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UIFSA / Interstate Modification Question
wrote in message oups.com... On Aug 2, 1:53 pm, "Bob Whiteside" wrote: wrote in message oups.com... With regard to one state modifying another state's CS order, UIFSA 611(c) states: "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." In the comments, the example given to illustrate this provision is this: "Subsection (b) states that if the forum has modification jurisdiction because the issuing State has lost continuing, exclusive jurisdiction, the proceedings will generally follow local law with regard to modification of child support orders. However, subsection (c) prevents the modification of any final, nonmodifiable aspect of the original order. For example, if child support was ordered through age 21 in accordance with the law of the issuing State and the law of the forum State ends the support obligation at 18, modification by the forum tribunal may not affect the duration of the support order to age 21." My question is, how does one differentiate between a "modifiable aspect" of the original order from a "final non-modifiable" aspect of the original order? My ex is trying for a modification in our new state (basically asking for more per month, plus add-ons for private school, therapist visits, etc.), and I'm trying to figure out which modifications I can object to under UIFSA. Our original state was Texas, new state is California. If I have read your situation correctly, you are asking can a child's mother who resides with the child in TX use the CA CS rules and guidelines to get a modification. IOW - Can a mother shop around between the states for the most favorable outcome? I would say the answer lies in which state has jurisdiction to act. And then the other state has the responsibility under the full faith and credit clause of the Constitution to enforce the original states court order. Residency in CA would have to be legally established, and the file transferred from TX, in order for the CA courts to have jurisdiction. No, sorry, that's not quite the situation. All parties are now in CA. So, CA definitely has jurisdiction. Mother's requesting a modification of the original TX order. I was trying to find out if UIFSA requires that CA continue to use the TX CS guidelines when calculating support amount, because UIFSA 611(c) seems to suggest that this is the case (see original post). The bulk of case precedent seems to indicate that when modifying another states CS order in a new state, the CS guidelines in the new state are applied, but certain "non-modifiable" elements of the original order cannot be modified by the new state. I'm still not exactly clear on which elements of an order are "modifiable" and which are "non-modifiable," but the example given in almost every case is the duration of the CS order. I.e, if the original state orders CS to age 18, the new state cannot extend it to age 21. Got it! Here is the Oregon law which lays out my states implementation of UIFSA covering the way another state's law can be modified. Since this is a recitation of the federal low I would assume CA has a similar provision in CA law. 110.411 Choice of law. (1) 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. (2) In a proceeding for arrearages, the statute of limitation under the laws of this state or of the issuing state, whichever is longer, applies. So to answer your question, the non-modifiable portions of the original state court order are those provisions regarding the "nature, extent, amount, and duration of current payments." What is not clear, and good questions to ask an attorney in CA are - Does CA have a "long-arm" statute where they can reach out over-ride the origin state in some way? Does the original CS order have to be "registered" in CA before they will initiate a review of that order? Does the fact the order will no longer be an Interstate CS order change what CA can do in a subsequent modification? I'm sure those types of questions have been answered through appeals and should be clearly defined by case law. |
#12
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UIFSA / Interstate Modification Question
"Bob Whiteside" wrote wrote in message ............................... The bulk of case precedent seems to indicate that when modifying another states CS order in a new state, the CS guidelines in the new state are applied, but certain "non-modifiable" elements of the original order cannot be modified by the new state. I'm still not exactly clear on which elements of an order are "modifiable" and which are "non-modifiable," but the example given in almost every case is the duration of the CS order. I.e, if the original state orders CS to age 18, the new state cannot extend it to age 21. Got it! Here is the Oregon law which lays out my states implementation of UIFSA covering the way another state's law can be modified. Since this is a recitation of the federal low I would assume CA has a similar provision in CA law. 110.411 Choice of law. (1) 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. (2) In a proceeding for arrearages, the statute of limitation under the laws of this state or of the issuing state, whichever is longer, applies. So to answer your question, the non-modifiable portions of the original state court order are those provisions regarding the "nature, extent, amount, and duration of current payments." What is not clear, and good questions to ask an attorney in CA are - Does CA have a "long-arm" statute where they can reach out over-ride the origin state in some way? Does the original CS order have to be "registered" in CA before they will initiate a review of that order? Does the fact the order will no longer be an Interstate CS order change what CA can do in a subsequent modification? I'm sure those types of questions have been answered through appeals and should be clearly defined by case law. == TM might have some info for him since they have an OR case via CA. I'm sure she'll be around here soon. One gotcha I can see is that all the parties are now in CA which may give some judge the discretion to transfer to full CA jurisdiction. Jurisdiction frequently follows the child. |
#13
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UIFSA / Interstate Modification Question
"Gini" wrote in message news:xUvsi.10808$ug4.6092@trndny07... "Bob Whiteside" wrote wrote in message .............................. The bulk of case precedent seems to indicate that when modifying another states CS order in a new state, the CS guidelines in the new state are applied, but certain "non-modifiable" elements of the original order cannot be modified by the new state. I'm still not exactly clear on which elements of an order are "modifiable" and which are "non-modifiable," but the example given in almost every case is the duration of the CS order. I.e, if the original state orders CS to age 18, the new state cannot extend it to age 21. Got it! Here is the Oregon law which lays out my states implementation of UIFSA covering the way another state's law can be modified. Since this is a recitation of the federal low I would assume CA has a similar provision in CA law. 110.411 Choice of law. (1) 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. (2) In a proceeding for arrearages, the statute of limitation under the laws of this state or of the issuing state, whichever is longer, applies. So to answer your question, the non-modifiable portions of the original state court order are those provisions regarding the "nature, extent, amount, and duration of current payments." What is not clear, and good questions to ask an attorney in CA are - Does CA have a "long-arm" statute where they can reach out over-ride the origin state in some way? Does the original CS order have to be "registered" in CA before they will initiate a review of that order? Does the fact the order will no longer be an Interstate CS order change what CA can do in a subsequent modification? I'm sure those types of questions have been answered through appeals and should be clearly defined by case law. == TM might have some info for him since they have an OR case via CA. I'm sure she'll be around here soon. One gotcha I can see is that all the parties are now in CA which may give some judge the discretion to transfer to full CA jurisdiction. Jurisdiction frequently follows the child. That's right. And there can be no basis to object to a jurisdiction change to CA when the obligor is also from CA. Ergo my point - UIFSA may no longer apply in all aspects of an existing order if all parties and the child are now residents of CA. A CA judge can rule that TX no longer has a controlling interest in this case, and presto, it's a CA case. The language cited by the OP was put into UIFSA to cover the two-state circumstances. If the case is now a one-state case UIFSA could be a moot point. |
#14
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UIFSA / Interstate Modification Question
"Bob Whiteside" wrote "Gini" wrote ..................... == TM might have some info for him since they have an OR case via CA. I'm sure she'll be around here soon. One gotcha I can see is that all the parties are now in CA which may give some judge the discretion to transfer to full CA jurisdiction. Jurisdiction frequently follows the child. That's right. And there can be no basis to object to a jurisdiction change to CA when the obligor is also from CA. Ergo my point - UIFSA may no longer apply in all aspects of an existing order if all parties and the child are now residents of CA. A CA judge can rule that TX no longer has a controlling interest in this case, and presto, it's a CA case. The language cited by the OP was put into UIFSA to cover the two-state circumstances. If the case is now a one-state case UIFSA could be a moot point. == Uh huh. I can hear the CA judge mumbling something about TX being an "inconvenient forum." Heh, then the NCP might mumble to the judge "You can't do that" and the judge might respond "prove it." Next comes the ca-ching, ca-ching of an appellate lawyer. (Hope the OP has already gone to bed for the night so he doesn't lie awake pondering this little potential bump in the road.) |
#15
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UIFSA / Interstate Modification Question
On Aug 2, 9:32 pm, "Gini" wrote:
"Bob Whiteside" wrote "Gini" wrote .................... == TM might have some info for him since they have an OR case via CA. I'm sure she'll be around here soon. One gotcha I can see is that all the parties are now in CA which may give some judge the discretion to transfer to full CA jurisdiction. Jurisdiction frequently follows the child. That's right. And there can be no basis to object to a jurisdiction change to CA when the obligor is also from CA. Ergo my point - UIFSA may no longer apply in all aspects of an existing order if all parties and the child are now residents of CA. A CA judge can rule that TX no longer has a controlling interest in this case, and presto, it's a CA case. The language cited by the OP was put into UIFSA to cover the two-state circumstances. If the case is now a one-state case UIFSA could be a moot point. == Uh huh. I can hear the CA judge mumbling something about TX being an "inconvenient forum." Heh, then the NCP might mumble to the judge "You can't do that" and the judge might respond "prove it." Next comes the ca-ching, ca-ching of an appellate lawyer. (Hope the OP has already gone to bed for the night so he doesn't lie awake pondering this little potential bump in the road.) Thanks for all the input. I do expect CA to assume full jurisdiction and modify based on their guidelines. CA does have a registration requirement (she hasn't done it). I'll check to see if the CA Family code has anything in it like OR spelling out choice of law. Again, thanks. |
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