Senate Bill No. 69
(By Senators Anderson, Bowman, Schoonover, Deem and Scott)
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[Introduced February 19, 1997;
referred to the Committee on Interstate Cooperation; and then
to the Committee on the Judiciary.]
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A BILL to repeal article seven, chapter forty-eight-a of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended; and to amend said code by adding thereto a new
chapter, designated chapter forty-eight-b, all relating to
replacing the revised uniform reciprocal enforcement of
support act with the uniform interstate family support act.
Be it enacted by the Legislature of West Virginia:
That article seven, chapter forty-eight-a of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
be repealed; and that said code be amended by adding thereto a
new chapter, designated chapter forty-eight-b, all to read as
follows:
CHAPTER 48B. UNIFORM INTERSTATE FAMILY SUPPORT ACT.
ARTICLE 1. GENERAL PROVISIONS.
§48B-1-101. DEFINITIONS.
As used in this chapter:
(1) "Child" means an individual, whether over or under the age of majority, who is or is alleged to be owed a duty of
support by the individual's parent or who is or is alleged to be
the beneficiary of a support order directed to the parent.
(2) "Child support order" means a support order for a child,
including a child who has attained the age of majority under the
law of the issuing state.
(3) "Duty of support" means an obligation imposed or
imposable by law to provide support for a child, spouse, or
former spouse, including an unsatisfied obligation to provide
support.
(4) "Home state" means the state in which a child lived with
a parent or a person acting as parent for at least six
consecutive months immediately preceding the time of filing of a
petition or comparable pleading for support and, if a child is
less than six months old, the state in which the child lived from
birth with any of them. A period of temporary absence of any of
them is counted as part of the six-month or other period.
(5) "Income" includes earnings or other periodic
entitlements to money from any source and any other property
subject to withholding for support under the law of this state.
(6) "Income-withholding order" means an order or other legal
process directed to an obligor's employer or other debtor, as
defined by section three, article one, chapter forty-eight-a of
this code to withhold support from the income of the obligor.
(7) "Initiating state" means a state from which a proceeding
is forwarded or in which a proceeding is filed for forwarding to
a responding state under this chapter or a law or procedure substantially similar to this chapter, the uniform reciprocal
enforcement of support act, or the revised uniform reciprocal
enforcement of support act.
(8) "Initiating tribunal" means the authorized tribunal in
an initiating state.
(9) "Issuing state" means the state in which a tribunal
issues a support order or renders a judgment determining
parentage.
(10) "Issuing tribunal" means the tribunal that issues a
support order or renders a judgment determining parentage.
(11) "Law" includes decisional and statutory law and rules
having the force of law.
(12) "Obligee" means: (i) An individual to whom a duty of
support is or is alleged to be owed or in whose favor a support
order has been issued or a judgment determining parentage has
been rendered; (ii) a state or political subdivision to which the
rights under a duty of support or support order have been
assigned or which has independent claims based on financial
assistance provided to an individual obligee; or (iii) an
individual seeking a judgment determining parentage of the
individual's child.
(13) "Obligor" means an individual, or the estate of a
decedent: (i) Who owes or is alleged to owe a duty of support;
(ii) who is alleged but has not been adjudicated to be a parent
of a child; or (iii) who is liable under a support order.
(14) "Register" means to record a support order or judgment
determining parentage in the registry of foreign support orders.
(15) "Registering tribunal" means a tribunal in which a
support order is registered.
(16) "Responding state" means a state in which a proceeding
is filed or to which a proceeding is forwarded for filing from an
initiating state under this chapter or a law or procedure
substantially similar to this chapter, the uniform reciprocal
enforcement of support act, or the revised uniform reciprocal
enforcement of support act.
(17) "Responding tribunal" means the authorized tribunal in
a responding state.
(18) "Spousal-support order" means a support order for a
spouse or former spouse of the obligor.
(19) "State" means a state of the United States, the
District of Columbia, Puerto Rico, the United States Virgin
Islands or any territory or insular possession subject to the
jurisdiction of the United States. The term includes: (i) An
Indian tribe; (ii) a foreign jurisdiction that has enacted a law
or established procedures for issuance and enforcement of support
orders which are substantially similar to the procedures under
this chapter, the uniform reciprocal enforcement of support act,
or the revised uniform reciprocal of enforcement of support act.
(20) "Support enforcement agency" means a public official or
agency authorized to seek: (i) Enforcement of support orders or
laws relating to the duty of support; (ii) establishment or
modification of child support; (iii) determination of parentage;
or (iv) to locate obligors or their assets.
(21) "Support order" means a judgment, decree or order, whether temporary, final or subject to modification, for the
benefit of a child, a spouse or a former spouse, which provides
for monetary support, health care, arrearages, or reimbursement
and may include related costs and fees, interest, income
withholding, attorney's fees and other relief.
(22) "Tribunal" means a court, administrative agency or
quasi-judicial entity authorized to establish, enforce or modify
support orders or to determine parentage.
§48B-1-102. Tribunal of state.
The circuit court is the tribunal of this state.
§48B-1-103. Remedies cumulative.
Remedies provided by this chapter are cumulative and do not
affect the availability of remedies under other law.
ARTICLE 2. JURISDICTION.
PART 1. EXTENDED PERSONAL JURISDICTION.
§48B-2-201. Bases for jurisdiction over nonresident.
In a proceeding to establish, enforce, or modify a support
order or to determine parentage, a tribunal of this state may
exercise personal jurisdiction over a nonresident individual or
the individual's guardian or conservator if: (1) The individual
is personally served with notice within this state; (2) the
individual submits to the jurisdiction of this state by consent,
by entering a general appearance, or by filing a responsive
document having the effect of waiving any contest to personal
jurisdiction; (3) the individual resided with the child in this
state; (4) the individual resided in this state and provided
prenatal expenses or support for the child; (5) the child resides in this state as a result of the acts or directives of the
individual; (6) the individual engaged in sexual intercourse in
this state and the child may have been conceived by that act of
intercourse; or (7) there is any other basis consistent with the
constitutions of this state and the United States for the
exercise of personal jurisdiction.
§48B-2-202. Procedure when exercising jurisdiction over
nonresident.
A tribunal of this state exercising personal jurisdiction
over a nonresident under section two hundred one may apply
section three hundred sixteen (Special Rules of Evidence and
Procedure) to receive evidence from another state, and section
three hundred eighteen (Assistance with Discovery) to obtain
discovery through a tribunal of another state. In all other
respects, articles three through seven do not apply and the
tribunal shall apply the procedural and substantive law of this
state, including the rules on choice of law other than those
established by this chapter.
PART 2. PROCEEDINGS INVOLVING TWO OR MORE STATES.
§48B-2-203. Initiating and responding tribunal of state.
Under this chapter, a tribunal of this state may serve as an
initiating tribunal to forward proceedings to another state and
as a responding tribunal for proceedings initiated in another
state.
§48B-2-204. Simultaneous proceedings in another state.
(a) A tribunal of this state may exercise jurisdiction to
establish a support order if the petition or comparable pleading is filed after a petition or comparable pleading is filed in
another state only if: (1) The petition or comparable pleading in
this state is filed before the expiration of the time allowed in
the other state for filing a responsive pleading challenging the
exercise of jurisdiction by the other state; (2) the contesting
party timely challenges the exercise of jurisdiction in the other
state; and (3) if relevant, this state is the home state of the
child.
(b) A tribunal of this state may not exercise jurisdiction
to establish a support order if the petition or comparable
pleading is filed before a petition or comparable pleading is
filed in another state if: (1) The petition or comparable
pleading in the other state is filed before the expiration of the
time allowed in this state for filing a responsive pleading
challenging the exercise of jurisdiction by this state; (2) the
contesting party timely challenges the exercise of jurisdiction
in this state; and (3) if relevant, the other state is the home
state of the child.
§48B-2-205. Continuing, exclusive jurisdiction.
(a) A tribunal of this state issuing a support order
consistent with the law of this state has continuing, exclusive
jurisdiction over a child support order: (1) As long as this
state remains the residence of the obligor, the individual
obligee, or the child for whose benefit the support order is
issued; or (2) until all of the parties who are individuals have
filed written consents with the tribunal of this state for a
tribunal of another state to modify the order and assume continuing, exclusive jurisdiction.
(b) A tribunal of this state issuing a child support order
consistent with the law of this state may not exercise its
continuing jurisdiction to modify the order if the order has been
modified by a tribunal of another state pursuant to this chapter
or a law substantially similar to this chapter.
(c) If a child support order of this state is modified by a
tribunal of another state pursuant to this chapter or a law
substantially similar to this chapter, a tribunal of this state
loses its continuing, exclusive jurisdiction with regard to
prospective enforcement of the order issued in this state, and
may only: (1) Enforce the order that was modified as to amounts
accruing before the modification; (2) enforce nonmodifiable
aspects of that order; and (3) provide other appropriate relief
for violations of that order which occurred before the effective
date of the modification.
(d) A tribunal of this state shall recognize the continuing,
exclusive jurisdiction of a tribunal of another state which has
issued a child support order pursuant to a law substantially
similar to this chapter.
(e) A temporary support order issued ex parte or pending
resolution of a jurisdictional conflict does not create
continuing, exclusive jurisdiction in the issuing tribunal.
(f) A tribunal of this state issuing a support order
consistent with the law of this state has continuing, exclusive
jurisdiction over a spousal support order throughout the
existence of the support obligation. A tribunal of this state may not modify a spousal support order issued by a tribunal of
another state having continuing, exclusive jurisdiction over that
order under the law of that state.
§48B-2-206. Enforcement and modification of support order by
tribunal having continuing jurisdiction.
(a) A tribunal of this state may serve as an initiating
tribunal to request a tribunal of another state to enforce or
modify a support order issued in that state.
(b) A tribunal of this state having continuing, exclusive
jurisdiction over a support order may act as a responding
tribunal to enforce or modify the order. If a party subject to
the continuing, exclusive jurisdiction of the tribunal no longer
resides in the issuing state, in subsequent proceedings the
tribunal may apply section three hundred sixteen (Special Rules
of Evidence and Procedure) to receive evidence from another state
and section three hundred eighteen (Assistance with Discovery) to
obtain discovery through a tribunal of another state.
(c) A tribunal of this state which lacks continuing,
exclusive jurisdiction over a spousal support order may not serve
as a responding tribunal to modify a spousal support order of
another state.
PART 3. RECONCILIATION OF MULTIPLE ORDERS.
§48B-2-207. Recognition of controlling child support order.
(a) If a proceeding is brought under this chapter and only
one tribunal has issued a child support order, the order of that
tribunal is controlling and must be recognized.
(b) If a proceeding is brought under this chapter, and two or more child support orders have been issued by tribunals of
this state or another state with regard to the same obligor and
child, a tribunal of this state shall apply the following rules
in determining which order to recognize for purposes of
continuing, exclusive jurisdiction:
(1) If only one of the tribunals would have continuing,
exclusive jurisdiction under this chapter, the order of that
tribunal is controlling and must be recognized.
(2) If more than one of the tribunals would have continuing,
exclusive jurisdiction under this chapter, an order issued by a
tribunal in the current home state of the child must be
recognized, but if an order has not been issued in the current
home state of the child, the order most recently issued is
controlling and must be recognized.
(3) If none of the tribunals would have continuing,
exclusive jurisdiction under this chapter, the tribunal of this
state having jurisdiction over the parties must issue a child
support order, which is controlling and must be recognized.
(c) If two or more child support orders have been issued for
the same obligor and child and if the obligor or the individual
obligee resides in this state, a party may request a tribunal of
this state to determine which order controls and must be
recognized under subsection (b). The request must be accompanied
by a certified copy of every support order in effect. Every
party whose rights may be affected by a determination of the
controlling order must be given notice of the request for that
determination.
(d) The tribunal that issued the order that must be
recognized as controlling under subsection (a), (b) or (c) is the
tribunal that has continuing, exclusive jurisdiction in
accordance with section two hundred five.
(e) A tribunal of this state which determines by order the
identity of the controlling child support order under subsections
(b) (1) or (b) (2) or which issued a new controlling child
support order under subsection (b) (3) shall include in that
order the basis upon which the tribunal made its determination.
(f) Within thirty days after issuance of the order
determining the identity of the controlling order, the party
obtaining that order shall file a certified copy of it with each
tribunal that had issued or registered an earlier order of child
support. Failure of the party obtaining the order to file a
certified copy as required subjects that party to appropriate
sanctions by a tribunal in which the issue of failure to file
arises, but that failure has no effect on the validity or
enforceability of the controlling order.
§48B-2-208. Multiple child support orders for two or more
obligees.
In responding to multiple registrations or petitions for
enforcement of two or more child support orders in effect at the
same time with regard to the same obligor and different
individual obligees, at least one of which was issued by a
tribunal of another state, a tribunal of this state shall enforce
those orders in the same manner as if the multiple orders had
been issued by a tribunal of this state.
§48B-2-209. Credit for payments.
Amounts collected and credited for a particular period
pursuant to a support order issued by a tribunal of another state
must be credited against the amounts accruing or accrued for the
same period under a support order issued by the tribunal of this
state.
ARTICLE 3. CIVIL PROVISIONS OF GENERAL APPLICATION.
§48B-3-301. Proceedings under chapter.
(a) Except as otherwise provided in this chapter, this
article applies to all proceedings under this chapter.
(b) This chapter provides for the following proceedings: (1)
Establishment of an order for spousal support or child support
pursuant to article four; (2) enforcement of a support order and
income-withholding order of another state without registration
pursuant to article five; (3) registration of an order for
spousal support or child support of another state for enforcement
pursuant to article six; (4) modification of an order for child
support or spousal support issued by a tribunal of this state
pursuant to article two, part 2; (5) registration of an order for
child support of another state for modification pursuant to
article six; (6) determination of parentage pursuant to article
seven; and (7) assertion of jurisdiction over nonresidents
pursuant to article two, part 1.
(c) An individual petitioner or a support enforcement agency
may commence a proceeding authorized under this chapter by filing
a petition in an initiating tribunal for forwarding to a
responding tribunal or by filing a petition or a comparable pleading directly in a tribunal of another state which has or can
obtain personal jurisdiction over the respondent.
§48B-3-302. Action by minor parent.
A minor parent, or a guardian or other legal representative
of a minor parent, may maintain a proceeding on behalf of or for
the benefit of the minor's child.
§48B-3-303. Application of law of state.
Except as otherwise provided by this chapter, a responding
tribunal of this state: (1) Shall apply the procedural and
substantive law, including the rules on choice of law, generally
applicable to similar proceedings originating in this state and
may exercise all powers and provide all remedies available in
those proceedings; and (2) shall determine the duty of support
and the amount payable in accordance with the law and support
guidelines of this state.
§48B-3-304. Duties of initiating tribunal.
(a) Upon the filing of a petition authorized by this
chapter, an initiating tribunal of this state shall forward three
copies of the petition and its accompanying documents: (1) To the
responding tribunal or appropriate support enforcement agency in
the responding state; or (2) if the identity of the responding
tribunal is unknown, to the state information agency of the
responding state with a request that they be forwarded to the
appropriate tribunal and that receipt be acknowledged.
(b) If a responding state has not enacted this chapter or a
law or procedure substantially similar to this chapter, a
tribunal of this state may issue a certificate or other document and make findings required by the law of the responding state.
If the responding state is a foreign jurisdiction, the tribunal
may specify the amount of support sought and provide other
documents necessary to satisfy the requirements of the responding
state.
§48B-3-305. Duties and powers of responding tribunal.
(a) When a responding tribunal of this state receives a
petition or comparable pleading from an initiating tribunal or
directly pursuant to subsection (c), section three hundred one
(proceedings under this chapter), it shall cause the petition or
pleading to be filed and notify the petitioner where and when it
was filed.
(b) A responding tribunal of this state, to the extent
otherwise authorized by law, may do one or more of the following:
(1) Issue or enforce a support order, modify a child support
order or render a judgment to determine parentage; (2) order an
obligor to comply with a support order, specifying the amount and
the manner of compliance; (3) order income withholding; (4)
determine the amount of any arrearages and specify a method of
payment; (5) enforce orders by civil or criminal contempt, or
both; (6) set aside property for satisfaction of the support
order; (7) place liens and order execution on the obligor's
property; (8) order an obligor to keep the tribunal informed of
the obligor's current residential address, telephone number,
employer, address of employment and telephone number at the place
of employment; (9) issue a capias for an obligor who has failed
after proper notice to appear at a hearing ordered by the tribunal and enter the capias in any local and state computer
systems for criminal warrants; (10) order the obligor to seek
appropriate employment by specified methods; (11) award
reasonable attorney's fees and other fees and costs; and (12)
grant any other available remedy.
(c) A responding tribunal of this state shall include in a
support order issued under this chapter, or in the documents
accompanying the order, the calculations on which the support
order is based.
(d) A responding tribunal of this state may not condition
the payment of a support order issued under this chapter upon
compliance by a party with provisions for visitation.
(e) If a responding tribunal of this state issues an order
under this chapter, the tribunal shall send a copy of the order
to the petitioner and the respondent and to the initiating
tribunal, if any.
§48B-3-306. Inappropriate tribunal.
If a petition or comparable pleading is received by an
inappropriate tribunal of this state, it shall forward the
pleading and accompanying documents to an appropriate tribunal in
this state or another state and notify the petitioner where and
when the pleading was sent.
§48B-3-307. Duties of support enforcement agency.
(a) A support enforcement agency of this state, upon
request, shall provide services to a petitioner in a proceeding
under this chapter.
(b) A support enforcement agency that is providing services to the petitioner as appropriate shall: (1) Take all steps
necessary to enable an appropriate tribunal in this state or
another state to obtain jurisdiction over the respondent; (2)
request an appropriate tribunal to set a date, time, and place
for a hearing; (3) make a reasonable effort to obtain all
relevant information, including information as to income and
property of the parties; (4) within two days, exclusive of
Saturdays, Sundays and legal holidays, after receipt of a written
notice from an initiating, responding, or registering tribunal,
send a copy of the notice to the petitioner; (5) within two days,
exclusive of Saturdays, Sundays and legal holidays, after receipt
of a written communication from the respondent or the
respondent's attorney, send a copy of the communication to the
petitioner; and (6) notify the petitioner if jurisdiction over
the respondent cannot be obtained.
(c) This chapter does not create or negate a relationship of
attorney and client or other fiduciary relationship between a
support enforcement agency or the attorney for the agency and the
individual being assisted by the agency.
§48B-3-308. Duty of West Virginia support enforcement
commission.
If the West Virginia support enforcement commission
determines that the support enforcement agency is neglecting or
refusing to provide services to an individual, the commission may
order the agency to perform its duties under this chapter or may
provide those services directly to the individual.
§48B-3-309. Private counsel.
An individual may employ private counsel to represent the
individual in proceedings authorized by this chapter.
§48B-3-310. Duties of state information agency.
(a) The child support enforcement division is the state
information agency under this chapter.
(b) The state information agency shall: (1) Compile and
maintain a current list, including addresses, of the tribunals in
this state which have jurisdiction under this chapter and any
support enforcement agencies in this state and transmit a copy to
the state information agency of every other state; (2) maintain
a register of tribunals and support enforcement agencies received
from other states; (3) forward to the appropriate tribunal in the
place in this state in which the individual obligee or the
obligor resides, or in which the obligor's property is believed
to be located, all documents concerning a proceeding under this
chapter received from an initiating tribunal or the state
information agency of the initiating state; and (4) obtain
information concerning the location of the obligor and the
obligor's property within this state not exempt from execution,
by such means as postal verification and federal or state locator
services, examination of telephone directories, requests for the
obligor's address from employers, and examination of governmental
records, including, to the extent not prohibited by other law,
those relating to real property, vital statistics, law
enforcement, taxation, motor vehicles, driver's licenses and
social security.
§48B-3-311. Pleadings and accompanying documents.
(a) A petitioner seeking to establish or modify a support
order or to determine parentage in a proceeding under this
chapter must verify the petition. Unless otherwise ordered under
section three hundred twelve (Nondisclosure of Information in
Exceptional Circumstances), the petition or accompanying
documents must provide, so far as known, the name, residential
address and social security numbers of the obligor and the
obligee, and the name, sex, residential address, social security
number and date of birth of each child for whom support is
sought. The petition must be accompanied by a certified copy of
any support order in effect. The petition may include any other
information that may assist in locating or identifying the
respondent.
(b) The petition must specify the relief sought. The
petition and accompanying documents must conform substantially
with the requirements imposed by the forms mandated by federal
law for use in cases filed by a support enforcement agency.
§48B-3-312. Nondisclosure of information in exceptional
circumstances.
Upon a finding, which may be made ex parte, that the health,
safety or liberty of a party or child would be unreasonably put
at risk by the disclosure of identifying information, or if an
existing order so provides, a tribunal shall order that the
address of the child or party or other identifying information
not be disclosed in a pleading or other document filed in a
proceeding under this chapter.
§48B-3-313. Costs and fees.
(a) The petitioner may not be required to pay a filing fee
or other costs.
(b) If an obligee prevails, a responding tribunal may assess
against an obligor filing fees, reasonable attorney's fees, other
costs and necessary travel and other reasonable expenses incurred
by the obligee and the obligee's witnesses. The tribunal may not
assess fees, costs or expenses against the obligee or the support
enforcement agency of either the initiating or the responding
state, except as provided by other law. Attorney's fees may be
taxed as costs, and may be ordered paid directly to the attorney,
who may enforce the order in the attorney's own name. Payment of
support owed to the obligee has priority over fees, costs and
expenses.
(c) The tribunal shall order the payment of costs and
reasonable attorney's fees if it determines that a hearing was
requested primarily for delay. In a proceeding under article six
(Enforcement and Modification of Support Order After
Registration), a hearing is presumed to have been requested
primarily for delay if a registered support order is confirmed or
enforced without change.
§48B-3-314. Limited immunity of petitioner.
(a) Participation by a petitioner in a proceeding before a
responding tribunal, whether in person, by private attorney, or
through services provided by the support enforcement agency, does
not confer personal jurisdiction over the petitioner in another
proceeding.
(b) A petitioner is not amenable to service of civil process while physically present in this state to participate in a
proceeding under this chapter.
(c) The immunity granted by this section does not extend to
civil litigation based on acts unrelated to a proceeding under
this chapter committed by a party while present in this state to
participate in the proceeding.
§48B-3-315. Nonparentage as defense.
A party whose parentage of a child has been previously
determined by or pursuant to law may not plead nonparentage as a
defense to a proceeding under this chapter.
§48B-3-316. Special rules of evidence and procedure.
(a) The physical presence of the petitioner in a responding
tribunal of this state is not required for the establishment,
enforcement or modification of a support order or the rendition
of a judgment determining parentage.
(b) A verified petition, affidavit, document substantially
complying with federally mandated forms and a document
incorporated by reference in any of them, not excluded under the
hearsay rule if given in person, is admissible in evidence if
given under oath by a party or witness residing in another state.
(c) A copy of the record of child support payments certified
as a true copy of the original by the custodian of the record may
be forwarded to a responding tribunal. The copy is evidence of
facts asserted in it, and is admissible to show whether payments
were made.
(d) Copies of bills for testing for parentage, and for
prenatal and postnatal health care of the mother and child, furnished to the adverse party at least ten days before trial,
are admissible in evidence to prove the amount of the charges
billed and that the charges were reasonable, necessary and
customary.
(e) Documentary evidence transmitted from another state to
a tribunal of this state by telephone, telecopier or other means
that do not provide an original writing may not be excluded from
evidence on an objection based on the means of transmission.
(f) In a proceeding under this chapter, a tribunal of this
state may permit a party or witness residing in another state to
be deposed or to testify by telephone, audiovisual means or other
electronic means at a designated tribunal or other location in
that state. A tribunal of this state shall cooperate with
tribunals of other states in designating an appropriate location
for the deposition or testimony.
(g) If a party called to testify at a civil hearing refuses
to answer on the ground that the testimony may be self- incriminating, the trier of fact may draw an adverse inference
from the refusal.
(h) A privilege against disclosure of communications between
spouses does not apply in a proceeding under this chapter.
(i) The defense of immunity based on the relationship of
husband and wife or parent and child does not apply in a
proceeding under this chapter.
§48B-3-317. Communications between tribunals.
A tribunal of this state may communicate with a tribunal of
another state in writing, or by telephone or other means, to obtain information concerning the laws of that state, the legal
effect of a judgment, decree, or order of that tribunal and the
status of a proceeding in the other state. A tribunal of this
state may furnish similar information by similar means to a
tribunal of another state.
§48B-3-318. Assistance with discovery.
A tribunal of this state may: (1) Request a tribunal of
another state to assist in obtaining discovery; and (2) upon
request, compel a person over whom it has jurisdiction to respond
to a discovery order issued by a tribunal of another state.
§48B-3-319. Receipt and disbursement of payments.
A support enforcement agency or tribunal of this state shall
disburse promptly any amounts received pursuant to a support
order, as directed by the order. The agency or tribunal shall
furnish to a requesting party or tribunal of another state a
certified statement by the custodian of the record of the amounts
and dates of all payments received.
ARTICLE 4. ESTABLISHMENT OF SUPPORT ORDER.
§48B-4-401. Petition to establish support order.
(a) If a support order entitled to recognition under this
chapter has not been issued, a responding tribunal of this state
may issue a support order if: (1) The individual seeking the
order resides in another state; or (2) the support enforcement
agency seeking the order is located in another state.
(b) The tribunal may issue a temporary child support order
if: (1) The respondent has signed a verified statement
acknowledging parentage; (2) the respondent has been determined by or pursuant to law to be the parent; or (3) there is other
clear and convincing evidence that the respondent is the child's
parent.
(c) Upon finding, after notice and opportunity to be heard,
that an obligor owes a duty of support, the tribunal shall issue
a support order directed to the obligor and may issue other
orders pursuant to section three hundred five (Duties and Powers
of Responding Tribunal).
ARTICLE 5. DIRECT ENFORCEMENT OF ORDER OF ANOTHER STATE WITHOUT
REGISTRATION.
§48B-5-501. Employer's receipt of income-withholding order of
another state.
An income-withholding order issued in another state may be
sent to the person or entity defined as the obligor's employer
under section three, article one, chapter forty-eight-a of this
code without first filing a petition or comparable pleading or
registering the order with a tribunal of this state.
§48B-5-502. Employer's compliance with income-withholding order
of another state.
(a) Upon receipt of the order, the obligor's employer shall
immediately provide a copy of the order to the obligor.
(b) The employer shall treat an income-withholding order
issued in another state which appears regular on its face as if
it had been issued by a tribunal of this state.
(c) Except as provided by subsection (d) and section five
hundred three, the employer shall withhold and distribute the
funds as directed in the withholding order by complying with the terms of the order, as applicable, that specify:
(1) The duration and the amount of periodic payments of
current child support, stated as a sum certain;
(2) The person or agency designated to receive payments and
the address to which the payments are to be forwarded;
(3) Medical support, whether in the form of periodic cash
payment, stated as a sum certain, or ordering the obligor to
provide health insurance coverage for the child under a policy
available through the obligor's employment;
(4) The amount of periodic payments of fees and costs for a
support enforcement agency, the issuing tribunal, and the
obligee's attorney, stated as sums certain; and
(5) The amount of periodic payments of arrears and interest
on arrears, stated as sums certain.
(d) The employer shall comply with the law of the state of
the obligor's principal place of employment for withholding from
income with respect to:
(1) The employer's fee for processing an income withholding
order;
(2) The maximum amount permitted to be withheld from the
obligor's income;
(3) The time periods within which the employer must
implement the withholding order and forward the child support
payment.
§48B-5-503. Compliance with multiple income withholding orders.
If the obligor's employer receives multiple orders to
withhold support from the earnings of the same obligor, the employer shall be deemed to have satisfied the terms of the
multiple orders if the law of the state of the obligor's
principal place of employment to establish the priorities for
withholding and allocating income withheld for multiple child
support obligees is complied with.
§48B-5-504. Immunity from civil liability.
An employer who complies with an income-withholding order
issued in another state in accordance with this article is not
subject to civil liability to any individual or agency with
regard to the employer's withholding child support from the
obligor's income.
§48B-5-505. Penalties for noncompliance.
An employer who willfully fails to comply with an income- withholding order issued by another state and received for
enforcement is subject to the same penalties that may be imposed
for noncompliance with an order issued by a tribunal of this
state.
§48B-5-506. Contest by obligor.
(a) An obligor may contest the validity or enforcement of an
income-withholding order issued in another state and received
directly by an employer in this state in the same manner as if
the order had been issued by a tribunal of this state. Section
six hundred four (Choice of Law) applies to the contest.
(b) The obligor shall give notice of the contest to:
(1) A support enforcement agency providing services to the
obligee;
(2) Each employer which has directly received an income-withholding order; and
(3) The person or agency designated to receive payments in
the income-withholding order; or if no person or agency is
designated, to the obligee.
§48B-5-507. Administrative enforcement of orders.
(a) A party seeking to enforce a support order or an income- withholding order, or both, issued by a tribunal of another state
may send the documents required for registering the order to a
support enforcement agency of this state.
(b) Upon receipt of the documents, the support enforcement
agency, without initially seeking to register the order, shall
consider and, if appropriate, use any administrative procedure
authorized by the law of this state to enforce a support order or
an income-withholding order, or both. If the obligor does not
contest administrative enforcement, the order need not be
registered. If the obligor contests the validity or
administrative enforcement of the order, the support enforcement
agency shall register the order pursuant to this chapter.
ARTICLE 6. ENFORCEMENT AND MODIFICATION OF SUPPORT ORDER AFTER
REGISTRATION.
PART 1. REGISTRATION AND ENFORCEMENT OF SUPPORT ORDER.
§48B-6-601. Registration of order for enforcement.
A support order or an income-withholding order issued by a
tribunal of another state may be registered in this state for
enforcement.
§48B-6-602. Procedure to register order for enforcement.
(a) A support order or income-withholding order of another state may be registered in this state by sending the following
documents and information to the state information agency: (1) A
letter of transmittal to the tribunal requesting registration and
enforcement; (2) two copies, including one certified copy, of all
orders to be registered, including any modification of an order;
(3) a sworn statement by the party seeking registration or a
certified statement by the custodian of the records showing the
amount of any arrearage; (4) the name of the obligor and, if
known; (i) the obligor's address and social security number; (ii)
the name and address of the obligor's employer and any other
source of income of the obligor; and (iii) a description and the
location of property of the obligor in this state not exempt from
execution; and (5) the name and address of the obligee and, if
applicable, the agency or person to whom support payments are to
be remitted.
(b) On receipt of a request for registration, the
registering tribunal shall cause the order to be filed as a
foreign judgment, together with one copy of the documents and
information, regardless of their form.
(c) A petition or comparable pleading seeking a remedy that
must be affirmatively sought under other law of this state may be
filed at the same time as the request for registration or later.
The pleading must specify the grounds for the remedy sought.
§48B-6-603. Effect of registration for enforcement.
(a) A support order or income-withholding order issued in
another state is registered when the order is filed in the
registering tribunal of this state.
(b) A registered order issued in another state is
enforceable in the same manner and is subject to the same
procedures as an order issued by a tribunal of this state.
(c) Except as otherwise provided in this article, a tribunal
of this state shall recognize and enforce, but may not modify, a
registered order if the issuing tribunal had jurisdiction.
§48B-6-604. Choice of law.
(a) The law of the issuing state governs the nature, extent,
amount, and duration of current payments and other obligations of
support and the payment of arrearages under the order.
(b) In a proceeding for arrearages, the statute of
limitation under the laws of this state or of the issuing state,
whichever is longer, applies.
PART 2. CONTEST OF VALIDITY OR ENFORCEMENT.
§48B-6-605. Notice of registration of order.
(a) When a support order or income-withholding order issued
in another state is registered, the registering tribunal shall
notify the nonregistering party. The notice must be accompanied
by a copy of the registered order and the documents and relevant
information accompanying the order.
(b) The notice must inform the nonregistering party: (1)
That a registered order is enforceable as of the date of
registration in the same manner as an order issued by a tribunal
of this state; (2) that a hearing to contest the validity or
enforcement of the registered order must be requested within
twenty days after notice; (3) that failure to contest the
validity or enforcement of the registered order in a timely manner will result in confirmation of the order and enforcement
of the order and the alleged arrearages and precludes further
contest of that order with respect to any matter that could have
been asserted; and (4) of the amount of any alleged arrearages.
(c) Upon registration of an income-withholding order for
enforcement, the registering tribunal shall notify the obligor's
employer pursuant to article five, chapter forty-eight-a of this
code.
§48B-6-606. Procedure to contest validity or enforcement of
registered order.
(a) A nonregistering party seeking to contest the validity
or enforcement of a registered order in this state shall request
a hearing within twenty days after the date of mailing or
personal service of notice of the registration. The
nonregistering party may seek to vacate the registration, to
assert any defense to an allegation of noncompliance with the
registered order, or to contest the remedies being sought or the
amount of any alleged arrearages pursuant to section six hundred
seven (Contest of Registration or Enforcement).
(b) If the nonregistering party fails to contest the
validity or enforcement of the registered order in a timely
manner, the order is confirmed by operation of law.
(c) If a nonregistering party requests a hearing to contest
the validity or enforcement of the registered order, the
registering tribunal shall schedule the matter for hearing and
give notice to the parties of the date, time, and place of the
hearing.
§48B-6-607. Contest of registration or enforcement.
(a) A party contesting the validity or enforcement of a
registered order or seeking to vacate the registration has the
burden of proving one or more of the following defenses: (1) The
issuing tribunal lacked personal jurisdiction over the contesting
party; (2) the order was obtained by fraud; (3) the order has
been vacated, suspended or modified by a later order; (4) the
issuing tribunal has stayed the order pending appeal; (5) there
is a defense under the law of this state to the remedy sought;
(6) full or partial payment has been made; or (7) the statute of
limitation under section six hundred four (Choice of Law)
precludes enforcement of some or all of the arrearages.
(b) If a party presents evidence establishing a full or
partial defense under subsection (a), a tribunal may stay
enforcement of the registered order, continue the proceeding to
permit production of additional relevant evidence, and issue
other appropriate orders. An uncontested portion of the
registered order may be enforced by all remedies available under
the law of this state.
(c) If the contesting party does not establish a defense
under subsection (a) to the validity or enforcement of the order,
the registering tribunal shall issue an order confirming the
order.
§48B-6-608. Confirmed order.
Confirmation of a registered order, whether by operation of
law or after notice and hearing, precludes further contest of the
order with respect to any matter that could have been asserted at the time of registration.
PART 3. REGISTRATION AND MODIFICATION OF CHILD SUPPORT ORDER.
§48B-6-609. Procedure to register child support order of another
state for modification.
A party or support enforcement agency seeking to modify, or
to modify and enforce, a child support order issued in another
state shall register that order in this state in the same manner
provided in Part 1 if the order has not been registered. A
petition for modification may be filed at the same time as a
request for registration, or later. The pleading must specify
the grounds for modification.
§48B-6-610. Effect of registration for modification.
A tribunal of this state may enforce a child support order
of another state registered for purposes of modification, in the
same manner as if the order had been issued by a tribunal of this
state, but the registered order may be modified only if the
requirements of section six hundred eleven (Modification of Child
Support Order of Another State) have been met.
§48B-6-611. Modification of child support order of another
state.
(a) After a child support order issued in another state has
been registered in this state, the responding tribunal of this
state may modify that order only if section six hundred thirteen
does not apply and after notice and hearing it finds that: (1)
The following requirements are met, (i) the child, the individual
obligee, and the obligor do not reside in the issuing state, (ii)
a petitioner who is a nonresident of this state seeks modification, and (iii) the respondent is subject to the personal
jurisdiction of the tribunal of this state; or (2) the child or
a party who is an individual, is subject to the personal
jurisdiction of the tribunal of this state and all of the
parties who are individuals have filed written consents in the
issuing tribunal for a tribunal of this state to modify the
support order and assume continuing, exclusive jurisdiction over
the order. However, if the issuing state is a foreign
jurisdiction that has not enacted a law or established procedures
substantially similar to the procedures under this chapter, the
consent otherwise required of an individual residing in this
state is not required for the tribunal to assume jurisdiction to
modify the child support order.
(b) Modification of a registered child support order is
subject to the same requirements, procedures, and defenses that
apply to the modification of an order issued by a tribunal of
this state and the order may be enforced and satisfied in the
same manner.
(c) A tribunal of this state may not modify any aspect of a
child support order that may not be modified under the law of the
issuing state. If two or more tribunals have issued child
support orders for the same obligor and child, the order that
controls and must be so recognized under section two hundred
seven establishes the aspects of the support order which are
nonmodifiable.
(d) On issuance of an order modifying a child support order
issued in another state, a tribunal of this state becomes the tribunal of continuing, exclusive jurisdiction.
§48B-6-612. Recognition of order modified in another state.
A tribunal of this state shall recognize a modification of
its earlier child support order by a tribunal of another state
which assumed jurisdiction pursuant to this chapter or a law
substantially similar to this chapter and, upon request, except
as otherwise provided in this chapter, shall: (1) Enforce the
order that was modified only as to amounts accruing before the
modification; (2) enforce only nonmodifiable aspects of that
order; (3) provide other appropriate relief only for violations
of that order which occurred before the effective date of the
modification; and (4) recognize the modifying order of the other
state, upon registration, for the purpose of enforcement.
§48B-6-613. Jurisdiction to modify support order of another
state when individual parties reside in this state.
(a) If all of the individual parties reside in this state
and the child does not reside in the issuing state, a tribunal of
this state has jurisdiction to enforce and to modify the issuing
state's child support order in a proceeding to register that
order.
(b) A tribunal of this state exercising jurisdiction as
provided in this section shall apply the provisions of article
one and two and this article to the enforcement or modification
proceeding. Articles three through five, and articles seven and
eight do no apply and the tribunal shall apply the procedural and
substantive law of this state.
§48B-6-614. Notice to issuing tribunal of modification.
Within thirty days after issuance of a modified child
support order, the party obtaining the modification shall file a
certified copy of the order with the issuing tribunal which had
continuing, exclusive jurisdiction over the earlier order, and in
each tribunal in which the party knows that earlier order has
been registered. Failure of the party obtaining the order to
file a certified copy as required subjects that party to
appropriate sanctions by a tribunal in which the issue of failure
to file arises, but that failure has no effect on the validity or
enforceability of the modified order of the new tribunal of
continuing, exclusive jurisdiction.
ARTICLE 7. DETERMINATION OF PARENTAGE.
§48B-7-701. Proceeding to determine parentage.
(a) A tribunal of this state may serve as an initiating or
responding tribunal in a proceeding brought under this chapter or
a law substantially similar to this chapter, the uniform
reciprocal enforcement of support act, or the revised uniform
reciprocal enforcement of support act to determine that the
petitioner is a parent of a particular child or to determine that
a respondent is a parent of that child.
(b) In a proceeding to determine parentage, a responding
tribunal of this state shall apply to article six, chapter forty- eight-a of this code and the rules of this state on choice of
law.
ARTICLE 8. INTERSTATE RENDITION.
§48B-8-801. Grounds for rendition.
(a) For purposes of this article, "governor" includes an individual performing the functions of governor or the executive
authority of a state covered by this chapter.
(b) The governor of this state may: (1) Demand that the
governor of another state surrender an individual found in the
other state who is charged criminally in this state with having
failed to provide for the support of an obligee; or (2) on the
demand by the governor of another state, surrender an individual
found in this state who is charged criminally in the other state
with having failed to provide for the support of an obligee.
(c) A provision for extradition of individuals not
inconsistent with this chapter applies to the demand even if the
individual whose surrender is demanded was not in the demanding
state when the crime was allegedly committed and has not fled
therefrom.
§48B-8-802. Conditions of rendition.
(a) Before making demand that the governor of another state
surrender an individual charged criminally in this state with
having failed to provide for the support of an obligee, the
governor of this state may require a prosecutor of this state to
demonstrate that at least sixty days previously the obligee had
initiated proceedings for support pursuant to this chapter or
that the proceeding would be of no avail.
(b) If, under this chapter or a law substantially similar to
this chapter, the uniform reciprocal enforcement of support act,
or the revised uniform reciprocal enforcement of support act, the
governor of another state makes a demand that the governor of
this state surrender an individual charged criminally in that state with having failed to provide for the support of a child or
other individual to whom a duty of support is owed, the governor
may require a prosecutor to investigate the demand and report
whether a proceeding for support has been initiated or would be
effective. If it appears that a proceeding would be effective
but has not been initiated, the governor may delay honoring the
demand for a reasonable time to permit the initiation of a
proceeding.
(c) If a proceeding for support has been initiated and the
individual whose rendition is demanded prevails, the governor may
decline to honor the demand. If the petitioner prevails and the
individual whose rendition is demanded is subject to a support
order, the governor may decline to honor the demand if the
individual is complying with the support order.
ARTICLE 9. MISCELLANEOUS PROVISIONS.
§48B-9-901. Uniformity of application and construction.
This chapter shall be applied and construed to effectuate
its general purpose to make uniform the law with respect to the
subject of this chapter among states enacting it.
§48B-9-902. Short title.
This chapter may be cited as the "Uniform Interstate Family
Support Act."
NOTE: The purpose of this bill is to replace the Revised
Uniform Reciprocal Enforcement of Support Act with the Uniform
Interstate Family Support Act which is recommended by the
Commissions on Uniform State Laws to update the law and to meet
federal requirements.
This chapter is new; therefore, strike-throughs and
underscoring have been omitted.
This bill is recommended by the Commission on Interstate Cooperation for introduction this session.