Why do I keep hearing about
this convention?
In early 2007, the Hague Conference on Private International Law called
for a convention to improve cooperation between countries to effectively
recover international child support and other family maintenance. In November
of 2007, The Hague Convention on the
International Recovery of Child Support and Other Forms of Family Maintenance
(“the Convention”) released a list of recommendations and a uniform law for
participating countries, all aimed at the collection and disbursement of
international child support. The Convention was signed by all participating
parties, including the United States (US); however, this would not be effective
until further action was taken by the US Senate.
In 2008, the Uniform Law Commission approved amendments to the
2001 Uniform Interstate Family Support Act (UIFSA), which is now known as
“UIFSA 2008.” The Uniform Law Commission, together with the Office of Child
Support Enforcement (OCSE) amended UIFSA to integrate the appropriate
provisions of the Convention. Later that same year, the Convention was submitted to the US Senate. While the US was a
participant in the Convention and signed the Convention agreement, the US
participants could not bind the US to the rules of the Convention; the
implementation of the Convention would require a signed treaty between the US
and other foreign nations, and only the US Senate can ratify a treaty. The
Convention’s first stop in the US Senate was with the US Senate Committee on
Foreign Relations. The Senate Committee reviewed the report, held hearings on
the implications of the Convention, and, in January 2010, issued the
recommendation that the US Senate ratify the Convention. Later that year, on
September 29, 2010, the US Senate passed the Convention by unanimous consent,
and attached it to the Preventing Sex Trafficking and Strengthening Families
Act.
Implementing legislation for the
Convention and for UIFSA 2008 was included in the Preventing Sex Trafficking
and Strengthening Families Act of 2014. The law required that for a state to
continue to receive federal child support enforcement funding, the state must
verbatim adopt all of the UIFSA 2008 amendments, including the Hague Treaty supporting
legislation by the end of the state’s legislative term ending in 2015.
As of 2010, states could be working under one of four different versions
of UIFSA- 1992, 1996, 2002, or 2008. The different versions made it difficult
to work with each other on child support cases involving multiple states. This
inconsistency hindered states’ abilities to obtain child support payments
across state borders, as states had to know which state was under which version
of UIFSA, and proceed accordingly while still acting under its own version of
UIFSA. \
After a year’s worth of work, and debate, Michigan passed UIFSA 2008 and
the Convention in December 2015. When all of the states passed UIFSA 2008 and
the Convention, OCSE coordinated with other federal departments to get the
final Convention documents signed and ratified. OCSE began holding monthly
conference calls for state child support programs to highlight the biggest
changes under UIFSA 2008 and to introduce the Convention requirements. While
these educational efforts began to trickle down to the caseworkers in each
state’s child support program, OCSE continued to tell states that the
Convention is not in effect until the
President signs and ratifies the Convention Treaty. In September 2016,
President Obama signed the Convention treaty, and the Convention documents were
ratified in The Hague, with implementation to begin on January 1, 2017.
Now that the history lesson
is over, how do I handle international cases under the Convention?
Implementation of the Convention requirements is a bit tricky, but only
because the Convention creates a new classification of international agreements
between states and foreign countries. Before the Convention, there were three
ways a state could exercise child support collection with another country: Foreign
Reciprocating Country (FRC), state-specific reciprocity agreements, and granting
comity to the other country’s child support order. Now, a state can operate
under any of the three older options or under the Convention requirements.
What Is the difference
between the country types?
Most countries are in one of four classes - Convention Country, Foreign
Reciprocating Country, State-Specific Reciprocity Agreements, or Comity.
Convention Country: Any country that has already registered the required
Convention documentation with The Hague is considered to be a “Convention
Country.” As the Convention continues making its way through other countries,
this list may grow.
Foreign Reciprocating Country: The US Secretary of State and the US
Secretary of Health and Human Services may jointly declare a country to be a
Foreign Reciprocating Country if the other country has legal procedures
available to US residents for establishing and enforcing child support orders.
Many of these countries are also now Convention Countries.
State-Specific Reciprocity Agreements: If the US Secretary of State and
US Secretary of Health have not declared a country as an FRC, then a state may
enter into its own reciprocal agreement with that foreign country. The state
agreement will remain in effect until a country becomes an FRC or Convention
Country.
Comity: The courtesy one jurisdiction gives by enforcing the laws of
another jurisdiction. Another country’s order can be granted comity by a US
court. Comity of another state’s order is effective only if the other state’s
order does not directly conflict with the US’ public policy. A
caseworker in Michigan can ask the central authority for child support issues
of another country to enforce the Michigan order; however, the other country
does not need to comply. Furthermore, another country may ask a Michigan court
to enforce its child support order - if the request is from a country that has
no agreement with the US or the state of Michigan, the court will need to
determine comity before the caseworker can proceed.
So, how do I know which
type of process to use?
The simplest way is to print out the list at the bottom of this article.
There are some countries that are still trying to get the Convention passed, so
the list may be updated in the future. An
updated list of Hague
Countries is at The Hague: https://www.hcch.net/en/instruments/conventions/status-table/?cid=131; for a list of Reciprocal Countries
provided/updated by OCSE (non-Hague agreements), go to https://www.acf.hhs.gov/css/resource/foreign-reciprocating-countries.
What is the difference in
these different international case processing categories?
The Convention cases must use The Hague Convention forms and supporting
documentation. These forms are available online through The Hague Convention
website (https://www.hcch.net/en/instruments/conventions/specialised-sections/child-support), and will also become available through
the OCSE in the near future. In addition to the Convention forms, Convention
packets include a complete copy of the order, a record stating that the order
is enforceable in the other country, a record attesting to due process if the
order is a default order, copy of the arrears record, and a record of receipt
of free legal assistance in the issuing country if it is necessary.
Processing cases with an FRC country will remain the same as it is now.
Caseworkers will need to submit a transmittal letter, 2 copies of the court
order (one order certified), a certified statement of arrears, obligor/obligee
contact information, the name and address of payment recipient, and a copy of
the determining controlling order if required. Remember, these forms are not
available on MiCSES - the caseworker will need to access the necessary forms
for each country at the OCSE’s website (http://www.acf.hhs.gov/css/resource/foreign-reciprocating-countries)
State-specific reciprocating agreements require the Michigan caseworker
to submit a copy of the completed Transmittal #1 form, as well as a copy of the
current order authorizing an income withholding. The Transmittal #1 form is available
in MiCSES.
When a country is not bound by the Convention, an FRC, or a
state-specific reciprocal agreement, the caseworker should work with that other
country’s Central Authority to determine what documents, if any, are required
to proceed with a case.
…There will be more information on international case
processing, right?
Absolutely! The OCSE is working on webinars and web-based training for
state and local child support staff to use. As information and trainings are
made available, the State Court Administrative Office Friend of the Court
Bureau and the Office of Child Support will make sure to disseminate the
announcements. In the meantime, if a Friend of the Court or caseworker has any
questions, please contact Elizabeth Stomski at the State Court Administrative
Office Friend of the Court Bureau (StomskiE@courts.mi.gov) or Andrew Moore at the Office of Child
Support (MooreA@michigan.gov).
