UIFSA

CS 159P Review and Adjustment

09/96 Revised 01/17/18 Training Completed 01/31/18

45 CFR 303.8; U.C.A. 78B-14-202, 205, 206, 210, 211, 317, 318, 609, 610, 611, 612, 613, 614, 615

 

 

Introduction

 

45 CFR 303.8(b) Required Procedures states: 

(1) The State must have procedures under which, within 36 months after establishment of the order or the most recent review of the order (or such shorter cycle as the State may determine), if there is an assignment under part A, or upon the request of either parent, the State shall, with respect to a support order being enforced under title IV-D of the Act, taking into account the best interests of the child involved:

(i) Review and, if appropriate, adjust the order in accordance with the State's guidelines established pursuant to section 467(a) of the Act if the amount of the child support award under the order differs from the amount that would be awarded in accordance with the guidelines;

(ii) Apply a cost-of-living adjustment to the order in accordance with a formula developed by the State; or

(iii) Use automated methods (including automated comparisons with wage or State income tax data) to identify orders eligible for review, conduct the review, identify orders eligible for adjustment, and apply the appropriate adjustment to the orders eligible for adjustment under any threshold that may be established by the State.

(2) The State may elect in its State plan to initiate review of an order, after learning that a noncustodial parent will be incarcerated for more than 180 calendar days, without the need for a specific request and, upon notice to both parents, review and, if appropriate, adjust the order, in accordance with paragraph (b)(1)(i) of this section.

 

Federal regulations require the Office of Recovery Services/Child Support Services (ORS/CSS) to review a support award that meets certain criteria for potential adjustment.  Reviews of child support orders fall into one of three categories.

 

·                     3 year review, mandatory review if child(ren) are receiving IV-A cash assistance:  If it has been 3 years or more since the order was issued or modified, the order amount for the payor only needs to change by 10% to qualify for a potential modification.  Cases that qualify for the mandatory review will be identified by the 3 Yr Review Query Management Facility (QMF) report. 

 

NOTE:  ORS/CSS is only required to conduct the 3 year mandatory review for cases that are receiving IV-A cash assistance in Utah.  It is the responsibility of the intergovernmental state to request a review if the child(ren) are receiving financial assistance in their state.

 

·                     3 year review, substantial change in circumstances not required:  If it has been 3 years or more since the order was issued or modified on a Non-IV-A case, the order amount for the payor only needs to change 10% to qualify for a potential modification. 

 

·                     Less than 3 year review, substantial change in circumstances required:  If it has been less than 3 years since the order was issued or modified, then the requesting party must prove that there has been a substantial change in circumstances in order to modify the order.  In addition, the order amount for the payor must change by 15% in order to qualify for a potential modification. 

 

NOTE:  Generally, the payor in the above instances is the non-custodial parent (NCP).  For specified relative cases, the payor may be either or both parent(s).

 

 

Continuing, Exclusive Jurisdiction to Modify

 

Prior to conducting a review and adjustment, determine the controlling order (DCO), if the case has multiple orders.  As part of the DCO process, determine if Utah has jurisdiction to modify the order in accordance with U.C.A. 78B-14-202 which states:

Personal jurisdiction acquired by a tribunal of this state in a proceeding under this chapter or other law of this state relating to a support order continues as long as a tribunal of this state has continuing, exclusive jurisdiction to modify its order or continuing jurisdiction to enforce its order as provided by Sections 78B-14-205, 78B-14-206, and 78B-14-211.”

    

U.C.A. 78B-14-206(1) states:

“A tribunal of this state that has issued a child support order consistent with the law of this state has and shall exercise continuing, exclusive jurisdiction to modify its child support order if the order is the controlling order, and:

(a) at the time of the filing of a request for modification, this state is the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or

(b) even if this state is not the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued, the parties consent in a record or in open court that the tribunal of this state may continue to exercise jurisdiction to modify its order.”

 

U.C.A. 78B-14-211 states:

 “(1) A tribunal of this state issuing a spousal support order consistent with the law of this state has continuing, exclusive jurisdiction to modify the spousal support order throughout the existence of the support obligation.

(2) A tribunal of this state may not modify a spousal support order issued by a tribunal of another state or foreign country having continuing, exclusive jurisdiction over that order under the law of that state or foreign country.

(3) A tribunal of this state that has continuing, exclusive jurisdiction over a spousal support order may serve as:

(a) an initiating tribunal to request a tribunal of another state to enforce the spousal support order issued in this state; or

(b) a responding tribunal to enforce or modify its own spousal support order.”

 

If Utah does not have jurisdiction to modify the order, determine if the state issuing the order has continuing, exclusive jurisdiction (CEJ) in accordance with U.C.A. 78B-14-205(1) which states:

“(1) A tribunal of this state that has issued a child support order consistent with the law of this state has and shall exercise continuing, exclusive jurisdiction to modify its child support order if the order is the controlling order, and:. . .”

 

A state that issues the controlling order has CEJ to modify the order as long as the state is the residence of the NCP, the CP, or the child for whose benefit the order was issued.  Subsection (a) further clarifies that the parties’ residence must be considered at the time the modification is requested when determining CEJ, as follows:

“(a) at the time of the filing of a request for modification, this state is the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued;. . .

 

If the state no longer has CEJ, Subsection (2)(a) authorizes a tribunal to modify a controlling order, even if the state is no longer the residence of the parties, if the parties consent in a record or in open court that the state may continue to exercise jurisdiction to modify the order:

“(2) A tribunal of this state that has issued a child support order consistent with the law of this state may not exercise continuing, exclusive jurisdiction to modify the order if:

(a) all of the parties who are individuals file consent in a record with the tribunal of this state that a tribunal of another state that has jurisdiction over at least one of the parties who is an individual or that is located in the state of residence of the child may modify the order and assume continuing, exclusive jurisdiction;. . .”

 

Some common examples of when this may occur are:

 

1.                   The parties want the same state to have jurisdiction over both spousal and child support; or,

 

2.                   The parties have moved just across the state line and continue to have a strong affiliation with the issuing state; e.g., the parties are still employed in the issuing state.

 

If the parties fail to consent in a record or open court that the state may continue to exercise jurisdiction to modify the order, the order must then be registered in the state having jurisdiction over the parties prior to modification of the order in accordance with U.C.A. 78B-14-609, which states:

A party or support enforcement agency seeking to modify, or to modify and enforce, a child support order issued in another state shall register that order in this state in the same manner provided in Sections 78B-14-601 through 78B-14-608 if the order has not been registered. A petition for modification may be filed at the same time as a request for registration, or later. The pleading shall specify the grounds for modification.”

 

Refer to subsection Procedures – Who Conducts the Review below.

 

 

Written Consent to Transfer CEJ

 

A state without CEJ may still review an order and, if appropriate, modify the order in accordance with U.C.A. 78B-14-205(1)(b), which states:

even if this state is not the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued, the parties consent in a record or in open court that the tribunal of this state may continue to exercise jurisdiction to modify its order.”

 

If all of the parties have left the state that issued the controlling order, the individual parties (CP and NCP) may file a notarized written consent form with the state/tribunal that issued the order, as long as the new tribunal has personal jurisdiction over at least one of the parties.  The notarized written consent form must:

 

1.                   State that the parties want another state/tribunal (must identify the state/tribunal) to modify the child support order and assume CEJ;

 

2.                   Be signed by both parties; and,

 

3.                   A copy must be sent to the new state/tribunal.

 

EXAMPLE:

Facts:

a.                   Child support order issued by California, Los Angeles County.

b.                  CP resides in Utah and:

i.                     Applies for IV-D services with ORS/CSS;

ii.                   Requests a modification; and,

iii.                  Wants Utah to conduct a modification review.

c.                   NCP resides in Colorado and:

i.                     Has work connections in Utah;

ii.                   Past experiences with ORS/CSS; and,

iii.                  Wants Utah to conduct a modification review.

 

Because Utah does not have CEJ, the order cannot be registered for modification without a written consent form from the parties.

 

The CP and NCP sign and file a written consent form requesting that the State of Utah, ORS/CSS review the child support order and modify, if appropriate.  The form is filed with the State of California, Los Angeles County and a copy is given to the State of Utah.

 

Because the NCP consents to the jurisdiction of the State of Utah and Utah already has personal jurisdiction over the CP, the order may now be registered for purposes of modification.  If the order is modified, Utah then assumes CEJ of the order.

 

 

Procedures - Who Conducts the Review

 

When you receive a request for a review and adjustment or are conducting a 3-year mandatory review, you must take the steps listed below.

 

1.                   Make sure the order to be modified is the controlling order. 

 

2.                   Determine if the controlling order state still has CEJ.

a.                   CEJ – If the controlling order state has CEJ, the review must be sought in that state.  If the controlling order is not a Utah order, refer the case to the appropriate tribunal for a modification review.  Refer to CS 222 Intergovernmental Referral Methods for additional information.

b.                  No CEJ If the controlling order state does not have CEJ because the parties have left the state, then no state has CEJ.

i.                     If the parties all reside in Utah, refer to subsection CS 159.7 Modification of an Out-of-State Order When all Parties Reside in Utah below.

ii.                   If the parties (NCP/CP) reside in different states, the order must be registered in the non-requesting party’s state, or the state not requesting the review in accordance with U.C.A. 78B-14-611 which states: 

“(1) If Section 78B-14-613 does not apply, upon petition a tribunal of this state may modify a child support order issued in another state which is registered in this state if, after notice and hearing, the tribunal finds that:

(a) the following requirements are met:

(i) neither the child, nor the obligee who is an individual, nor the obligor resides in the issuing state;

(ii) a petitioner who is a nonresident of this state seeks modification; and

(iii) the respondent is subject to the personal jurisdiction of the tribunal of this state…”

 

Registering the order in the non-requesting state prohibits the party requesting the modification from having an unfair advantage by seeking the modification in his/her own state.  After the order is registered, the non-requesting state is able to review and modify the order, if appropriate.  If the registering state does not modify the order it does not gain CEJ, and the order is still recognized as the controlling order for prospective enforcement. 

 

                EXAMPLES:

CASE FACTS

CSS IV-D Case #

C000123456

(NCP)

Joe Louis

Denver, CO 

Self-employed

(CP)

Ann West

Salt Lake City, UT  84102

Child(ren)

Bob Louis

Salt Lake City, UT  84102

Marriage

Divorce

January 9, 1996  Los Angeles, CA

May 19, 1999 Los Angeles, CA

Order(s)

May 19, 1999 Los Angeles, CA

child support $350.00 per month

 

EXAMPLE 1:  CP applies for IV-D services in the State of Utah and requests a modification.  Take the actions listed below.

 

a.                   Determine the appropriate state to review and, if appropriate, modify the order - because there is only one order (California order), it is the controlling order.  However California has lost CEJ because both the parties (NCP and CP) and the child have moved from the state.  The NCP and CP do not want California to continue to exercise its jurisdiction to modify; therefore, California cannot modify its order.  The order must be registered for modification in another state.  Since the CP requested the modification, the order must be registered for modification in the non-requesting state (Colorado) that has jurisdiction over the NCP.  This ensures that the tribunal conducting the modification has jurisdiction over the parties (NCP and CP).   Colorado has personal jurisdiction over the NCP and the CP voluntarily submits to the jurisdiction of Colorado by requesting the modification.

b.                  Initiate registration of the order for modification –

i.                     Prepare an interstate transmittal requesting that Colorado register the order for modification.  The transmittal packet includes the following interstate forms:

A.                  Child Support Enforcement Transmittal #1 – Initial Request;

B.                  Uniform Support Petition;

C.                  General Testimony – the general testimony must first be sent to the applicant for completion; and,

D.                  Registration Statement. 

c.                   Include two copies of the California order (one certified) and an updated arrears calculation.

ii.                   Send a copy of the interstate packet to the Central Imaging Unit.

A.                  Send the original interstate packet to the Colorado Central Registry Unit.

 

Example 2:  CP applies for IV-A services in Utah.  The CP and her child are approved for IV-A benefits and the IV-A case is opened in ORSIS.  In May 2007, the case is listed on the 3 Yr Review QMF report.  Take the actions listed below:

a.                   Determine if the case qualifies for the mandatory three-year review – Because the CP and child are receiving IV-A cash assistance in Utah, the child in the order will not emancipate within one year, and the order was issued more than three years ago; the case does qualify for the three-year mandatory review.

b.                  Determine the appropriate state to review and, if appropriate, modify the order – Because there is only one order (California order), it is the controlling order.  However, California has lost CEJ because both the parties (NCP and CP) and the child have moved from the state.  The NCP and CP do not want California to continue to exercise its jurisdiction to modify; therefore, California cannot modify its order.  The order must be registered for modification in another state.  Since Utah is the requestor, the order must be registered for modification in the non-requesting state (Colorado) that has jurisdiction over the payor.  This ensures that the tribunal conducting the modification has jurisdiction over the parties (NCP and CP).  Colorado has personal jurisdiction over the NCP, and the CP submits to the Colorado’s jurisdiction upon completion of the intergovernmental referrals.

c.                   Initiate registration of the order for modification.

i.                     Prepare an intergovernmental transmittal requesting that Colorado register the order for modification.  The transmittal packet includes the following intergovernmental forms:

A.                  Child Support Enforcement Transmittal #1 – Initial Request;

B.                  Uniform Support Petition;

C.                  General Testimony – The general testimony must first be sent to the applicant for completion.  Include the appropriate return envelope for your office (yellow envelope or office self-addressed) to avoid having the certified copy imaged.  The return envelope with the completed QIGT will be returned directly to the assigned agent without first being imaged;

D.                  Letter of Transmittal Requesting Registration;

E.                   Child Support Agency Confidential Information form; and,

F.                   Personal Information Form for UIFSA.

ii.                   Include two copies of the California order (one certified) and an updated arrears calculation.

A.                  Send a copy of the portions of the intergovernmental packet identified in the Forward Files Indices to the CIU to be imaged. 

iii.                  Send the original intergovernmental packet to the Colorado CRU.

 

Example 3:  CP applies for IV-D services in the State of Utah and requests enforcement.  An intergovernmental referral is sent to Colorado requesting enforcement of the California order.  Colorado takes the actions listed below:

a.                   Decide whether administrative enforcement is appropriate – Upon receipt of the intergovernmental documents, Colorado must first decide if administrative enforcement is appropriate prior to registration of the order for enforcement.  Because the NCP is self-employed and has already ignored a previous income-withholding request initiated by the State of Utah, Colorado determines that it is unlikely that he will honor an administrative income withholding order from them.

b.                  Register the out-of-state order – Colorado registers the California order.  As part of the registration, the NCP is notified.  Upon receipt of the notification, the NCP sends a request for a modification of the order.

c.                   Determine the appropriate state to review and, if appropriate, modify the order – Because there is only one order (California order), it is the controlling order.  However California has lost CEJ because both the parties (NCP and CP) and the child have moved from the state.  The NCP and CP do not want California to continue to exercise its jurisdiction to modify; therefore, California cannot modify its order.  The order must be registered for modification in another state.  Since the NCP requested the modification, the order must be registered for modification in the non-requesting state (Utah) having jurisdiction over the CP.  This ensures that the tribunal conducting the modification has jurisdiction over the parties (NCP and CP).  Utah has personal jurisdiction over the CP and the NCP voluntarily submits to the jurisdiction of Utah by requesting the modification.

d.                  Initiate registration of the order for modification – Colorado must: 

i.                     Prepare an intergovernmental transmittal requesting that Utah register the order for modification.  The transmittal packet must include the following federal forms:

A.                  Child Support Enforcement Transmittal #1 – Initial Request;

B.                  Uniform Support Petition;

C.                  General Testimony;

D.                  Letter of Transmittal Requesting Registration;

E.                   Child Support Agency Confidential Information form; and,

F.                   Personal Information Form for UIFSA.

ii.                   Include the following:

A.                  Two copies of the California order (one certified); and,

B.                  An updated arrears calculation.

ii.                   Mail the intergovernmental packet to the Utah CRU.

e.                  Utah is responsible to review and, if appropriate, adjust the support order.

f.                    Colorado continues to enforce the order.

 

 

Procedures - Conducting the Review

 

If Utah is responsible for conducting the review and adjustment, if appropriate, follow the procedures below:

 

1.                   Follow Utah’s normal review and adjustment procedures.

 

2.                   If needed, request the assistance of another state in obtaining information to assist with the review and adjustment, in accordance with U.C.A. 78B-14-210, which states:

A tribunal of this state exercising personal jurisdiction over a nonresident in a proceeding under this chapter, under other law of this state relating to a support order, or recognizing a foreign support order may receive evidence from outside this state pursuant to Section 78B-14-316, communicate with a tribunal outside this state pursuant to Section 78B-14-317, and obtain discovery through a tribunal outside this state pursuant to Section 78B-14-318. In all other respects, Part 3, Proceedings, Part 4, Support Order, Part 5, Income Withholding Orders, and Part 6, Registration, Enforcement, and Modification of Support Order, do not apply and the tribunal shall apply the procedural and substantive law of this state.”

a.                   UCA 78B-14-317 states: 

A tribunal of this state may communicate with a tribunal outside this state in a record, or by telephone, electronic mail, or other means, to obtain information concerning the laws, the legal effect of a judgment, decree, or order of that tribunal, and the status of a proceeding. A tribunal of this state may furnish similar information by similar means to a tribunal outside this state.”

b.                  U.C.A. 78B-14-318 states:

 “A tribunal of this state may:

(1) request a tribunal outside this state to assist in obtaining discovery; and

(2) upon request, compel a person over whom it has jurisdiction to respond to a discovery order issued by a tribunal outside this state.”

 

The CEJ tribunal cannot require the non-resident party’s physical presence in a modification proceeding and must accept evidence via a telephone, telecopier, and similar means that do not provide an original record.   

 

To obtain the needed information from the other state, send the “Child Support Enforcement Transmittal #3, Assistance/Discovery.” 

 

3.                   If the order is not a Utah order, only modify the child support and/or medical support provisions in accordance with UCA 78B-14-611(3).  If the order is from another state and all the parties reside in Utah, you must complete the “Child Support Enforcement Intrastate Transmittal – Modification/Registration” as part of the referral packet file to the AGO.

 

 

Modification of an Out-of-State Order When all Parties Reside in Utah

 

If the controlling order was issued by another state and all the parties (NCP, CP and child[ren]) reside in Utah, the order may be registered in the Utah courts for purposes of modification, if appropriate, in accordance with U.C.A. 78B-14-613(1) which states: 

If all of the parties who are individuals reside in this state and the child does not reside in the issuing state, a tribunal of this state has jurisdiction to enforce and to modify the issuing state's child support order in a proceeding to register that order.”

 

Once the order is registered in Utah, per U.C.A. 78B-14-611(2), it is subject to the same requirements, procedures and defenses that apply to a modification of an order issued by this state, as follows:

Modification of a registered child support order is subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by a tribunal of this state and the order may be enforced and satisfied in the same manner.”

 

U.C.A. 78B-14-611(3) 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, including the duration of the obligation of support. If two or more tribunals have issued child support orders for the same obligor and same child, the order that controls and shall be so recognized under Section 78B-14-207 establishes the aspects of the support order which are nonmodifiable.”

 

Specifically, “duration of the obligation of support” may not be modified under an issuing state’s law.  U.C.A. 78B-14-611(4) states that in a proceeding to modify a child support order, the law of the state that issued the initial controlling order governs the duration of support, as follows:

In a proceeding to modify a child support order, the law of the state that is determined to have issued the initial controlling order governs the duration of the obligation of support. The obligor's fulfillment of the duty of support established by that order precludes imposition of a further obligation of support by a tribunal of this state."

 

NOTE:  The “initial controlling order” is not the first order issued.  It is the order determined to be the controlling order.  The initial controlling order established and locks in duration.  The controlling order can be modified many times, but duration remains the same.

 

EXAMPLE:

w     1990 – NCP and CP get divorced in State A.

§     Duration of the support is age 18.

w     1992 – NCP moves to State B.

§     State B issues a Uniform Reciprocal Enforcement of Support Act (URESA) order;

§     Duration of support is age 21.

w     2001 – State B’s order is determined to be the initial controlling order.

§     Duration of support is “locked in” at age 21.

 

Once the NCP has fulfilled the support duty under the controlling order, a tribunal cannot impose a further support obligation; e.g., establishing a new support order.

 

After the registration order is modified, the State of Utah: 

 

1.                   Assumes CEJ over the order in accordance with U.C.A. 78B-14-611(5), which states:

On issuance of an order by a tribunal of this state modifying a child support order issued in another state, the tribunal of this state becomes the tribunal of continuing, exclusive jurisdiction.”

 

2.                   Sends the required certified copy of the order in accordance with U.C.A. 78B-14-614, which states:

Within 30 days after issuance of a modified child support order, the party obtaining the modification shall file a certified copy of the order with the issuing tribunal that had continuing, exclusive jurisdiction over the earlier order, and in each tribunal in which the party knows the earlier order has been registered. A party who obtains the order and 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 modified order of the new tribunal having continuing, exclusive jurisdiction.”

 

3.                   Enforce the order as if the order had been issued by the State of Utah per U.C.A. 78B-14-610, which states:

A tribunal of this state may enforce a child support order of another state registered for purposes of modification, in the same manner as if the order had been issued by a tribunal of this state, but the registered support order may be modified only if the requirements of Section 78B-14-611 or 78B-14-613 have been met.”

 

NOTE:  If another state assumes CEJ over a Utah order for purposes of modification and you receive a copy of the modified order, you must honor the order.  Do not attempt to re-modify the Utah order unless Utah can assume CEJ in accordance with U.C.A. 78B-14-205.  Make all appropriate changes to ORSIS based on the new modified order and ensure that a copy of the order has been imaged into Content Manager for the case along with the original order.  For more clarification on recognition of an order modified in another state, refer to subsection Recognition and Enforcement of an Order Modified in Another State below.

 

 

Recognition and Enforcement of an Order Modified in Another State

 

U.C.A. 78B-14-612 states that if an order is issued by a state and subsequently modified by another state in accordance with UIFSA that order must be recognized and may be enforced, as follows:

“If a child support order issued by a tribunal of this state is modified by a tribunal of another state that assumed jurisdiction pursuant to the Uniform Interstate Family Support Act, a tribunal of this state:

(1) may enforce its order that was modified only as to arrears and interest accruing before the modification;

(2) may provide appropriate relief for violations of its order which occurred before the effective date of the modification; and

(3) shall recognize the modifying order of the other state, upon registration, for the purpose of enforcement.”

 

 

Jurisdiction to Modify a Foreign Support Order

 

A U.S. tribunal may modify a foreign support order when a tribunal of the foreign country or political subdivision would have jurisdiction to modify its order under UIFSA, but under the law or procedures of that foreign country, the tribunal will not or may not exercise that jurisdiction to modify.  For example, some foreign countries have a requirement that the parties be physically present in order to sustain a modification of child support but are lacking the authority to compel a party residing outside of the borders of the country to appear.  In this situation, a U.S. tribunal may assume modification jurisdiction and bind all individuals subject to its personal jurisdiction in accordance with U.C.A. 78B-14-615 which states:

“(1) Except as otherwise provided in Section 78B-14-711, if a foreign country lacks or refuses to exercise jurisdiction to modify its child support order pursuant to its laws, a tribunal of this state may assume jurisdiction to modify the child support order and bind all individuals subject to the personal jurisdiction of the tribunal whether or not the consent to modification of a child support order otherwise required of the individual pursuant to Section 78B-14-611 has been given or whether the individual seeking modification is a resident of this state or of the foreign country. (2) An order issued by a tribunal of this state modifying a foreign child support order pursuant to this section is the controlling order.”

 

Consent to modify that is otherwise required under U.C.A. 78B-14-611 is not necessary nor does it matter whether the individual seeking modification is a resident of the U.S. or of the foreign country or political subdivision.  Once an order is issued under this section, it is the controlling order.

 

U.C.A. 78B-14-616   Procedures to register child support order of foreign country for modification.

“A party or support enforcement agency seeking to modify, or to modify and enforce, a foreign child support order not under the convention may register that order in this state under Sections 78B-14-601 through 78B-14-608 if the order has not been registered. A petition for modification may be filed at the same time as a request for registration, or at another time. The petition shall specify the grounds for modification.”