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Legal Staff News & Views Newsletter Interstate Enforcement of Child Support Orders Both Congress and state legislatures have enacted statutes to cope with our increasingly mobile society. The statutes are designed to simplify modifying and enforcing support orders in other states and to avoid jurisdictional controversies. For example, the 5th District Appellate Court recently ruled on a matter that illustrates the interplay between the federal Full Faith and Credit for Child Support Order Act (28 U.S.C., Sec. 1738B), and the Illinois Uniform Interstate Family Support Act (750 ILCS 22/100, et seq.). In 1996, Melissa and Dwight Mattmuller
were divorced in Indiana. Melissa was granted custody of the parties'
three children, and Dwight was ordered to pay child support. In 1997,
Dwight moved to New Mexico. One a year later, Melissa moved to Illinois
and filed a petition to enroll the Indiana judgment and to modify
child support (in Illinois) under the Uniform Interstate Family Support
Act. Dwight filed an objection to the Illinois court's personal jurisdiction.
The trial court denied his motion, found that the court had personal
jurisdiction over Dwight as a result of the presence of the minor
children in Illinois, and that any objection he may have with respect
to Illinois jurisdiction would be cured by applying Indiana law. Dwight
then filed a petition in Indiana to modify child In 1999, Dwight moved back to Indiana and filed his own Petition to Modify Custody in Illinois. He then moved to dismiss Melissa's Petition to Modify Child Support, alleging that the court lacked subject matter jurisdiction to modify the Indiana child support order according to the Illinois Uniform Interstate Family Support Act. His contention was that Indiana, as the state that enacted the original child support order, had continuing exclusive jurisdiction pursuant to the Illinois statute. The court denied his motion, ruling that an increase in child support would be appropriate under the circumstances, and the court made appropriate findings with respect to the needs of the children and his income. The court, however, declined to enter an order modifying child support given Dwight's pending Motion to Modify Custody. A few months later, Melissa petitioned to remove the children from Illinois to Wisconsin. The court granted her Petition for Removal. The court further ruled that it deferred to the Indiana court for determination of the pending custody and visitation issues. Additionally, the court deferred to the Indiana court in regards to any future support modifications necessitated by the move to Wisconsin, and retained jurisdiction to enter a final order on support modification issues once the custody and visitation issues had been resolved. Three months later, the Illinois court entered a final order increasing child support retroactively and directed the parties to register the Modified Child Support Order in the Indiana court. Dwight moved to reconsider the order of the Illinois court and , for the first time, raised the argument that the Illinois court's order violated the federal Full Faith and Credit for Child Support Order Act in that the Illinois court lacked subject matter jurisdiction because Indiana maintained continuing exclusive jurisdiction. The motion to reconsider was denied, and an appeal followed. The Appellate Court affirmed. Dwight had argued that the Illinois court lacked subject matter jurisdiction pursuant to the federal statute and that he had not waived this objection by not raising the issue earlier because objections to subject matter cannot be waived. The Appellate Court explained that Congress enacted the Full Faith and Credit Act in 1994 to discourage interstate controversies over child support orders. The federal statute did not confer the jurisdiction to handle the modification and enforcement of child support orders upon state courts, but, rather, coordinates jurisdiction between states in the entry, modification and enforcement of child support orders. A state's subject matter jurisdiction over the entry, modification and enforcement of child support order arises from the state's own constitution. However, Illinois and other states have enacted the Uniform Interstate Family Support Act (UIFSA) for coordinating the exercise of their jurisdiction in this type of case. Any objection to the court's jurisdiction under the federal law is not a challenge to the court's subject matter jurisdiction but, rather, an objection to the application of the UIFSA. Therefore, the Appellate Court found such an objection can be waived if the objection is not made at the earliest opportunity. It is important for attorneys to note that objections to a court's jurisdiction, raised under the state or federal statute, must be raised immediately or those contentions will be deemed waived. This is contrary to the general rule that you cannot waive subject matter jurisdiction. Under the Full Faith and Credit Act and the Illinois statute, a court maintains continuing and exclusive jurisdiction to modify its child support order unless the issuing state is no longer the residence of either party or the children for whom the support was ordered. Under the Full Faith and Credit Act and the UIFSA, a court maintains continuing and exclusive jurisdiction, unless: 1) The issuing state is no longer the residence of either party or the children for whom the support order was entered, 2) Each party consents for the court of another state to assume continuing and exclusive jurisdiction, or 3) The issuing state declines to exercise jurisdiction. Note the differences between the procedure to modify a child support order outside the state that originally issued the order and the procedure to enforce an order outside the issuing state. A state that has enacted the UIFSA generally can register an order from another state for the purpose of enforcing the order, despite the fact that the issuing state maintains continuing and exclusive jurisdiction to modify the order. Registration of an order for enforcement purposes does not confer jurisdiction on the court to modify the order registered, and generally the law of the issuing state must be applied by the in state which the order is registered for enforcement. Attorneys need to be familiar with both statutes, different procedures, and standards they set forth for the modification and enforcement of support order from state to state. Interstate enforcement of support orders does not subject the prosecuting party to modification proceedings so long as the proper procedures are set forth, and a state's UIFSA are followed. Be part of the DCBA's first Cook Book! We are looking to our members to contribute their favorite recipes. We would like to have your recipes (more than one is good) by September 30, 2003. Send faxes to: 630-653-7870 People & Places... The end of August brings the beginning of autumn activities. Pine-Apple Orchard (Kuipers Family Farm, Maple Park) apple picking time starts mid August and runs through early November. This is a great place to take the kids. Besides apples you can pick pumpkins and cut your own Christmas tree. They also have a petting zoo, and many, many more things for the kids of all ages. Plus, they have the Orchard Shop & Bakery with their famous Apple Cider Doughnuts (to die for), home baked pies, taffy apples, jellies, cider and more. For more information call 815-827-5200 or check out their web site at: www.kuipersfamilyfarm.com
Activities at the DuPage County Fair Grounds...
On August 13, 2003 one of staff members and dear friend, Linda Lindberg, lost her battle with cancer. She is survived by her husband Mark and son Nathan, parents, a sister and brother. We will miss her subtle personality, wonderful smile, and the warm friendship she shared with all of us. For information contact Gloria Norton at DuPage County Bar Association, 126 S. County Farm Road, Wheaton, IL 60187-4597, Telephone 630-653-7779, Fax to 630-653-7870 or E-Mail to: gnorton@dcba.org. |
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