1. as long as the issuing state remains the residence of the obligor, the individual obligee, or the child for whose benefit the order was issued, or

2. until each individual party files a written consent with the issuing state’s court authorizing modification of the order by a court in another state.

Thus, if a North Carolina court enters a child support order in connection with a divorce action in which all of the parties are North Carolina residents, and the obligor subsequently moves from North Carolina to Washington, D.C., the North Carolina court will retain continuing, exclusive jurisdiction based on the continued residence of the obligee and child in North Carolina. A Washington, D.C. court cannot obtain jurisdiction to modify the North Carolina order without the consent of both parties. Similarly, if a North Carolina court enters a child support order in a UIFSA proceeding involving an obligee and child who live in Georgia and an obligor who resides in North Carolina, the North Carolina court will retain continuing, exclusive jurisdiction over the child support order as long as the obligor continues to reside in North Carolina. North Carolina will lose continuing, exclusive jurisdiction over the case, however, if the obligor moves to Virginia (or back to Georgia), or if the parties file a written consent for another state to assume jurisdiction with respect to the issue of child support.

An issuing court also may lose continuing, exclusive jurisdiction over a child support order if the issuing state’s order is modified by a court of another state pursuant to UIFSA or a law (such as URESA) that is substantially similar to UIFSA. For example, assume (1) that a North Carolina court issued a child support order in 1991; (2) that the obligee and child continued to live in North Carolina; (3) that the obligor moved to New Jersey; (4) that New Jersey has not enacted UIFSA; (5) that the obligee registered the North Carolina order in New Jersey under the New Jersey’s URESA statute in 1992; and (6) that a New Jersey court entered a support order in January, 1994, that expressly modified the registered North Carolina order. Because the North Carolina child support order was modified by the New Jersey court under New Jersey’s URESA statute, North Carolina lost its continuing, exclusive jurisdiction with respect to the 1991 support order even though the obligee and child continued to live in North Carolina and the New Jersey court did not have jurisdiction to modify the North Carolina order under the standards established by UIFSA.

The loss of continuing, exclusive jurisdiction, however, does not automatically divest the issuing state’s court of all jurisdiction with respect to enforcement of a child support order. Instead, loss of continuing, exclusive jurisdiction (at least in cases in which the loss is based on the relocation of the parties) merely "opens the door" for another state to modify the issuing state’s order. Until another state assumes continuing, exclusive jurisdiction in a manner consistent with UIFSA or the federal Full Faith and Credit for Child Support Orders Act and modifies the issuing state’s order, the order of the issuing state remains valid and enforceable in both the issuing state and in other states.

It is crucial to emphasize that so long as the one-order [issued by a state that has lost continuing, exclusive jurisdiction] has not been modified, it is the only support order in existence; it may be registered and enforced in any state until it is properly modified [by a state other than the issuing state] and thereby superseded.

And even when an issuing court loses continuing, exclusive jurisdiction as a result of another court’s modification of its order, the issuing court retains continued jurisdiction to enforce the order with respect to amounts that accrued under the order before it was modified, to enforce nonmodifiable aspects of the order, or to provide other appropriate relief for violations of the order that occurred before the effective date of the modification.

Continued Exclusive Jurisdiction in Alimony Cases

UIFSA establishes a simple, "bright line" rule for determining continuing, exclusive jurisdiction in spousal support or alimony cases.

Section 205(f) of UIFSA provides that a court that issues a spousal support order consistent with the laws of that state (regardless of whether the order was issued in a UIFSA proceeding or under the state’s general spousal support law) has continuing, exclusive jurisdiction over the order throughout the existence of the support obligation. Unlike continuing, exclusive jurisdiction in child support cases, the issuing court’s continuing, exclusive jurisdiction in an alimony case is not terminated if all of the parties move away from the issuing state or consent to modification of a spousal support order by another state.

Therefore, if a North Carolina court enters a spousal support or alimony order, the North Carolina court retains continuing, exclusive jurisdiction with respect to the issue of spousal support, regardless of whether any of the parties still live in North Carolina. Under UIFSA, the North Carolina spousal support order may be registered for enforcement in other states, but the order may be modified only by the North Carolina court that issued the order.

Similarly, if a Florida court enters an alimony or spousal support order and has continuing, exclusive jurisdiction over the order under Florida law, a North Carolina court may not modify the Florida alimony order even if North Carolina has personal jurisdiction over both parties, both parties consent to modification of the order in North Carolina, and the North Carolina court determines that there are "changed circumstances" that would justify modification of the order under North Carolina law.

Section 50-16.9(c) of the General Statutes provides that, when an alimony order has been entered by a court of another state, a North Carolina court "may, upon gaining jurisdiction over the person of both parties in a civil action instituted for that purpose, and upon a showing of changed circumstances, enter a new order for alimony which modifies or supersedes such order for alimony to the extent that it could have been so modified in the jurisdiction where granted." The General Assembly did not repeal G.S. 50-16.9(c) when it enacted UIFSA. Nonetheless, section 205(f) of UIFSA clearly supersedes G.S. 50-13.9(c), and therefore prohibits a North Carolina court from modifying an alimony order entered by another state’s court as long as the issuing court has continuing, exclusive jurisdiction under the issuing state’s law.

Recognition of Out-of-State Support Orders Under UIFSA

UIFSA’s "One Order" System

If (or when) all states enact UIFSA, its provisions regarding the continuing, exclusive jurisdiction of an issuing state’s court with respect to alimony and child support orders eventually will result in a system in which there is one, and only one, valid support order governing an obligor’s duty to support a particular obligee or child. In an "ideal" UIFSA world, if two support proceedings are pending in different states, one of the courts will be required to decline jurisdiction and recognize the support order entered by the other state’s court. If a court has entered a valid support order and has continuing, exclusive jurisdiction under UIFSA, other states will be required to enforce the issuing state’s order and, more importantly, will be precluded from entering a new support order or modifying the issuing state’s order. If State A is authorized to modify a child support order issued by State B, the modified support order issued by State B’s court will supersede State A’s support order prospectively. In each instance, however, UIFSA contemplates the existence of one, and only one, order governing the prospective support obligation of a particular obligor with respect to an individual obligee or child.

By contrast, URESA allowed, or even encouraged, the entry of multiple, inconsistent support orders by courts of different states. As a result, there are probably tens of thousands of cases in which there are two or more orders issued by different states regarding an obligor’s duty to support a particular obligee or child. UIFSA’s drafters therefore recognized that, even "assuming universal enactment of UIFSA, many years will pass before its one-order system will be completely in place."

To facilitate the transition between URESA’s "multiple order" system and UIFSA’s "one order" system, section 207 of UIFSA establishes a series of rules for determining whether a state is required to recognize and enforce a child support order when there are one or more child support orders that have been issued by different states.

Recognition of Child Support Orders Under UIFSA

The first rule is that if only one court has issued an order with respect to an obligor’s duty to support a particular child, that order is the "one order" entitled to recognition under UIFSA.

Therefore, when a valid child support order has been issued by a court in another state and the issuing state’s order is the one and only order with respect to an obligor’s duty to support a child, North Carolina’s courts must recognize and enforce the issuing state’s support order. More importantly, our courts are precluded from entering a second, de novo support order or from modifying the issuing state’s support order except in the limited circumstances allowed under G.S. 52C-6-611.

The remaining rules apply when there are two or more child support orders involving an obligor and the same child.

If two or more courts have issued child support orders with respect to the same obligor and child but only one of the courts has continuing, exclusive jurisdiction under section 205, the order of the court that has continuing, exclusive jurisdiction is the "one order" entitled to recognition under UIFSA.

If two or more courts have issued child support orders with respect to a child and more than one of the courts has continuing, exclusive jurisdiction (for example, if courts in State A and State B have issued child support orders, and the obligee and child continue live in State A while the obligor continues to live in State B), an order issued by a court in the child’s current "home state" must be recognized as the "one order" under UIFSA. The child’s "home state" is defined as the state in which the child lived with a parent or person acting as a parent for at least six consecutive months immediately preceding the filing of a petition under UIFSA. If the child’s home state has not issued a child support order and there are two or more support orders issued by states that have continuing, exclusive jurisdiction, UIFSA requires that the most recent order issued by a state with continuing, exclusive jurisdiction be recognized.

Finally, if there are two or more child support orders with respect to a particular child and none of the issuing courts has continuing, exclusive jurisdiction, UIFSA allows a North Carolina court to enter a new child support order that supersedes the prior orders and becomes the "one order" entitled to recognition under UIFSA

But how and when should a court determine whether a child support order is entitled to recognition under UIFSA? And what happens to multiple child support orders that are not entitled to recognition as the "one order" under UIFSA?

UIFSA does not require the clerk of court or a child support enforcement agency to review every child support case to determine which support orders are entitled to recognition under UIFSA. However, whenever a IV-D agency or a court takes any action to establish, enforce, or modify a child support order on or after January 1, 1996, the first questions that the agency or court should ask are–(1) "Has another court issued a support order with respect to this child?" and, (2) "If another court has issued a support order with respect to this child, is that order entitled to recognition under UIFSA?"

To answer this first question, Chief District Court Judges could adopt local court rules requiring the parties in all child support proceedings (including those under Chapter 50, URESA, or UIFSA) to file an affidavit or provide information with respect to the existence of other child support orders involving the child who is the subject of the pending action.

If there is any indication that there may be more than one child support order regarding an obligor’s duty to support a particular child, the court should make a determination regarding which support order is entitled to recognition under section 207.

If a North Carolina court determines that a child support order previously issued by the district court is not entitled to recognition under UIFSA’s "one order" system, the district court should enter a judgment (1) terminating the obligor’s prospective child support obligation under that North Carolina order, (2) determining whether the obligor owes any arrearages under the order, and (3) recognizing the support order of another state as the "one order" under section 207 of UIFSA.

Similarly, if there are multiple support orders and a North Carolina court determines that a North Carolina support order is the "one order" entitled to recognition under section 207, the North Carolina court should enter a judgment determining that the support order issued by the other state is not entitled to recognition under UIFSA, modify the other state’s order (if the North Carolina court has subject matter jurisdiction under UIFSA and FFCCSOA to modify the out-of-state order), and forward a copy of its judgment to the issuing state’s court along with a request that the issuing state’s court take appropriate action to modify and terminate prospective enforcement of its order.

Recognition of Support Orders Under Federal Law and the U.S. Constitution

It is important to note that, even if a child support order is not entitled to recognition under UIFSA, the "full faith and credit clause" of the U.S. Constitution and the federal Full Faith and Credit for Child Support Orders Act (FFCCSOA) require North Carolina courts to recognize and enforce an out-of-state support order (1) if the obligee is seeking collection of vested, past-due arrearages under the order, or (2) if the order meets the criteria for recognition contained in FFCCSOA.

Article IV, section 1 of the United States Constitution requires every state to give "full faith and credit" to final civil judgments and orders issued by the courts of other states. Full faith and credit means that states must (1) recognize the final judgments rendered by a sister state’s courts, (2) give out-of-state judgments the same force and effect that they have within the issuing state, and (3) enforce out-of-state judgments within the "forum state" (i.e., the state in which enforcement of the out-of-state order is sought). The United States Supreme Court, however, has ruled that the full faith and credit clause does not require a state to recognize or enforce a support order entered by a court in another state if the amount of support payable under the order may be modified by the issuing state’s court. In effect, therefore, the constitutional requirement of full faith and credit applies only with respect to judgments for vested, past-due support arrearages that cannot be modified retroactively under the law of the issuing state.

Section 207 of UIFSA "cannot and does not attempt to interfere with [the] constitutional directive [requiring states to give full faith and credit with respect to vested, past-due] arrearages" that have accrued under support orders entered by other states. Thus, it is clear that a final, nonmodifiable judgment for vested, past-due arrearages under an alimony or child support order "is entitled to full faith and credit, no matter how many other support orders exist" and regardless of whether the particular order that forms the basis for the judgment is entitled to recognition under section 207.

In addition, in any case involving the recognition, enforcement, or modification of a child support order entered by another state’s court, UIFSA must be read in conjunction with the federal Full Faith and Credit for Child Support Orders Act (28 U.S.C. § 1738B).

Although the purposes of UIFSA and FFCCSOA are similar, the federal law and UIFSA are not identical in terms of their definitions, scope, or requirements. Under the supremacy clause of the federal constitution (Article VI, section 2), FFCCSOA supersedes or preempts UIFSA to the extent that UIFSA is inconsistent with the federal statute.

Unlike UIFSA, FFCCSOA does not establish a priority system for dealing with multiple, inconsistent support orders that were issued before the date the federal law was enacted (October 20, 1994). Therefore, if the courts in two different states have issued child support orders against an obligor and both courts would have continuing, exclusive jurisdiction under FFCCSOA based on the continued residence of a party in the issuing state, the federal law requires that states recognize and enforce both orders.

In addition, a state’s authority to modify a child support order of another state may be more limited under the federal law than under UIFSA. Under FFCCSOA, a state may modify an out-of-state child support order if (1) the forum state has jurisdiction to modify the order under the forum state’s law, and the issuing state no longer has continued, exclusive jurisdiction because the issuing state is no longer the child’s home state or the residence of any contestant (including a state or local IV-D agency), or (2) each contestant has filed written consent to the forum state’s making the modification and assuming continued, exclusive jurisdiction over the order. UIFSA also limits a state’s authority to modify an out-of-state child support order when the issuing state’s court has continuing, exclusive jurisdiction. However, because the federal law’s definitions of "contestant" and "continued, exclusive jurisdiction" are broader than the analogous provisions in UIFSA, the federal statute may preclude a state from exercising its jurisdiction to modify an out-of-state child support order even though it would have authority to do so under UIFSA.

Thus, UIFSA sometimes will not provide a complete, self-contained answer with respect to questions involving the recognition and enforcement of support orders entered by other states.

Jurisdictional Limitations
Based on Simultaneous Proceedings or Prior Support Orders

One of the necessary elements of a "one order" system is a mechanism for resolving jurisdictional disputes when there are simultaneous support proceedings pending in different states or when a party attempts to invoke the jurisdiction of one state after another state with continuing, exclusive jurisdiction has entered a support order with respect to the same obligee or child.

Therefore, section 401 of UIFSA explicitly states that a responding state may issue a support order in a UIFSA proceeding if, and only if, "a support order entitled to recognition under this [Act] has not been issued" by a tribunal of another state.

Read literally, section 401 applies only with respect to the entry of a de novo support order by a responding court in a UIFSA proceeding. Nonetheless, if another state has issued a child support order that is entitled to recognition under section 207, the principles underlying UIFSA’s "one order" system should be read to preclude the subject matter jurisdiction of a North Carolina court to enter a second child support order, regardless of whether the new action is brought under UIFSA, URESA, or G.S. Chapter 50. A literal reading of section 401 would encourage, rather than discourage, the issuance of multiple, conflicting child support orders and therefore be inconsistent with UIFSA’s goal of creating a "one order" system. More importantly, if State A has issued a child support order and has continuing, exclusive jurisdiction under FFCCSOA, the issuance of a second child support order by State B would violate the provisions of that act.

When there is no existing order for support that is entitled to recognition under section 207 of UIFSA, but simultaneous support proceedings have been filed in different states, section 204 of UIFSA requires one of the two states to decline jurisdiction.

In actions involving spousal support, the state in which a claim for alimony or spousal support is first filed has exclusive jurisdiction over the matter. If a second proceeding involving alimony or spousal support is filed subsequently in another state, the second state’s court must decline jurisdiction as long as the first state is validly exercising its jurisdiction over the parties and the case.

With respect to child support proceedings, however, the state in which a child support action is first filed may not have exclusive jurisdiction over the issue of support if a subsequent child support proceeding is filed in the child’s "home state." UIFSA requires that a North Carolina court must decline jurisdiction over a child support proceeding if (1) a subsequent support action has been filed in the child’s "home state;" (2) the subsequent support proceeding is filed before the time for responding to the North Carolina action expired; and (3) the contesting party files a timely objection to the exercise of jurisdiction by North Carolina. Similarly, under section 204 of UIFSA, a North Carolina court may not exercise jurisdiction over a child support matter if a support proceeding was filed in another state before the date the North Carolina support action was filed unless (1) North Carolina is the child’s home state; (2) the North Carolina support action was filed before the time expired for responding to the pending support proceeding in the other state; and (3) the contesting party has filed a timely objection to jurisdiction in the other state’s court.

Explaining UIFSA’s preference for the exercise of jurisdiction by the child’s "home state," the Official Comment to section 204 notes that most domestic relations cases involve both child support and issues regarding child custody or visitation, and the federal Parental Kidnapping Prevention Act establishes a preference for home state jurisdiction in child custody proceedings. Therefore, deferring to the jurisdiction of the child’s home state in interstate child support proceedings should allow custody, visitation, and support issues to be heard and resolved in a single forum that presumably has the strongest contacts with the child.

However, if there is no "home state" of the child (or if the first child support proceeding is filed in the child’s "home state"), the state of "first filing" has jurisdiction over the case.

Establishment of Paternity and Support Orders Under UIFSA

UIFSA provides two mechanisms for the establishment of an alimony, child support, or paternity order when the parties live in different states.

First, the obligee (or the party seeking to establish paternity) may file a support or paternity action in the state in which he or she lives (the "forum state") and request the forum state’s court to assert jurisdiction under UIFSA’s long arm provisions over an obligor or defendant who lives in a different state.

Second, an obligee can file an interstate UIFSA proceeding requesting another state (the "responding state") to exercise jurisdiction over the nonresident defendant and enter a paternity or support order against the defendant in the responding state.

In a long arm proceeding, the forum state (the state where the obligee lives) hears and decides the issue of paternity or support and enters an order against the obligor (even though he is a nonresident of the forum state) under the forum state’s own law; the state in which the obligor lives has little or nothing to do with the case. By contrast, in an interstate UIFSA proceeding, the paternity or support proceeding is heard and decided in the responding state (the state where the obligor lives) under the responding state’s law, and the "initiating state" (the state in which the obligee lives) is only minimally involved in the case.

Long Arm Jurisdiction Under UIFSA

Extension of Long Arm Jurisdiction
Under UIFSA

URESA did not contain a long arm procedure allowing an initiating state to exercise personal jurisdiction over a nonresident obligor in a paternity or support proceeding.

Nonetheless, North Carolina law authorized our courts to exercise long arm jurisdiction over certain nonresidents in cases involving paternity, alimony, and child support. For example, in 1979 the General Assembly enacted section 49-17 of the General Statutes, which authorizes North Carolina courts to exercise personal jurisdiction over a nonresident defendant in a civil paternity action if the child whose paternity was at issue might have been conceived as the result of an act of sexual intercourse in North Carolina. In 1981 the General Assembly amended North Carolina’s general long arm statute to authorize the exercise of personal jurisdiction over a nonresident in a child support action under G.S. 50-13.4 if the action arose out of the defendant’s marital relationship within North Carolina and the plaintiff continued to reside in North Carolina following the defendant’s departure from the state.

Thus, the use of long arm jurisdiction in paternity and child support proceedings is neither new nor unique. What is new and different is that UIFSA emphasizes and extends the use of long arm jurisdiction in interstate paternity and support cases.

In some sense, a long arm proceeding against a nonresident is not an "interstate" proceeding. All of the legal proceedings take place in the forum state’s court and the case is decided by a court of the forum state under the forum state’s law. Nonetheless, the drafters of UIFSA felt that the inclusion of a long arm provision in statute dealing with interstate support proceedings was completely "justified because even though the law of only the forum state is applicable, residents of two separate states are involved in the litigation and subject to the personal jurisdiction of the forum."

Moreover, the use of long arm proceedings in interstate paternity and support matters may be a more efficient procedure for establishing a paternity or support order than filing a "two-state" proceeding under URESA or UIFSA. For example, in a long arm proceeding the obligee will be able to appear personally before the court and, in most cases, will be represented by local counsel. In an interstate URESA or UIFSA proceeding the obligee generally will not be able to appear before the responding state’s court, and she generally will be represented by a prosecuting attorney or child support agency of the responding state. In a long arm proceeding, a court in the obligee’s home state will decide the case based on local law. In an interstate proceeding, the court (or administrative agency) of another state will decide the case based on the law of the responding state. If the obligee wants to modify an order entered by a local court in a long arm support proceeding, she can file a motion in the cause requesting modification under the law of the issuing state. If a responding state has entered a support order in an interstate case, the obligee must petition the responding state’s court for modification of the order (if the responding state has continuing, exclusive jurisdiction) and meet the criteria for modification established under the law of the responding state. Long arm proceedings also may be less time-consuming than interstate support proceedings. Given the possible advantages of long arm proceedings in paternity and support matters, the drafters of UIFSA anticipated that the "frequency of . . . two-state [proceedings] involving the participation of tribunals in both states should be substantially reduced by the introduction of [UIFSA’s] long arm statute."

Bases for Exercising Personal Jurisdiction Under UIFSA

Under section 201 of UIFSA, a North Carolina court may exercise personal jurisdiction over a nonresident in a proceeding to establish, enforce, or modify a child support or spousal support order or to determine parentage if–

1. the nonresident defendant is served with summons or notice within North Carolina;

2. the nonresident defendant submits to the jurisdiction of the North Carolina court by consent, by entering a general appearance, or by filing an answer or responsive pleading waiving any contest to the court’s exercise of personal jurisdiction over the nonresident;

3. the nonresident resided in North Carolina with the child for whom support is sought (or for whom parentage is being determined);

4. the nonresident resided in North Carolina and provided prenatal expenses or support for the child involved in the proceeding;

5. the child resides in North Carolina as a result of the acts or directives of the nonresident defendant;

6. the nonresident defendant engaged in an act of sexual intercourse in North Carolina that might have resulted in the child’s conception;

7. the nonresident defendant has asserted parentage of the child in a registry maintained by an agency in North Carolina; or

8. there is any other basis for the exercise of personal jurisdiction over the nonresident that is consistent with the requirements of the state and federal constitutions.

The intent of UIFSA is to ensure that "every enacting state has a long-arm statute [applicable to paternity and support proceedings that is] as broad as constitutionally permitted." However, notwithstanding the assertion by UIFSA’s authors that the factual situations included in section 201 are "constitutionally acceptable grounds upon which to exercise personal jurisdiction over [a nonresident]" in paternity and support proceedings, it is clear that there are still constitutional limitations on a state’s exercise of personal jurisdiction over a nonresident defendant in a paternity or support proceeding under section 201 of UIFSA.

Under the North Carolina Supreme Court’s holding in Dillon v. Numismatic Funding Corp., two elements must be satisfied in order to justify the exercise of personal jurisdiction by a North Carolina court over a nonresident defendant. First, there must be a statutory basis for the exercise of long arm jurisdiction over the nonresident defendant in the proceeding. Second, the nonresident defendant must have sufficient "minimum contacts" with North Carolina so that exercise of long arm jurisdiction does not offend traditional notions of fairness and due process under the state and federal constitutions.

Section 201 of UIFSA clearly satisfies the first prong of the Dillon test by providing a statutory basis for the exercise of long arm jurisdiction over nonresident defendants in paternity and support proceedings in any of the situations specified by subsections (1) through (7). In each instance, however, the court also is required to determine whether the nonresident defendant has at least the "minimum contact" with North Carolina necessary to satisfy the constitutional requirements of due process.

Therefore, the fact that a nonresident defendant formerly lived in North Carolina and provided prenatal expenses or support for a child may constitute a sufficient minimum contact to justify North Carolina’s exercise of long arm jurisdiction over the nonresident in a paternity or support proceeding under section 201(4) of UIFSA. However, the enactment of section 201(4) does not obviate the need for the court to determine whether, in any given case, the exercise of long arm jurisdiction under section 201(4) is consistent with constitutional requirements of due process. For that reason, the decisions of the court of appeals and supreme court under North Carolina’s pre-UIFSA long arm statutes should continue to provide guidance with respect to the exercise of long arm jurisdiction under UIFSA in paternity and support proceedings.

For example, in Harris v. Harris the court of appeals held that North Carolina’s exercise of long arm jurisdiction over a Virginia resident in a child support action was constitutionally valid based on the defendant’s "substantial past and present contacts with North Carolina."

The defendant moved to North Carolina at an early age and lived here until 1974. He and the plaintiff were married here in 1971, had a child here in 1973, and resided in North Carolina as husband and wife for nearly three years before moving to Virginia. While in Virginia, they maintained contacts with family members in North Carolina, visiting them during the various holidays. In 1989, the parties separated and the plaintiff returned to North Carolina with their third child and was joined later by their second child. Since the parties’ separation, the defendant has maintained his contacts with family members in this State, visiting them on at least two occasions. Furthermore, the defendant has established and maintained business contacts in North Carolina and has traveled routinely to this State to participate in business-related activities. Viewed in light of North Carolina’s "important interest in ensuring that non-resident parents fulfill their support obligations to their children living here," . . . the quantity, nature, and quality of the defendant’s past and present contacts with North Carolina support a finding of "minimum contacts" and therefore support the exercise of personal jurisdiction over him in our courts, probably the most convenient forum for this action.

Similarly, in Sherwood v. Sherwood the court of appeals held that a North Carolina court properly exercised long arm jurisdiction over a resident of Delaware in connection with his estranged wife’s claim for alimony. In the Sherwood case, the parties were married in North Carolina, and lived together in North Carolina for approximately two years. Mr. Sherwood abandoned his wife in North Carolina in September, 1973, and moved to Delaware where he was served with process by registered mail in November, 1973.

On the other hand, the supreme court held in Miller v. Kite that a nonresident obligor did not have the constitutionally required minimum contacts with North Carolina to allow a North Carolina court to exercise personal jurisdiction over him in connection with a child support action. In Miller, the obligor’s only contacts with North Carolina were (1) his occasional visits to see his daughter, (2) his payment of child support through checks mailed to the child’s mother at her North Carolina residence, (3) the child’s attending North Carolina public schools, and (4) the child’s living in the state as the result of her mother’s decision to move to North Carolina.

Procedure in UIFSA Long Arm Cases

Service of process in North Carolina long arm proceedings is governed by Rule 4 of the Rules of Civil Procedure. Under Rule 4(j)(1)(c), a defendant who lives outside of North Carolina may be served in a North Carolina paternity or support action by mailing a copy of the summons and complaint to the defendant by registered or certified mail. Process in a North Carolina paternity or support proceeding also may be served outside the state by delivering a copy of the summons and complaint to the defendant personally, by leaving a copy of the summons and complaint at the defendant’s home with a person of suitable age and discretion residing therein, by delivering a copy of the summons and complaint to an agent who has been authorized by the defendant or by law to accept service of process on behalf of the defendant, by acceptance of service by the defendant, or, if the defendant cannot be served personally or by registered or certified mail, then by publication. Personal service of process outside North Carolina may be made by anyone who is not a party to the action and who is not less than twenty-one years of age, or anyone who is authorized to serve process under the law of the state in which service is made.

The complaint in a long arm proceeding involving paternity or support should contain specific allegations that set forth the factual basis for North Carolina’s exercise of personal jurisdiction over a nonresident defendant. In addition, all court orders in long arm proceedings should contain findings of fact regarding the factual basis for asserting long arm jurisdiction over a nonresident defendant, whether the nonresident defendant has entered a general appearance, has otherwise waived any objection to personal jurisdiction, or has had constitutionally sufficient contacts with North Carolina. Detailed findings regarding the defendant’s contacts with North Carolina will make it more difficult for the defendant to collaterally attack a paternity or support order by claiming that North Carolina did not properly exercise personal jurisdiction over him.

The assertion of long arm jurisdiction over a nonresident in a paternity or support proceeding "essentially results in a one-state proceeding." With two exceptions, the other provisions of UIFSA do not apply to paternity or support actions that are brought under the long arm provisions of section 201.

The first exception allows the [court hearing a paternity or support action against a nonresident defendant] to apply the special rules of evidence and procedure [contained in section 316 of UIFSA] in order to facilitate decision-making when [the defendant] resides in another state . . . . * * * The same considerations account for the second exception; the two-state discovery procedures of section 318 are made applicable to a one-state proceeding when a foreign tribunal can assist in that process. In all other situations, the substantive and procedural law of the [forum] state applies. However, to facilitate interstate exchange of information and to enable the nonresident to participate as fully as possible in the proceedings without the necessity of personally appearing in the forum state, [section 202] expressly incorporates the special UIFSA rules on evidence and assistance with discovery procedures to long-arm cases.

Thus, if the mother of an illegitimate child files a paternity and child support action in North Carolina under UIFSA’s long arm provisions against a putative father who lives in Virginia, the court may permit the defendant or witnesses who live in Virginia to be deposed or to testify by telephone, may admit documentary evidence transmitted from Virginia by telecopier, facsimile machine, or other means that do not produce the original writing, and may request a Virginia court to provide assistance in obtaining discovery or evidence in connection with the proceedings (for example, requiring the Virginia defendant to comply with an order requiring him to submit to genetic testing or to provide documentary evidence regarding his income). Similarly, if another state has instituted long arm paternity or support proceedings against an obligor who lives in North Carolina, UIFSA requires North Carolina’s courts to assist the other state in obtaining discovery or evidence from the obligor.

Interstate UIFSA Proceedings to
Establish Orders for Support

If an obligee cannot file (or chooses not to file) a long arm proceeding and the obligor has not been ordered to pay support under an order that is entitled to recognition under UIFSA or FFCCSOA, the obligee may seek a support order against the obligor by filing a "two state" UIFSA proceeding requesting the court of another state (the responding state) to enter an alimony or child support order against the obligor.

Like URESA, UIFSA provides that North Carolina may serve as either the "initiating" state (when the obligee lives in North Carolina) or the "responding" state (when the obligor is subject to personal jurisdiction in North Carolina) in connection with an interstate support proceeding.

UIFSA Proceedings When North Carolina
is the Initiating State

An obligee who lives in North Carolina may initiate an interstate UIFSA proceeding by filing a UIFSA petition with a district court in North Carolina requesting a responding state’s court to establish an alimony or child support order against an obligor who lives in, or is subject to the jurisdiction of, the responding state. If the responding state has enacted UIFSA, the obligee has the option of filing the UIFSA petition directly with the responding state’s court, rather than the district court in North Carolina.

Petitions in UIFSA proceedings must be verified by the petitioner or obligee; must specify the relief sought by the petitioner or obligee; and must provide the names, addresses, and social security numbers of the obligor and obligee, and the name, sex, address, social security number, and date of birth of each child for whom support is sought. In addition, the petition and accompanying documents in all UIFSA proceedings must be substantially similar to the federally-mandated interstate support forms used by state and local child support enforcement (IV-D) agencies.

The petitioner in a UIFSA proceeding is not required to pay a filing fee or other costs in either the initiating state or the responding state. When an "outgoing" UIFSA petition is filed with a district court in North Carolina, the clerk’s office is required to forward three copies of the petition and accompanying documents to the appropriate court or support enforcement agency in the responding state, or, if the clerk cannot determine the identity of the appropriate court or agency, to the responding state’s "information agency" with a request that the petition be forwarded to the appropriate court or agency. Thus, under UIFSA, the role of the initiating state’s court "consists merely of the ministerial function of forwarding the documents" to the responding state. The support order against the obligor is entered by the responding state’s court under the responding state’s law.

What happens when a North Carolina obligee files a UIFSA proceeding against an obligor who lives in a responding state that has not enacted UIFSA? First, the clerk of court in North Carolina (the initiating state) should follow North Carolina’s UIFSA statute with respect to questions involving the content and form of the petition, filing fees, and interstate referral procedures. However, because the outgoing UIFSA petition also must comply with the responding state’s URESA statute, the initiating court also should include a URESA certificate and a copy of North Carolina’s UIFSA statute, if those are required by the responding state’s law. Upon receipt of a UIFSA petition from North Carolina, the responding court in a URESA state should handle the UIFSA petition in the same way that it would handle a URESA petition from another state.

UIFSA Proceedings When North Carolina is the Responding State

Under UIFSA, North Carolina courts are required to serve as responding courts with respect to interstate support proceedings initiated in other states. In general, North Carolina’s old URESA statute applies to all "incoming" interstate support proceedings received before January 1, 1996 (regardless of whether the initiating state has adopted URESA or UIFSA), while UIFSA applies to all interstate URESA or UIFSA petitions received by a North Carolina court on or after January 1, 1996. Because UIFSA does not require reciprocity between North Carolina and other states, it is irrelevant whether the initiating state has enacted UIFSA, URESA, or any other interstate support law.

When North Carolina is the "responding state," a nonresident obligee has the option of filing her petition for support directly with a North Carolina court or with a court in the initiating state. In most cases, however, the North Carolina court will receive an "incoming" URESA or UIFSA petition from the initiating state’s court or state information agency, or from a local IV-D agency that is providing services to the nonresident obligee.

All "incoming" URESA or UIFSA petitions seeking establishment of a support order should be filed in the county in which the obligor resides. If a North Carolina court receives a URESA or UIFSA petition and determines that, because of improper venue, lack of jurisdiction over the obligor, or some other reason, it is not the appropriate court to hear the case, the court is required to forward the petition and accompanying documents to an appropriate court in North Carolina or another state, and to notify the petitioner by first class mail that it has forwarded the case to another court.

Upon receipt of an "incoming" interstate support petition requesting the establishment of an alimony or child support order, the clerk is required (1) to docket the case (without requiring the petitioner or obligee to pay a filing fee or other costs), (2) to notify the petitioner by first class mail regarding the date of filing, and (3) to issue a summons for service on the obligor or respondent. If the obligee has not retained private counsel or requested services from a state or county child support enforcement (IV-D) agency, North Carolina’s UIFSA statute requires the district attorney to represent the nonresident obligee.

The obligee is not required to be physically present before the responding state’s court in order for the court to establish a support order in a UIFSA proceeding. Instead, UIFSA requires the responding state’s court to admit into evidence the obligee’s verified petition and other documents given under oath by a party or witness if the evidence contained in the petition and documents would be admissible and not excluded by the hearsay rule if given in person. In addition, documentary evidence transmitted from another state to the responding state’s court by telephone, telecopier, or fax may not be excluded from evidence based on the means of transmission. The responding state’s court also may permit the nonresident obligee or witnesses residing in other states to be deposed or to testify by telephone or other means. In addition, a responding court may request assistance in obtaining or compelling discovery in connection with an interstate UIFSA proceeding from a tribunal of another state.

If the obligor’s paternity of a child has been adjudicated previously by an order or judgment issued by a court of another state or determined pursuant to the law of another state, UIFSA prohibits the obligor from raising nonparentage as a defense in an interstate support proceeding in North Carolina. In addition, section 305 of UIFSA prohibits a North Carolina court from entering a de novo support order in an interstate support proceeding if a court in another state has entered a support order that is entitled to recognition under section 207.

Except as otherwise noted, however, when a North Carolina court acts as a responding court in a UIFSA proceeding involving the establishment of an alimony or child support order, the court should follow the same procedures and apply the same substantive law that applies in a North Carolina action for alimony or child support. Therefore, in all "incoming" UIFSA proceedings involving the establishment of a child support order, the court must follow North Carolina’s child support guidelines to determine the amount of the obligor’s duty to support his minor children. Similarly, unless North Carolina’s choice of law rules require the court to apply the law of the parties’ last marital domicile, North Carolina’s alimony statutes will govern all "incoming" UIFSA proceedings seeking the establishment of an alimony order on behalf of a nonresident obligee.

After a North Carolina court enters a support order against an obligor in a UIFSA proceeding, the clerk is required to send a copy of the order by first class mail to the obligor, to the obligee, and to the initiating tribunal. If the court orders that the obligor make his child support payments through the clerk’s office, the clerk is required to receive and promptly disburse all support payments in accordance with the terms of the order and the provisions of G.S. 50-13.9.A child support or alimony order entered by a North Carolina court in a UIFSA proceeding may be enforced in the same manner as an alimony or child support order entered under Chapter 50 of the General Statutes.

Interstate Paternity Proceedings
Under UIFSA

Under UIFSA, a child support order may be entered or enforced only if the obligor owes a legal duty of support based on his or her status as the child’s "parent." Therefore, interstate child support proceedings–particularly proceedings seeking support on behalf of illegitimate children–often involve questions regarding the paternity of the child for whom support is sought, and the responding state’s court often is called upon to adjudicate paternity as a prerequisite to entering a child support order against an obligor.

In addition to authorizing the use of long arm proceedings to determine a nonresident defendant’s paternity of a child, UIFSA authorizes a child, the obligee or custodial parent of a child, or the putative father of a child to initiate an interstate proceeding to determine the parentage of a child, regardless of whether the petitioner is seeking support for the child. In other words, although an interstate paternity proceeding usually will be filed by an obligee as part of a UIFSA proceeding for child support, UIFSA allows the child’s mother or a man alleging to be the father of a child to file "a ‘pure’ parentage action in the interstate context, i.e., an action not joined with a claim for support."

The procedure in interstate paternity proceedings is virtually identical to that in interstate support proceedings. In an interstate paternity action under UIFSA, the procedural and substantive law of the responding state, as well as the responding state’s rules regarding choice of law, apply with respect to the adjudication of paternity. Thus, in an interstate paternity proceeding in which North Carolina is the responding state, a North Carolina court should treat the action in exactly the same manner as it would treat a civil paternity action under Chapter 49 of the General Statutes. Therefore, even though UIFSA does not require a petitioner to attach a copy of the child’s birth certificate to the petition, North Carolina law requires that a certified copy of the child’s birth certificate be attached to all UIFSA petitions in which a determination of paternity is sought. Similarly, the provisions of G.S. 8-50.1(b1) will govern the procedures for conducting blood or genetic marker tests and the evidentiary effect of such tests in interstate paternity proceedings in North Carolina; the court will be required to follow North Carolina case law regarding the presumption of paternity in the case of children born to a married woman; and the paternity of a child born out of wedlock will have to be proved by clear, cogent, and convincing evidence as required by G.S. 49-14(b).

Enforcement of Support Orders Under UIFSA

After an alimony or child support order has been established, an obligee often will need to enforce the order against an obligor who lives, works, or owns property in a different state.

UIFSA establishes several different procedures for the enforcement of alimony and child support orders in interstate situations. These procedures apply with respect to any support order that falls within UIFSA’s definition of a support order, regardless of whether the order was entered in a proceeding under URESA, UIFSA, or a state’s general domestic relations law.

Enforcement by the Issuing State

First, UIFSA provides that a court that issues a valid child support order retains continued jurisdiction over the case and the parties, and may enforce the order prospectively against the obligor or his property until (1) the order is modified by a court of another state, (2) the parties file written consent for another state to assume continued, exclusive jurisdiction over the case, or (3) it is determined that the issuing state’s order is not entitled to prospective recognition and enforcement under the "one order" rules established by section 207 of UIFSA.

Thus, as long as a North Carolina court has continuing, exclusive jurisdiction under UIFSA, the court may continue to enforce a North Carolina support order against an obligor after the obligor leaves the state. Of course, if the obligor no longer resides in the issuing state (or if the obligor did not reside in the issuing state when a support order was established under UIFSA’s long arm provisions), it may be difficult for the issuing state’s court to enforce the order if the obligor does not work or own property in the state and refuses to appear before the issuing state’s court. In these situations, although the issuing state’s court has the authority to enforce its own order, the obligee may need to seek enforcement of the order in the state where the obligor lives or works through UIFSA’s "direct enforcement" provisions (discussed below) or by registering the order for enforcement in the other state under section 601 of UIFSA.

What happens when a North Carolina court issues a support order and the obligee moves to another state but the obligor still lives or works in North Carolina (or is otherwise still subject to the jurisdiction of the North Carolina court)? Section 206 of UIFSA authorizes the obligee to file a UIFSA petition requesting the North Carolina court to enforce the North Carolina support order against the obligor or his property. Similarly, if another state has issued an alimony or child support order and the obligor still lives in the issuing state, an obligee who lives in North Carolina may file an interstate proceeding in North Carolina under section 206 requesting that the issuing state enforce the support order against the obligor. In responding to a section 206 proceeding, the issuing state’s court may enter an order enforcing the support order and granting the obligee any remedy that would be available under the issuing state’s law for the enforcement of a support order.

Registration for Enforcement

UIFSA also provides that an alimony or child support order (or an income withholding order in a support case) issued by a tribunal of another state may be registered in North Carolina for the purpose of enforcing the order against the obligor or his property within this state.

Procedure for Registration of
Out-of-State Support Orders

In order to register an out-of-state alimony or child support order for enforcement in North Carolina, the obligee is required to send the following documents and information to a court in North Carolina –

· a letter of transmittal requesting registration of the order for enforcement

· two copies, including one certified copy, of the order for which registration is sought, and copies of all orders modifying the order

· a sworn statement by the obligee or a certified statement by the custodian of the records showing the amount of any arrearage under the order

· the name of the obligor, and (if known) the obligor’s address and social security number, the name and address of the obligor’s employer, the source of any other income of the obligor, and a description and location of any property owned by the obligor in North Carolina that is not exempt from execution

· the name and address of the obligee and the agency or person to whom support payments are to be remitted.

A petition or motion seeking enforcement of a registered order may be filed at the time the order is registered for enforcement or after a registered support order is confirmed. The petition must state the grounds for the remedy that is being sought.

When a North Carolina court receives a request for registration of an out-of-state support order, the clerk of court is required to file the order and other documents, docket the case, and send a notice of registration, along with a copy of the registered order and other documents filed by the obligee, to the obligor by first class mail, by registered or certified mail, or by any means of personal service authorized under Rule 4 of the Rules of Civil Procedure. The notice must inform the obligor–

· of the amount of arrearages alleged to be owed under the registered order

· that, as of the date of registration, the registered order is enforceable in the same manner as a support order issued by a North Carolina court

· that the obligor may request, within twenty days after the date of mailing or personal service of the notice, a hearing to contest the validity or enforcement of the registered order

· that failure to contest the validity or enforcement of the registered order within twenty days will result in confirmation of the order and enforcement of the order and the alleged arrearages, and will preclude further contest to the order with respect to any matter that could have been asserted.

In order to contest the validity or enforcement of a registered order, the obligor must file a request for hearing with the district court within twenty days of the date of mailing or personal service of the notice of registration. If the obligor files a timely request for a hearing challenging registration or enforcement of the order, the clerk is required to schedule the matter for hearing and to give notice to the parties by first class mail of the date, time, and place of the hearing.

At the hearing, the obligor may request that the district court judge vacate the registration, may contest the amount of arrearages sought under the registered order, may contest the enforcement remedy being sought by the obligee, or may assert a defense against his alleged noncompliance with the registered order. However, the obligor is not permitted to contest the fundamental provisions of the registered order. Nor may the obligor seek modification of the registered order unless he meets the requirements of section 611. Instead, the only defenses that an obligor may raise in the registering state’s court in response to the registration for enforcement of an out-of-state support under UIFSA are–

· the issuing court’s lack of personal jurisdiction over the obligor

· fraud in obtaining the order

· modification, suspension, or termination of the order by a later order

· issuance of a stay of the order by the issuing court pending appeal

· full or partial payment of the arrearages under the order

· that the obligee is not entitled to a specific enforcement remedy under the registering state’s law

· that the applicable statute of limitations precludes enforcement of some or all of the arrearages.

If the obligor fails to contest the validity or enforcement of the registered order in a timely manner, the registered order is confirmed by operation of law at the expiration of the twenty-day period. If the obligor presents evidence establishing one of the defenses allowed under section 606(a), the registering state’s court may vacate registration of the order, may stay enforcement of the order, may continue the proceeding to permit the introduction of additional evidence, or may issue any other appropriate order. If the obligor fails to establish a valid defense to registration or enforcement of the order, the registering state’s court is required to issue an order confirming the registered order. Confirmation of a registered order, either by operation of law or court order, validates the terms of the registered order and the amount of arrearages alleged to be owed under the order. Confirmation also precludes any further contest with respect to any matter that could have been asserted at the time of registration.

Enforcement of Registered Support Orders

Although the registration procedure under UIFSA is similar to URESA’s registration procedure, the effect of registering a support order for enforcement under UIFSA is radically different from the registration of an out-of-state support order under URESA.

Under RURESA, once an order of State A is registered in State B, it becomes an order of the latter. Under UIFSA, the [registered] order continues to be a State A order, which is to be enforced [but not modified] by State B. Although State B’s rules of evidence and procedure apply . . . the order remains subject to the continuing, exclusive jurisdiction of State A as long as [State A has continuing, exclusive jurisdiction.] * * * While a foreign support order is to be enforced and satisfied in the same manner as if it had been issued by a tribunal of the registering state, the order to be enforced remains an order of the issuing state. Conceptually, the responding state is enforcing the order of another state, not its own order. Any request for relief that requires application of the continuing, exclusive jurisdiction of the issuing tribunal must be sought in the issuing forum.

Section 603 of UIFSA "mandates enforcement of the registered order" in the registering state. The registering state’s court is required to "recognize and enforce, but may not modify," an order that has been registered for enforcement in the registering state.

A support order that is registered for enforcement under UIFSA "is enforceable in the same manner and is subject to the same procedures" as a support order issued by a court of the registering state. Thus, the law of the registering state will govern the procedures and remedies available to enforce a registered support order. However, if the applicable statute of limitations of the issuing state is longer than the registering state’s statute of limitations with respect to enforcement or collection of support arrearages, the registering state must apply the longer statute of limitations in enforcing the registered order. The law of the issuing state, rather than the registering state, applies with respect to the "nature, extent, amount, and duration of current payments and other obligations of support and the payment of arrearages under the [registered] order."

Thus, if an Iowa child support order is registered for enforcement in North Carolina, and Iowa law requires the obligor to pay support under the order until the child’s twenty-first birthday, a North Carolina court enforcing the Iowa order would be required to enforce the obligor’s duty of support until the child’s twenty-first birthday even though the obligor would not be required under North Carolina law to pay child support for a twenty-year-old child.

"Direct Enforcement" of
Income Withholding Orders

In 1984 Congress mandated that all states adopt procedures authorizing the enforcement of out-of-state income withholding orders issued in child support cases without the necessity of registering the out-of-state support order under URESA.

In response, the General Assembly enacted G.S. 110-136.3(d), under which a nonresident obligee may enforce an out-of-state income withholding order for child support against an obligor who is employed in North Carolina by filing a petition for interstate income withholding with a North Carolina court. Under G.S. 110-136.3(d), the law of the issuing state applies with respect to the obligee’s entitlement to the remedy of income withholding, while North Carolina’s law governs the procedures for implementing income withholding in interstate cases. In interstate IV-D cases, a state or local child support enforcement agency implements income withholding by serving an "advance notice of withholding" on the obligor and an administrative "notice of obligation to withhold income" on the obligor’s employer in accordance with the procedures set forth in G.S. 110-136.4. In non-IV-D cases, income withholding in interstate cases is implemented by the issuance of a court order for income withholding and service of a "notice of obligation to withhold income" under G.S. 110-136.5. In both IV-D and non-IV-D cases, employers are required to send all child support payments withheld from the wages or salaries of employees to the clerk of court, and the clerk is required to distribute the payments to the Department of Human Resources (in IV-D cases) or to the obligee (in non-IV-D cases).

The enactment of G.S. 110-136.3(d) and similar statutes in other states made it possible to enforce child support income withholding orders against nonresident obligors without the necessity of filing a URESA action or registering the support order in the state in which the obligor was employed. Nonetheless, these interstate income withholding statutes stopped far short of allowing an issuing state’s court to enforce an income withholding order directly against the wages or salary of an obligor who was employed in another state.

Therefore, in its recommendations for improving interstate child support procedures, the U.S. Commission on Interstate Child Support recommended that Congress enact legislation requiring states to adopt "direct enforcement" procedures that would require all employers within the state to comply with out-of-state income withholding orders that are served on an employer directly by a court or agency of another state. Congress, however, did not enact a "direct enforcement" mandate in response to the Commission’s recommendation. Nonetheless, provisions for "direct enforcement" of out-of-state income withholding orders were included by NCCUSL in the new UIFSA statute.

Under section 501 of UIFSA, an income withholding order issued in another state may be sent by first class mail to an employer in a UIFSA state without the obligee’s having to file an interstate URESA or UIFSA petition or register the order for enforcement under UIFSA.

If the out-of-state income withholding order "appears regular on its face," an employer doing business in a UIFSA state must treat the order as if it had been issued by a court of the employer’s state, provide a copy of the order to the obligor, and distribute the funds as directed in the order. The law of the state in which the employer is doing business (the "forum state") applies with respect to the procedures for income withholding, including the definitions of employer, income, and disposable wages; the maximum amount that may be withheld from an obligor’s disposable wages; the amount of the processing fee that may be charged by the employer; the procedures for contesting income withholding; the defenses that may be asserted by an obligor who contests income withholding; and the remedies that may be imposed against an employer who fails to comply with an income withholding order.

If an employer in a UIFSA state refuses to comply with an out-of-state income withholding order, the obligee may seek any sanctions or remedies against the employer that are imposed for failure to comply with an income withholding order issued by a court of the forum state. In order to do so, however, the obligee will have to seek relief by filing an action against the employer in the forum state or by registering the order for enforcement in the forum state.

If an obligor decides to contest the "direct enforcement" of an out-of-state income withholding order, UIFSA provides that he may do so in the same manner as if the income withholding order had been issued by a court or agency of the forum state. Because the notice regarding direct enforcement of the out-of-state income withholding order is somewhat analogous to the advance notice of intent to withhold served on an obligor in IV-D cases, it can be argued that the procedures set forth in G.S. 110-136.4 for contesting income withholding in IV-D cases should apply to an obligor’s contest to direct enforcement of an out-of-state income withholding order under section 501, regardless of whether the obligee is receiving services from a IV-D agency in North Carolina or the issuing state. If so, section 501 of UIFSA and G.S. 110-136.4 require the obligor to request a hearing before a North Carolina court (rather than a court of the issuing state) within ten days from the date the obligor received a copy of the income withholding order from the employer. The obligor must serve a copy of the request for hearing on the obligee, the person or agency that is designated to receive payments under the income withholding order, and any support enforcement agency that is providing services to the obligee. In order to contest enforcement of the out-of-state income withholding order, the obligor must prove that the withholding of his wages or salary under the out-of-state order is due to a "mistake of fact" as defined in G.S. 110-129(10).

"Direct Enforcement" by IV-D Agencies

UIFSA establishes additional procedures for the interstate enforcement of support orders through state and local support enforcement (IV-D) agencies.

Under section 502 of UIFSA, an obligee seeking enforcement of a support order or an income withholding order in a support case may send a certified copy of the order to a IV-D agency in a UIFSA state. Upon receipt of an out-of-state order, the IV-D agency in a UIFSA state may enforce the order through any administrative procedures that are available under the law of the responding state. For example, rather than registering an out-of-state support order in North Carolina for enforcement by a North Carolina court, a nonresident obligee may request a state or local IV-D agency in North Carolina to initiate administrative actions to enforce the out-of-state order, including income withholding, administrative revocation of the obligor’s licensing privileges, or attachment of the obligor’s state income tax refund. If the obligor does not contest direct administrative enforcement of the out-of-state order, the IV-D agency is not required to register the order for enforcement. If, however, the obligor contests the validity or enforcement of the out-of-state order, the agency must register the order for enforcement by the responding state’s tribunal under sections 601 through 608 of UIFSA.

Modification of Support Orders Under UIFSA

Perhaps the most significant difference between URESA and UIFSA is the way in which the two laws deal with the modification of alimony or child support orders issued by the courts of other states.

Under URESA, a support order entered by a responding state’s court did not modify or supersede a support order previously entered by a court of another state unless the responding state’s order expressly stated that it modified or superseded the prior order. In other words, a URESA order generally was considered to be a de novo order that did not affect the validity or enforceability of a prior support order issued by another state. However, URESA also allowed responding courts to modify a support order issued by another state if the order issued by the responding court in a URESA proceeding expressly provided that it modified a prior support order issued by another state. In addition, URESA provided that, after an out-of-state support order was registered in a responding state, the registered order could be modified by a court of the responding (or registering) state to the same extent and under the same conditions as a support order issued under the law of the registering state.

By contrast, courts in states that have enacted UIFSA are prohibited from modifying alimony or child support orders issued by courts of other states (regardless of whether the issuing state has enacted UIFSA) when the issuing state has continuing, exclusive jurisdiction over the case under the criteria established by UIFSA.

Nonetheless, the drafters of UIFSA recognized that there are some interstate cases in which parties may need to request modification of a child support or alimony order, and that there are some circumstances in which it is appropriate for a court to modify a child support order that was issued by a state that no longer has continuing, exclusive jurisdiction over the case. Therefore, UIFSA establishes two interstate procedures by which a party may seek modification of a child support order.

Modification by the Issuing State

Under UIFSA, a court that issues an alimony or spousal support order retains continuing, exclusive jurisdiction over the order throughout the existence of the spousal support obligation. This means that the issuing court retains the exclusive authority to modify it own spousal support order, and courts in other states are precluded from modifying the order as long as the issuing court has continuing, exclusive jurisdiction over the order under the law of the issuing state.

Similarly, UIFSA provides that a court that has issued a child support order that is entitled to recognition under section 207 retains continuing, exclusive jurisdiction to modify the order until (1) the individual parties file written consent authorizing another state to assume continuing, exclusive jurisdiction over the issue of support, or (2) the issuing state’s order is modified under the law of a sister state.

What happens, though, when one of the parties no longer lives in the issuing state and wants to request modification of an alimony or child support order? If the issuing state’s court has continuing, exclusive jurisdiction over an alimony or child support order, the nonresident party has at least two options. First, the party can return to the issuing state (or retain counsel in the issuing state) and file a motion for modification with the issuing court. UIFSA, however, provides a second option. An obligor or obligee who no longer lives in the issuing state may file an interstate proceeding under section 206 of UIFSA asking the issuing state’s court to exercise its continuing, exclusive jurisdiction to modify a child support or alimony order. For example, assume that a South Carolina court entered an alimony order, and the obligor now lives in North Carolina. Under UIFSA, the South Carolina court retains continuing, exclusive jurisdiction with respect to modification of its alimony order. The obligor cannot register the South Carolina alimony order for modification in North Carolina and North Carolina’s courts do not have subject matter jurisdiction to modify the South Carolina order. The obligor, however, can file an interstate proceeding in North Carolina under section 206 of UIFSA asking the South Carolina court to modify the alimony order.

In a proceeding under section 206, the motion for modification is heard by the court that issued the support order, and the law of the issuing state governs modification of the order. However, the issuing state may allow the nonresident party to introduce evidence or obtain discovery under the procedures set forth in sections 316 and 318 of UIFSA.

A nonresident obligee who files a UIFSA petition under section 206 seeking modification of a North Carolina support order may be represented by the district attorney if she has not retained private counsel or is not receiving services from a IV-D agency. On the other hand, the district attorney is not required to represent a nonresident obligor who files a UIFSA petition seeking modification of a North Carolina support order. However, under G.S. 52C-3-307(a), an obligor who files a UIFSA petition seeking modification of a North Carolina support order may be entitled to legal services from a state or county IV-D agency.

Modification of Registered
Child Support Orders

In cases involving an alimony or spousal support order, the issuing state’s court retains the exclusive authority to modify the order. Therefore, UIFSA does not allow an out-of-state alimony or spousal support order to be registered for modification in another state.

UIFSA, however, authorizes either party to register an out-of-state child support order for modification in another state if (1) the issuing state’s court has lost continuing, exclusive jurisdiction over the order, and (2) UIFSA’s additional requirements relating to registration for modification have been satisfied.

Under section 609 of UIFSA, the obligor, the obligee, or a support enforcement agency may register an out-of-state child support order for modification by a North Carolina court. In order to register the out-of-state order for modification, the petitioner must follow the same procedures that he or she would follow under section 602 for registering the order for enforcement. A petition seeking modification of the registered order may be filed at the time the order is registered or any time after the order is registered.

Section 611 of UIFSA, however, significantly limits the authority of the registering state’s court to modify a registered, out-of-state child support order. In order to modify a child support order that is registered in North Carolina, a North Carolina court must find that one of the following situations exists–

1. The North Carolina court has personal jurisdiction over an individual party or the child, and all of the individual parties have filed a written consent with the issuing state’s court authorizing the North Carolina court to modify the order and assume continuing, exclusive jurisdiction; or

2. The petitioner is not a resident of North Carolina, the North Carolina court has personal jurisdiction over the respondent, and neither the obligor, the obligee, nor the child lives in the issuing state.

Thus, absent the written consent of the individual parties authorizing the registering court to assume jurisdiction with respect to modification of a child support order, UIFSA requires that the party seeking modification of a registered child support order

. . . be a nonresident of the forum in which modification is sought [i.e., the registering state] and the respondent to be subject to the jurisdiction of that forum. This contemplates that the issuing state has lost continuing, exclusive jurisdiction and the obligee may seek modification in the obligor’s state of residence, or that the obligor may seek a modification in the obligee’s state of residence. This restriction attempts to achieve a rough justice between the parties in the majority of cases by preventing a litigant from choosing to seek modification in a local court to the marked disadvantage of the other party. For example, an obligor visiting the children at the residence of the obligee cannot be validly served with citation accompanied by a motion to modify the support order. Even though such personal service of the obligor in the obligee’s home state is [constitutionally permissible], the motion to modify does not fulfill the requirement of being brought by "a [petitioner] who is a nonresident of this State . . . ." The obligee is required to make that motion in a state other than that of his or her residence which has personal jurisdiction over the obligor. Most typically this will be the state of residence of the obligor. Similarly, fairness requires that an obligee seeking to modify or modify and enforce the existing order in the state of residence of the obligor will not be subject to a cross-motion to modify custody or visitation merely because the issuing state has lost its continuing, exclusive jurisdiction over the support order. The obligor is required to make that motion in a state other than that of his or her residence; most likely, the obligee’s state or residence.

If a North Carolina court has jurisdiction to modify a registered out-of-state child support order under section 611 of UIFSA, modification of the registered order "is subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by a tribunal of [the registering state] and the [modified] order may be enforced and satisfied in the same manner [as a child support order issued by a court of the registering state]." Thus, when a North Carolina court is asked to modify a registered, out-of-state child support order and has subject matter jurisdiction to modify the order under section 611, the district court must find that there has been a substantial change of circumstances warranting modification of the order under G.S. 50-13.7(b).

The registering state’s court, however, may not modify any aspect of a registered child support order that could not be modified under the law of the issuing state. For example, assume that (1) the obligor’s duty of support under a registered child support order terminates when the child reaches the age of eighteen, (2) the law of the issuing state does not allow the court to order an obligor to pay child support beyond the child’s eighteenth birthday, and (3) the registering state’s law provides that child support payments continue until the child’s twenty-first birthday. Under section 611(c), because the issuing state’s law would not allow the issuing court to extend the obligor’s duty of support beyond the child’s eighteenth birthday, the registering state’s court may not modify the issuing state’s order to require the obligor to support the child beyond the child’s eighteenth birthday.

When the registering state’s court modifies a registered child support order under section 611, the modified order becomes the "one order" entitled to recognition under section 207 of UIFSA, and the registering state becomes the tribunal with continuing, exclusive jurisdiction over the issue of support. A certified copy of the modified order must be filed with the court that issued the original support order and with each court or tribunal with which the original order was registered. After a child support order is modified under section 611, the issuing state and other UIFSA states in which the modified order is registered must recognize the continuing, exclusive jurisdiction of the court that issued the modified order and must enforce the modified order.

What happens if State A has issued a child support order and the obligor, the obligee, and the child have all moved to State B? The Official Comment to section 611 of UIFSA indicates that neither party is allowed to register State A’s child support order for modification in State B because section 611 states that the party seeking modification may not be a resident of the state in which modification is sought.

. . . if both parties have left the issuing state and now reside in the same state, [section 611] is not applicable. Such a fact situation does not present an interstate matter and UIFSA does not apply.

However, there may be a way of getting around this procedural problem. If the court that issued a child support order no longer has continuing, exclusive jurisdiction under UIFSA or FFCCSOA and both of the individual parties live in North Carolina, G.S. 50-13.7(b) may provide a jurisdictional basis for a North Carolina court to hear a civil action seeking modification of the out-of-state child support order. And as long as the North Carolina court’s modification of the out-of-state child support order under G.S. 50-13.7(b) is not inconsistent with the provisions of UIFSA or FFCCSOA, the modified order should be entitled to recognition and enforcement under section 207 of UIFSA as the "one order" governing the obligor’s duty of support.

Assessing the Potential Impact
of UIFSA: An Analysis of
North Carolina Case Law

How will UIFSA change the way that North Carolina courts handle and decide interstate support cases? One way to answer this question is to examine how several North Carolina cases might have been decided under UIFSA.

In the case of Stephens v. Hamrick, a South Carolina court entered an order in April, 1968, requiring Mr. Hamrick to pay $40 per week in child support to his ex-wife (Ms. Stephens). Mr. Hamrick, Ms. Stephens, and the children lived in South Carolina at the time the 1968 order was entered. Ms. Stephens and the children subsequently moved to Florida, and Mr. Hamrick moved to North Carolina. Ms. Stephens filed a URESA action in Florida. The URESA case was forwarded to a court in North Carolina, and the North Carolina court entered a de novo order in November, 1968, requiring Mr. Hamrick to pay $75 per month in child support.

Mr. Hamrick "substantially complied" with the North Carolina order. Eighteen years later, Ms. Stephens registered the South Carolina child support order in North Carolina and sued her ex-husband for $18,825 in arrearages (the difference between the child support Mr. Hamrick paid under the North Carolina order–$75 per month–and the amount of support he was required to pay under the South Carolina order–$40 per week).

The trial court dismissed Ms. Stephens’ action. On appeal, however, the court of appeals concluded that the North Carolina URESA order did not modify or supersede the prior South Carolina child support order. The court of appeals reasoned that URESA remedies were in addition to other available remedies and that, under G.S. 52A-21, a support order issued by a responding court under URESA did not modify or supersede a prior support order of another state unless the responding court expressly indicated that it was modifying the prior order.

Therefore, there were two, concurrent, valid child support orders against Mr. Hamrick–the 1968 South Carolina order and the North Carolina URESA order–requiring him to pay two different amounts of support for his children. Mr. Hamrick had paid everything (or virtually everything) that he was required to pay under the URESA order, and was entitled to credit against his South Carolina support obligation for the payments he made under the URESA order. Nevertheless, Ms. Stephens retained the right to collect the difference between Mr. Hamrick’s payments and the amount of support due under the South Carolina order.

How would the Stephens case have been decided under UIFSA? First, the South Carolina court would have lost continuing, exclusive jurisdiction over the issue of support when the children and the parties moved from South Carolina to Florida and North Carolina. However, at the time that the North Carolina court received Ms. Stephens’ petition, the South Carolina order would have been the only support order regarding Mr. Hamrick’s duty to support the children. Therefore, the South Carolina order would have been the "one order" entitled to recognition and enforcement under UIFSA even though South Carolina had lost continuing, exclusive jurisdiction over the case.

Second, in responding to Ms. Stephens’ interstate support proceeding, the North Carolina court would have been required to register and enforce the South Carolina child support order rather than issuing a de novo support order. If the North Carolina court had enforced the registered order against Mr. Hamrick from 1968 through 1986, Ms. Stephens would have received almost $100 more in child support each month; she could have used this money to support her children as they were growing up; she would not have had to wait and seek an $18,825 judgment against her ex-husband for child support arrearages; and she would not have lost the right to collect the child support arrearages that accrued between 1968 and 1976. If Mr. Hamrick failed to comply with the terms of the registered order, UIFSA would have authorized the North Carolina court to enforce the South Carolina order by holding Mr. Hamrick in contempt, issuing an income withholding order against Mr. Hamrick and his employer, or granting any other remedy that could have been used to enforce a North Carolina child support order.

Third, even though the South Carolina court lost continuing, exclusive jurisdiction, UIFSA would have prohibited the North Carolina court from modifying the registered South Carolina order unless (1) Ms. Stephens decided to seek an increase in child support payments under the order and registered the order in North Carolina for modification, or (2) Mr. Hamrick and Ms. Stephens filed a written consent with the South Carolina court authorizing a North Carolina court to assume jurisdiction and modify the registered order. Under UIFSA, Mr. Hamrick would not have been able to register the South Carolina order for modification in North Carolina, because section 611 requires that the party seeking modification of a registered order be a nonresident of the registering state. However, Mr. Hamrick could have sought modification of the order by filing a motion in the cause in the South Carolina action, by filing an interstate proceeding under section 206 asking the South Carolina court to modify the order, or (if Florida had enacted UIFSA) by registering the South Carolina order for modification in Florida. If either Florida or North Carolina had issued a valid support order modifying the South Carolina decree, the modified order would have become the "one order" entitled to recognition under UIFSA, and the state that issued the modified order would have become the state with continuing, exclusive jurisdiction over the modified order.

Under no circumstances, however, would Mr. Hamrick have been subject to two different support orders issued by two different courts requiring him to pay two different amounts of support for his children.

The case of Asher v. Asher involved a situation that was slightly different from Stephens. Ms. Asher lived in North Carolina with her two children; her husband lived in Maryland. Ms. Asher filed a URESA petition in North Carolina seeking child support. The petition was forwarded to a responding court in Maryland, and the Maryland court entered an order in July, 1981, requiring Mr. Asher to pay $400 per month in child support. In December, 1981, Ms. Asher filed a civil action in the district court in Vance County, North Carolina, asking the North Carolina court to modify the URESA order entered by the Maryland court and increase the amount of Mr. Asher’s child support obligation. The trial court granted summary judgment in favor of Mr. Asher on the issue of "changed circumstances" under G.S. 50-13.7. The court of appeals reversed and remanded the case for trial.

If the Asher case had been decided under UIFSA, the district court would not have had subject matter jurisdiction to modify the Maryland support order. When Ms. Asher filed the second action in North Carolina, the July, 1981, Maryland support order was the only order governing Mr. Asher’s obligation to support his two children. Therefore, even though North Carolina was the home state of the children, the Maryland support order would have been the "one order" entitled to recognition and enforcement under section 207 of UIFSA, and because Mr. Asher still lived in Maryland, the Maryland court would have retained continuing, exclusive jurisdiction with respect to modification of the order.

If Ms. Asher wanted to modify the Maryland order, she could have filed a section 206 UIFSA petition in North Carolina requesting the Maryland court to modify the Maryland order pursuant to Maryland law. Under UIFSA, however, she could not have registered the Maryland order for modification in North Carolina without the written consent of Mr. Asher, and could not have filed a non-UIFSA action in North Carolina seeking modification of the July, 1981 order as long as the Maryland court retained continuing, exclusive jurisdiction.

The decision in Pieper v. Pieper also would have been different if the case had been decided under UIFSA rather than URESA. In Pieper, the court of appeals and the supreme court held that, under URESA, a nonresident obligee could not register an Iowa child support order for enforcement against an obligor who lived in North Carolina because the Iowa order imposed a support obligation that could not have been imposed on the obligor under North Carolina law.

In Pieper, an Iowa court entered a divorce decree in 1975 awarding custody of the parties’ son to Ms. Pieper and ordering Mr. Pieper to pay child support until his son reached the age of eighteen. The Iowa court subsequently modified the order to require Mr. Pieper to pay child support until his son’s twenty-second birthday, provided that his son was attending a college, university, or area school. Sometime during the proceedings, Mr. Pieper moved from Iowa to North Carolina.

Ms. Pieper registered the Iowa support order in North Carolina pursuant to North Carolina’s URESA statute. Mr. Pieper contested registration and enforcement of the Iowa order. He argued, first, that the only duties of support enforceable under URESA are those imposed under the law of the responding state, and second, that because an obligor could not be required under North Carolina law to support a child who was over the age of eighteen and attending college, the Iowa order could not be registered and enforced under North Carolina’s URESA statute. Both the court of appeals and the supreme court agreed.

Under UIFSA, however, the Iowa support order in Pieper could have been registered and enforced in North Carolina even though it required Mr. Pieper to pay support until his son’s twenty-second birthday. Under section 604, the law of the issuing state governs the terms of a registered support order. The Iowa support order, therefore, clearly would fall within UIFSA’s definition of a child support order, and because the Iowa court would have retained continuing, exclusive jurisdiction over the order based on Ms. Pieper’s continued residence in Iowa, the Iowa order would have been entitled to recognition and enforcement in North Carolina under UIFSA’s "one order" system.

Therefore, Ms. Pieper clearly would have been entitled to register the Iowa support order for enforcement in North Carolina under sections 601 and 602 of UIFSA. The registered order would have remained, however, an Iowa support order issued pursuant to Iowa law. In enforcing the Iowa order, the North Carolina court would have applied North Carolina law to determine how the order could be enforced, but the law of the issuing state (Iowa) would have governed "the nature, extent, amount, and duration of current payments and other obligations of support and the payment of arrearages under the order." The North Carolina court, therefore, could not have refused to recognize or enforce the Iowa order on the ground that it imposed a support obligation beyond that authorized under North Carolina law. Nor could a North Carolina court have modified the Iowa order to shorten the duration of Mr. Pieper’s support obligation.

Conclusion

The establishment and enforcement of alimony and child support obligations in interstate cases is difficult at best, and neither UIFSA nor any other statute can ever hope to eliminate all of the problems and barriers encountered in interstate support proceedings.

The transition from URESA to UIFSA’s "one order" system will not be quick or easy. It may be several years before UIFSA is enacted by all fifty states, and even longer before the multiple order system of URESA completely disappears. In addition, the effectiveness of UIFSA will depend to a great extent on the ability and willingness of thousands of individual judges to apply UIFSA consistently, uniformly, and correctly. Courts also will be required to decline or give up jurisdiction over support proceedings in certain cases, to enforce support orders entered by other states in the same way they would enforce their own support orders, and to refrain from modifying out-of-state support orders when the issuing state has continuing, exclusive jurisdiction.

The enactment of UIFSA, however, represents a significant improvement over URESA, and should provide IV-D agencies and courts with better tools that undoubtedly will facilitate the establishment and enforcement of alimony and child support obligations in interstate cases.

Notes

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©1996

Institute of Government. The University of North Carolina at Chapel Hill

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