UIFSA

CS 160P Special Rules of Evidence and Procedure

01/98 Revised 01/17/18 Training Completed 01/31/18

45 CFR 303.7; U.C.A. 78B-14-102, 103, 316

 

 

Overview of Special Rules of Evidence and Procedure

 

The Uniform Interstate Family Support Act (UIFSA), UCA 78B-14-316 Special Rules of Evidence and Procedure include specific provisions for transmitting and receiving testimony and other evidence in intergovernmental child support cases.  These provisions can expedite the fact-finding process in intergovernmental proceedings and allow an out-of-state party or witness to participate in the proceeding.

 

45 CFR 303.7 (a)(8) states:

“Cooperate with requests for the following limited services: Quick locate, service of process, assistance with discovery, assistance with genetic testing, teleconferenced hearings, administrative reviews, high-volume automated administrative enforcement in interstate cases under section 466(a) of the Act, and copies of court orders and payment records.  Requests for other limited services may be honored at the State’s option.”

 

 

Telephonic Testimony

 

Telephone hearings have been used for years by administrative agencies and in civil and criminal proceeding not involving child support.  They have proven to be valuable in improving the nonresident party’s access to the hearing and the judge’s or decision-maker’s ability to obtain relevant testimony to the case because parties don’t communicate with each other and often have inaccurate information about each others’ financial or living circumstances.  Use of telephone hearings can help clear up these misperceptions and result in orders that are fairer to both parties.

 

U.C.A. 78B-14-316 Special Rules of Evidence and Procedure authorizes procedures that make out-of-state appearances before a UIFSA tribunal a practical reality.  If a non resident party is unable to physically attend a UIFSA proceeding/hearing, s/he must be allowed to testify by means of telephone, fax, audiovisual, or other electronic means.

 

U.C.A. 78B-14-316(1) allows for a nonresident petitioner or a respondent to participate in any UIFSA proceeding without the need to be physically present:

“The physical presence of a nonresident party who is an individual in a tribunal of this state is not required for the establishment, enforcement, or modification of a support order or the rendition of a judgment determining parentage of a child.”

 

U.C.A. 78B-14-316(5) allows documentary evidence to be transmitted to a tribunal in another state by telephone, fax, or other means that do not provide an original record:

“Documentary evidence transmitted from outside this state to a tribunal of this state by telephone, telecopier, or other electronic means that do not provide an original record may not be excluded from evidence on an objection based on the means of transmission.”

 

U.C.A. 78B-14-316(6) allows a party or witness in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means:

“In a proceeding under this chapter, a tribunal of this state shall permit a party or witness residing outside this state to be deposed or to testify under penalty of perjury by telephone, audiovisual means, or other electronic means at a designated tribunal or other location. A tribunal of this state shall cooperate with other tribunals in designating an appropriate location for the deposition or testimony.”

 

Allowing testimony to be presented this way can be helpful in long-arm or continuing jurisdiction proceedings and ensures that the tribunal renders a decision based on the most accurate and complete information available at the time of the hearing.

 

Nonresident Hearing Protocol

 

Special rules of evidence and procedures for non-resident hearings are outlined in U.C.A. 78B-14-316(2) – (5) and (7) – (10).  Specifically, the admissibility of verified and sworn leading, affidavits, payment records, copies of bills for parentage and prenatal and postnatal health expenses of the mother and child, etc:

“ (2) An affidavit, a document substantially complying with federally mandated forms, or a document incorporated by reference in any of them, which would not be excluded under the hearsay rule if given in person, is admissible in evidence if given under penalty of perjury by a party or witness residing outside this state.

(3) A copy of the record of child support payments certified as a true copy of the original by the custodian of the record may be forwarded to a responding tribunal. The copy is evidence of facts asserted in it and is admissible to show whether payments were made. (4) Copies of bills for testing for parentage of a child, and for prenatal and postnatal health care of the mother and child, furnished to the adverse party at least 10 days before trial, are admissible in evidence to prove the amount of the charges billed and that the charges were reasonable, necessary, and customary.

(5) Documentary evidence transmitted from outside this state to a tribunal of this state by telephone, telecopier, or other electronic means that do not provide an original record may not be excluded from evidence on an objection based on the means of transmission. . .

(7) If a party called to testify at a civil hearing refuses to answer on the ground that the testimony may be self-incriminating, the trier of fact may draw an adverse inference from the refusal.

(8) A privilege against disclosure of communications between spouses does not apply in a proceeding under this chapter.

(9) The defense of immunity based on the relationship of husband and wife or parent and child does not apply in a proceeding under this chapter.

(10) A voluntary acknowledgment of paternity, certified as a true copy, is admissible to establish parentage of the child..”

 

 

Procedures – Telephone Hearing

 

A UIFSA telephone testimony proceeding may only be brought before the designated tribunal(s) of the state.  In the State of Utah, in accordance with U.C.A. 78B-14-103 (see below), both the district court and the Utah Department of Human Services (DHS), of which the Office of Recovery Services/Child Support Services (ORS/CSS) is a part, are designated tribunals.

"(1) The district court and the Utah Department of Human Services are the tribunals of this state.

(2) The Utah Department of Human Services is the state support enforcement agency.”

 

Depending on the proceeding type and the operational issues that must be addressed to make telephonic testimony effective, these types of requests may need to be coordinated/conducted with the assistance of the Attorney General’s Office (AGO).  However, if the other state does not require the assistance of the District Court, a telephonic hearing may be conducted with the assistance of the local Quality Assurance Specialist (QA).

 

The following issues must be addressed:

 

1.                   Equipment – The tribunal must have a speaker-phone attached to a speaker box, with the ability to make outgoing long distance calls.

 

2.                   Because the ORS/CSS conference room phones cannot make outgoing long distance calls, if ORS/CSS is asked to assist another state’s tribunal with a telephonic hearing, the other state is responsible to call ORS/CSS.

 

3.                   Schedule Coordination Both the initiating and responding jurisdictions have important roles:

a.                   Initiating Jurisdiction – Must identify on the:

i.                     Child Support Enforcement Transmittal #1 – Initial Request form the appropriate name and phone number of the person in the initiating agency responsible or familiar with the case.  Use this form if both states have a case in common.

ii.                   Child Support Enforcement Transmittal #3 – Assistance/Discovery form the appropriate name and phone number of the person in the initiating agency responsible or familiar with the case.  Use this form if the two states do not have a case in common. 

b.                  Responding Jurisdiction – Someone must assume responsibility for handling the logistics of the hearing.  For example, in a IV-D case, the Child Support agency can assist the other state’s tribunal by contacting the witness in advance of the hearing to determine when the individual may be available, and then coordinate these times with both the initiating and responding agency’s schedules.

 

4.                   Written Instruction ‒ It is advisable for there to be written instructions, either in the form of an order or a procedural directive, regarding the following issues:

a.                   Location of the non-resident party or witness when testifying – UIFSA does not specify the location from which the non-resident party or witness must testify.  It allows for the responding tribunal to decide.  The responding tribunal may decide to choose a designated tribunal within their state, the IV-D agency’s office, or the office of an attorney in order to ensure verification of the person testifying.

b.                  Initiation of the call ‒ The instructions should specify whether the tribunal will call the non-resident party or witness and obtain the individual’s telephone number, or the non-resident party or witness will call the tribunal and provide the individual with the tribunal’s telephone number.  The tribunal should designate a specific time for the call or request that the non-resident party or witness be available during a specified block of time for the call.

 

NOTE:  If ORS assists another state’s tribunal with a telephonic hearing and the hearing will be held in the ORS offices, the other state is responsible to call ORS because of the limitations of the conference room phones in making outgoing long distance calls.  ORS must provide the other state’s tribunal with the appropriate telephone number.

c.                   Introduction of documentary evidence – The instructions should specify how documentary evidence will be introduced or given and provide fax numbers, if appropriate.  For example, some tribunals require that the individual testifying must provide copies of any evidence that will be introduced into evidence a certain number of days prior to the hearing.

d.                  Procedural Issues:

i.                     Witness Preparation – The IV-D agency should explain the hearing procedures to the individual prior to the hearing.  For example, the individual testifying should try to keep answers brief and to the point.  The individual should demonstrate “courtroom etiquette”; i.e., no objectionable comments about the tribunal, opposing counsel, etc.

ii.                   Witness Verification – The telephone hearing is conducted in the same manner as a normal hearing.  The out-of-state party is sworn in over the phone.  If the out-of-state party is the custodial parent (CP) and the non-custodial parent (NCP) is appearing in person, the NCP can usually verify the voice of the CP.  However, if no participant present at the proceeding is able to verify the identity of the out-of-state party, the responding tribunal is responsible to verify the identity of the individual testifying by telephone (for example, the use of a Notary Public to verify the identity).