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Bar Journal - June 1, 2003

International Enforcement of Child Support Orders in NH

By:
 

INTRODUCTION

Let’s see a show of hands for all the attorneys in New Hampshire who have experience handling international child support enforcement cases. I see a few tentative hands going up — now down again quickly. Why? Simple answer. Relatively few of us handle such cases, and with good reason; international child support matters have not historically arisen with the same frequency as intrastate and interstate enforcement issues. However, as New Hampshire and the world’s population become increasingly more transient and diverse, international enforcement issues will surely become more prevalent.

The U.S. government’s child support enforcement program under title IV-D of the Social Security Act provides funding to assist with federal, state and local enforcement efforts. The child support agency in each state, which receives funding from the federal government, is called the IV-D agency. In New Hampshire, the Division of Child Support Services, part of New Hampshire’s Department of Health and Human Services (Division), is our IV-D agency. The Division is charged with the responsibility to provide child support services, i.e., the establishment and enforcement of child support obligations against persons owing a duty to pay support. The Division’s charge extends to cases where public assistance is being expended or when individuals in need make application for such services.1 The Division’s caseload involves intrastate, interstate and international child support order enforcement. As of this writing, the Division manages approximately 40,669 child support enforcement cases.2 Most of them are intrastate cases, about 6,900 are interstate, but only about 60 are international child support enforcement cases.3 By far the Division handles the majority of international child support enforcement cases in New Hampshire.

Still, there are good reasons for a parent seeking international child support assistance to employ a private attorney rather than the Division. Speed is the first reason. Personal attention is the second. While the Division has enforcement tools uniquely available to it, the fact that the Division is managing over 40,000 cases cannot be denied. An attorney from the private bar who is familiar with this area of the law can streamline the process just by virtue of the fact that there is less bureaucracy to wade through. Often, a privately practicing attorney will work with the assistance of the Division during the course of an international child support enforcement case, establishing and registering a child support order, and then helping the client to apply for services with the Division to manage enforcement issues from thereon in.

Private collection agencies offer another option to custodial parents seeking international enforcement of child support orders. These services normally work on a contingency basis, earning 30% - 40% of any collected child support arrearages. Many of the services claim to work with governmental authorities and to have experience in international child support enforcement. The internet offers uncountable links to these private collection agencies. The efficacy or the integrity of these firms is difficult to judge without extensive research, which is beyond the scope of this article.

This article gives a brief overview of the legal and statutory framework for the Division’s place in international child support enforcement. It also describes some of the procedure involved with either a NH child support order that the Division is seeking to enforce in a foreign country, or a foreign country that seeks, through the Division, to enforce its child support order here in New Hampshire.

RECIPROCATING FOREIGN COUNTRY AGREEMENTS

At the federal level, section 459A of the Social Security Act (42 U.S.C. § 659A) authorizes the [U.S.] secretary of state, with the concurrence of the secretary of health and human services,4 to "declare foreign countries or their political subdivisions to be reciprocating countries for the purpose of enforcement of family support obligations, if the country has established or has undertaken to establish procedures for the establishment and enforcement of support for residents of the United States. These procedures must be in substantial conformity with the standards set forth in this statute. The statutory standards are: establishment of child support orders, including the establishment of paternity if necessary to establish the order; enforcement of child support orders, including collection and distribution of payments under such orders; cost-free administrative and legal services, as well as paternity testing; and, designation of an agency as Central Authority to facilitate enforcement. Once such a declaration is made, support agencies in jurisdictions of the United States participating in the program established by title IV-D of the Social Security Act (the IV-D program) must provide enforcement services under that program to such reciprocating countries as if the request came from a U.S. state."5

As of this writing, the following countries and provinces have been designated as "foreign reciprocating countries:" Australia; the Canadian provinces of Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland/Labrador, Nova Scotia, and Ontario; the Czech Republic; Ireland; the Netherlands; Norway; Poland; Portugal; and the Slovak Republic.6 The United States is also participating in the Hague Conference on Private International Laws work to achieve a new multilateral treaty on child support enforcement.7

At the state level, recent changes to our law have strengthened New Hampshire’s ability to negotiate with foreign countries to bring about reciprocating country agreements. With the passage of House Bill 1139 in the 2002 New Hampshire legislative session, RSA 161-B:3 was amended to include a new paragraph VI that authorizes the commissioner of the New Hampshire Department of Health and Human Services, with the approval and cooperation of the governor, to pursue and enter into reciprocal child support agreements with the foreign countries…that provide similar due process rights to those afforded the citizens of New Hampshire.8 No state-level reciprocating foreign country agreements exist at this early stage, but that is expected to change in the next several years.

As New Hampshire and the world’s population continue their transient patterns among increasingly diverse populations, international child support enforcement is an area of the law that is sure to grow. At present, the bulk of international child support cases are handled by the New Hampshire Division of Child Support Services. Once New Hampshire establishes state-level foreign reciprocating agreements with foreign countries, private attorneys will be better able to assist clients who are in need of representation in matters involving international child support.

ENFORCEMENT TOOLSENFORCEMENT TOOLS

The Division has authority to withhold an obligor’s income through wage assignment to ensure payment of support and arrearage,9 but that is only one of the enforcement tools available in managing intrastate, interstate and international child support enforcement. For example, an obligor’s U.S. federal income tax refunds10 and lottery winnings subject to federal tax can be intercepted to pay child support arrearages.11 Driver’s, professional, occupational and recreational licenses can be suspended pending payment of child support arrearages.12 The Division also has many tools to locate absent parents, such as the federal parent locator service13 and, in international cases, may be able to rely on the reciprocating countries’ locating resources. If an obligor is more than $5,000 in arrears, the Division can request that the U.S. State Department deny the obligor’s passport application.14 This passport denial program has proven to be very effective nationwide. The U.S. Department of Health and Human Services has collected more than $4 million in lump sum child support payments from the passport denial program since 1996 and currently denies 30 to 40 passports a day under the program.15

ENFORCING A FOREIGN ORDER IN NEW HAMPSHIRE

A request to register a foreign order is usually initiated by the foreign country’s child support agency and is forwarded to the Division’s central registry unit.16 A direct request from an individual child support obligee in a foreign country is rare, but it can be handled. That process tends to be more difficult, as the obligee must apply to the Division by mail for child support services. The obligee would then need to process the pleadings and other paperwork necessary without hands-on help. For these reasons, foreign obligees usually approach their country’s central office for child support enforcement.

If the request is from a country with which the United States has a reciprocating arrangement, then the foreign support order will be extended comity by New Hampshire. The process can go quite smoothly if all necessary information is provided and the Division knows where the respondent is located in New Hampshire. The central registry unit will evaluate the request packet to make certain that all the information needed to process the request is complete and to confirm that the respondent does in fact reside in New Hampshire. The packet will contain several documents including a Transmittal of UIFSA Petition to Register and Enforce a Foreign Child Support Order (Transmittal), and a certified, original copy of the foreign order. If the Transmittal and foreign court order have not been translated into English, then the Division will get them translated. However, one of the filing requirements is that the material be completed in the language of the responding jurisdiction. Toward that end, the federal central authority has developed forms in the language of each country with which the U.S. has a reciprocating foreign country agreement. If the packet is incomplete, the central registry unit at the Division will contact the petitioning agency in the foreign country to get the information or request that further action be taken to complete the application.

Once the packet is in order, central registry will notify the New Hampshire respondent/obligor of the matter. The respondent will be sent an original Division letter that informs him or her of the request to register the order and the procedure that the Division will follow, as well as copies of a registration statement, an arrearage affidavit that details the child support arrearage, and the foreign order. The central registry unit will then file the case with the superior or family division court in the obligor’s county of residence. Among the original documents included in the court filing are a registration cover letter, notarized registration statement, notarized arrearage statement and the certified foreign order. The court will then serve, by certified mail, various documents upon the respondent. These will include a court notice of registration of order that will inform the respondent about the steps necessary to object to the registration. The respondent has 20 days to object to the request to register the foreign order in New Hampshire. If the respondent does not file an objection, the New Hampshire court will confirm the foreign registration and, upon Division receipt of this confirmation, the case will be referred to the appropriate Division district office for enforcement. If the respondent does object, then the case will proceed to a contested hearing, with a Division attorney representing the State of New Hampshire.

A foreign judgment from a foreign jurisdiction with which New Hampshire reciprocates is prima facie evidence that the foreign order was rendered in accordance with our notions of due process. There are several bases upon which a respondent may object to a petition to register a foreign court’s order. N.H. Rev. Stat. Ann. § 546-B:45, I enumerates the defenses to the registration or enforcement of a foreign decree in New Hampshire:

  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 New Hampshire to the remedy sought;
  6. full or partial payment has been made; or
  7. the statute of limitations under RSA 546-B:42, relative to choice of law, precludes enforcement of some or all of the arrearages.

If one of these affirmative defenses is pled, then the case will be litigated. At times, respondent obligors will plead unfounded to stall the inevitable determination that the obligor is the proper party to the action.

ENFORCING A NEW HAMPSHIRE ORDER IN A FOREIGN COUNTRY

The Division should normally learn of a request to register and enforce a New Hampshire child support order in a foreign country from the obligee’s local child support district officer.17 There are 12 district offices in New Hampshire, organized by county. At the district level, the obligee will be interviewed by a case technician or a child support enforcement officer (CSO). If the obligee is already in the state public assistance system’s database through past application for other services in the past, then a relationship with the Division has already been established. Still, updated information must be gathered, such as an updated arrearage statement and a copy of any court order in effect. If the obligee is not already enrolled for services with the state, then the case technician or CSO will help the obligee complete a form 725 application for child support services, gathering information about both parents, the child(ren), and the child support order. The CSO will determine whether anything can be done to help the applicant directly from the local office before referring the case to the interstate enforcement office within the Division. Most often, the request will be handled by the chief of interstate operations or a supervisor of the interstate child support office.

The first step is to determine whether a foreign reciprocating support arrangement exists with the foreign country where the non-custodial parent resides. If there is no reciprocal arrangement, the interstate child support office will still attempt to help the individual who seeks enforcement of the order, but there will be no basis upon which to make any demands of the foreign country.

Whether a reciprocal arrangement exists or not, then the supervisor will attempt to directly contact the obligor who owes child support and explain the situation and the details of the New Hampshire child support order. If the obligor agrees to abide by the New Hampshire order without objection, the obligor will be instructed to make child support payments directly to the State of New Hampshire. If the obligor is not cooperative and the information provided indicates that the respondent works for an American company in the respondent’s country of residence, then the interstate office will attempt to effect a direct wage withholding from the respondent’s paycheck. Otherwise, the case will be prepared for registration in the country where the obligor resides. The foreign country’s child support agency will arrange for service of the petition on the obligor and proceed to register the New Hampshire order in their country. This simple, straightforward approach sometimes works, especially when the obligor well knows that he or she has a child support obligation in New Hampshire.

If the simple approach is not possible, then the chief of interstate operations will contact his counterpart in the foreign country’s central child support office and request help. The initial contact will probably be by telephone. The telephone contact will be followed by mailing a UIFSA18 package that includes a Transmittal, a petition to register a foreign order, a certified copy of the New Hampshire order, and a notarized statement of arrearages. The foreign country’s authorities will effect service of process, and ensure that other due process requirements are met.

If the chief is attempting to register and enforce a New Hampshire order in a foreign country with which we have no reciprocating agreement, or where the foreign country has different philosophies and legal protections from those of the U.S. regarding due process and child support, efforts at collection will be likely be futile. If a friendly agreement can be reached, and assistance is given to ensure service of process and other due process protections, then the request may be processed and there will be a happy ending. On the other hand, the foreign country may correctly respond that it has no obligation to help us in any way, and the matter will remain unresolved.

CONCLUSION

The moral of this story? If you have an opportunity at the present time to handle a case involving international child support enforcement, you have two practical choices: You can either refer the case to the Division, or handle the case yourself. If there is any doubt about how to proceed, then run - don’t walk -to the Division for assistance.

ENDNOTES

1. Established under title IV-D of the Social Security Act, 42 U.S.C. §§ 651-669 (1994, as well as 1998 Supp. IV & Supp. 1999).
2. Based upon federal form OCSE-157 report for federal fiscal year 2002.
3. Interview with I. Robert (Bob) Ortiz, chief of interstate child support services within the Division, and Linda B. Billingham, staff attorney at the Division (March 27, 2003). Also, interview with Mr. Ortiz and Linda B. Billingham, Esq., as well as Kevin Landry, Esq., the Division’s chief counsel, and John L. Willliams, Esq., a supervising attorney and the division’s legislative liaison (April 21, 2003).
4. U.S. Senate advice and consent is not required.
5. Federal register notice published by the Office of the Legal Adviser, U.S. Department of State at 67 Fed. Reg. 1605 (December 2, 2002).
6. Id.
7. Official U.S. government circular on international child support enforcement, most easily located at http://travel.state.gov/child_support.html.
8. N.H. Rev. Stat. Ann. § 161-B:3 (2002).
9. N.H. Rev. Stat Ann. ch. 458-B (1985, as amended).
10. The federal income tax refund offset program was enacted into law in 1981 and amended in 1984 . See 45 C.F.R. § 303.72 (1981) and 31 C.F.R. § 285.3 (1981).
11. N.H. Rev. Stat. Ann. § 282:21-v (1995).
12. N.H. Rev. Stat. Ann. § 161-B:11 (1997).
13. 42 U.S.C. § 653 (1975, as amended).
14. N.H. Rev. Stat. Ann. § 161-C:26-b (1997).
15. Official U.S. government circular, supra note 7.
16. Interviews, supra note 3.
17. Id.
18. UIFSA refers to the Uniform Interstate Family Support Act, codified in New Hampshire’s laws at N.H. Rev. Stat. Ann. ch. 546-B (1998).

ACKNOWLEDGING WITH APPRECIATION

  • Kevin Landry, Esq., chief counsel for the N.H. Division of Child Support Services
  • Robert (Bob) Ortiz, chief of interstate operations at the N.H. Division of Child Support Services
  • Linda B. Billingham, staff attorney at the N.H. Division of Child Support Services
  • John L. Williams, supervising attorney and legislative liaison at the N.H. Division of Child Support Services
  • Dawn Panzino, supervisor of the central registry unit located at the N.H. Division of Child Support Services

Author

Catherine A. Feeney, of the Feeney Law Office, Newport, has a general practice with a concentration in family law. She is the Chair of the New Hampshire Bar Accociation’s Family Law Section.

 

 

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