INTERNATIONAL INTERGOVERNMENTAL

CS 252P International Case Processing under UIFSA Article 7 – Overview

New 05/26/17 Revised 05/24/18 Training Completed 06/07/18

The Convention; The Practical Handbook; P.L. 113-183; IM-15-01; U.C.A. 78B-14-316, 701.5 to 713; 45 CFR 303.7

 

 

252.1 Introduction

 

Article 7, Support Proceeding Under Convention, of the Uniform Interstate Family Support Act (UIFSA) provides guidance for international case processing pursuant to the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (referred to as “the Convention”).  Convention member States (countries) (i.e., Foreign Treaty Countries [FTCs]), including the United States (U.S.), entered into negotiations in an effort to provide standardized, cost-effective procedures for international case processing.

 

Article 1 of the Convention states:  

“The object of the present Convention is to ensure the effective international recovery of child support and other forms of family maintenance, in particular by –

a) establishing a comprehensive system of co-operation between the authorities of the

Contracting States;

b) making available applications for the establishment of maintenance decisions;

c) providing for the recognition and enforcement of maintenance decisions; and

d) requiring effective measures for the prompt enforcement of maintenance decisions.”

 

The Convention was ratified by the President of the United States (U.S.) on August 30, 2016, and became effective in the U.S. on January 1, 2017.  The U.S. can now process cases with FTCs under the Convention.  Article 7 of UIFSA provides increased standards for international case processing, including specific case processing timeframes and cost-free services to applicants in other participating countries which results in more efficient methods of establishing and enforcing child support orders.

 

Much of the Convention is based on prior versions of UIFSA.  However, pursuant to the Federal Office of Child Support Enforcement’s (OSCE) Information Memorandum (IM)-15-01:

“. . . the treaty differs from current state law in the following ways:

·         Under UIFSA 2008, state child support agencies will no longer be obliged to provide child support services to absolutely anyone who applies from any other country, as is required under current law. The treaty permits states to reject applications for services from non-treaty countries if they choose to do so. (It will be states’ option if they decide to continue to provide universal child support enforcement services to everyone.)

·         The treaty provides a longer time period for a parent to challenge the recognition and enforcement of a support order. The period is extended in recognition of the international residence of parties.

·         The treaty provides that if a tribunal does not recognize a treaty support order because there was a lack of personal jurisdiction, and the debtor is a resident of the state, it will take all appropriate measures to establish an enforceable support order.

·          UIFSA 2008 includes new provisions that incorporate these treaty requirements into UIFSA. All of these requirements were supported by the U.S. delegation during the negotiation of the treaty.

·         It is also important to highlight what the treaty does not do. The treaty does not change existing UIFSA provisions and U.S. law regarding personal jurisdiction, due process protections of notice and an opportunity for a hearing, and application of U.S. law concerning enforcement of the order.”

 

For a current list of the Convention member States (i.e., FTCs), refer to OCSE’s International Website, specifically the section regarding the Hague Child Support Convention found at https://www.acf.hhs.gov/css/partners/international, or to the Hague Convention website, https://www.hcch.net/en/instruments/conventions/status-table/?cid=131.  For information regarding specific requirements for each Convention member State, refer to the Country Profile section on the Convention website.  To access the list of country profiles, follow these steps:

 

1.                   Type http://hcch.cloudapp.net/smartlets/sfjsp?interviewID=hcchcp2012&t_lang=en into your web browser, or click on the link above;

 

2.                   Find the country for which you are seeking information from the list provided.  Next to the country profile are two options:

a.                   html (en fr es) – Allows you to view the country information in html format (in your web browser); or,

b.                  pdf (en fr es) – Allows you to view the country information in a PDF file.

 

3.                   Once you have decided which method you would like to view the country information in (i.e., html or PDF), click on “en” to display the country’s profile in English.

 

NOTE 1:  Not all countries are members of the Convention.  You must work with non-member countries according to the procedures found in UIFSA 2008.   

 

NOTE 2:  If you have an existing case with a Convention member State that has been worked prior to the effective date of the Convention, continue to work the case so that payments are not disrupted.  In the event that any new action must be taken on a pre-existing Convention case, proceed using the provisions outlined under Article 7 of UIFSA.

 

 

Statutory Authority

 

The provisions for Article 7 of UIFSA are found in Utah Code Annotated (U.C.A.) 78B-14-701.5, et seq. Support Proceedings Under Convention. 

 

Pursuant to U.C.A. 78B-14-703 Relationship of Department of Human Services to United States central authority:

The Utah Department of Human Services is recognized as the agency designated by the United States central authority to perform specific functions under the convention.

 

U.C.A. 78B-14-704 Initiation by Department of Human Services of support proceeding under convention states:

“(1) In a support proceeding under this part, the Utah Department of Human Services shall:

(a) transmit and receive applications; and

(b) initiate or facilitate the institution of a proceeding regarding an application in a tribunal of this state.”

 

U.C.A. 78B-14-705 Direct request provides:

“(1) A petitioner may file a direct request seeking establishment or modification of a support order or determination of parentage of a child. In the proceeding, the law of this state applies.

(2) A petitioner may file a direct request seeking recognition and enforcement of a support order or support agreement. In the proceeding, Sections 78B-14-706 through 78B-14-713 apply.

(3) In a direct request for recognition and enforcement of a convention support order or foreign support agreement:

(a) a security, bond, or deposit is not required to guarantee the payment of costs and expenses; and

(b) an obligee or obligor that in the issuing country has benefitted from free legal assistance is entitled to benefit, at least to the same extent, from any free legal assistance provided for by the law of this state under the same circumstances.

(4) A petitioner filing a direct request is not entitled to assistance from the Department of Human Services.

(5) This part does not prevent the application of laws of this state that provide simplified, more expeditious rules regarding a direct request for recognition and enforcement of a foreign support order or foreign support agreement.”

 

 

Definitions

 

U.C.A. 78B-14-701.5 Definitions provides a list of key terms which are related to the Convention:

“As used in this part:

(1) "Application" means a request under the convention by an obligee or obligor, or on behalf of a child, made through a central authority for assistance from another central authority.

(2) "Central authority" means the entity designated by the United States or a foreign country described in Subsection 78B-14-102(5)(d) to perform the functions specified in the convention.

(3) "Convention support order" means a support order of a tribunal of a foreign country described in Subsection 78B-14-102(5)(d).

(4) "Direct request" means a petition filed by an individual in a tribunal of this state in a proceeding involving an obligee, obligor, or child residing outside the United States.

(5) "Foreign central authority" means the entity designated by a foreign country described in Subsection 78B-14-102(5)(d) to perform the functions specified in the convention.

(6) "Foreign support agreement":

(a) means an agreement for support in a record that:

(i) is enforceable as a support order in the country of origin;

(ii) has been:

(A) formally drawn up or registered as an authentic instrument by a foreign tribunal; or (B) authenticated by, or concluded, registered, or filed with a foreign tribunal; and

(iii) may be reviewed and modified by a foreign tribunal; and

(b) includes a maintenance arrangement or authentic instrument under the convention. (7) "United States central authority" means the Secretary of the United States Department of Health and Human Services.”

 

The Convention and the Practical Handbook also provide definitions for many new terms that can be found under Article 7 of UIFSA. 

 

1.                   Applicant – As defined in the Practical Handbook:

“. . . the applicant is the person or government authority (“public body”) making the request to a Central Authority, for one of the applications under Article 10 (recognition, recognition and enforcement, enforcement, establishment or modification).

 

In some places in the Convention, an applicant can also be the person or party in a judicial proceeding who has initiated an appeal. For example, in Article 23(6) the applicant is the person who is appealing the decision to register a decision for enforcement or declare a decision enforceable.

 

An applicant can be a creditor, a debtor, or the legal representative of a child. For the purposes of some applications, a creditor includes a public body.”

2.                   Central Authority – As defined in the Practical Handbook:

“The Central Authority is the public authority designated by a Contracting State to discharge or carry out the duties of administrative co-operation and assistance under the Convention. These duties are set out in Chapters II and III of the Convention.

 

In the case of federal States, or States with autonomous units, there may be more than one Central Authority. The Central Authority will transmit applications to other States and generally deal with the flow and processing of applications. Many of the responsibilities of the Central Authority may, to the extent permitted under the law of its State, be carried out by public bodies within a State, for example, a Child Support Agency, under the supervision of the Central Authority.”

 

There are two types of Central Authorities:

a.                   Requesting Central Authority – The Central Authority in the State where the application or request is being initiated.  This Central Authority will transmit the application to the Requested Central Authority; and,

b.                  Requested Central Authority – The Central Authority that will process the application and send it to the competent authority to be completed.

 

The Federal Office of Child Support Enforcement is the U.S. Central Authority for international child support cases and has designated the Utah Department of Human Services to perform specific functions under the Convention.

 

3.                   Competent Authority – As defined in the Practical Handbook:

“A competent authority is the public body or person in a particular State that is charged with or permitted under the laws of that State to carry out specific tasks under the Convention. A competent authority may be a court, an administrative agency, a child support enforcement agency or any other government entity that performs some of the tasks associated with the Convention. In some States, the Central Authority may also be the competent authority for all or certain duties under the Convention.”

 

4.                   Contracting State – As defined in the Practical Handbook:

“A Contracting State is a State that is bound by the Convention because it has completed the ratification, acceptance, or approval process set out in Article 58.”

 

Under UIFSA Article 7, the term “State” refers to countries that are members of the Convention.

 

There are two types of Contracting States, which are:

a.                   Requesting States – The initiating country where the applicant resides; and,

b.                  Requested States – The responding country; usually where the non-custodial parent resides. 

 

5.                   Convention – The Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (the Convention).

 

6.                   Country Profile – As defined in the Practical Handbook:

“Under Article 57 of the Convention, each Contracting State must submit to the Permanent Bureau of the Hague Conference certain information about its laws, procedures and the measures that it will take to implement the Convention, including a description of the way the State will deal with requests to establish, recognise and enforce maintenance decisions.

 

The Country Profile recommended and published by the Hague Conference may be used by a Contracting State as a means of providing this information. The Country Profile will indicate any State-specific documents or requirements for applications. . . . ” 

 

Click on the following link to access the Country Profile website: http://hcch.cloudapp.net/smartlets/sfjsp?interviewID=hcchcp2012&t_lang=en

 

7.                   Creditor – The custodial parent/obligee. 

 

8.                   Debtor – The non-custodial parent/obligor. 

 

9.                   Decision   As defined in the Practical Handbook:

“The term decision is defined in the Convention for the purpose of applications for recognition and enforcement, enforcement and some types of requests to competent authorities.

 

A decision sets out the obligation of the debtor to pay maintenance and may also include automatic adjustment by indexation and the requirement to pay arrears of maintenance, retroactive maintenance or interest and a determination of costs or expenses.” 

 

10.               Declaration – As defined in the Practical Handbook:

“A declaration is a formal statement made by a Contracting State with respect to certain Articles or requirements under the Convention. Declarations are provided for in Article 63. For example, a State may make a declaration that the entire Convention will apply to spousal support, as set out in Article 2(3). Declarations may be made at the time a State enters into the Convention, or at any time afterwards. Declarations can also be modified or changed. The Country Profile for a State sets out the declarations made by that State and the declarations made by a State are also set out on the Hague Conference website at < www.hcch.net > under the “Child Support / Maintenance Section.” 

 

11.               Declaration of Enforceability

“A declaration of enforceability is a mechanism that may be used in some States to provide that a foreign decision has the same effect (within the limits set out in the domestic law) as a decision made in that State. A declaration of enforceability is different from a statement of enforceability which is a document stating that a decision is enforceable in the State of origin, and which must be included in the package of documents for an application for recognition and recognition and enforcement.”

 

12.               Establishment of a Decision – As defined in the Practical Handbook:

This term is used to refer to the process of obtaining a maintenance decision, where either no maintenance decision exists or the maintenance decision that does exist cannot be recognised or enforced for some reason. Establishment may include a determination of parentage, if that is required in order to make the maintenance decision.”

 

13.               Establishment of Parentage – As defined in the Practical Handbook:

“An establishment of parentage involves a finding as to the biological or legal parentage of a child for the purposes of maintenance. Under the Convention, the determination of parentage is often sought in connection with an application for establishment of a maintenance decision, although it can also be the subject of a Request for Specific Measures under Article 7. Although parentage may be established by genetic testing, it can also be determined as a matter of law by presumptions such as the marriage or co-habitation of the parties before the birth of the child, or by an admission or acknowledgement of parentage by the parent.”

 

14.               Ex Officio Review – As defined in the Practical Handbook:

“An ex officio review is a form of review that may be carried out by a competent authority on its own initiative in proceedings for recognition or recognition and enforcement. The review is provided for in Article 23(4). Neither of the parties is entitled to make submissions on the review.

 

Unless the requested State has made a declaration to use the process set out in Article 24, the ex officio review under Article 23 may consider whether registration of the decision for enforcement or making a declaration of enforceability would be manifestly incompatible with public policy.

 

If the Article 24 alternative process is used, the ex officio review will be slightly different as there are additional grounds for the competent authority to consider.”

 

15.               Habitual Residence – As defined in the Practical Handbook:

“The term habitual residence is not defined in the Convention. It is used in a number of Articles of the Convention in connection with whether a decision can be recognised or enforced. The individual facts in each case will determine whether a person is habitually resident in a State. A determination of habitual residence may be based on facts such as where the person resides, where the person has his or her primary (or main) residence, where he or she works or goes to school. Mere presence in a State will not be sufficient to establish habitual residence.”

 

16.               Legal Assistance – As defined by Article 3 of the Convention:

“. . . the assistance necessary to enable applicants to know and assert their rights and to ensure that applications are fully and effectively dealt with in the requested State. The means of providing such assistance may include as necessary legal advice, assistance in bringing a case before an authority, legal representation and exemption from costs of proceedings;”

 

17.               Maintenance – As defined in the Practical Handbook:

“Maintenance includes support for children, a spouse or partner, and expenses related to the care of the children or spouse / partner. Under the Convention, a State may also extend maintenance to support obligations arising from other forms of family relationships.

 

Maintenance is paid by the debtor to the creditor. Maintenance may include both periodic payments and lump sum payments or property transfers, depending upon the law of the State where the decision is made.”

 

18.               Maintenance Arrangement – As defined by Article 3 of the Convention:

“. . . an agreement in writing relating to the payment of maintenance which -

i) has been formally drawn up or registered as an authentic instrument by a competent authority; or,

ii) has been authenticated by, or concluded, registered or filed with a competent authority and may be the subject of review and modification by a competent authority;”

 

19.               Permanent Bureau/Hague Conference on Private International Law – As defined in the Practical Handbook:

“The Hague Conference on Private International Law (HCCH) is an international intergovernmental organisation which develops and services multilateral legal instruments, promoting international judicial and administrative co-operation in the area of private law, especially in the fields of protection of the family and children, of civil procedure and commercial law.

 

The Permanent Bureau is the Secretariat of the Hague Conference responsible for the day to day work of the organisation.

 

Under the Convention, Contracting States must provide to the Permanent Bureau the information set out in Article 57, indicating how Convention requirements will be carried out in that State. The Permanent Bureau will also gather information, including statistics and case law regarding the operation of the Convention.”

 

20.               Protocol on the Law Applicable to Maintenance Obligations – As defined in the Practical Handbook:

“The Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations is an international instrument that contains general rules on applicable law to supplement the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance. Some States that are Parties to the Convention may also be signatories to the Protocol and will apply the Protocol in maintenance matters.” 

 

21.               Provisional Measures – As defined in the Practical Handbook:

“Provisional measures are provided for under Articles 6(2)i) and 7 of the Convention. These are proceedings that are initiated in a State in order to secure the outcome of a maintenance application. For example, provisional measures may be sought to prevent the disposal of assets, or to prevent the debtor from leaving the State to avoid the maintenance proceedings.” 

 

22.               Public Body – As defined in the Practical Handbook:

“The term public body is used in two different contexts in the Convention.

 

Under Article 36 a public body is a government authority that may make a maintenance application, as a creditor, in limited circumstances. A public body can initiate an application for recognition or recognition and enforcement, or enforcement of a decision under Article 10(I)a) and b). It can also initiate an application for establishment of a decision in the circumstances where an existing decision cannot be recognised for the reasons set out in Article 20(4).

 

In order to be entitled to bring the application, the public body must be either acting in place of the creditor, or seeking reimbursements of benefits provided in lieu of maintenance.

 

Article 6(3) of the Convention also refers to public bodies, and in that context public bodies are those entities permitted by the laws of a State to carry out the functions of a Central Authority. A public body that is responsible for these functions must be subject to the supervision of the competent authorities of the State, and the extent of their involvement in Convention cases must be communicated to the Permanent Bureau of the Hague Conference.”

 

23.               Ratification – As defined in the Practical Handbook:

“Ratification is one of the means that a State may use to become a Party to the Convention. Article 60 sets out when the Convention comes into force (three months after the deposit of the second instrument of ratification, acceptance or approval) and when it comes into effect in a specific Contracting State. The Hague Conference website shows which States have become Contracting States to the Convention.” 

 

24.               Recognition – As defined in the Practical Handbook:

“Recognition of a maintenance decision is the procedure used by a State competent authority to accept the determination of rights and obligations concerning maintenance made by the authority in the State of origin, where the decision was made, and it gives the force of law to that decision. In most cases, an applicant will also apply to have a decision enforced so the application will be for both recognition and enforcement. However, an applicant may apply for recognition of the decision only. Under Article 26, an application for recognition will be subject to the same requirements as an application for recognition and enforcement, other than that there is no requirement that the decision is enforceable in the State of origin, only that it “has effect” in that State.”

 

25.               Recognition and Enforcement – As defined in the Practical Handbook:

“The purpose of recognition and enforcement is to allow a decision made in one State to be effective or to be able to be enforced in another Contracting State. The recognition and enforcement process removes the need for a creditor to establish a new decision in the State where the decision is to be enforced and allows the requested State to enforce the existing decision.”

 

26.               Reservation – As defined in the Practical Handbook:

“A reservation is a formal statement by a Contracting State, allowed in certain circumstances under the Convention, specifying that the applicability of the Convention in that State will be limited in some way. For example, a State may make a reservation that it will not recognise or enforce maintenance arrangements. The process for reservations is set out in Article 62. The Country Profile for a State will set out the reservations by that State. The complete text of all reservations made by a State can also be found on the Hague Conference website at <www.hcch.net> under the “Child Support / Maintenance Section”.”

 

27.               Respondent – As defined in the Practical Handbook:

“The respondent is the person who will be answering or responding to an application or appeal under the Convention. A respondent can be a creditor or a debtor.” 

 

28.               Specific Measures – As defined in the Practical Handbook:

“Specific Measures are certain duties of administrative co-operation that are listed under Article 7 and can be the subject of a request by one Central Authority to another Central Authority. The request will be made separately from an application for recognition, recognition and enforcement, establishment, enforcement or modification. The Specific Measures that can be requested include assistance with respect to:

 

·         determining the location of a debtor or creditor

·         obtaining information about the income and financial circumstances of a creditor or debtor, including location of assets

·         determining parentage of a child

·         obtaining documents or evidence

·         service of documents

·         obtaining interim or provisional measures.” 

 

29.               State of Origin – As defined in the Practical Handbook:

“This term is used to refer to the State where the maintenance decision was made. The State of origin may be different from the State where either the applicant or respondent now resides, or it may be the same. Knowing which State is the State of origin is important to determine, for example, which competent authority needs to complete the Statement of Enforceability in an application for recognition or recognition and enforcement. The State of origin may also be called the issuing State.

 

In the case of a maintenance arrangement, the State of origin will most likely be the State where the agreement was concluded or formalised.” 

 

30.               Statement of Enforceability – As defined in the Practical Handbook:

“This document is required in an application for recognition or recognition and enforcement in order to establish that the decision is enforceable in the State where it was made (the State of origin). In some States, the Statement of Enforceability will be in the form of a document from the competent authority that the decision has the “force of law” meaning that it can be enforced in that State. A Statement of Enforceability is different from a declaration of enforceability which is one of the mechanisms that may be used in some States to recognise or recognise and enforce a decision.” 

 

The Statement of Enforceability of a Decision form is used to prove that an order is enforceable in the State of origin.

 

31.               Statement of Proper Notice – As defined in the Practical Handbook:

“This document is required in an application for recognition or recognition and enforcement where the respondent (often the debtor) did not appear and was not represented in the proceedings in the State of origin. It will confirm that the respondent was provided with notice of the proceedings resulting in the maintenance decision and was given an opportunity to be heard, or that the respondent was given notice of the decision and given an opportunity to challenge or appeal the decision on both a factual and legal basis (“on the facts and the law”).”

 

The Statement of Proper Notice form will be used to confirm that the respondent was provided with due process.

 

32.               Vulnerable Person – As defined in Article 3 of the Convention:

“. . . a person who, by reason of an impairment or insufficiency of his or her personal faculties, is not able to support him or herself.” 

 

 

Timeframes under the Convention

 

1.                   Receipt of Application and Case Details– When ORS is the:

a.                   Requested State (incoming Convention cases) – Pursuant to 45 CFR 303.7, ORS has a maximum of 10 days from the date an application is received to complete and return the Acknowledgement Form under Article 12(3) to the requesting State; and,

b.                  Requesting State (outgoing Convention cases) – The requested State has the full six week timeframe allowed under the Convention to provide ORS with the Acknowledgement Form. 

 

Article 12(3) of the Convention provides that, within six weeks from the date an application is received (the Office of Recovery Services [ORS] must respond within 10 days [see above]), the requested Central Authority (responding country) must use the Acknowledgement Form under Article 12(3) to acknowledge receipt of the application.  In addition to acknowledging receipt of the application, the Acknowledgement Form is used to provide the requesting State with  the caseworker’s contact information, to inform the requesting State of the initial steps that have been or will be taken on the case, and to request any missing or additional documents/information that are necessary for case processing.  

 

2.                   Status Update – According to Article 12(4) of the Convention, within three months from when the Acknowledgement Form Under Article 12(3) was sent, the requested State must provide a status update to the requesting State by completing the appropriate Status of Application Report form [see subsection 252.4 Forms Overview below for more details]).

 

3.                   Request for Information/documents – Pursuant to Article 12(9) of the Convention, when information/documents are requested using the Acknowledgement Form under Article 12(3) or the appropriate Status of Application Report form, the information/documents are to be provided by the requesting State as quickly as possible but within three months.

 

When ORS is requested to provide information/documents to another Convention member State, pursuant to 45 CFR 303.7(c)(6), ORS must do so within 30 calendar days from the date on which the request was received.  If you anticipate that it will take longer than 30 days to provide the requested information/documents, notify the State of the date the information is expected to be provided as the case can be closed after three months when there is no response.

 

4.                   General Information – Articles 12(5), 12(6), and 12(7) of the Convention stress the importance of working Convention cases as quickly as possible using communication methods that are “rapid and efficient” and state:

“(5) Requesting and requested Central Authorities shall keep each other informed of -

a) the person or unit responsible for a particular case; 
b) the progress of the case,

and shall provide timely responses to enquiries.

(6)  Central Authorities shall process a case as quickly as a proper consideration of the issues will allow. 
(7) Central Authorities shall employ the most rapid and efficient means of communication at their disposal.” 

 

 

Forms Overview

 

Cases processed under Article 7 of UIFSA require the use of specific Convention forms rather than the standard UIFSA forms used in other intergovernmental cases.  The Convention requires the use of mandatory and recommended forms.  Under the Convention, each application type is categorized into its own annex of forms.  If assistance is required when completing these forms, refer to the Practical Handbook for Caseworkers under the 2007 Child Support Convention (referred to as “the Practical Handbook”).

 

1.                   Mandatory Forms The following forms are required for all case processing under the Convention.

a.                   Annex I – Transmittal Form under Article 12(2).   As defined in the Practical Handbook: “The Transmittal Form is a mandatory form that provides a standard, uniform means of sending applications between States. It must accompany every application that is initiated under the Convention. It lists the required documents and information contained in the package and it indicates to the requested Central Authority what application is being made.”

b.                  Annex II – Acknowledgement Form under Article 12(3).  The Acknowledgement form is used in conjunction with all applications under the Convention.  This form must be completed by the requested State, acknowledging receipt of an application from the requesting State, within six weeks from the date the application was received.

 

NOTE:  Pursuant to 45 CFR 303.7(b)(2), when ORS is the requested State, the QXRA must be completed and returned to the requesting Central Authority within 10 days of the receipt of the application.

 

2.                   Recommended Forms – When completing paperwork requesting services from a Convention country you must complete all forms that are applicable to the service you are requesting.  The following is a list of all of the recommended forms found under the Convention.

a.                   Annex A:  Recognition or Recognition and Enforcement:

i.                     Application for Recognition or Recognition and Enforcement.  The Application for Recognition and Enforcement is “. . . used when a creditor already has a maintenance decision made in a Contracting State and would like the decision to be recognised and enforced in another Contracting State, where the debtor resides or has assets or income” (The Practical Handbook).

 

NOTE:  According to the Practical Handbook, “In some cases a creditor will only apply for recognition of the decision – usually because enforcement is not required at that time. An application for recognition only can also be made by a debtor who is seeking to have a decision from a Contracting State recognised in order to limit or suspend enforcement of a maintenance decision.”

ii.                   Abstract of a Decision.  The Abstract of a Decision “. . . should be completed by an official of the competent authority of the State of origin, and is used in cases where the requested State has specified, under Article 57, that it will accept an abstract of the maintenance decision, for the purpose of an application for recognition and recognition and enforcement.  It will be used most often in situations where the maintenance decision is lengthy, and only a portion of the decision relates to maintenance. If an abstract is acceptable, then instead of translating the entire decision, only the abstract or the extracts need to be translated” (The Practical Handbook).

iii.                  Statement of Enforceability of a Decision.  The Statement of Enforceability of a Decision is used with an application for recognition and enforcement to prove that an order is enforceable in the State of origin.  This form is not necessary with an application or recognition only. 

iv.                 Statement of Proper Notice.  The Statement of Proper Notice is used with an application for recognition or recognition and enforcement when the respondent was defaulted.  This form is used to confirm that the respondent was provided due process and given notice to be heard.

v.                   Status of Application Report – Article 12:  Application for Recognition or Recognition and Enforcement.  This form is one of four Status of Application Report forms used by the requested State to update the Central Authority in the requesting State about the progress of applications for recognition, recognition and enforcement, establishment and modification.  This status of application report form is used by the requested country to update the Central Authority in the requesting country with the progress in a case for recognition or recognition and enforcement.  This form is used in addition to the mandatory QXRA form.

b.                  Annex B:  Enforcement of a Decision Made or Recognized in Requested State:

i.                     Application for Enforcement of a Decision Made or Recognised in the Requested State.  “The application requests that a competent authority of a Contracting State enforce its own decision or a decision, or a foreign decision that it has already recognised, and assist in transmitting payments to a creditor living outside that State” (The Practical Handbook).  Because the decision (order) was taken or recognized (registered) in the requested State, the decision does not have to be recognized (registered) before it can be enforced.

ii.                   Status of Application Report – Article 12:  Application for Enforcement.   This status of application report form is used by the requested country to provide updated information to the Central Authority in the requesting country about the progress in a case for enforcement of an order made or recognized in a requested country.  This form is used in addition to the mandatory Acknowledgement Form.

c.                   Annex C:  Establishment of a Decision:

i.                     Application for Establishment of a Decision.  This form is used to request the establishment of a support order and/or to request the establishment of paternity.  The form can only be sent on the behalf of an obligee or the State; an obligor cannot request establishment of a support order.

ii.                   Status of Application Report – Article 12:  Application for Establishment of a Decision.  This status of application report form is used by the requested country to provide updated information to the Central Authority in the requesting country with the progress of the request for establishment and/or paternity.  This form is used in addition to the mandatory Acknowledgement Form.

d.                  Annex D:  Modification of a Decision:

i.                     Application for Modification of a Decision.  This form is used to request a modification of an existing order.  Under Article 7 of UIFSA, either party (the obligor or the obligee) can request a modification of a support order.

ii.                   Status of Application Report – Article 12:  Application for Modification of a Decision.  This status of application report form is used by the requested country to provide updated information to the Central Authority in the requesting country with the progress of the modification.  This form is used in addition to the mandatory Acknowledgement Form.

e.                  Annex E:  Financial Circumstances:

i.                     Financial Circumstances Form.  This form provides information that is used to assist with establishment of an order and enforcement of a recognized order.  This form also provides additional information that may help locate the respondent.

 

NOTE:  Because this form can be used for a number of different applications, not all parts of this form will need to be completed for an application for recognition or recognition and enforcement.

 

Responsibilities of a Central Authority

 

1.                   Pursuant to Article 5, General functions of Central Authorities, Central Authorities must:

a.                   Cooperate and work with other countries to “achieve the purposes of the Convention” [Article 5(a)]; and,

b.                  seek as far as possible solutions to difficulties which arise in the application of the Convention” [Article 5(b)].

 

2.                   Pursuant to Article 6, Specific functions of Central Authorities, Central Authorities must:

a.                   Assist with transmitting and receiving applications under the Convention and “initiate or facilitate the institution of proceedings in respect of such applications” [Article 6(1)(b)].

b.                  In regards to applications received under the Convention, Central Authorities must:

i.                     When applicable, “. . . provide or facilitate the provision of legal assistance” [Article 6(2)(a)];

ii.                   Assist in locating the parties (CP and/or NCP);

iii.                  Assist in securing income, and if necessary, other financial information and location of assets for applicable parties;

iv.                 “. . . encourage amicable solutions with a view to obtaining voluntary payment of maintenance, where suitable by use of mediation, conciliation or similar processes” [Article 6(2)(d)];

v.                   Assist in enforcement of child support orders, including the enforcement of current support and arrears;

vi.                 Provide for the collection and timely transfer of child support payments to the other State;

vii.                “. . . facilitate the obtaining of documentary or other evidence” [Article 6(2)(g)];

viii.              Assist in establishing parentage in order to recover of child support;

ix.                 “. . . initiate or facilitate the institution of proceedings to obtain any necessary provisional measures that are territorial in nature and the purpose of which is to secure the outcome of a pending maintenance application” [Article 6(2)(i)]; and,

x.                   facilitate service of documents” [Article 6(2)(j)].

 

3.                   Article 6(3) of the Convention allows for the above actions to be carried out by public bodies (i.e., ORS).

 

4.                   Article 12 of the Convention, Transmission, receipt and processing of applications and cases through Central Authorities, states that Central Authorities of requesting States must:

a.                   Assist the applicant in completion of the application and in procuring any additional, required paperwork that must accompany the application;

b.                  When the application is deemed to be compliant with the requirements of the Convention, and all other supporting forms and documents have been obtained on behalf of the applicant, transmit the application to the Central Authority of the requested State;

 

NOTE:  All applications must be accompanied by the mandatory Transmittal Form (form QXIT).

c.                   “. . . when requested by the Central Authority of the requested State, provide a complete copy certified by the competent authority in the State of origin of any document specified under Articles 16(3), 25(1)a), b) and d) and (3) b) and 30(3) [of the Convention]” [Article 12(2)];

d.                  Within six weeks of receiving an application from a requesting State, acknowledge receipt of the application by sending the mandatory Acknowledgement Form and provide a status update with what initial steps have been, or will be, taken on the application;

 

NOTE:  OCSE has mandated that the United States send the Acknowledgement Form to the requesting State within 10 days of receipt of an application.

e.                  Within the same initial six month period, the requested State must provide to the requesting State the contact details for the caseworker assigned to the case;

 

NOTE 1:  Both the requested and requesting States must keep each other updated with any changes to the assigned caseworker and the progress of the case.

 

NOTE 2:  OCSE has mandated that the United States send the Acknowledgement Form to the requesting State within 10 days of receipt of an application.

f.                    Within three months after the Acknowledgement Form has been sent, the assigned caseworker must inform the requesting Central Authority of the status of the application by sending the appropriate Status of Application Report form; 

 

NOTE:  Requesting and requested Central Authorities must keep each other informed of the person or unit responsible for the case, and any progress of the case.

g.                   “. . . process a case as quickly as a proper consideration of the issue will allow” [Article 12(6)] and utilize the fastest method of communication between States;

h.                  Refusal to process an application can only be done when “it is manifest that the requirements of the Convention are not fulfilled” [Article 12(8)].  If/when this situation arises, use the Acknowledgement Form to inform the requesting Central Authority of the reasons the application cannot be processed.

 

NOTE:  Manifest means it must be clear on the face of the documents that the requirements are not fulfilled. 

 

5.                   Article 12(9) provides that an application cannot be refused only because it is missing required documents or specific information.  If/when required documents or information are missing, promptly notify the requesting State using the Application for Recognition or Recognition and Enforcement or the appropriate Status of Application Report form to request that the missing documents/information be provided.  If case enforcement procedures can begin without the additional documentation, proceed with the case.  If ORS is unable to proceed with the application until the missing documentation is received, you may suspend the case until the documents are received; case suspension is not to exceed three months.  If the requested documents and/or information are not received within three months from the date of the request, you may inform the requesting State’s Central Authority that the application will not be processed and you may begin case closure procedures. 

 

 

 Support Proceedings Available Under the Convention

 

1.                   Support proceedings (or applications) that are available to an obligee are provided in U.C.A. 78B-14-704(2):

“(a) recognition or recognition and enforcement of a foreign support order;

(b) enforcement of a support order issued or recognized in this state;

(c) establishment of a support order if there is no existing order, including, if necessary, determination of parentage of a child;

(d) establishment of a support order if recognition of a foreign support order is refused under Subsection 78B-14-708(2)(b), (d), or (i);

(e) modification of a support order of a tribunal of this state; and

(f) modification of a support order of a tribunal of another state or a foreign country.”

 

2.                   Support proceedings (or applications) that are available to an obligor are provided in U.C.A. 78B-14-704(3):

“(a) recognition of an order suspending or limiting enforcement of an existing support order of a tribunal of this state;

(b) modification of a support order of a tribunal of this state; and

(c) modification of a support order of a tribunal of another state or a foreign country.”

 

An applicant may only request that an order from a Convention Contracting State be recognized and enforced.  A request for recognition and enforcement of an order from a country that is not a Convention member State (non-Contracting State) is outside the scope of the Convention and will not be recognized.  

 

 

Evidence and Procedure

 

The evidence required to process international cases can be found in the following statues:

 

1.                   U.C.A. 78B-14-316 provides that the physical presence of a nonresident party to participate in any UIFSA proceeding is not required and states:

“(1) 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.”

 

2.                   U.C.A. 78B-14-316(2) provides:

“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.                   U.C.A. 78B-14-316(3) states:

“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.                   U.C.A. 78B-14-316(5) encourages the use of communication through modern means including by telephone, fax, etc.:

“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.”

 

5.                   U.C.A. 78B-14-316(6) allows nonresident witness or party to testify by 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.”

 

6.                   U.C.A. 78B-14-316(10) states:

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

 

 

Language Requirements

 

Pursuant to Article 44 of the Convention:

“(1)  Any application and related documents shall be in the original language, and shall be accompanied by a translation into an official language of the requested State or another language which the requested State has indicated, by way of declaration in accordance with Article 63, it will accept, unless the competent authority of that State dispenses with translation. 
(2)  A Contracting State which has more than one official language and cannot, for reasons of internal law, accept for the whole of its territory documents in one of those languages shall, by declaration in accordance with Article 63, specify the language in which such documents or translations thereof shall be drawn up for submission in the specified parts of its territory. 
(3)  Unless otherwise agreed by the Central Authorities, any other communications between such Authorities shall be in an official language of the requested State or in either English or French. However, a Contracting State may, by making a reservation in accordance with Article 62, object to the use of either English or French.”

 

All incoming applications to the United States (U.S.) (including all Convention forms and attachments) must include documents in their original language and must be accompanied by an English translation.  All communication between requesting States and the U.S. (when the U.S. is the requested State) must be in English.

 

For all outgoing applications, refer to the specific country profile of that State to determine whether that country requires the application and supporting documents to be translated into its official language.  If the requested country requires that documents be translated into another language, consult with your Regional Director (RD) to facilitate the translation; ORS will translate the documents for Convention cases regardless if the case is IV-A or Non-IV-A. 

 

All communications, either verbal or written (other than the application and supporting documents), may be in English or French, unless a country objects to the use of English or French.  To determine the requested language of a specific country, refer to the country’s country profile.

 

 

Case Closure – Incoming Convention Cases

 

On incoming Convention cases, after three months from the date that the Acknowledgement Form under Article 12(3) (form QXRA) or the appropriate Status of Application Report form was sent requesting additional information/documentation, if the requesting State does not provide the additional information/documentation and ORS is unable to proceed with the case, take the following actions:

 

1.                   Generate the appropriate Status of Application Report form, depending on the original application):

a.                   Complete the appropriate information in items #1 and #2 on the form, including:

i.                     Requested Central Authority – Add, “ORS Child Support Services”;

ii.                   Address – The correspondence address for ORS;

iii.                  Telephone number – The main ORS phone number;

iv.                 Fax number – The main ORS fax number;

v.                   E-mail – orswebslc@utah.gov;

vi.                 Reference number – The ORS case number;

vii.                Contact person in requested State – The name of the assigned ORS caseworker;

viii.              Address (if different) – Not applicable;

ix.                 Telephone number (if different) – Not applicable;

x.                   Fax number (if different) – Not applicable;

xi.                 E-mail (if different) – Not applicable;

xii.                Language(s) – List the language(s) spoken by the assigned caseworker; and,

xiii.              Check the appropriate box to indicate whether this is the first report or a subsequent report.  If this is a subsequent report, provide the date the last Status of Application Report form was sent.

b.                  In item #3, add the following information:

i.                     Requesting Central Authority reference number – The requesting State’s case number;

ii.                   Family  name(s) of applicant or Name of public body – Depending on who the applicant is, this is either the last name of the applicant or the name of the public body that sent the application;

iii.                  Family name(s) of the person(s) for whom maintenance is sought or payable – The last name(s) of the child(ren) on the case; and,

iv.                 Family name(s) of the debtor – The last name of the debtor.

c.                   Under the appropriate item (the item number differs from form to form), check the “The requested Central Authority has refused to process the application for the following reasons” box and check the “Requesting Central Authority did not produce the additional documents or information within the period provided under Article 12(9)” box.

 

2.                   Generate the Incoming Interstate:  Case Closure form and select the appropriate option for closure.  This will ensure that you receive the alert that notifies you to close the case;

 

3.                   Reprint the original Acknowledgement Form under Article 12(3) or original the Status of Application Report form that was sent to the requesting state advising of additional information/documents required by ORS to process the case;

 

4.                   Send the entire packet to the requesting State and include the following documents:

a.                   The appropriate Status of Application Report form under 12(3);

b.                  The Incoming Interstate:  Case Closure; and,

c.                   The original Acknowledgement Form under Article 12(3) or the original Status of Application Report form.

 

5.                   Pend the case for CNC closure and follow the procedures outlined in CS 061 Case Closure Overview.

 

 

Article 42 of the Convention – Power of Attorney

 

Article 42 of the Convention only applies to certain outgoing cases; it will never apply to incoming cases in the United States.  Article 42 states:

“The Central Authority of the requested State may require a power of attorney from the applicant only if it acts on his or her behalf in judicial proceedings or before other authorities, or in order to designate a representative so to act.”

 

If you are working an outgoing Convention case and the requested State requires a power of attorney before it can process the case, in order for ORS to represent the applicant, a power of attorney must be obtained from the applicant.  If/when this situation arises, contact the assigned attorney. 

 

 

Hague Convention Resources

 

There are many resources available that may assist in learning and understanding the Hague Convention.

 

1.                   The website for the Hague Conference on Private International Law found at http://www.hcch.net/.  To access information regarding the Convention, follow these steps:

a.                   Click on “English.”  This will take you to the HCCH home page;

b.                  From the HCCH home page, click on the “Child Support” link.  This will take to you the Child Support Section of the Hague Convention.  Information that can be found in the Child Support Section includes Country Profiles, full text of the Convention, Convention member countries, the Practical Handbook, etc.

 

2.                   The Practical Handbook can be found at https://assets.hcch.net/docs/5f160c92-b560-4b7f-b64c-8423f56c6292.pdf.  This handbook provides step-by-step instructions on how to complete the mandatory and recommended Convention forms.

 

3.                   The federal Office of Child Support Enforcement (OCSE) provides many other resources related to the Convention.  These resources can be accessed on the OCSE’s website at https://www.acf.hhs.gov/css/partners/international.