Interstate child support is a term that refers to a situation where the parents of a child reside in different states and a case is brought in one state to either establish paternity , establish an initial child support order, modify a previous child support order, or enforce a child support order from another state. Sometimes the parents have simultaneous cases in two different states. With the exception of enforcement of orders, all of these cases can involve issues of jurisdiction.
What Is “Jurisdiction” In An Interstate Support Case?
In the legal context, “jurisdiction” means the power of the court to make orders. There are two different types of jurisdiction which are treated differently by the Law, but many lawyers and even many courts often confuse the two when they just use the word “jurisdiction” without specifying what kind of jurisdiction they are talking about.
Personal Jurisdiction Rules That Apply To Child Support
In any lawsuit or case, the Court which is hearing the case is required to have personal jurisdiction over the person being sued. If the person resides in the same state as the Court or Tribunal, personal jurisdiction is established by service of the petition or summons on him or her. Service can be effected by the person being handed a copy of the papers, or by other means such as mail, email, leaving it with someone else, or publication in a newspaper.
If the person being sued lives in another state, personal jurisdiction can be established pursuant to a so called “long arm statute” which gives the courts of one state the power to assert personal jurisdiction over people who reside in other states. In the context of child support cases New York courts will have personal jurisdiction in the following situations:
- Child born in New York State
- Father had lived with the mother and child in New York State
- Father had sexual relations with the mother in New York State within the period of probable conception
- Father caused the mother to go to New York State with the child
- Father was served with papers in New York State
- Father provided child support to the mother while she and the child were living in New York State
- Father consented to the courts of New York State having jurisdiction
It is important to understand that any objections to personal jurisdiction can be waived. Waiver will be found whenever the person being sued shows up in court and fails to object to the court’s jurisdiction over him. This is true whether or not he knows that by appearing and failing to object he has consented to jurisdiction
Subject Matter Jurisdiction Rules That Apply To Support Orders
“Subject matter jurisdiction” is harder to explain. The best way of explaining it is by examples. For example, a person cannot file a personal injury case in criminal court. Likewise, a patent case can only be filed in the federal patent court. In the context of interstate child support cases, these are governed by a federal law, which is called the Uniform Interstate Family Support Act or “UIFSA”. This statute requires all states to enact their own state laws which substantially conform to the rules of UIFSA.
However, states are free to deviate from the UIFSA in some respects, and states may have different ways of calculating the amount of child support, as well as how many years child support must be paid. Most states require child support to be paid up to age 18, or 21, but some actually require child support to be paid beyond age 21 in some circumstances. Once a court of one state issues the initial child support order, child support will be required up to the age set in the state laws of the originating jurisdiction , even if the mother and child move to a different state with different rules.
While the UIFSA is a fairly well written statute and not too difficult for attorneys to understand, the rules are fairly complex. This blog post will only attempt to give a very general overview of the most basic concepts and most common situations. If you have an interstate child support case, you must consult and probably hire an attorney who is well versed in child support and in these type of cases.
To understand the UIFSA you should know that it was created in order to resolve situations where the same parties had cases going on simultaneously in different states, or where courts from different states had issued inconsistent orders.
UIFSA (Uniform Interstate Family Support Act) Jurisdiction Rules
For Initial orders, the courts of the State where the child has been living for the last 6 months has jurisdiction. If the child is less than 6 months old or the child or children have lived in more than one state during the six month period prior to the date of filing, the rules are more complex, but often the state where the child or children are living at the filing date will have jurisdiction.
Once the originating state (the state that makes the initial child support order) has entered a child support order, that State’s courts will have “exclusive continuing jurisdiction” which means that no other state courts will have subject matter jurisdiction and cannot make any child support order or modify any child support order until either of the following occurs:
- Both parents and the child have all left the originating state
- The parents agree that the courts of another state will have jurisdiction
- The court of the originating state agrees to give up jurisdiction
Unlike the defense of a lack of personal jurisdiction, the defense of lack of subject matter jurisdiction cannot be waived and can be raised at any time, even on appeal. However as a practical matter, it will generally be difficult if not impossible for the person who has been paying child support to get any money back if he or she wins an appeal, which could take a year or more.
Reasons To Contest Jurisdiction In A Child Support Case
You may or may not wish to contest jurisdiction, depending on how favorable the laws are in the two states. In New York, child support is payable up to 21 unless the child becomes emancipated. In many states child support ends at 18. In some states child support can even last until a “child” is over 21. In Massachusetts child support can continue in some situations until age 23.
All states are required to use guideline formulas for calculating the amount of child support. In New York, the formula is applied based upon adjusted gross income of the parents, which include total income less medicare taxes, social security taxes, and City Taxes, but not income taxes. There is no adjustment for the time that the noncustodial parent spends with the child.
Other states may allow deductions for income taxes, and may adjust the formula based upon the percentage of time that the child spends with each parent. On the other hand, New York State has a cap for the basic child support which, at the time of this blog post is $154,000 of combined adjusted gross income of both parents. Other states have no cap.
Additionally, in New York, a child support order will take effect as of the filing date of the petition, and courts will almost never require payments for any period of time prior to the filing date. Therefore, if the New York Courts dismiss a case based upon lack of jurisdiction, the petitioner will have to file a new petition in a different state and may have to give back any money collected while a temporary order was in effect.
Finally, legal fees may be higher or lower in other states. Legal fees in New York City are particularly high (however I charge only $200 an hour)
Courts Must Also Have Jurisdiction To Enter Paternity Orders
As a general matter, Courts must first establish paternity (now called “parentage” in New York State) before a Child Support Order can be entered against a parent. In New York paternity or parentage is established if the child is a child of the marriage, if the parents signed an acknowledgement of paternity (Usually at the hospital), or if a Court has already established and order of filiation. However the same rules of personal jurisdiction and subject matter jurisdiction apply to paternity orders. NY Courts should not issue any temporary orders, including child support orders, if paternity has not been established.