UIFSA

CS 154 Determination of the Controlling Order (DCO) Overview & Screen                   

10/96 Revised 01/03/10 Training Completed 01/18/11

UCA 62A-11-304.2(3)(b), 78B-14-102, 103, 207, 305(2)(a), and 307(3); 18 U.S.C. 1151 and 28 U.S.C. 1738B

 

 

Before the Full Faith and Credit of Child Support Orders Act (FFCCSOA), October, 1994 and the Uniform Interstate Family Support Act (UIFSA) of July, 1996 took effect, it was possible for a single child support case for the same family to have more than one valid order issued by different entities/states.  This situation was created under the common scenario listed below.

 

1.                   An order was issued when the custodial parent (CP), non-custodial parent (NCP), and child were all residing in the same state.

 

2.                   The NCP then moves to another state.  (This did not release the NCP from his/her obligation; however, quite often the NCP just quit paying.)

 

3.                   The CP wanted enforcement of the obligation and requested assistance from the state s/he was currently residing in.

 

4.                   The CP’s state would file an interstate action with the NCP’s state under the now obsolete Uniform Reciprocal Enforcement of Support Act (URESA).  The NCP’s state would establish a new support order.  This second order would then be used for enforcement in the NCP’s state.

a.                   One of the reasons a new order was issued was because it was believed that the NCP’s state was more likely and better able to enforce its own order rather than an order from another state.  Another reason a new order was issued was because the laws allowed states to issue another order.

b.                  Even though a new order had just been issued, the initial order was still valid and remained in effect.  The obligation to pay support on that initial order did not stop just because:

i.                     The NCP left the state; or,

ii.                   A new order was established. 

 

5.                   With the establishment of the second order, the case now had two valid orders in effect in two different states at the same time.  Because each state tribunal issued the order using its own state laws, the two orders were often for different amounts.

 

6.                   If the NCP moved to a third state, another new order could be established. This order would also be valid under the laws of that state.

 

7.                   This caused confusion about the amount of:

a.                   Current support to charge;

b.                  Support that had been paid; and,

c.                   Arrears that were actually owed.

 

UIFSA call for a “one order system” to resolve the problems associated with URESA multiple orders. Under UIFSA, once a support order is entered, that order controls the child support obligation regardless of whether the parents or child later move to another state.  This “one order” is called the controlling order. 

 

Because there may be more than one order for the same parents and child(ren), both FFCACSO and UIFSA include a process to determine which of the multiple order(s) to recognize prospectively for current child support.  This process is called the determination of controlling order (DCO). 

 

 

Statutory Authority

 

The Office of Recovery Services/Child Support Services (ORS/CSS) is responsible to make a DCO in accordance with UCA 78G-145-305(2)(a) and 307(3), which states:

UCA 78G-14-305(2) :

A responding tribunal of this state, to the extent not prohibited by other law, may do one or more of the following:
(a) issue or enforce a support order, modify a child-support order, determine the controlling child-support order, or determine parentage;”

 

UCA 78G-14-307(3):

A support-enforcement agency of this state that requests registration of a child-support order in this state for enforcement or for modification shall make reasonable efforts:

                                (a) to ensure that the order to be registered is the controlling order; or

(b) if two or more child-support orders exist and the identity of the controlling order has not been determined, to ensure that a request for such a determination is made in a tribunal having jurisdiction to do so.”

 

If a request is received from a state IV-D agency for a copy of an order and/or payment history for a determination of a controlling order (DCO) and reconciliation of arrears, provide the information to the other state within 30 working days of the request or notify the other state when the information will be provided.  Pursuant to 45 CFR 303.7(a)(6) a State Iv-D Agency must:

“Within 30 working days of receiving a request, provide any order and payment record information requested by a State IV-D agency for a controlling order determination and reconciliation of arrearages, or notify the State IV-D agency when the information will be provided;”

 

Once a DCO has been made, that order controls the child support obligation regardless of whether the parents or child later moves to another state. 

 

Terms/Definitions 

 

1.                   Child Support Order - as defined by UCA 78-45G-102(2):  a support order for a child, including a child who has attained the age of majority under the law of the issuing state.

 

2.                   Continuing, Exclusive Jurisdiction (CEJ) – for purposes of determining “controlling order”:  an issuing tribunal has CEJ over its own child support order if the order is the controlling order, and:

a.                   At the time of the filing of a request for modification, the state is the  residence of the NCP, the individual CP, or the child for whose benefit the support order is issued; or,

b.                  Even if the state is not the residence of the NCP, the CP, or the child for whose benefit the support order is issued, the  parties consent in a record or in open court that a tribunal of another state may continue to exercise jurisdiction to modify the order.  For more information, refer to CS 158 Continuing Exclusive Jurisdiction and U.C.A. 78B-14-205.

 

3.                   Controlling Order State – the State in which the only order was issued, or, where multiple orders exist, the State in which the order determined by a tribunal to control prospective current support pursuant to the UIFSA was issued.  For more information, refer to U.C.A, 78B-14-207. 

 

4.                   Controlling Order Status – for purposes of ORS analysis to determine a “controlling order”:  a child support order containing a month-to-month obligation for a child’s on-going support which can be prospectively enforced.  For more information, refer to CS 158.   

 

5.                   Custodial Parent (CP) – for purposes of ORS analysis to determine a “controlling order”:  the parent or guardian with whom the child resides.

 

6.                   Indian Country – As defined by 18 U.S.C. 1151: 

“Except as otherwise provided in sections 1154 and 1156 of this title, the term ''Indian country'', as used in this chapter, means

(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation,

(b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and

(c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.”

 

7.                   Multiple Orders – for purposes ORS analysis to determine a “controlling order”:  a case with two or more valid child support orders that contain a month-to-month current support obligation and are enforceable throughout the child’s minority.

 

8.                   No Order – for purposes of determining “controlling Order”: an order that does not address current child support.  For example:

a.                   temporary orders issued ex parte;

b.                  arrears only orders;

c.                   orders for accrued support only (no current support obligation);

d.                  income withholding orders;

e.                  custody and/or parent time only orders (issued under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), UCA 78B-13-101 through 318; and,

 

NOTE:  A UCCJEA order may be issued in another state and it does not affect the original child support order.  If you are unsure if the order is a UCCJEA order, contact the Attorney General’s Office (AGO).  

f.                    an original order modified under UIFSA.

 

9.                   Non-custodial Parent (NCP) – for purposes of determining “controlling order”:  the parent obligated to pay child support for a child who does not reside with the NCP.

 

10.               Non IV-D Request for DCO for purposes of determining “controlling order”; a non-IV-D case with multiple orders, the NCP and CP both reside in Utah, and one of the parties requests a DCO. 

 

11.               Obligations:  All judicial and administrative obligations that are stored in ORSIS on the obligation screens.

 

12.               Orders:  An order that is not stored in ORSIS on the obligation screens, but was used in a controlling order determination process.

 

13.               Personal Jurisdiction – for purposes of determining “controlling order”:  a court/tribunal’s authority over an individual residing within the state.

 

14.               Single Order – for purposes of determining “controlling order”:  a case with one child support order, which controls the child support obligation regardless of whether the child or parent later moves to another state.  

 

15.               Tribunal – as defined by UCA 78B-14-103 (24):  “. . . a court, administrative agency, or quasi-judicial entity authorized to establish, enforce, or modify support orders or to determine parentage.

 

16.               UIFSA Action – for purposes of determining “controlling order”:  any remedy or proceeding contained within the UIFSA law that is taken on a case.

 

 

Full Faith and Credit of Child Support Orders act (FFCACSO) Uniform Interstate Family Support Act (UIFSA)

 

FFCACSO 28 U.S.C. sec.1738B (a)) requires states to give full faith and credit to all valid orders, including judicial, administrative, and URESA orders.

 

28 U.S.C sec. 1738B. - Full faith and credit for child support orders

“(a) General Rule. –

                The appropriate authorities of each State –

                (1) shall enforce according to its terms a child support order made

               consistently with this section by a court of another State; and               (2)

               shall not seek or make a modification of such an order except in

               accordance with subsections (e), (f), and (i).”

 

Per FFCACSO (Sec 1738B(f), once an order is established, it is the only order issued for that case.  U.C.A. 78B-14-207. Determination of controlling child-support order:
    (1) If a proceeding is brought under this chapter and only one tribunal has issued a child support order, the order of that tribunal controls and must be so recognized.
    (2) 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 same child, a tribunal of this state having personal jurisdiction over both the obligor and individual obligee shall apply the following rules and by order shall determine which order controls:
    (a) If only one of the tribunals would have continuing, exclusive jurisdiction under this chapter, the order of that tribunal controls and must be so recognized.
    (b) 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 controls, but if an order has not been issued in the current home state of the child, the order most recently issued controls.
    (c) If none of the tribunals would have continuing, exclusive jurisdiction under this chapter, the tribunal of this state shall issue a child support order, which controls.”

 

[U.C.A. 62A-11-304.2 (3)(b) also supports taking an order when there are multiple non-CEJ orders:  “the office may issue an order of current support in accordance with the child support guidelines if the conditions of Subsection 78G-14-207 (2)(c) are met.”]


    “(3) If two or more child support orders have been issued for the same obligor and same child, upon request of a party who is an individual or a support-enforcement agency, a tribunal of this state having personal jurisdiction over both the obligor and the obligee who is an individual shall determine which order controls under Subsection (2).  The request may be filed with a registration for enforcement or registration for modification pursuant to Part 6, Registration, Enforcement, and Modification of Support Order, or may be filed as a separate proceeding

   (4) A request to determine which is the controlling order must be accompanied by a copy of every child-support order in effect and the applicable record of payments.  The requesting party shall give notice of the request to each party whose rights may be affected by the determination.

     (5) The tribunal that issued the controlling order under Subsection (1), (2), or (3) has continuing jurisdiction to the extent provided in Section 78G-14-205 or 78G-14-206.
    (6) A tribunal of this state that determines by order which is the controlling order under Subsection (2)(a), (b) or (3) that issues a new controlling order under Subsection (2)(c) shall state in that order:

    (a) the basis upon which the tribunal made its determination;

    (b) the amount of prospective support, if any; and,

    (c) the total amount of consolidated arrears and accrued interest, if any, under all of the orders after all payments made are credite3d as provided by Section 78-45f-209.
    (7) Within 30 days after issuance of an order determining which is the controlling order, the party obtaining the order shall file a certified copy of it in each tribunal that issued or registered an earlier order of child support. A party or support enforcement agency obtaining the order that fails to file a certified copy is subject to appropriate sanctions by a tribunal in which the issue of failure to file arises. The failure to file does not affect the validity or enforceability of the controlling order.

    (8) An order that has been determined to be the controlling order, or a judgment for consolidated arrears of support and interest, if any, made pursuant to this section must be recognized in proceedings under this chapter.”

 

If a case has multiple orders, a designated “tribunal” provides an opportunity for an adjudicative proceeding to determine which of the multiple orders is the controlling order.  During the DCO process, it is important to limit your review only to those child support orders that qualify for controlling order status. 

 

 

Who Can Make a Determination of Controlling Order

 

Under UIFSA, only a designated tribunal may make a determination of controlling order.  Because UIFSA allows each state to define “tribunal”, the designated tribunal is different in all states.  For example, in some states the definition of tribunal has been limited to a specific court, which means only the designated court may make a binding DCO.  The IV-D child support caseworker is not able to determine the controlling order.  But, in other states, the definition has been expanded to a specific court and the IV-D child support agency, which means the court and/or the IV-D agency may make a binding DCO. 

 

In the State of Utah in accordance with U.C.A. 78G-14-103, both the district court and the Department of Human Services, of which the ORS/CSS is a part, are designated tribunals.  

 

“U.C.A. 78G-14-103. Tribunal of state.

The district court and the Department of Human Services are the tribunals of this state.”

 

Within ORS/CSS, a Presiding Officer (QA) is responsible for the DCO process when it is completed administratively. 

 

When to Make a Determination of Controlling Order

 

A DCO must be made the first time a UIFSA action is taken on a case that has multiple orders.  A UIFSA action is typically defined as a remedy or proceeding contained within UIFSA (i.e., a review and adjustment proceeding - modification of an order; or, an interstate proceeding - registration for enforcement).  However, there may be other times when it is necessary to make a DCO; e.g., the NCP/CP requests a stand-alone DCO.   

 

If the case does not have an order, establish an order.  If there is only one order, enforce that order until/unless you receive notice of multiple orders.  If there are multiple orders in the case, obtain copies of all of the orders.  If one of the parties lives in another state and Utah is the initiating agency, generate an intergovernmental referral/request to have the responding state make a DCO determination. 

 

Below are examples of when a case should be reviewed for a possible DCO. 

 

1.                   In-state Cases – If an in-state case (both NCP and CP reside in Utah) has multiple orders.

 

2.                   Two-state referrals – In the absence of personal jurisdiction over one of the parties, the approved tribunal in the initiating agency may not make a DCO unless the out-of-state party voluntarily submits to the jurisdiction of that  tribunal.  The responding state is typically responsible for the DCO because a tribunal must have personal jurisdiction over both parties to make a DCO.  For the responding state.

a.                   one of the parties (usually the NCP) currently resides in that state; and,

b.                  the other party (usually the CP) has initiated the UIFSA action and thereby consents to the jurisdiction of that state.   

 

3.            Multiple orders – An in-state case has multiple orders or an interstate case has multiple orders and you are pursuing a remedy or proceeding contained within UIFSA.

 

4.            Stand-Alone DCO If both the NCP and CP reside in the State of Utah and they have multiple orders for the same family, one of the Non-IV-D parties may contact CSS and request a stand-alone DCO.  If there is no open IV-D child support services case, treat this as a request for an application for child support services and provide the requesting party with an application packet since CSS only provides “full services” on Non-IV-A cases.  If the requesting parent refuses to apply for a full child support services case, no further action may be taken and the requesting parent must pursue a DCO in court through private counsel.  If the requesting party applies for full child support services, open a case and pursue an administrative DCO, as appropriate.  The requesting party is responsible for:

a.                   providing CSS with a certified copy of all of the orders in effect; and,

b.                  notifying all parties whose rights may be affected by the determination.   

 

 

What Orders to Include in a Determination of Controlling Order

 

When appropriate to complete a DCO, limit your review to only those child support orders that potentially qualify for controlling order status.  An order that potentially “qualifies” for controlling order status is a child support order that contains a month-to-month obligation for a child’s on-going support which can be prospectively enforced; the obligation should include a requirement to provide medical support or health insurance.  (If the order does not have a medical provision and is later determined to be the controlling order, it may need a modification for medical support.)  For example, some orders deal with child support but do not contain a month-to-month obligation for the child(en)’s current support. 

 

If one of the multiple orders is a judicial order, but child support is not ordered or there is no child support language in the order, refer the case to the Attorney General’s Office to determine if the tribunal issuing the order still has jurisdiction over child support matters.  For example:

 

1.                   There may be a state law which requires the state IV-D office to set child support on judicial orders.

 

2.                   There may be other documents attached to the judicial order or a part of the court file which address child support.

 

3.                   There may be a judicial order that originally ordered the non-custodial parent to pay child support and was later modified to “no child support ordered”. 

 

 

Impact of Making a Determination of Controlling Order

 

A DCO should only occur one time during the life of the case.  Once a DCO has been made on a multiple order case, UIFSA’s continuing, exclusive jurisdiction (CEJ) and modification rules ensure that it remains a one-order case.  Three practical impacts and benefits of a DCO are:

 

1.                   the amount of the controlling order governs the support amount to be enforced prospectively;

 

2.                   the arrears under the “old” orders can no longer continue to accrue.  The arrears are locked in as of the date of the DCO; and,

 

3.                   the DCO determines which state’s laws govern certain aspects of future modifications actions; e.g., the duration of support. 

 

 

Procedures:  DCO – Single Order

 

If there is only one order in the case, regardless of where the parties reside, it is the controlling order under U.C.A. 78B-14-207 and no DCO proceeding is necessary. 

 

    “(1) If a proceeding is brought under this chapter and only one tribunal has issued a child support order, the order of that tribunal controls and must be so recognized.”

 

The order must be recognized as the controlling order for purposes of enforcement, review and modification, etc., regardless of whether the parents or child later move to another State.  Always enforce the single order as the controlling order without any type of adjudicative proceeding involving a tribunal until/unless you receive notice of multiple orders. 

 

 

Procedures:  DCO – Multiple Orders

 

If a DCO is needed, review the orders and eetermine which of the multiple orders should be recognized for purposes of prospective enforcement or modification.  All orders reviewed must be given full faith and credit. 

 

If at least one of the orders was issued by a state after the effective date of UIFSA (July, 1996 in Utah) and that order does not have language which incorporates the prior order(s), it is possible that the second order may not be valid.  It will be necessary to work with the Attorney General’s Office and/or the other state to get the invalid second order set aside.  Consider the following examples and analysis when discussing options with the AGO:

 

·                     Scenario #1:

o                  Facts:

1.                                                                   Utah (UT) properly enters an administrative child support order against Dad in 2002 for Child A.

2.                                                                   All parties and child move to Idaho (ID) and ID enters a judicial child support order against Dad in 2003 for Child A.  The order does not acknowledge or mention in any way the UT administrative order.

3.                                                                   Mom, Dad and Child then move back to UT.  Mom wants UT to enforce the ID order against Dad in UT.

o                           Analysis:  The ID court lacked subject matter jurisdiction to enter their support order under their equivalent of §204 of the UIFSA model act.  Their court should have recognized the UT administrative order.  Now that all parties have moved to UT (and ID refuses to take any action to vacate their support order), UT:

1.                                                                                           should file an action with the courts to specifically rule that the order is void, since the issuing ID tribunal lacked subject matter jurisdiction; and,

2.                                                                                           proceed with enforcement of the UT administrative order, which is the CEJ order for modification and prospective enforcement purposes.

 

·                                             Scenario #2: 

o                           Facts:  Same as Scenario #1, except ID orders Dad to pay support for Child A and Child B (Child B not mentioned (not born) at time of Utah administrative order.

o                           Analysis:  This is more difficult since ID is setting the only support order for Child B.  If the ID order is a "per child" order, the ID order is invalid as to Child A for the reasons mentioned in Scenario #1 (there was already a valid UT order for that child), but valid as to Child B.  Now that all parties reside in UT, UT should register the ID order for enforcement with a modification.  Then the UT courts can:

1.                                                                                           consolidate the arrears amount; and,

2.                                                                                           assume CEJ over the support for both Child A and B.

 

NOTE:  The only "glitch" to this solution is that the duration of support for Child A is based on UT law and the duration for Child B is based on ID law. 

 

·                                             Scenario #3:

o                           Facts:

1.                                                                                           California (CA) enters a paternity and child support order against Dad in 2001 for Child C.

2.                                                                                           Mom and Child move to UT, Dad remains in CA. 

3.                                                                                           In 2003 Mom obtains, with Dad's "on the court record" oral consent, a private UT paternity and child support order against Dad for the same Child C.  The Utah order does not acknowledge or mention the CA order in any way.

o                           Analysis:  Based on the facts presented, it appears that the parties have obtained a new, independent support order and have not modified the CA order.  The parties' stipulation is not the type of consent to continue CEJ after parties have moved from the state that is contemplated in §205 of the UIFSA model act.  Nor is it the §205 of the UIFSA model act consent filed with the Courts of CA to grant UT CEJ to modify the CA order.  On the basis of the same analysis set forth in Scenario #1, the UT order is invalid and should be set aside per Rule 60(b) of the Utah Rules of Civil Procedure.

 

·                                             Scenario #4: 

o                           Facts:  Same as Scenario #3 except Dad moves to UT where he is served with the Complaint in Mom's private paternity and support action.  He does not respond/answer, so a default UT paternity and support order is entered against him.  The order does not acknowledge or mention the CA order.

o                           Analysis:  The UT support order is invalid for the same reasons set forth in Scenario #1 and the support order should be set aside under Rule 60(b) of the Utah Rules of Civil Procedure.

 

If none of the states that issued prior orders can claim CEJ, a new order may legally be issued under UCA 78-45f-207(2) (c).  When/if this occurs, the new order becomes the controlling order. If you are unsure whether or not to use an order in the DCO process, contact the AGO for clarification.

 

Follow the steps below when you evaluate multiple orders to determine the controlling order at any stage of the DCO process or when identifying the presumed controlling order before referring the case to the responding state for a final DCO. 

 

Multiple Order Determination

 

Complete the following questions when reviewing multiple orders to determine the controlling order, identifying the presumed controlling order, or before making an interstate referral to another state (responding state). 

 

1.                                           Are there multiple orders?

a.                                                                   No ( )  If there is only one order, it is the controlling order.

b.                                                                  Yes( )  Continue to #2.

 

2.                                           Is there an order in the child’s home state?

a.                                                                   Yes( )  It is the controlling order.

b.                                                                  No ( )     Continue to #3.

 

3.                                           Is there an order in the CP’s home state?

a.                                                                   Yes( )  Is there an order issued in the NCP’s home state?

i.                                                                                             Yes ( ) the most recently issued order is the controlling order.

ii.                                                                                           No ( ) The order issued in the CP’s home state is the controlling order.

b.                                                                  No ( )  Continue to #4.

 

4.                                           Is there an order issued in the NCP’s home state?

a.                                                                   Yes( )  It is the controlling order.

b.                                                                  No ( )  There is not a controlling order, establish a new controlling order.