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111th Congress Exec. Rept.
SENATE
2d Session 111-2
======================================================================
HAGUE CONVENTION ON THE INTERNATIONAL RECOVERY OF CHILD SUPPORT AND
OTHER FORMS OF FAMILY MAINTENANCE (TREATY DOC. 110-21)
_______
January 22, 2010.--Ordered to be printed
_______
Mr. Kerry, from the Committee on Foreign Relations,
submitted the following
REPORT
[To accompany Treaty Doc. 110-21]
The Committee on Foreign Relations, to which was referred
the Hague Convention on the International Recovery of Child
Support and Other Forms of Family Maintenance, adopted at The
Hague on November 23, 2007 (Treaty Doc. 110-21), having
considered the same, reports favorably thereon with two
reservations and three declarations as indicated in the
resolution of advice and consent, and recommends that the
Senate give its advice and consent to ratification thereof, as
set forth in this report and the accompanying resolution of
advice and consent.
CONTENTS
Page
I. Purpose..........................................................1
II. Background.......................................................2
III. Summary of Convention............................................3
IV. Entry Into Force.................................................6
V. Implementing Legislation.........................................6
VI. Committee Action.................................................7
VII. Committee Recommendations and Comments...........................7
VIII.Text of Resolution of Advice and Consent to Ratification.........9
VIII.Annex I.--Transcript of October 6, 2009 Hearing.................11
I. Purpose
The object of this Convention, as provided for in Article
1, is to ``ensure the effective international recovery of child
support and other forms of family maintenance.'' The Convention
seeks to achieve this purpose by providing rules that will, for
the first time on a worldwide scale, create uniform, simple,
and inexpensive procedures for the establishment, recognition,
and enforcement of child support and family maintenance
obligations in international cases.
II. Background
A. DOMESTIC CHILD SUPPORT CASES
The current U.S. Child Support Enforcement (CSE) System,
enacted in 1975, is a federal-state program (Title IV-D of the
Social Security Act), administered by the Office of Child
Support Enforcement (OCSE) in the Department of Health and
Human Services (HHS). Its purpose is to help strengthen
families by securing financial support for children from their
noncustodial parent on a continuing basis, and by helping some
families remain self-sufficient and off public assistance. The
federal CSE program establishes a comprehensive set of
requirements with which U.S. states must comply as a condition
for receiving matching federal funds for a state's CSE program.
All 50 states, the District of Columbia, Guam, Puerto Rico, and
the U.S. Virgin Islands operate CSE programs.
Under this system, U.S. states are required to enact and
implement the Uniform Interstate Family Support Act
(``UIFSA''), which governs jurisdiction to hear interstate
proceedings aimed at establishing, recognizing, enforcing, or
modifying a child support order. Under UIFSA's ``one-order
system,'' only one state's order governs, at any time, an
obligor's support obligation to any child. All U.S. states have
implemented some form of this uniform act.
B. FOREIGN CHILD SUPPORT CASES
Both the federal government and individual states have
entered into arrangements with other nations to facilitate the
recovery of child support owed to residents of the United
States. Under section 459A of the Social Security Act, 42 U.S.C
Sec. 659A(a), the Secretary of State can declare another nation
to be a ``foreign reciprocating country'' if it has
``established, or undertakes to establish, procedures for the
establishment and enforcement of child support owed to persons
who are residents in the United States.''\1\ Even if there is
not a federal-level international agreement or arrangement for
child support enforcement, there may be arrangements between
U.S. states and countries that are authorized pursuant to
UIFSA.
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\1\The United States has declared each of the following to be a
``foreign reciprocating country:'' Australia, certain Canadian
provinces and territories, the Czech Republic, El Salvador, Finland,
Hungary, Israel, Ireland, the Netherlands, Norway, Poland, Portugal,
the Slovak Republic, Switzerland, and the United Kingdom of Great
Britain and Northern Ireland.
---------------------------------------------------------------------------
There are also existing multilateral child support
conventions that date back a number of years. However, the
United States chose not to join those treaties principally
because they contain jurisdictional provisions that are not
consistent with U.S. law. As discussed further below, the
jurisdictional provisions of this Convention have been drafted
to avoid similar problems.
The United States actively participated in the negotiation
of the Convention, which was adopted unanimously by the Hague
Conference on Private International Law on November 23, 2007.
These efforts resulted in an instrument that includes many
procedures that are already the norm in the United States and
that are largely consistent with existing U.S. law and practice
in the child support enforcement area.
A primary benefit of the Convention for the United States
is reciprocity. While United States courts already enforce
foreign child support orders in many cases regardless of
whether the United States has a child support agreement with
the foreign country at issue, many countries do not do so in
the absence of a treaty obligation. Accordingly, ratification
would enable more U.S. children to receive the financial
support they need from both parents, whether they reside in the
United States or in a foreign country that is a party to the
Convention.
Because HHS and state child enforcement authorities already
act in a manner consistent with the obligations of the
Convention, the administration does not anticipate that the
Convention will impose additional financial or administrative
burdens on the federal or state governments. The Convention
will not affect intrastate or interstate child support cases in
the United States since it applies only to cases where the
custodial parent and child live in one country and the non-
custodial parent in another.
The committee received statements of support for U.S.
accession to the Convention from a broad range of concerned
stakeholders in the United States, including the child support
community, state organizations like the Conference of Chief
Justices and the Conference of State Court Administrators, and
the Uniform Law Commission and American Bar Association.
III. Summary of Convention
A. MAJOR PROVISIONS
A detailed article-by-article analysis of the Convention
may be found in the Letter of Submittal from the Secretary of
State to the President, which is reprinted in full in Treaty
Document 110-21. A summary of the key provisions is set forth
below.
Intended to ensure the effective international recovery of child
support payments
Article 1 indicates that the Convention is intended to
ensure the effective international recovery of child support
payments and other forms of family maintenance primarily
through: (1) establishing a comprehensive system of cooperation
between the authorities of the States Parties; (2) making
available applications for the establishment of maintenance
decisions; (3) providing for the recognition and enforcement of
maintenance decisions; and (4) requiring effective measures for
the prompt enforcement of maintenance decisions.
Scope of the Convention
Article 2 provides that the Convention--including its
requirements that a country recognize and enforce certain
foreign child support decisions--covers decisions relating to
children under the age of 21, regardless of the parents'
marital status. Article 2(2) allows a State Party to reserve
the right to limit the Convention's application to individuals
under the age of 18. The administration does not recommend that
the United States make a reservation pursuant to Article 2(2)
because many U.S. states recognize support obligations until
age 21. Further, U.S. states, including those for which support
obligations end at 18, will recognize and enforce a decision
from another state for a child up to 21.
Parties designate a Central Authority to facilitate implementation of
the Convention
The Convention will facilitate the coordination and
enforcement of international child support cases between States
Parties through the efforts of Central Authorities. Article 4
of the Convention provides that each State Party ``shall
designate a Central Authority to discharge the duties that are
imposed by the Convention on such an authority.'' The United
States intends to designate HHS as its Central Authority.
Article 5 lists the general, non-delegable functions of Central
Authorities, which HHS cannot delegate to individual U.S. state
child support agencies. Conversely, Article 6 lists the
specific functions that Central Authorities must perform,
although they may designate other ``public bodies'' to perform
these tasks. HHS would delegate most of the Article 6
responsibilities to state child support agencies, which
currently perform most of the day-to-day management of the
child support caseload in the United States.
The administration has indicated that the administrative
cooperation requirements for Central Authorities under the
Treaty are similar to those required for interstate child
support agency activities performed under the existing domestic
child support enforcement system. Accordingly, the
administration informed the committee that the activities
related to Central Authorities mandated under the Treaty would
not measurably increase costs in the short term, and that it
would not expect significant cost increases within the next
decade.
Effective access to Convention procedures and free legal assistance for
child support applications
Articles 14-17 address the cost of services, including
legal assistance. Article 14 establishes the general standard
for ``effective access to procedures'' under the Convention,
with a special emphasis on ensuring ``free legal assistance,''
unless it is not required because the country has simple
procedures and provides necessary services free of charge. The
legal assistance ``shall not be less than those available in
equivalent domestic cases.'' Article 15(1) specifically
requires the requested State to provide free legal assistance
with respect to child support applications made through Central
Authorities. However, under Article 15(2), States Parties may
refuse to provide free legal assistance if the application is
on the merits ``manifestly unfounded.'' Article 16 provides an
exception to Article 15(1) in that a State may make free legal
assistance subject to a ``test based on an assessment of the
means of the child.'' But under Article 16(3), the requested
State may not look behind the applicant's statement that the
child meets the means test unless it reasonably believes that
the statement is inaccurate.
In the United States, state child support agencies and the
federal government already provide all services mandated under
the treaty, including provision of any necessary legal
assistance in international cases, free of charge, as required
under section 454(32) of the Social Security Act, 42 U.S.C.
Sec. 654(32).
Recognition and enforcement of maintenance decisions
The Convention requires countries to recognize and enforce
maintenance decisions from other countries under specified
circumstances. Article 20(1) provides that a maintenance
decision made in one State Party ``shall be recognised and
enforced in other Contracting States'' if the first State's
jurisdiction was based on one of the grounds enumerated in the
Article. Under Article 20(2), a State may make a reservation
with respect to three of the bases of jurisdiction discussed in
Article 20(1): creditor-based jurisdiction, jurisdiction based
on written agreement, or jurisdiction based on a matter of
personal status or parental responsibility. If a State makes
such a reservation, it shall nevertheless, pursuant to Article
20(3), ``recognise and enforce a decision if its law would in
similar factual circumstances confer or would have conferred
jurisdiction on its authorities to make such a decision.''
This opportunity to opt out of certain bases of
jurisdiction allows a State Party to avoid assuming enforcement
obligations that would be inconsistent with its domestic laws.
The three bases of jurisdiction noted above, Article 20(1)(c),
(e), and (f), are not consistent with relevant Supreme Court
jurisprudence regarding the due process requirements of the
U.S. Constitution. Accordingly, the committee and the executive
branch recommend that the United States make a reservation with
regard to these jurisdictional bases. Under Article 20(4), if a
State Party cannot recognize a decision because of a
reservation under Article 20, and the debtor is habitually
resident in that country, the State Party must, with few
exceptions, ``take all appropriate measures to establish a
decision for the benefit of the creditor.''
Article 22 provides the grounds for refusing recognition
and enforcement of a maintenance decision. One ground for
refusing recognition under Article 22 is that such
``recognition and enforcement of the decision is manifestly
incompatible with the public policy of the State addressed.''
The State Department's submittal letter provides one example of
a ground on which this public policy exception could be
invoked: ``a U.S. competent authority could decline to
recognize and enforce a decision against a left-behind U.S.
parent in an abduction case where the child had been wrongfully
taken or retained, on the grounds that recognition and
enforcement of such a decision would be manifestly incompatible
with the U.S. public policy of discouraging international
parental child abduction.'' The procedure for an application
for recognition and enforcement is outlined in Articles 23-26,
which aim to provide a streamlined and uniform set of
procedures for recognition and enforcement.
The enforcement of maintenance obligations ``shall take
place in accordance with the law of the State'' being requested
to recognize the child support order, pursuant to Article 32.
When a decision has been declared enforceable, it shall proceed
``without the need for further action by the applicant.'' This
requirement is a significant benefit given that other states
often require an additional proceeding before their authorities
will takes steps to collect the debt owed to the applicant. The
requested State under Article 33 must provide at least the
``same range of enforcement methods for cases under the
Convention as are available in domestic cases.''
Confidentiality and disclosure of information
Articles 38 through 40 set forth rules concerning the
protection of personal information, confidentiality, and the
disclosure of information.
B. RELATIONSHIP TO OTHER INTERNATIONAL INSTRUMENTS
Articles 48-52 provide a framework for the relationship
between the Convention and other agreements and arrangements in
this area. Pursuant to Articles 48 and 49 and subject to
Article 56(2), as between States Parties, the Convention
replaces three previous multilateral treaties in so far as
their scope of application coincides with the scope of
application of the Convention.\2\
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\2\The treaties replaced by the Convention are the United Nations
Convention on the Recovery Abroad of Maintenance of 20 June 1956, the
Hague Convention of 2 October 1973 on the Recognition and Enforcement
of Decisions Relating to Maintenance Obligations, and the Hague
Convention of 15 April 1958 concerning the recognition and enforcement
of decisions relating to maintenance obligations towards children. The
United States is not a party to these treaties.
---------------------------------------------------------------------------
Article 50 clarifies that the Convention does not affect
the Hague Convention of 1 March 1954 on civil procedure, the
Hague Convention of 15 November 1965 on the Service Abroad of
Judicial and Extrajudicial Documents in Civil or Commercial
Matters, and the Hague Convention of 18 March 1970 on the
Taking of Evidence Abroad in Civil or Commercial Matters.
Article 51 specifies that the Convention does not affect
pre-existing international instruments to which Contracting
States are Parties and which contain provisions on matters
governed by the Convention. Similarly, the Convention does not
preclude the negotiation of new instruments that may overlap in
scope with the Convention so long as the instruments are
consistent with the object and purpose of the Convention and do
not affect application of the Convention with respect to other
States Parties. Accordingly, the United States may continue to
apply existing bilateral child enforcement instruments, and the
United States may conclude additional instruments after joining
the Convention.
Finally, under Article 52, application of a bilateral or
multilateral instrument that provides more effective recovery
mechanisms than the Convention is permissible under certain
circumstances.
IV. Entry Into Force
In accordance with Article 60, the Convention will enter
into force ``on the first day of the month following the
expiration of three months after the deposit of the second
instrument of ratification, acceptance, or approval....'' There
have been no deposits to date. The administration has indicated
that Canada, Australia, Norway, and all member states of the
European Community support the Convention and are actively
considering joining.
V. Implementing Legislation
As noted above, the Convention is largely consistent with
current U.S. federal and state law and practice in the child
support enforcement area. As a result, only minimal changes to
U.S. law would be required to allow for implementation of the
Convention. The requisite changes would be achieved through
adoption of an amended version of UIFSA by states and other
relevant jurisdictions, as well as through conforming
amendments to Title IV of the Social Security Act.
In July 2008, the National Conference of Commissioners on
Uniform State Laws (NCCUSL) approved model state implementing
legislation for the Convention through proposed amendments to
the UIFSA, referred to as UIFSA 2008. The Bush administration
submitted a legislative proposal to the 110th Congress to make
the conforming amendments necessary for full implementation of
the Convention, but no congressional action was taken on that
proposal. The Obama administration re-submitted this proposal
(with minor technical modifications) on October 1, 2009. The
administration has informed the committee that it does not
intend to deposit an instrument of ratification before all of
the U.S. states have adopted UIFSA 2008.
VI. Committee Action
The committee held a public hearing on the Convention on
October 6, 2009. Testimony was received by Mr. Keith Loken,
Assistant Legal Adviser for the Office of Private International
Law at the Department of State; Ms. Vicki Turetsky,
Commissioner in the Office of Child Support Enforcement at the
Department of Health and Human Services; The Honorable Battle
Robinson, Uniform Law Commissioner and Retired Judge in the
Family Court of Delaware; and Ms. Alisha Griffin, Assistant
Director of the Office of Child Support Services in the New
Jersey Department of Human Services. A transcript of this
hearing is included at Annex I of this report.
On November 17, 2009, the committee considered the
Convention, and ordered it favorably reported by voice vote,
with a quorum present and without objection.
VII. Committee Recommendations and Comments
The Committee on Foreign Relations considers the Convention
to be an important step in efforts to ensure that children in
the United States receive the financial support they need from
a parent living abroad. The administration has estimated that
there are over 15 million child support cases in the United
States, including 150,000 international cases, and that the
number of international cases is likely to increase. The
Convention will serve as a useful tool in resolving these
international cases: it will not add measurable financial
burdens to HHS or state governments and will allow parents in
the United States to benefit from the same streamlined
procedures that are available to those living abroad and
seeking to enforce child support decisions in this country. The
committee believes that joining the Convention is beneficial to
American children and families and urges the Senate to act
promptly to give advice and consent to the ratification of the
Convention, as set forth in this report and the accompanying
resolution of advice and consent. Consistent with the executive
branch's stated intention, the Committee expects that the
executive branch will not deposit an instrument of ratification
for the Convention until all U.S. states and other relevant
jurisdictions have adopted the necessary legislation to
implement the Convention.
A. RESOLUTION
The committee has included in the resolution of advice and
consent two reservations and three declarations.
Reservations
The first proposed reservation ensures, pursuant to
Articles 20 and 62 of the Convention, that the United States
will not be obligated to recognize and enforce maintenance
obligation decisions when their jurisdictional bases would
violate U.S. constitutional due process standards.
Specifically, the United States would not recognize or enforce
decisions rendered pursuant to any of the jurisdictional bases
set forth in subparagraphs 1(c), 1(e), and 1(f) of Article 20.
The second proposed reservation provides that, pursuant to
Articles 44 and 62 of the Convention, the United States will
not be obligated to accept communications in the French
language from the central authorities of other nations to the
U.S. Central Authority.
Declarations
The proposed declaration in Section 3 of the recommended
resolution of advice and consent, clarifies that, for the
United States, the Convention would apply only to the U.S.
jurisdictions participating in Title IV-D of the Social
Security Act: the fifty U.S. states, the District of Columbia,
Guam, Puerto Rico, and the U.S. Virgin Islands. The Convention
would therefore not apply to American Samoa, the Northern
Marianas, or other U.S. territories that do not participate in
Title IV-D. The declaration would be made pursuant to Articles
61 and 63 of the Convention and would be included in the
instrument of ratification.
Section 4 of the recommended resolution of advice and
consent includes two proposed declarations. The first proposed
declaration relates to Article 55 of the Convention, which sets
out procedures for the amendment of certain forms annexed to
the Convention. The committee and the executive branch share
the expectation that amendments to the forms would generally be
technical and administrative in nature and would not, in the
normal course, require the advice and consent of the Senate. If
a proposed or adopted amendment were to go beyond a technical
and administrative amendment, the administration has committed
to consult with the committee in a timely manner regarding the
question of whether advice and consent is warranted. Under such
circumstances, the executive branch could make appropriate use
of the ``reservation'' procedure described in Article 55(3) to
prevent an amendment from entering into force for the United
States before the conclusion of consultations with the
committee. The proposed declaration clarifies that the
executive branch may make such a reservation without the
approval of the Senate.
The second proposed declaration in Section 4 states that
the Convention is not self-executing. In the past, the
committee generally included such statements in the committee's
report, but in light of the Supreme Court decision in Medellin
v. Texas, 128 S. Ct. 1346 (2008), the committee has determined
that a clear statement in the Resolution is warranted. A
further discussion of the committee's views on this matter can
be found in Section VIII of Executive Report 110-12.
Neither of the proposed declarations in section 4 would be
included in the instrument of ratification.
VIII. Text of Resolution of Advice and Consent to Ratification
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO TWO RESERVATIONS AND
THREE DECLARATIONS
The Senate advises and consents to the ratification of the
Hague Convention on the International Recovery of Child Support
and Other Forms of Family Maintenance (the ``Convention''),
adopted at The Hague on November 23, 2007 (Treaty Doc. 110-21),
subject to the reservations of section 2, the declaration of
section 3, and the declarations of section 4.
SECTION 2. RESERVATIONS
The advice and consent of the Senate under section 1 is
subject to the following reservations, which shall be included
in the instrument of ratification:
(1) In accordance with Articles 20 and 62 of the
Convention, the United States of America makes a
reservation that it will not recognize or enforce
maintenance obligation decisions rendered on the
jurisdictional bases set forth in subparagraphs 1(c),
1(e), and 1(f) of Article 20 of the Convention.
(2) In accordance with Articles 44 and 62 of the
Convention, the United States of America makes a
reservation that it objects to the use of the French
language in communications between the Central
Authority of any other Contracting State and the
Central Authority of the United States of America.
SECTION 3. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration, which shall be included
in the instrument of ratification:
The United States of America declares, in accordance
with Articles 61 and 63 of the Convention, that for the
United States of America the Convention shall extend
only to the following: all 50 U.S. states, the District
of Columbia, Guam, Puerto Rico, and the U.S. Virgin
Islands.
SECTION 4. DECLARATIONS
The advice and consent of the Senate under section 1 is
subject to the following declarations:
(1) Article 55 of the Convention sets forth a special
procedure for the amendment of the forms annexed to the
Convention. In the event that the United States of
America does not want a particular amendment to the
forms adopted in accordance with Article 55 to enter
into force for the United States of America on the
first day of the seventh calendar month after the date
of its communication by the depositary to all parties,
the Executive Branch may by notification in writing to
the depositary make a reservation, in accordance with
Article 62 of the Convention, with respect to that
amendment and without the approval of the Senate.
(2) This Convention is not self-executing.
HAGUE CONVENTION ON THE INTERNATIONAL RECOVERY OF CHILD SUPPORT AND
OTHER FORMS OF FAMILY MAINTENANCE (TREATY DOC. 110-21)
----------
Tuesday, October 6, 2009
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 2:30 p.m. in Room
SD-419, Dirksen Senate Office Building, Hon. Benjamin L.
Cardin, presiding.
Present: Senators Cardin [presiding] and Risch.
OPENING STATEMENT OF HON. BENJAMIN L. CARDIN,
U.S. SENATOR FROM MARYLAND
Senator Cardin. Welcome. The Senate Foreign Relations
Committee will come to order.
I want to thank Senator Kerry for allowing me to chair this
hearing. I consider this hearing to be a very important hearing
as to whether the United States should join the 2007 Hague
Convention on the International Recovery of Child Support and
Other Forms of Family Maintenance.
We all know that many children in the United States and
throughout the world are raised by a single parent. Often these
parents struggle to make ends meet, to provide for their
children. And the absence of child support from a noncustodial
parent makes these challenges much, much greater.
Thankfully, here in the United States we have a robust
enforcement framework that helps ensure payment of child
support obligations. That system and framework is carried out
through our States and through the role of the Federal
Government.
The challenges in ensuring appropriate support for children
are even greater when the noncustodial parent does not reside
in the United States. Joining this Convention would help ensure
that the mere fact of a parent living abroad does not prevent a
child in the United States from receiving needed support.
The Convention was adopted by the Hague Conference on
Private International Law on November 23, 2007, and was signed
by the United States on the same day. It creates a set of
uniform procedures for the establishment, recognition, and
enforcement of child support decisions in international cases,
and provides a framework for cooperation among the child
support authorities in contracting States. It also requires
that each party to the Convention designate a central authority
to discharge its duties under the Convention. While the
Department of Health and Human Services would be the central
authority for the United States, most responsibility under this
treatment--treaty--would be delegated to State child
enforcement authorities.
A primary benefit of joining the Convention, for the United
States, is reciprocity. Currently, U.S. courts and child
support agencies often enforce foreign child support requests,
regardless of whether the United States has a child support
agreement with that foreign country. We try to do what's right
in the interests of the child, and we will enforce the orders
if we believe it's in the best interests of the child. In
contrast, many countries will not enforce U.S. child support
decisions absent a treaty obligation. The reciprocal
obligations created by the Convention provide the fastest and
most effective way to ensure the child support system works for
our citizens seeking to support judgments abroad as well as
those seeking to support judgments in the United States.
Because the Convention builds upon and embraces existing
U.S. child support enforcement practices, only minimal changes
to U.S. law, both Federal and State, would be required before
the U.S. could join the treaty.
Further, while joining the Convention will enhance our
viability to achieve positive results in international child
support cases, it would not change our child support
enforcement system in domestic cases. HHS has estimated that
there are over 15 million child support cases in the United
States, and a growing number of cases involve a parent who
lives abroad. In my State of Maryland alone, there were over
255,000 pending child support cases in fiscal year 2008.
By providing advice and consent to this Convention, the
Senate will help ensure that children in the United States
receive the financial support they need to live healthy, excel
in school, and pursue the American dream. That is why the
Convention has widespread support from the child support
communities, State organizations like the Conference of Chief
Justices and the Conference of State Court Administrators, and
the Uniform Law Commission and the American Bar Association.
And that is why I strongly support Senate advice and consent
for this Convention.
We are fortunate today to have four witnesses that are very
knowledgeable about the treaty and child support enforcement
efforts. On the first panel, we have Keith Loken, assistant
legal adviser in the Office of Private International Law at the
State Department, and Vicki Turetsky, Commission of the Office
of Child Support Enforcement at Health and Human Services.
On the second panel, we have the Honorable Judge Battle
Robinson, a former Delaware family court judge, who will
testify on behalf of the Uniform Law Commission; and Alisha
Griffin, the director of Child Support Enforcement Activities
in New Jersey, who will give us an insight on how U.S.
ratification of the Convention will help state child support
efforts.
I would like to welcome each of our guests today. And I
thank you very much for making yourself available for this
committee hearing.
We'll operate with two panels. I've already introduced the
first panel's two guests. We'll start with, Mr. Loken.
STATEMENT OF KEITH LOKEN, ASSISTANT LEGAL ADVISOR, OFFICE OF
PRIVATE INTERNATIONAL LAW, DEPARTMENT OF STATE, WASHINGTON,
D.C.
Mr. Loken. Thank you, Senator Cardin.
I'm honored to testify today in support of the Hague
Convention on the International Recovery of Child Support and
Other Forms of Family Maintenance.
The Convention was negotiated over a period of several
years in the Hague Conference on Private International Law, and
the views of concerned domestic stakeholders were taken into
account. The U.S. delegation to the negotiations included, in
addition to representatives of the State Department and the
Department of Health and Human Services, several experts in the
field. Representatives of the National Child Support
Enforcement Association, the International Bar Association, and
other groups, participated in the negotiation as observers. In
addition, throughout the negotiations, a number of public
meetings were held to obtain views from the private sector and
state-level officials. As a result, there is broad support for
the Convention among public officials and private parties who
are involved in the enforcement of child support orders in the
United States.
Why is this Convention needed? In an era of globalization
and increased international movement of individuals, it is
increasingly common to find a custodial parent and child in one
country and the noncustodial parent in another. There are
currently an estimated 150,000 international child support
cases in the United States. We've learned that it is difficult,
if not impossible, to enforce legal obligations abroad,
relating to child support, without a treaty basis.
There are existing multilateral child support conventions
that date back a number of years, the most recent being more
than 35 years old. But, the United States is not a party to
them, for various reasons, for example, because the
jurisdictional provisions are inconsistent with U.S. law, or
because we consider them ineffective, in that they did not
require parties to establish new child support orders or to
provide cost-free services. The new Convention remedies these
deficiencies.
Why is this Convention good for the United States? A major
benefit is reciprocity. Although U.S. courts routinely, on the
basis of comity or otherwise, recognize and enforce foreign
child support orders, the same is typically not true of foreign
courts. Many foreign countries will not process foreign child
support requests in the absence of a treaty obligation. Under
this Convention, more U.S. children will be able to obtain the
financial support they need from a noncustodial parent located
overseas.
The United States obtained its key objectives in the
negotiation of this Convention.
First, scope: The Convention addresses maintenance
obligations arising from a parent-child relationship and
spousal support in a manner that is consistent with existing
mechanisms under Federal and State law in the United States.
Second, jurisdiction: Jurisdictional rules in the U.S.
differ from those in most other countries. The Convention sets
forth various mandatory bases for assertion of jurisdiction
over the debtor parent, but permits parties to take a
reservation with respect to certain bases, including creditor-
based jurisdiction. The executive branch recommends that should
the U.S. ratify the Convention, it takes such a reservation, as
this would be consistent with applicable U.S. jurisprudence.
Third, establishment: The Convention not only addresses the
recognition and enforcement of foreign child support orders,
but also the establishment of a new child support decision in
the requested State, when that proves necessary. This
obligation to establish a new decision includes an obligation
to establish paternity, where needed.
And fourth, costs: We anticipate that a majority of the
requests under the Convention, will occur via the central
authority mechanism. Because applicants who rely on government
child support enforcement mechanisms generally have limited
financial resources, it was vital to U.S. negotiators that the
Convention require that assistance in cases processed through
the central authorities generally be provided free of charge.
How will this Convention be implemented in the United
States? The Convention would be implemented through a
combination of amendments to Part D of Title IV of the Social
Security Act and adoption by the States of amendments already
approved by the Uniform Law Commission to the relevant uniform
state law, the Uniform Interstate Family Support Act.
It is proposed that HHS would be the central authority
under the Convention. Since 1975, HHS has operated a Federal
Parent Locator Service that will facilitate locating
noncustodial parents and referring foreign cases to the
appropriate state agency, to provide services. Also, since
1996, HHS has acted as the central authority, under bilateral
agreements, in arrangements with other countries on child
support enforcement. It has the expertise, the established
administrative processes, and close relations with child
support enforcement officials in all of the states. The State
Department and HHS have cooperated effectively for many years
on international child support matters.
Finally, will other countries join the Convention? We
expect so. The member states of the European Community strongly
support the Convention. The European Commission has tabled,
with the European Council, a draft proposal to ratify the
Convention. It is anticipated that all the member states, and
the EC itself, will join together, perhaps, in 2011. Canada,
also, is a strong supporter of the Convention, and we
understand that the Federal Government there is working with
the provinces and territories on implementation under Canada's
federal system. We understand that other countries, such as
Norway and Australia, are actively considering joining.
The international community is waiting to see what the
United States does. U.S. ratification would send a strong
signal to others.
Thank you, Senator Cardin, for the opportunity to present
our views on this important treaty. We urge that the committee
give the Convention prompt and favorable consideration, and I
would be pleased to answer any questions that you may have.
Thank you.
[The prepared statement of Mr. Loken follows:]
Prepared Statement of Keith Loken
Senator Cardin and Members of the Committee: I am honored to
testify today in support of the Hague Convention on the International
Recovery of Child Support and Other Forms of Family Maintenance
(``Child Support Convention''). The Convention was negotiated over a
period of several years in the Hague Conference on Private
International Law, the source also of the Hague Child Abduction and
Child Adoption Conventions to which the United States is a party. The
views of concerned domestic stakeholders were taken into account. The
U.S. delegation to the negotiations included, in addition to
representatives of the State Department and the Department of Health
and Human Services (HHS), several experts in the field. Representatives
of the National Child Support Enforcement Association, the
International Bar Association, and other groups participated in the
negotiations as observers. In addition, throughout the negotiations, a
number of public meetings were held to obtain views from the private
sector and state level officials. As a result, there is broad support
for the Convention among public officials and private parties who are
involved in the enforcement of child support orders in the United
States.
Why is this Convention needed? In an era of globalization and
increased international movement of individuals, it is increasingly
common to find the custodial parent and child in one country and the
non-custodial parent in another. There are currently an estimated
150,000 international child support cases in the United States. We have
learned that it is difficult, if not impossible, to enforce legal
obligations abroad relating to child support without a treaty basis.
There are existing multilateral child support conventions that date
back a number of years (the most recent is more than 35 years old), but
the United States is not a party to them for various reasons, for
example, because the jurisdictional provisions were not consistent with
U.S. law, or because we considered them ineffective in that they did
not require parties to establish new child support orders or to provide
cost-free services. The new Convention remedies these deficiencies.
Why is this Convention good for the United States? A major benefit
is reciprocity. Although U.S. courts routinely, on the basis of comity
or otherwise, recognize and enforce foreign child support orders, the
same is typically not true of foreign courts. Many foreign countries
will not process foreign child support requests in the absence of a
treaty obligation. The United States has entered into bilateral
agreements and arrangements with several countries. These instruments
will remain in effect. This Convention expands upon the provisions of
such instruments and includes several procedural improvements that
should simplify the process of implementing child support decisions
across borders. Under this Convention, more U.S. children would be able
to obtain the financial support they need from a non-custodial parent
located overseas. The United States obtained its key objectives in the
negotiation of the Convention:
Scope of the Convention: The Convention addresses maintenance
obligations arising from a parent-child relationship and
spousal support in a manner that is consistent with existing
mechanisms under federal and state law in the United States.
Jurisdiction: Jurisdictional rules in the United States differ from
those in most other countries. The Convention sets forth
various mandatory bases for assertion of jurisdiction over the
debtor parent, but permits parties to take a reservation with
respect to creditor-based jurisdiction, jurisdiction based on a
written agreement, or jurisdiction based on a matter of
personal status or parental responsibility. The Executive
Branchrecommends that, should the United States ratify the
Convention, it take such a reservation, as this would be
consistent with applicable U.S. jurisprudence.
Establishment: The Convention not only addresses the recognition
and enforcement of foreign child support orders, but also the
establishment of a new child support decision in the requested
State where that is necessary, for example, where the requested
State does not recognize the jurisdictional basis of a child
support order issued in the requesting State. This obligation
to establish a new decision includes an obligation to establish
paternity, where necessary.
Costs: While the Convention provides a mechanism available to
foreign applicants who want to approach directly the relevant
court or other authority, we anticipate that a majority of the
requests will occur via the Central Authorities. Because
applicants who rely on government child support enforcement
mechanisms generally have limited financial resources, it was
vital to U.S. negotiators that the Convention require that
assistance in cases processed through Central Authorities
generally be provided free of charge.
How will this Convention be implemented in the United States? The
Convention would be implemented through a combination of amendments to
part D of title IV of the Social Security Act and adoption by the
states of amendments, already approved by the Uniform Law Commission,
to the relevant uniform state law, the Uniform Interstate Family
Support Act (UIFSA). It is proposed that HHS would be the Central
Authority under the Convention. Since 1975, HHS has operated a Federal
Parent Locator Service that will facilitate locating non-custodial
parents and referring foreign cases to the appropriate state agency to
provide services. Also, since 1996, HHS has acted as the Central
Authority under bilateral agreements and arrangements with other
countries on child support enforcement. It has the expertise,
established administrative processes, and close relations with child
support enforcement officials in all of the states. The State
Department and HHS have cooperated effectively for many years on
international child support matters.
Will other countries join the Convention? We expect so. The member
states of the European Community (EC) strongly support the Convention.
The European Commission has tabled with the European Council a draft
proposal to ratify the Convention. We understand that the substance of
the Convention presents a situation of mixed competency for the EC, in
that the Commission has exclusive competency over some matters covered
by the Convention, and the member states have competency over others.
Thus, it is anticipated that all the member states and the EC would
join together, perhaps in 2011. Canada also is a strong supporter of
the Convention and we understand that the federal government there is
working with the provinces and territories on implementation under
Canada's federal system. We understand that other countries such as
Norway and Australia are actively considering joining. The
international community is waiting to see what the United States does;
U.S. ratification would send a strong signal to others. The first post-
adoption conference of the potential parties, known as a Special
Commission of the Hague Conference, will be held in November to discuss
ways to make implementation of the Convention more efficient. We will
use that opportunity to urge other countries to sign and ratify the
Convention.
Thank you, Senator Cardin and Members of the Committee, for the
opportunity to present our views on this important treaty. We urge that
the Committee give the Convention prompt and favorable consideration. I
would be pleased to answer any questions that you may have.
Senator Cardin. Thank you very much for your testimony.
Ms. Turetsky?
STATEMENT OF VICKI TURETSKY, COMMISSIONER, OFFICE OF CHILD
SUPPORT ENFORCEMENT, DEPARTMENT OF HEALTH AND HUMAN SERVICES,
WASHINGTON, D.C.
Ms. Turetsky. Senator Cardin, thank you for the opportunity
to testify on the Hague Convention on International Recovery of
Child Support and Other Forms of Family Maintenance. This
Convention establishes a new and more effective international
system for ensuring the receipt of child support.
In 2008, the Child Support Enforcement Program served 15
million cases, or 17 million children, and collected over $26
billion in support payments. Ratification of the Convention
will mean that more children living in the United States will
receive the financial support they need and deserve from their
parents, even when one of their parents lives in another
country.
The United States actively participated in the development
of the Convention from the beginning of negotiations in 2003.
The United States worked to ensure that a treaty would be
compatible with our system of jurisprudence and patterned
closely after the best procedures available in the United
States, as well as other countries with advanced child support
enforcement procedures. The goal was a convention process that
was comprehensive, consistent, simple, expedited, essentially
cost-free, and fair. The final text of the Hague Convention
creates just such a system.
We do not anticipate an increase in the costs of the
program as a result of the Convention, because the United
States already provides extensive services in international
cases. And we'll handle such actions using the extensive
automated data processing systems that already are in place.
However, we anticipate a significant improvement in the level
of assistance by other countries when the Convention is fully
implemented, resulting in more child support paid to custodial
parents and their children living in the United States.
The Secretary of Health and Human Services has the
responsibility, as the United States central authority, to
facilitate support enforcement in these cases. And we are fully
prepared and committed to continue providing oversight,
assistance, and coordination of such activities under the new
Convention.
International child support enforcement under the
Convention will operate in a manner very similar to existing
interstate processes in the United States. The Convention
establishes procedures for administrative cooperation which
will greatly improve the efficiency of processing in coming
international cases and, we anticipate, also will open many new
avenues for American citizens seeking enforcement of their
child support orders abroad.
Compliance with our obligations under the Convention will
require minimal changes to existing Federal and State law. Most
cases under the Convention will be handled in the United States
according to the Uniform Interstate Family Support Act, UIFSA,
which establishes procedures for processing interstate and
international child support cases, and is enforced in all
States.
Proposed implementing legislation recently transmitted to
the Congress by the Secretary of HHS would ensure all current
support services are available to cases covered by the
Convention. States will be required to enact conforming
legislation as a condition of continued Federal funding of
their child support programs.
As head of the Federal Child Support Enforcement Program, I
believe this Convention fulfills the needs of the United
States, is widely supported throughout the country by all
interested groups, and will greatly enhance procedures in
international cases, to the benefit of all of those American
citizens seeking support from noncustodial parents residing in
other Convention countries, as well as foreign citizens seeking
support from noncustodial parents living here.
On behalf of the administration, I urge the committee to
take prompt and favorable action on the Convention.
I would be happy to answer any questions you may have.
[The prepared statement of Ms. Turetsky follows:]
Statement of Vicki Turetsky
Senator Cardin, thank you and Chairman Kerry and Senator Lugar, for
the opportunity to testify on the Hague Convention on the International
Recovery of Child Support and Other Forms of Family Maintenance.
This Hague Convention establishes a new and more effective
international system for ensuring the receipt of child support in cases
where the custodial parent and child live in one country and the non-
custodial parent in another. Ratification of the Convention will mean
that more children living in the United States will receive the
financial support they need and deserve from their parents, even when
one of their parents lives in another country. Currently, the United
States recognizes certain foreign orders requiring child support. This
Convention would require other countries that are parties to the Treaty
to reciprocate.
The Convention builds upon existing United States law and practice
to establish uniform, simple, fast, and inexpensive procedures for
processing international child support cases. The Convention can be
fully implemented with minimal changes to existing United States law
and will not impose additional financial or administrative burdens on
the Federal or state governments.
The Department of Health and Human Services supports the State
Department's efforts to secure ratification of this Convention by the
United States. State child support programs and judges, other United
States child support interests, the American Bar Association, the
National Conference of Commissioners on Uniform State Laws (NCCUSL),
the National Center for State Courts, and the National Child Support
Enforcement Association (NCSEA) have expressed unequivocal support for
the Convention.
BACKGROUND: THE CHILD SUPPORT ENFORCEMENT PROGRAM
In 1975, Congress established a federally-supervised and state-
administered program for the enforcement of family support cases under
title IV-D of the Social Security Act. The U.S. Department of Health
and Human Services (HHS) is charged with oversight of the Child Support
Enforcement program. All states and territories administer a child
support program, usually located within the state's human services
agency, revenue department, or Attorney General's office, with the help
of prosecuting attorneys and the courts. In addition, 36 tribes operate
comprehensive child support programs. States receive Federal matching
funds covering approximately two-thirds of the costs of administering
the child support program. Successful state child support programs also
receive incentive payments for their performance.
In 2008, the Child Support Enforcement program served 17 million
children and collected $26.6 billion in support payments. Services are
available to all children living apart from one of their parents,
regardless of family income or residence. Services are provided
automatically, and free of charge, to families receiving assistance
under the Temporary Assistance for Needy Families, Medicaid, and Foster
Care programs. Other families may apply for services at a nominal
cost.Extensive Federal and state child support data exchanges allow
state child support programs to locate parents and assets across state
lines. Cases in which parents and their children live in different
states comprise about one-fourth of the child support caseload. In such
interstate cases, states may either seek the assistance of another
state in securing parental support or take action directly across state
lines when jurisdiction to do so exists. For example, a state may
initiate an income withholding order directed to an employer in another
state.
We estimate that, currently, a small percentage (perhaps one
percent) of state child support enforcement cases are international in
nature, with the majority of those cases flowing between the United
States and its neighbors in Canada and Central America, and between the
United States and those European Union countries with which the United
States has bi-lateral arrangements to cooperate in enforcing child
support. However, we anticipate that the percentage of international
cases received and initiated by the Child Support Enforcement program
will increase over the next ten years, particularly given the
increasing emphasis on international child support cooperation.
DEVELOPMENT OF THE CONVENTION
The Convention was unanimously adopted at the Twenty-First
Diplomatic Session of the Hague Conference on Private International Law
on November 23, 2007. The United States was one of two countries that
signed it the same day it was adopted. As head of the Federal Child
Support Enforcement program, I believe that this Convention fulfills
the needs of the United States, is widely supported throughout the
country by all interested groups, and will greatly enhance procedures
in international cases to the benefit of all of those American citizens
seeking support from non-custodial parents residing in other Convention
countries as well as foreign citizens seeking support from non-
custodial parents living in the United States.
The United States actively participated in the development of the
Convention from the beginning of negotiations in 2003. The U.S. worked
to ensure that a treaty would be compatible with our system of
jurisprudence and patterned closely after the best procedures available
in the United States and other countries with advanced child support
enforcement procedures. The goal was a Convention process that was
comprehensive, consistent, simple, expedited, essentially cost-free and
fair. The final text of the Hague Convention creates just such a
system.
IMPACT OF THE CONVENTION
Ratification of the Convention will serve the interests of U.S.
families by providing for international enforcement of support orders
issued in the United States. More American children will receive the
financial support they need from both of their parents, even when one
parent lives in another country. The Convention will not affect
intrastate or interstate child support cases in the United States. It
will only apply to cases where the custodial parent and child live in
one country and the non-custodial parent lives in another.
The Convention could help a Florida mother who wrote to my office:
Hello!! My son is 14 years old and my daughter is 9 years
old, their father lives in Peru and I never collect child
support. Is there anyway that you guys can help me with some
information about this issue? Thank you.
A mother from New Mexico shared:
I have been trying for almost 4 years to figure out how I can
get a Child Support Order enforced in Montreal, Quebec Canada.
I understand it is not a reciprocating province and the state,
in which I live, New Mexico, does not have an agreement on a
state level either. Isn't there some way to get the order
enforced? Or some sort of consequence for non payment? He owes
me over $20,000 so far.
It could provide answers to a child support worker trying to help a
family:
I have a Georgia Divorce order dated 2004. It was never made
payable through a Child Support Office. The non-custodial
parent moved to the Philippines. Not working as far as we know.
Not supporting the 8 year old child on the order. The
Philippines is not one of the UIFSA [Uniform Act] countries.
The custodial parent wants to apply for services but is
wondering what type of support enforcement could be done?
Long-standing arrangements permit the Child Support Enforcement
program to cooperate with a few countries to collect child support
payments. Current law authorizes the Secretary of State, with the
concurrence of the Secretary of HHS, to enter into a bi-lateral
agreement or declare any country a ``foreign reciprocating country,''
if it enforces family support obligations in a manner substantially
similar to the process in the United States. Currently there are 25
such arrangements in place, including those with 11 Canadian Provinces.
Despite these arrangements, enforcement procedures vary from country-
to-country and many barriers remain - such as lack of standard forms,
wide variations in the ability of other countries to establish
paternity or support orders, limited enforcement remedies, translation
issues, and problems with currency exchange. In 7addition, many
countries do not enforce our orders and are unlikely to cooperate in
the absence of a treaty obligation.
While the United States will maintain its bi-lateral arrangements
with these countries, the new Convention will operate in many of our
on-going cases to greatly streamline operations and serve to provide
new means of communication and administrative cooperation between
countries. The Convention provides for cooperation between the child
support authorities of Contracting States, that is, those countries
that are party to the Convention. The Convention requires cooperation
in establishing paternity and support orders, establishes procedures
for the recognition of child support orders, and requires effective
measures for prompt enforcement. (Details of the Convention, including
specific and necessary U.S. reservations and declarations, were
included in the President's September 2008 transmittal package to the
Senate.)
We do not anticipate an increase in costs as a result of the
Convention because the United States already provides extensive
services in international cases and will handle such actions using the
expansive automated processing systems which are in place to handle the
huge volume of domestic cases. However, we anticipate a significant
improvement in the level of assistance by other countries when the
Convention is fully implemented, resulting in more child support paid
to custodial parents and their children living in the United States
when the non-custodial parents lives in another country. The Secretary
of Health and Human Services has the responsibility, as the United
States Central Authority, to facilitate support enforcement in these
cases and we are fully prepared and committed to continue providing
oversight, assistance and coordination of such activities under the new
Convention.
International support enforcement under the Convention will operate
in a manner very similar to existing interstate processes. The
Convention establishes procedures for administrative cooperation which
will greatly improve the efficiency of processing incoming
international cases, and we anticipate it also will open many new
avenues for American citizens seeking enforcement of their child
support orders abroad in countries which do not currently have well-
established systems.
U.S. TREATY OBLIGATIONS UNDER THE CONVENTION
Compliance with our obligations under the Convention will require
minimal changes to existing Federal and state law. This is because the
Convention is largely modeled after our laws and child support
enforcement system. Most cases under the Convention will be handled in
the United States in accordance with the Uniform Interstate Family
Support Act (UIFSA), which establishes procedures for processing
interstate and international child support cases and is in force in all
states. In July 2008, the National Conference of Commissioners on
Uniform State Laws (NCCUSL), working collaboratively with federal and
state child support experts from around the country, adopted changes to
UIFSA needed to ensure compliance with the Convention.
Proposed implementing legislation, recently transmitted by the
Secretary of HHS to the Congress, would make minimal changes to
existing law to ensure all current child support enforcement services
are available to cases covered by the Convention. The legislation would
mandate that all states enact the 2008 version of UIFSA, and would make
other technical changes to title IV-D of the Social Security Act, for
example, to include specific reference to treaty cases. States will be
required to enact those changes expeditiously as a condition of
continued Federal funding under title IV-D of the Social Security Act.
The Convention will not have a major impact on states, as all
states operate federally-regulated child support programs and routinely
provide child support services in international cases. In order to
ensure that the United States is fully able to comply with its
obligations under the Convention, the U.S. will not deposit the
instrument of ratification for the Convention until all the necessary
changes in federal law have been enacted and the UIFSA amendments have
been adopted by all states.
CONCLUSION
On behalf of the Administration, I urge the Committee to take
prompt and favorable action on the Convention. The Convention
recognizes that children need the support of two parents, even when one
of the parents lives in another country.I appreciate the opportunity to
appear before the Committee in support of this historic and important
step forward for children and families and would be happy to answer any
questions you may have.
Senator Cardin. And thank you for your testimony.
Let me, if I might, start on the cost issue. You both have
indicated that you don't anticipate any significant increase in
cost. Ms. Turetsky, you indicated that you're doing some of the
services today. So, if a single parent living in the United
States has a support order that that individual is trying to
enforce in another country, currently what does that parent do
as it relates to interacting either with HHS or with the local
support agency? Are there services currently available that
they are receiving?
Ms. Turetsky. Yes, but not consistently. Depending upon the
country in which the other parent lives, the State may have a
bilateral agreement with that country. But, our inquiries to
our office from custodial parents living in the States suggests
that those procedures are unpredictable. Parents are uncertain
about whether procedures are available under bilateral
agreements or not, in how to go about pursuing child support.
And States, too, have a lot of questions. So, the Convention
will help us standardize and provide a set of administrative
procedures that all States can use with any of the countries
that ratify the Convention.
Senator Cardin. As I indicated in my introductory remarks,
I support the ratification of the Convention. I believe it will
significantly improve child support collections in the United
States and where orders are attempted to be enforced outside of
the United States. But, it seems to me that, with a more
efficient system and with your agency's clear responsibility to
help single parents in the United States, this is bound to
increase the workload in your agency.
Ms. Turetsky. Well, because we already work on supporting
States in international cases where we do have a bilateral
agreement, our workload burden, so to speak, is already built
in. In addition, we provide services, through the States, to
cases coming into the United States. Where we have--where we
struggle, is when we don't have a bilateral agreement, when the
custodial parent lives in our country and is seeking to enforce
abroad.
Senator Cardin. I just want to make sure we're realistic as
to what you're going to need. I also assume that some of this
currently is being done at the State level with a clear
international path for enforcing child support orders, working
through HHS as the principal agency in the United States. I
think it also is going to probably increase the amount of
volume in your office.
Ms. Turetsky. You know, this is a situation where we expect
the number of cases to be a small part of our caseload for the
foreseeable future. We expect it to grow over time, but we're
starting with about 1 percent of our cases. We have the
structure already in place to process international cases.
States do the primary enforcement of cases, and they are
already set up to enforce both interstate and international
cases.
Senator Cardin. And, Mr. Loken, how does this operate
through the State Department? What role do you all play if this
treaty is ratified?
Mr. Loken. Senator, I would answer that in a couple of
ways. First, as I mentioned, the State Department has a long
history of cooperation with HHS in the matter of--in child
support enforcement, internationally, and we would continue
that. In terms of the Hague Conference itself, the practice
there is to periodically convene meetings in The Hague of
potential parties or parties to the Convention, to discuss its
implementation and investigate ways to improve the operation of
the Convention. And we would expect to be participating
actively in those kinds of meetings.
Senator Cardin. I believe you indicated that, to be in
compliance with this obligation, we would have to amend Part D,
Title IV, of the Social Security Act and that some States would
have to comply with what they've already indicated they will,
the uniform statutes.
What is the status here? Have there been bills prepared?
Are States moving to conform? How much more work would there
need to be done if this Convention is ratified?
Ms. Turetsky. In terms of the legislation, the legislation
has been conveyed to the authorizing committees. It was
conveyed both in the prior administration and, most recently,
in our administration. It will require minimal changes to
existing child support law, including a requirement that States
pass an updated version of UIFSA. So, all States have UIFSA
laws in place; this would require them to amend those laws, as
they periodically do, to accommodate international enforcement.
Senator Cardin. Is it fair to say that what the States need
to do is more a technical update than substantive change?
Ms. Turetsky. That's right.
Senator Cardin. And the Federal requirements to have our
laws comply with the technical aspects of international child
support, as a practical matter, we're enforcing these orders
today?
Ms. Turetsky. Well, the law would be amended in a couple of
significant ways. First--not significant in the sense of IV-D,
but distinguished ways. First, the Federal law that we're
proposing to the Congress would contain a IV-D requirement that
States pass the UIFSA 2008 version. But, secondly, it would
require my secretary, the Secretary of Health and Human
Services, to use all Federal and State enforcement mechanisms
to comply with the treaty and to cut off funding to States if
States were not in compliance.
Senator Cardin. The funding you're talking about is child
support?
Ms. Turetsky. I'm sorry?
Senator Cardin. What type of funding would be cut off?
Ms. Turetsky. The child support funding is a 66-percent
matching fund.
Senator Cardin. Right. That's the number that you're using
for the States to comply with the Convention.
Ms. Turetsky. Right, the regular funding. And that's
about----
Senator Cardin. If this were ratified by the United States
Senate this year, is there a time requirement for the States to
comply their laws?
Ms. Turetsky. I'm going to have to ask for technical
assistance on that.
Senator Cardin. Because, you know, many legislatures don't
meet every year, or they don't have----
Ms. Turetsky. Yes. Two years.
Senator Cardin. Two years.
Ms. Turetsky. Two-year period.
Senator Cardin. Thank you. I appreciate that.
The reservation that you talked about, Mr. Loken, on
jurisdiction?
Mr. Loken. Yes, sir.
Senator Cardin. I want to make sure that we are comfortable
with the legal status here. If I understood your testimony, you
were talking about debtor statute jurisdiction.
Mr. Loken. Right.
Senator Cardin. Is the concern that, without that
reservation, we might be subjecting U.S. citizens to the
jurisdiction of other courts, broader than just child support
enforcement, which would be inconsistent with our position, as
it relates to U.S. citizens?
Mr. Loken. Yes, Senator, the issue that we faced in this
negotiation was that many other countries recognize
jurisdiction in child support enforcement matters based upon
the residence of the creditor parent, the parent that is
seeking to obtain the child support. But, to satisfy U.S.
constitutional due process requirements, there must be
sufficient contacts between the debtor parent and the forum,
under our law.
The leading case on this that has to do with child support
enforcement is Kulko v. Superior Court, a Supreme Court case
from 1978.
Article 20 from the Convention sets forth six different
bases of jurisdiction for the recognition and enforcement of
maintenance decisions. Three of those bases do not comport with
our due process requirements; notably, jurisdiction based upon
the residence of the creditor alone. The reservation proposed
by the executive branch would cover all three of these bases of
jurisdiction which are not consistent with our law. The
remaining bases of jurisdiction under article 20 are consistent
with U.S. law.
Senator Cardin. And you're satisfied, then, that we're
protecting the constitutional issue here?
Mr. Loken. We are. Yes.
Senator Cardin. Senator Risch?
Senator Risch. Excuse me if you've been asked this earlier.
How many parties to the Convention have ratified, so far? How
many parties to the Convention have ratified, so far?
Mr. Loken. None have, to date, sir. No. The Convention was
just concluded recently. And, in fact, the U.S. is in the
forefront, here, of efforts to move towards ratification.
Senator Risch. And what--how many potential countries are
there involved in ratification, eventually.
Mr. Loken. Well, we would hope, quite a number. The Hague
Conference in which the negotiation took place, I believe,
consisted of 60 or 70 members. Many of those were actively
involved in the negotiation. We know that the European
Community and its member states and Canada, among others, are
actively pursuing ratification. Several other countries, that
we're aware of, are also quite interested in moving towards
joining the Convention. We really think that, in this case,
what the U.S. does will be quite persuasive, in terms of the
reaction of other states to joining the Convention, and we hope
that, in the next several years, that we will find a number of
countries joining it.
Senator Risch. How many bilateral agreements do we have
right now?
Ms. Turetsky. We have about 15.
Senator Risch. And is it impossible to enforce one of these
orders if you don't have a bilateral agreement?
Ms. Turetsky. It's very difficult, yes.
Senator Risch. Thank you.
Senator Cardin. Thank you.
You didn't mention Mexico. Can you tell us the level of
interest in Mexico?
Mr. Loken. Well, I can tell you that Mexico did
participate actively in the negotiations, and was supportive of
the Convention as adopted. I do not have current information
about domestic activity within the--within Mexico to pursue
ratification.
Senator Cardin. I'm going to ask that you try to supplement
that to this committee, give us the best information you have,
as to Mexico. I think we are particularly interested in Mexico
and Canada, and would want to know the interest level in
Canada.
[The information referred to above follows:]
Mr. Loken. With regard to Canada: The Secretary of State, with the
concurrence of the Secretary of Health and Human Services, may declare
any country (or political subdivision thereof) to be a foreign
reciprocating country if the foreign country (or political subdivision
thereof) has established, or undertakes to establish, adequate
procedures for the establishment and enforcement of duties of support
owed to residents of the United States. To date, Alberta, British
Columbia, Manitoba, New Brunswick, Newfoundland, Northwest Territories,
Nova Scotia, Nunavut, Ontario, Saskatchewan and Yukon have been
declared to be ``foreign reciprocating countries'' for this purpose.
There is an excellent, long-standing history of cooperation in
child support enforcement matters between the United States and the
provinces and territories, as well as the federal government, of
Canada.
Canada is a strong supporter of the Convention. We understand that
the Coordinating Committee of Senior Officials--Family Justice, a
committee comprised of officials from the federal, provincial and
territorial governments, has established a working group to consider
the implementation of the Convention within Canada. The working group
is open to officials from the federal, provincial and territorial
governments.
With regard to Mexico: The United States has had less success with
Mexico. Mexico has not been declared to be a foreign reciprocating
country. Although courts and other authorities in the United States
have recognized and enforced child support orders from Mexico as a
matter of comity, there has been little or no reciprocity. It is our
hope that that this situation would improve if the United States and
Mexico become parties to the Convention.
Mexico participated actively in the negotiation of the Convention
and supported its adoption. So far as we know, the Government of Mexico
has not taken steps to become a party to the Convention. Ratification
of the Convention by the United States, however, would put the United
States in a stronger position to encourage Mexico to take such action.
We understand that the Government of Mexico, like the Government of
Canada, intends to participate in the Special Commission of the Hague
Conference in November on the implementation of the Convention, and we
will consult with Mexico there on its plans for ratification of the
Convention.
Senator Cardin. Let me just go through the logistics, here,
just to make sure I understand what is likely to happen if the
Convention gets ratified by a significant number of countries.
Currently, if the appropriate order is presented to a U.S.
court to enforce child support by a non-U.S. resident against a
U.S. resident, what will be done by a typical State court?
Ms. Turetsky. Typically, that order would be enforced if
the noncustodial parent is in the United States.
Senator Cardin. So, the custodial parent would get legal
assistance here in some form--private attorney--and present the
court order and the appropriate certifications to the U.S.
court in a State, and that State would most likely enforce the
order, unless there was a legitimate contest to its legitimacy?
Ms. Turetsky. Yes.
Senator Cardin. And if you are a U.S. citizen and have
custody of a child and a valid U.S. child support order, and
the other parent is not in the United States, and you attempt
to enforce it, what is the likelihood of enforcement today,
without the Convention? And, if you could, be somewhat specific
in identifying countries. Some countries we have good
relationship with. Obviously, the closer of interest are Canada
and Mexico, but also there's significant interest in Europe.
Ms. Turetsky. Right. Well, we have bilateral agreements in
place with a set of countries, and I can list those for you,
Senator: Australia, Czech Republic, El Salvador, Finland,
Hungary, Ireland, Israel, Netherlands, Norway, Poland,
Portugal, Slovak Republic, Switzerland, and the U.K., as well
as Canadian provinces.
Senator Cardin. We don't with Mexico?
Ms. Turetsky. We do not with Mexico.
Senator Cardin. And we do not with African countries?
Ms. Turetsky. We don't have any bilateral agreements with
African countries.
Senator Cardin. You mentioned some in the Middle East; are
there any in Asia?
Ms. Turetsky. No, we don't have a current bilateral
agreement with Asian countries.
Senator Cardin. Okay. Does the likelihood of ease and
success of enforcement depend upon a bilateral agreement?
Ms. Turetsky. Well, the--yes. I mean, I think it's very
difficult to enforce a--for a parent living here, to enforce a
child support case, when there's no bilateral agreement and no
mechanism to enforce, internationally.
Senator Cardin. How will this Convention affect the 15
countries we have bilateral agreements with? Will it be
comparable, harder, or easier to deal with these countries?
Ms. Turetsky. It will be easier, because the Convention
would set up a--an administrative structure and a streamlined
structure that would resolve jurisdictional barriers and create
a system that is modeled after the United States so that
parents will know that, when they seek assistance, that the
support order will be enforced in a--in an efficient way, and
one--and a way in which that they're accustomed to in the
United States.
Senator Cardin. I have one last question for either or both
of you, and that is: How much is this needed in the United
States? Do you have any documentation as to the level of child
support that goes uncollected and may very well be collected if
the Convention is widely ratified? Or is this just your gut? I
mean, do we have any documentation of what may be involved,
here?
Ms. Turetsky. Senator, we don't have a hard projection of
dollars. We estimate about 1 percent of our caseload is
international, in the sense that one parent lives in a
different country. What we do have is anecdotal information
from parents who have written to us, who say, you know, ``I'm
living here. I have a support order. My--the parent of my child
lives in another country. I don't know what to do. I understand
there's no agreement with that country. What can I do?'' And
so, we know that there are a number of families that are going
to be affected by a fully ratified treaty. We don't know how
that caseload will grow over time.
But, we're--you know, we're sensible of the fact that
we're, you know, an increasingly global world, and that parents
do move around. And in our caseload, where parents are living
apart, the likelihood of one parent living in one country and
another parent living in our country is likely to grow over
time. So, we're really planning for the future, here.
Senator Cardin. Thank you.
Senator Risch, anything further?
Senator Risch. No, thank you.
Senator Cardin. Thank you both very much for your
testimony.
I will be mentioning, at the end of this hearing, that the
record will remain open for 2 days, so there may be some
additional questions asked by members of the committee.
But, thank you very much for your work on this. Good work.
Ms. Turetsky. Thank you, Senator.
Mr. Loken. Thank you.
Senator Cardin. Our second panel consists of Judge Battle
Robinson from the Uniform Law Commission, and Alisha Griffin,
from the New Jersey Department of Human Services. [Pause.]
Senator Cardin. Judge Robinson, we'll be glad to hear from
you.
I should point out that all of the witnesses' full
testimonies will be included in our record, without objection.
And you may proceed as you see fit.
STATEMENT OF HON. BATTLE ROBINSON, UNIFORM LAW COMMISSIONER,
JUDGE, FAMILY COURT OF DELAWARE (RET.), GEORGETOWN, DELAWARE
Ms. Robinson. Thank you, Senator Cardin, and good
afternoon, to you and to the members of the committee.
I'm appearing today on behalf of the National Conference of
Commissioners on Uniform States Laws, also known as the Uniform
Law Commission. The Commission is a national organization of
lawyers, judges, and legal scholars. Its purpose is to provide
the States with nonpartisan, well-drafted legislation in areas
of the law where uniformity is desirable. Some of its more
notable achievements include the Uniform Commercial Code, the
Uniform Child Custody Jurisdiction and Enforcement Act, and the
Uniform Interstate Family Support Act, which I will be speaking
about today.
The purpose of my testimony is twofold: first, to convey
the support of the Commission for the Hague Convention on the
International Recovery of Child Support and Other Forms of
Family Maintenance, and to urge its ratification; and second,
to support and explain the method of implementation of the
Convention which is being proposed.
The past century has witnessed the growth of family support
enforcement from criminal proceedings to civil ones, from
modest county-based programs to the creation of a nationwide
Federal-State partnership under the Title IV-D Program, to the
development of legal rules and procedures that facilitate the
establishment and enforcement of support orders when parties
live in different States.
In an age of globalization, the international expansion of
consistent rules for enforcement of child support seems a
natural development. Further, the Convention will provide a
much-needed mechanism whereby support orders of tribunals of
the United States will be recognized and enforced in other
countries. Although tribunals in the United States, as a
general matter, already recognize and enforce the orders of
foreign tribunals, the reverse is often not the case. The
Commission believes that the effect of other nations acceding
to obligations imposed by the Convention, the development of
standard administrative protocols and forms, and the adoption
of clear rules pertaining to the recognition and enforcement of
support orders will assure acceptance of this country's orders
in foreign lands. For these reasons, the Commission urges
approval of the Convention by the Senate.
The Commission also supports the implementation of the
Convention through a method of cooperation between the Federal
and State governments. This method will implement important
segments of the Convention through a uniform State law, rather
than by Federal legislation. Specifically, implementation will
come about through changes in the existing Uniform Interstate
Family Support Act, known as UIFSA. UIFSA serves as the basis
for interstate establishment and enforcement of support
obligations within the United States, and it's already the law
in all States. It is used daily in the thousands of interstate
cases which are processed through the child support system in
the country, and is familiar to attorneys, court personnel, and
support caseworkers in all States.
Beginning in 2007, a drafting committee of the Uniform Law
Commission worked to develop amendments to UIFSA which are
designed to implement the Convention. The amended version of
UIFSA was approved by the full Commission in July 2008 and is
ready to be introduced in, and approved by, States'
legislatures. It will be known as UIFSA 2008. Indeed, Maine,
Nevada, and North Dakota have already passed the amendments,
which take effect when the Convention is ratified and the
United States instrument of ratification is deposited at The
Hague.
Briefly, UIFSA 2008 is concerned primarily with the
recognition and enforcement of support orders under the
Convention. The familiar provisions of UIFSA applicable to
domestic support orders remain largely unchanged. A new Article
7 is the heart of the effort to integrate the Convention into
State law. That Article contains the special rules which
pertain to cases brought under the Convention.
The Commission recognizes that attempting to implement the
Convention by asking 50 separate jurisdictions to enact timely
and substantially similar legislation poses substantial
practical difficulties. Thus, in order to assure the widespread
enactment of UIFSA 2008, it is necessary for the Congress to
assist in the process of obtaining these enactments. In the
case of this particular treaty, the extensive Federal funding
of the child support program provides an ideal vehicle for that
Federal assistance.
The Department of Health and Human Services has recently
submitted to the Congress Federal implementing legislation that
requires that all States, as a prerequisite to continued
receipt of Federal child support funds, adopt UIFSA 2008 by a
date certain. Such a requirement is not new in the area of
child support. In the 1996 Welfare Reform Act, Congress made
the enactment of UIFSA a condition of State eligibility for the
Federal subsidy. A similar mandate by the Congress in its
legislation pertaining to the Maintenance Convention would
virtually assure that UIFSA 2008 will be adopted by all States
in an expeditious and uniform fashion.
Finally, I want to emphasize the cooperative relationship
between the Federal officials and the Uniform Law Commission in
the development of the Convention and its implementing
legislation. The experience has suggested an interesting course
for the future. With the expansion of global relationships,
there will surely be other instances where integrating
international legal developments into familiar State law may be
appropriate. I believe adoption by the Congress of the
proposal, whereby implementation of the Maintenance Convention
will come about through adoption of a uniform state law, will
provide an important precedent and a guide for future actions,
and I commend it to you.
Thank you.
[The prepared statement of Ms. Robinson follows:]
Prepared Statement of Battle R. Robinson
Senator Cardin, Ranking Member Lugar, and members of the Committee,
good morning.
My name is Battle Robinson and I am a retired Family Court Judge of
the State of Delaware, having served 14 years in that capacity. Since
1980, I have been a Delaware Commissioner of the National Conference of
Commissioners on Uniform State Laws, also known as the Uniform Law
Commission, and it is on behalf of that organization that I am
appearing today.
The Uniform Law Commission is a national organization of lawyers,
judges, and legal scholars that has existed since 1892. Its purpose is
to provide the states with non-partisan, well-drafted legislation and
to work for the enactment of that legislation. The Commission's efforts
support the federal system, facilitating both the movement of
individuals and the functioning of business organizations across state
lines through the enactment of statutes that are uniform throughout the
nation. During its history the Commission developed such notable state
legislation as the Uniform Commercial Code, and has been a leader in
drafting important uniform state legislation which involves children's
issues, including the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA) and the Act which brings us to this hearing
today--Uniform Interstate Family Support Act (UIFSA). I chaired the
Uniform Law Commission's committees that revised UIFSA in 1996 and
2001. I then attended the sessions at the Hague at which the Family
Maintenance Convention was developed, and I chaired the ULC Drafting
Committee that revised UIFSA during 2007-08 in order to implement the
Convention.
The purpose of my testimony is two-fold: first to convey the
support of the Commission for the Hague Convention on the International
Recovery of Child Support and Other Forms of Family Maintenance and to
urge its ratification; and second to support and explain the method of
implementation of the Convention which is being proposed.
The past century has witnessed the growth of family support
enforcement from criminal proceedings to civil, from modest county-
based programs to the establishment of the federal IV-D program in the
1970s, which created a federal-state partnership concerning child
support, and the development of legal rules and procedures for the
establishment and enforcement of support orders across state lines. In
the Family Support Act of 1988 (Public Law 100-485), Congress
established the U.S. Commission on Interstate Child Support (Interstate
Commission). The purpose of the Interstate Commission, of which I was a
member, was to identify ways to improve the efficiency and
effectiveness of interstate child support enforcement. After a number
of hearings across the country, the Interstate Commission submitted a
report to Congress in 1992 with recommendations for improving
interstate establishment and enforcement of child support, and for
revising an existing uniform act dealing with child support--the
Uniform Reciprocal Enforcement of Support Act (URESA). The drafting of
this revision was spearheaded by the Uniform Law Commission, and this
revision became UIFSA, the first version of which was adopted by the
Uniform Law Commission in 1992.
UIFSA serves as the basis for interstate establishment and
enforcement of support obligations within the United States and has
been enacted in all States, the District of Columbia, the U.S. Virgin
Islands, and Puerto Rico. UIFSA provides universal and uniform rules
for the enforcement of family support orders, sets basic jurisdictional
standards for state courts by determining the basis for a state to
exercise continuing exclusive jurisdiction over a child support
proceeding, establishes rules for determining which state issues the
controlling order in the event proceedings are initiated in multiple
jurisdictions, and provides rules for modifying or refusing to modify
another state's child support order.
In an age of globalization, the international expansion of
consistent rules for enforcement of child support, such as those
provided under UIFSA, seems a natural development and one which the
Uniform Law Commission believes will be advantageous to the United
States. The Hague Convention will provide a mechanism whereby support
orders of tribunals of the United States will be recognized and
enforced in other countries. Although tribunals in the United States,
as a general matter, already recognize and enforce the orders of
foreign tribunals, the reverse is often not the case. In at least some
instances this is due to limitations in foreign laws. The Commission
believes that the effect of other nations acceding to the obligations
imposed by the Convention, the development of standard administrative
protocols and forms, and the adoption of clear rules pertaining to the
recognition and enforcement of support orders, will assure acceptance
of this country's orders in other lands. No longer will persons in the
United States have to re-litigate support matters in a distant country
or forego support altogether. For these reasons, the Uniform Law
Commission believes the Convention will facilitate the international
enforcement of child support and urges its approval by the Senate.
The Commission also supports the implementation of the Convention
through a method of cooperation between the federal and state
governments. This method, supported in this instance by the U.S.
Departments of State and Health and Human Services, will implement
important segments of the Convention--namely those dealing with the
recognition and enforcement of foreign orders--through a uniform state
law, rather than by federal legislation. Specifically, implementation
will come about through changes to the existing Uniform Interstate
Family Support Act. That Act is used daily in the thousands of
interstate cases which are processed through the child support system
in this country and is familiar to, attorneys, court personnel and
support case workers in all states. Beginning in 2007 a drafting
committee of the Commission, which I chaired, worked to develop
amendments to UIFSA designed implement the Convention. The committee
worked closely with representatives of the federal government--both HHS
and State--and child support organizations to draft uniform state
legislation that facilitates accession to the treaty without imposing
burdensome changes to existing state practices. The amended version of
UIFSA, known as ``UIFSA 2008,'' was approved by the full Commission in
July 2008 and is ready to be introduced and approved by state
legislatures. Recognizing the importance of the changes for
international child support orders, Maine, Nevada, and North Dakota
have already passed the amendments, which take effect when the
Convention is ratified and the United States' instrument of
ratification is deposited at The Hague.
When the Commission undertook this project, the drafting committee
considered a number of possible means of implementation and concluded
that there were many advantages to implementing this particular
Convention by a combination of uniform state law and federal
legislation. First, family support has always been primarily the domain
of state law, albeit in recent years with very significant financial
contribution and regulatory guidance from the federal government.
Second, UIFSA, and the laws that preceded it, have been the basis for
the establishment, enforcement, and modification of support orders
across state lines for almost sixty years. Because UIFSA is in force in
all states, and thanks to the frequency of its use and the extensive
training offered under the auspices of OCSE and national child support
enforcement organizations, there is a well trained cadre of judges,
lawyers, and child support workers who are familiar with the Act.
Incorporating foreign orders into a similar statutory framework is the
best approach for all parties. The Commission was well positioned to
execute this consensus approach to the Convention because of its
experience with the subject matter and its mission of fostering
uniformity in state law.
UIFSA 2008 can be described very briefly as follows:
the legislation is addressed to the recognition and enforcement of
court orders;
it does not deal with the provisions in the treaty which are deemed
fundamentally administrative and which are left to the child
support agencies, such as designing forms and transmitting
information between support agencies;
except for a very few instances where amendments were necessitated,
the familiar provisions of UIFSA applicable to domestic support
orders remain unchanged.
UIFSA 2008 features a new Article that integrates the Convention
into state law. Article 7 addresses the greatest obstacle to
recognition and enforcement of foreign orders by American tribunals:
the divergent jurisdictional bases for support orders in the United
States and in virtually all other countries. In the United States there
must be some personal connection between the support obligor and the
state tribunal that issues the order. In contrast, other counties
follow what is known as ``child based'' jurisdiction under which a
tribunal in the country where the child lives may issue a support order
even though the obligor has had no contact whatsoever with the country.
Accordingly, there may be instances where American courts cannot
recognize a foreign order because there would be no jurisdiction under
American law. In that situation, UIFSA 2008 directs an American
tribunal to determine if there is any other basis, consistent with
American law, under which the foreign tribunal could have exercised
jurisdiction. If so, the U.S. court may proceed to recognize and
enforce the foreign tribunal's order. If not, the U.S. court must
provide opportunity for a new support action to be filed.
Because of the participation of the United States delegation in the
negotiations leading to the Convention, the Convention adopts many
procedures that are already part of American law. Thus, the new Article
7 will be readily recognized by American bench and bar, and by the
state IV-D agencies that constitute the heart of child support
enforcement in this country. For instance, the Convention basically
adopts the procedure used in interstate cases in the United States
whereby support orders from other countries are registered in an
appropriate tribunal and enforced by that tribunal, subject, of course,
to the respondent's opportunity to challenge the order. Consistent with
the Convention, Article 7 provides only limited grounds on which a
tribunal may deny recognition and enforcement of a Convention support
order. The Article also provides, as does the Convention, that
international child support proceedings may be conducted by private
attorneys, as well as by support agencies.
The Commission recognizes that attempting to implement the
Convention by asking fifty separate jurisdictions to enact timely and
substantially similar legislation poses substantial practical
difficulties. Thus, in order to ensure the widespread enactment of
UIFSA 2008 that will be necessary in order to implement the Convention
effectively in the United States, and to permit the United States to
ratify the Convention, it is necessary for Congress to assist the
process of obtaining enactment of UIFSA 2008 by the States, thereby
allowing the timely deposit of the instrument of ratification with the
Hague.
In the case of this particular treaty, the extensive federal
funding of the child support program provides an ideal vehicle for that
federal assistance. The Department of Health and Human Services has
recently submitted to the Congress federal implementing legislation--
the ``Multilateral Child Support Convention Implementation Act of
2009''--that both provides guidance concerning the administrative
aspects of implementing the Convention and requires that all states, as
a prerequisite to continued receipt of federal child support funds,
adopt the UIFSA 2008 amendments by a date certain.
Such a requirement is not new in the area of child support. The
1996 Welfare Reform Act, also known as PRWORA, made major changes to
welfare programs. In that Act Congress made the enactment of UIFSA a
condition of state eligibility for the federal subsidy for child
support enforcement. The federal mandate required ``each State to have
in effect the Uniform Interstate Family Support Act, as approved by the
American Bar Association on February 9, 1993, together with any
amendments officially adopted before January 1, 1998 by the NCCUSL.''
28 U.S.C 666(f) In conformity with this mandate, all states had adopted
UIFSA by 1998. A similar mandate by the Congress in its legislation
pertaining to the Maintenance Convention would virtually assure that
UIFSA 2008 would be adopted by all states in an expeditious and uniform
fashion.
Finally, I want to emphasize the cooperative relationship between
the federal officials and the Uniform Law Commission in the development
of the Convention and its implementing legislation. The experience has
suggested an interesting course for the future. With the expansion of
global relationships, there will surely be other instances where
integrating international legal developments into familiar state law
may be appropriate. I believe adoption by the Congress of the proposal
whereby implementation of the Convention on the International Recovery
of Child Support and Other Forms of Family Maintenance will come about
through adoption of a uniform state law will provide an important
precedent and guide for future actions, and I commend it to you.
In closing, the Uniform Law Commission urges that the Senate give
its advice and consent to the Hague Maintenance Convention, and the ULC
also supports the implementation of that Convention by the combination
of state and federal legislation that I and others testifying before
the Committee describe today.
Thank you.
Senator Cardin. Thank you very much for your testimony.
Ms. Griffin?
STATEMENT OF ALISHA GRIFFIN, ASSISTANT DIRECTOR, OFFICE OF
CHILD SUPPORT SERVICES, NEW JERSEY DEPARTMENT OF HUMAN
SERVICES, TRENTON, NEW JERSEY
Ms. Griffin. Thank you. Good afternoon, Senator Cardin and
Senator Risch.
I appreciate the opportunity to come before you and speak
regarding the importance of approving the Hague Convention on
the International Recovery of Child Support and Other Forms of
Family Maintenance.
As a child support director in the--for the State of New
Jersey, I've been in that position for 12 years and have had
the privilege, during the last 7, of working side by side,
along with my colleagues, here, from the Office of Child
Support Enforcement and HHS, the State Department, and other
child support and family law experts in this country, as well
as in those 67 other countries and nongovernmental
organizations, to develop this treaty that provides a
significant new framework for the international establishment
of enforcement and child support orders. I appear before you to
urge the adoption and your approval of United States
participation in this Convention.
Child support is a critical family service program, one
that research has shown lifts families out of poverty. The
child support program, since welfare reform, has made
substantial improvement in our performance. Today, we collect,
nationally and in New Jersey, over 65 percent of all the child
support due children. Unfortunately, that still means that
there's about 35 percent that don't receive all they deserve
and need to get by.
The child support community has been committed to doing
better to improve their performance and to make child support a
more reliable source of income. This treaty will assist us in
that quest.
In 1996, along with the child--the welfare reform
legislation, Congress passed, as you've heard, the Uniform
Interstate Family Support Act, UIFSA, which paved the way for
significant improvement of cooperation and enforcement across
all U.S. States and territories. Like UIFSA, the Hague
Convention contained procedures for processing cases that will
be uniform, simple, efficient, accessible, and inexpensive for
us to implement. It will also improve our opportunities for
obtaining reciprocity with other contracting countries.
I just returned, this morning, from a reciprocity meeting
with provincial directors in Canada, where we had the
opportunity to discuss our continuing case concerns. And while
the U.S. has, as you have heard, good relationships with Canada
and bilateral agreements in place, our colleagues in Canada and
our State directors feel very strongly that this will improve
the processing of our cases, even with our close neighbor,
Canada.
In addition, the Convention will give us the ability to
coordinate and effectively communicate through a central
authority structure, and to effectively address some of those
jurisdictional boundaries and barriers that you've heard about
earlier, as well as providing access to cost- free services for
U.S. citizens needing assistance in other countries.
But, there is nothing more critical in all of this than the
benefit that children and families will receive and the health
and safety and stability that they may see in having a reliable
source of income. This certainly has been demonstrated by the
current economic downturn facing our nation, that we need to do
everything possible to ensure that children grow up in safe,
stable homes, and that are afforded the best chances possible
to grow healthy and strong. Child support is a critical
component to that stability and provides--and helps parents
provide the best they possibly can, particularly when times are
tough.
We know that the job markets have changed and we've become
a global community. More children are living in countries
different from their parents than ever before. They deserve the
best we can give them in establishment and enforcement of
orders to ensure they have support from both of their parents.
In New Jersey alone, our international caseload is now over
3100 cases and has been growing every year. We are just one of
the 54 States and jurisdictions operating a child support
program. And so, the impact and benefit from this Convention
will be significant to the children and families we serve.
Just as Congress did with the passage of UIFSA when it
provided for reciprocity across States and territories, it must
do so now with this new opportunity worldwide. Therefore, I
urge the Senate to promptly grant its advice and consent to the
ratification by the President of this Hague Convention on the
International Recovery of Child Support and Other Forms of
Family Maintenance.
Thank you again for the opportunity to speak, and I'm
willing to answer some questions.
[The prepared statement of Ms. Griffin follows:]
Prepared Statement of Alisha Griffin
Senator Cardin, Senator Lugar, and members of the committee, thank
you for the opportunity to testify regarding the importance of
approving the Hague Convention on the International Recovery of Child
Support and Other Forms of Family Maintenance. I am Alisha Griffin,
Assistant Director in the Division of Family Development responsible
for the Office of Child Support Services within the New Jersey
Department of Human Services. I have been the child support director
for over twelve years, prior to which I served over 20 years in Child
Welfare and Child Protection and as a practicing Family Psychologist.
During the past seven years, I have had the privilege of working side
by side with colleagues from this country as well as 67 other countries
to develop this treaty document that provides a significant new
framework for the international establishment and enforcement of
support orders. I appear before you today to urge your approval of the
United States' participation in this convention.
Child support is a critical family service program, one that
research has shown lifts families out of poverty. It has made
substantial improvements in performance over the last twelve years, and
today, both nationally and in New Jersey, we collect 65% of child
support due. Unfortunately, 35% of the families we serve do not yet get
what they deserve and need. The child support community is committed to
doing better to make child support a reliable source of income for all
families. In 1996 Congress passed legislation mandating that all states
adopt the Uniform Interstate Family Support Act (UIFSA), which paved
the way for significant improvement of cooperation and enforcement
across all US states and territories.
Like UIFSA, the Hague Convention contains procedures for processing
international child support cases that are uniform, simple, efficient,
accessible, and inexpensive. It is founded on the agreement of
contracting countries to recognize and enforce each other's support
orders. It is based on a system of administrative cooperation among
central authorities of contracting countries to facilitate the transfer
of documents and case information--using electronic technology where
feasible--so that the necessary information is available for
expeditious resolution of international child support matters. Similar
procedures are already in place in the United States for processing
interstate child support cases. Indeed, many provisions of the
Convention were drawn from the US experience with UIFSA.
The major benefit to the United States from joining this Convention
will be obtaining reciprocity from other contracting countries. For
many international cases, US courts and state Title IV-D child support
enforcement agencies already recognize and enforce child support
obligations, whether or not the United States has a reciprocal
agreement with the other country. However, many foreign countries will
not enforce US support orders in the absence of a treaty obligation.
Ratification of the Convention by the United States will mean that more
children residing in the United States will receive financial support
from their parents residing in countries that are also signatories to
the Convention.
Another significant benefit to joining the Convention will be the
ability to effectively coordinate the enforcement of international
child support cases with contracting countries through communication
with central authorities designated to receive and transmit
applications for services and to facilitate case processing. In
addition, the ability to use uniform forms for transmitting information
and uniform protocols for transferring child support payments in
different currencies will minimize delays in enforcing orders and
delivering payments, while reducing transaction costs for both parents.
The Convention effectively addresses jurisdictional barriers that
have prohibited the United States from joining other child support
conventions. Existing maintenance conventions base jurisdiction to
order support on the habitual residence of the creditor (i.e., the
custodial parent or child) rather than on minimum contacts with the
debtor (the non-custodial parent), as required by US constitutional
standards of due process. The Convention provides flexibility for a
court of the United States having jurisdiction over the non-custodial
parent to establish a new order in circumstances where U.S.
jurisdictional requirements were not met in the country issuing the
initial order that is sought to be enforced.
The Convention also provides for access to cost-free services for
US citizens needing assistance with child support enforcement in a
contracting country, an important element of reciprocity for US
citizens. The small number of countries that may be required by their
own internal procedures to assess fees must use a means test based on
the income of the child, not the parents, with the result that any fees
will be minimal as compared to current practice where custodial parents
must often retain local private counsel in order to establish or
enforce a support order.
The Convention does not affect substantive child support law, which
is generally left to the individual states. Its primary focus is on
uniform procedures for enforcement of decisions and for cooperation
among countries. There is nothing more critical to the benefit of
children than the health, safety and stability of the family. That has
certainly been demonstrated by the current economic downturn facing
this nation. We need to do everything possible to ensure children grow
up in safe stable homes and are afforded the best chances possible to
grow healthy and strong. Child support is a critical component and
ensuring that parents provide the best they can for their children,
particularly during tough economic times.
As we know, job markets have changed and we have become a global
community. More children are living in countries different from their
parents. Nonetheless, they deserve the best we can give them in
establishment and enforcement of orders to ensure that they have
support from both parents. In New Jersey alone, our international
caseload is over 3,000 cases and has been growing every year. We are
just one of 54 states and territories operating Title IV-D programs, so
the impact and benefit will be significant.
Just as Congress did with the passage of UIFSA when it provided for
reciprocity across states and territories, it must do so now with this
new opportunity, worldwide. Therefore, I urge the Senate to promptly
grant its advice and consent to the ratification by the President of
The Hague Convention on the International Recovery of Child Support and
Other Forms of Family Maintenance.
Thank you for the opportunity to speak to you today, and for your
consideration of this important international convention which is
critical to the well-being of children and families.
Senator Cardin. Well, thank you for your testimony.
I think it's fair to say that most States believe that they
have laws--strong laws--to meet the needs of their citizens as
it relates to child support enforcement. So, my first
question--and I'll ask this to each of you--do you agree with
the characterization on the last panel that the changes that we
are requesting the States to make in their child support
enforcement laws--are basically technical?
Judge Robinson?
Ms. Robinson. Well, there are definitely----
Senator Cardin. Microphone.
Ms. Robinson. There are provisions in UIFSA 2008 which are
complex and which are difficult. I don't know if I would say
they are purely technical.
Senator Cardin. I guess my question is: Are they more in
technical compliance to the international treaties, and will
have minimal impact on the current collection proceedings that
are operating in the 54 jurisdictions that you refer to?
Ms. Robinson. As far as the domestic orders are concerned,
it will have very little impact. It should speed up and help
the processing of the international cases, because there will
be standard procedures to be followed.
Senator Cardin. I understand it'll affect the international
orders, but, as far as the domestic support order enforcement,
do you envision any significant change as a result of the
required amendments of the local laws?
Ms. Robinson. I do not.
Senator Cardin. And the second question is, Do you believe
it's reasonable to require the States to conform to these
requirements within 2 years? I believe that's the requirement
if we were to ratify the Convention. Is that a reasonable
period?
Ms. Robinson. It's going to be a tight period, Senator.
There will be a lot of work that has to be done to see that 50
different jurisdictions enact this. But, I think there is a lot
of momentum out there, and I think that the States will follow
and do this. Last night, I had an email from the head of the
Title IV office--IV-D office in Delaware, saying, ``We fully
support the treaty, and we're ready to go.'' So, I think there
will be a lot of support in getting this legislation through
the State legislatures.
Senator Cardin. Well, the consequences here are pretty
dramatic: loss of Federal child support funds. It would be
devastating for any State to lose those funds. So, I want to
make sure this is doable. I know how local politics can be.
This doesn't always get to be the first order up. Some
legislatures work on a 2-year cycle, and when we take up this
ratification, Congress is unlikely to give much attention to
the requirements on the States. So, is it reasonable to expect
that if there's a 2-year window, every State will have ample
time to get the amendments ratified?
Ms. Robinson. Well, of course it's been done, as I pointed
out in the earlier----
Senator Cardin. Yeah.
Ms. Robinson. In 1996, the States were required to adopt
UIFSA, and they did so. Really, I think this is a question that
probably HHS should answer, because they are the ones who have
included that date in their legislation.
Senator Cardin. No, I don't think so. I'm a former State
legislator, and I think I knew better than the Federal
Government did as to how long it would take, in Maryland, to
change our statutes. Our political structure is different than
the Federal, and when you're counting the territories that are
impacted, it's an issue that I think we're going to need to
look at.
Ms. Griffin, let me ask you both of those questions. First,
do you agree that these changes would not have any significant
impact on States' ability to collect child support and enforce
child support judgments in regard to in-country enforcement?
Ms. Griffin. No, it will not have any impact on it. We've
already looked at that, and we actually, in New Jersey, are
positioned to move the UIFSA 2008 forward in the next
legislative session, or as soon as this implementing
legislation is passed. I do think that a number of States, as
you heard, already--Nevada, North Dakota, Maine--already moved
the legislation forward. So, States are positioned and have
looked at the current legislative package that has been put
forward by the Uniform Commission.
Senator Cardin. Now, you're from New Jersey, but I would
like this to be broader. The second question I asked Judge
Robinson, Do you believe a 2-year period is a reasonable period
for all States to be able to conform to the requirements of
this Convention, once ratified by the United States Senate?
Ms. Griffin. I do believe it is, because, as Judge Robinson
said, we did it in 1996. I was here then. We did it in 1996. My
colleagues did it then. I've served as the president of the
National Council of Child Support Directors. I know that
they're fully behind this treaty and the need to move
international cases forward.
The new legislation really is fairly simple. There are not
a lot of domestic changes to the body of UIFSA. It sets out a
new chapter that will give us very specific guidance around
international cases. So, I think that that will be, really,
much easier, in some respects, for State legislators to
understand it and to follow it and to help it through that
process.
Senator Cardin. And I understand that you were part of the
negotiations that took place on this Convention. So, my last
question deals with the issue of federalism and as to whether
you're satisfied, as a State official, that we have the right
balance here, utilizing a Federal agency because of the
international aspects to the enforcement that would be
impossible at the State level. But, do we respect the integrity
and independence of our States as being principally responsible
to collect child support for their citizens?
Ms. Griffin. I do. I think it's a very effective balance.
Currently, even in the bilaterals that we now have with all of
the countries, that you heard from Commissioner Turetsky, we
play that--we work that through now, and we have our--each of
our States has our own family law construct, and we have the
ability to work within that State's family law construct, our
individual enforcement techniques and tools. But, we also
benefit from the support and assistance of HHS in other areas
crossing territories between States and within the United
States, but also in those bilaterals. And I think that that's a
balance that we've shown has been very effective to date. And I
think this will just further that balance.
Senator Cardin. Thank you.
Senator Risch?
Senator Risch. Thank you.
Well, first of all, let me say to Senator Cardin, I don't
have a concern necessarily, particularly regarding the 2-year
matter. I--certainly, it's a concern if States can't get it
done in 2 years. But, even--in Idaho, that's probably the low-
water mark, as far as not wanting to be bridled and led by the
Federal Government. I think this could probably easily be done
in 2 years. And not only that, but with the Uniform Law
Commissioners--Commission behind this, they have been--they
have tremendous credibility in the States, and I think that
this can probably get done. And I guess, at the end of the day,
if it had--if 48 States have done it, and there were two that
hadn't, it could be extended for another year, or what have
you.
But, this is not something that becomes political or
controversial or anything. I think most States understand that
it is in everyone's best interest to do what can be done to
collect child support, because it comes out of--unpaid child
support comes out of every citizen's pocket, and--so, I think
that probably the States will jump onboard with this very
quickly.
I share your concern, obviously, you--we don't want any
States to be--to lose, simply because they didn't meet an
artificial timetable, but I suspect that this timetable would
probably be probably be legitimate. And I'm like you, I come
out of a State legislative background.
So, thank you.
Senator Cardin. No, I appreciate that comment. I certainly
agree with you that sometime concerns in State legislatures are
the urgent issues that they have to deal with and these types
of amendments sort of get put on a calendar that are always
preempted by something else, until you get right near the
deadline and the finance officer comes in and says, ``You know,
you're jeopardizing Federal funds.'' And all of a sudden, they
start to take it up. I mean, I think you have to have the
deadline, and I think you have to have the consequences;
otherwise, it may get delayed, not because of opposition, but
just because of the priority of legislative calendars.
So, I agree, though, with your point. I think 2 years is a
reasonable expectation with due notice.
I think the greatest concern here, right now, is the other
countries also moving forward with this. If this is going to
work effectively, then we do need to see a significant number
of countries enter into the Convention and ratify it. The
United States is not the problem. The United States currently
is enforcing child support orders from other countries. I
expect that the United States will see this as a very positive
change to help our citizens. We just hope that other countries
will move quickly to consider ratification of the Convention.
If there are no further questions, let me thank our
witnesses.
And as I indicated earlier, the record will remain open for
2 days. We may have some additional questions asked on the
record.
And I want to thank you again for your testimony, but, more
importantly, thank you for what you do, Ms. Griffin, in helping
the family issues in your State, and, Judge Robinson, for being
involved in the Uniform Law Commission.
I actually had some involvement in the Uniform Law
Commission when I was in the State legislature, and I know the
work that you do, and it's very important work.
Thank you all very much.
With that, the committee will stand adjourned.
[Whereupon, at 3:32 p.m., the hearing was adjourned.]
APPENDIX I
----------
CONFERENCE OF STATE
COURT ADMINISTRATORS
RESOLUTION 2
In Support of Ratification of the Hague Convention on the International
Recovery of Child Support and Other Forms of Family Maintenance and in
Support of Conforming Changes to the Uniform Interstate Family Support
Act
WHEREAS, the Conference of State Court Administrators (COSCA)
recognizes that international child support enforcement is
increasingly more common and important in this global society;
WHEREAS, on November 23, 2007, after four years of deliberation, the
Hague Convention on the International Recovery of Child Support
and Other Forms of Family Maintenance was adopted at the
conclusion of the Twenty-First Diplomatic Session of the Hague
Conference on Private International Law at The Hague, The
Netherlands;
WHEREAS, this Convention contains procedures for processing
international child support cases that are uniform, simple,
efficient, accessible, and inexpensive;
WHEREAS, this Convention is founded on the agreement by contracting
countries to recognize and enforce each other's support
obligations and is based on a system of administrative
cooperation among the contracting countries to facilitate the
transfer of documents and case information--using electronic
technology where feasible--so that the necessary information is
available for expeditious resolution of international child
support matters;
WHEREAS, similar procedures are already in place in the United States
(US) for processing interstate child support cases, as many of
the provisions of the Convention were drawn from the US
experience with the Uniform Interstate Family Support Act
(UIFSA);
WHEREAS, state courts and state child support enforcement agencies in
the US already recognize and enforce child support obligations,
whether or not the US has a reciprocal agreement with the other
country, so the major benefit for the US in joining this
Convention will be obtaining child support enforcement services
from other contracting countries for US citizens;
WHEREAS, this Convention effectively addresses jurisdictional barriers
that have prohibited the US from joining other international
child support conventions by providing flexibility for a US
court having jurisdiction over the noncustodial parent to
establish a new order in circumstances where US jurisdictional
requirements were not met in the country issuing the initial
order that is sought to be enforced;
WHEREAS, the Convention and the conforming amendments to the UIFSA will
not affect intrastate or interstate cases in the U.S. and will
apply only to cases where the custodial parent and child live
in one contracting country and the noncustodial parent lives in
another contracting country;
WHEREAS, the Convention does not affect substantive child support law,
which is generally left to the individual states, as its
primary focus is on uniform procedures for enforcement of
decisions and for cooperation among countries; and
WHEREAS, the Uniform Law Commission (ULC) worked closely with the U.S.
Departments of State and Health and Human Services and a wide
variety of organizations with expertise in child support
enforcement to develop the 2008 amendments to UIFSA to ensure
that state law will conform to the requirements of the
Convention.
NOW THEREFORE BE IT RESOLVED that the Conference urges the President to
submit to the United States Senate a resolution seeking its
advice and consent to ratify the Hague Convention on the
International Recovery of Child Support and Other Forms of
Family Maintenance, adopted by The Hague Conference on Private
International Law on November 23, 2007;
BE IT FURTHER RESOLVED that the Conference urges the United States
Senate to promptly grant its advice and consent to ratify the
Hague Convention on the International Recovery of Child Support
and Other Forms of Family Maintenance; and
BE IT FURTHER RESOLVED that the Conference urges the Congress to act
promptly to amend the Social Security Act as necessary to
comply with the provisions of the Convention, including an
amendment to section 466(f) of the Social Security Act to
require every state to enact the 2008 version of the Uniform
Interstate Family Support Act as a condition of receiving
federal funding for the state's Title IV-D child support
enforcement program.
Adopted as proposed by the Courts, Children, and Families Committee at
the 2008 Midyear Meeting on December 4, 2008
APPENDIX II
----------
CONFERENCE OF CHIEF JUSTICES
RESOLUTION 5
In Support of Ratification of the Hague Convention on the International
Recovery of Child Support and Other Forms of Family Maintenance and in
Support of Conforming Changes to the Uniform Interstate Family Support
Act
WHEREAS, the Conference of Chief Justices (the Conference) recognizes
that international child support enforcement is increasingly
more common and important in this global society; and
WHEREAS, on November 23, 2007, after four years of deliberation, the
Hague Convention on the International Recovery of Child Support
and Other Forms of Family Maintenance (the Convention) was
adopted at the conclusion of the Twenty-First Diplomatic
Session of the Hague Conference on Private International Law at
The Hague, The Netherlands; and
WHEREAS, the Convention contains procedures for processing
international child support cases that are uniform, simple,
efficient, accessible, and inexpensive; and
WHEREAS, the Convention is founded on the agreement of contracting
countries to recognize and enforce support obligations ordered
by other contracting countries and is based on a system of
administrative cooperation among the contracting countries to
facilitate the transfer of documents and case information
(using electronic technology when feasible) so the necessary
information is available for expeditious resolution of
international child support matters; and
WHEREAS, similar procedures are already in place in the United States
for processing interstate child support cases, as many of the
provisions of the Convention were drawn from the U.S.
experience with the Uniform Interstate Family Support Act
(UIFSA); and
WHEREAS, the Uniform Law Commission worked closely with the U.S.
Departments of State and Health and Human Services and a wide
variety of organizations with expertise in child support
enforcement to develop the 2008 amendments to UIFSA to ensure
that state law will conform to the requirements of the
Convention; and
WHEREAS, state courts and state child support enforcement agencies in
the U.S. already recognize and enforce foreign child support
obligations, whether or not the U.S. has a reciprocal agreement
with the other country, so the major benefit for the U.S. in
joining the Convention will be obtaining child support
enforcement services from other contracting countries for U.S.
citizens; and
WHEREAS, the Convention effectively addresses jurisdictional barriers
that have prohibited the U.S. from joining other international
child support conventions by providing flexibility for a U.S.
court having jurisdiction over the noncustodial parent to
establish a new order in circumstances where U.S.
jurisdictional requirements were not met in the country issuing
the initial order that is sought to be enforced; and
WHEREAS, the Convention and the conforming amendments to the UIFSA will
not affect intrastate or interstate cases in the U.S. and will
apply only to cases where one of the parties lives in a foreign
contracting country; and
WHEREAS, the Convention does not affect substantive child support law
as its primary focus is on uniform procedures for the
enforcement of decisions and for cooperation among countries;
NOW, THEREFORE, BE IT RESOLVED that the Conference urges the President
to submit to the United States Senate a resolution seeking its
advice and consent to ratify the Hague Convention on the
International Recovery of Child Support and Other Forms of
Family Maintenance, adopted by the Hague Conference on Private
International Law on November 23, 2007; and
BE IT FURTHER RESOLVED that the Conference urges the United States
Senate to promptly grant its advice and consent to ratify the
Hague Convention on the International Recovery of Child Support
and Other Forms of Family Maintenance; and
BE IT FURTHER RESOLVED that the Conference urges the Congress to act
promptly to amend the Social Security Act as necessary to
comply with the provisions of the Convention.
Adopted as proposed by the CCJ/COSCA Courts, Children, and Families
Committee at the CCJ/COSCA Annual Meeting in August 2009.
APPENDIX III
----------
Additional Questions for the Record Submitted
by Members of the Committee
RESPONSES TO ADDITIONAL QUESTIONS FOR THE RECORD
SUBMITTED TO KEITH LOKEN BY SENATOR JOHN F. KERRY
Question. The State Department's letter of submittal states
that the Convention ``will be implemented through a combination
of existing law and practice and certain necessary conforming
amendments to federal legislation and relevant uniform state
law (the Uniform Interstate Family Support Act (UIFSA)).'' The
letter further provides that it is not expected that the United
States would deposit its instrument of ratification until the
necessary changes to federal law have been enacted and all
states have adopted the amendments to UIFSA.
Are there any factors that would lead the Executive Branch
to conclude that U.S. ratification of the Convention would be
advisable prior to the adoption of amendments to UIFSA by all
states?
Answer. The Executive Branch does not contemplate any
situation in which it would deposit an instrument of
ratification before all of the states have adopted the 2008
amendments to UIFSA, which will ensure that the states
implement fully the United States' obligations under the
Convention.
Question. The State Department's letter of submittal states
that the Convention ``will be implemented through a combination
of existing law and practice and certain necessary conforming
amendments to federal legislation and relevant uniform state
law (the Uniform Interstate Family Support Act (UIFSA)).'' The
letter further provides that it is not expected that the United
States would deposit its instrument of ratification until the
necessary changes to federal law have been enacted and all
states have adopted the amendments to UIFSA.
What options would be available to the Executive Branch to
ensure full implementation of the Convention if a state (or
states), subsequent to U.S. ratification, amended its law in a
manner that was inconsistent with U.S. obligations under the
Convention?
Answer. In light of state compliance with similar federal
requirements in the child support enforcement area since 1975,
it is unlikely that a state would amend its law in a manner
inconsistent with the requirements of the proposed Multilateral
Child Support Convention Implementation Act of 2009 or the 2008
version of the Uniform Interstate Family Support Act (UIFSA).
Should a state take such action, it would risk the loss of
substantial federal funding for child support enforcement (over
$4 billion annually) as well as for the Temporary Assistance
for Needy Families (TANF) programs (approximately $16.5 billion
annually) pursuant to titles IV-D and IV-A, respectively, of
the Social Security Act.
In the unlikely event that a state did enact inconsistent
legislation, the Department of Health and Human Services (HHS)
would ask that state to take action to bring its laws into
compliance with the Convention. The proposed Multilateral Child
Support Convention Implementation Act of 2009 would authorize
HHS to take such steps as are necessary within existing HHS
authorities to ensure compliance with the Convention. One such
step could include cutting off the funding referred to above.
The Department of State and HHS would then consult to discuss
what other steps might be needed to ensure USG compliance with
the Convention, possibly including new federal legislation.
----------
RESPONSES TO ADDITIONAL QUESTIONS FOR THE RECORD
SUBMITTED TO KEITH LOKEN BY SENATOR RICHARD G. LUGAR
Question. In its 2008 decision in Medellin v. Texas, 128
S.Ct. 1346 (2008), the Supreme Court concluded that the United
States lacked the authority in U.S. law to give effect to a
judgment of the International Court of Justice relating to U.S.
obligations under the Vienna Convention on Consular Relations.
The Foreign Relations Committee has previously stressed its
view that it is important that the United States comply with
its treaty obligations, and has observed that the Committee
generally does not recommend that the Senate give advice and
consent to treaties unless it is satisfied that the United
States has sufficient domestic legal authority to implement
them. With these considerations in mind, please indicate what
authorities federal and state governments will rely on to
implement the various obligations the United States would
assume upon becoming party to the Convention.
Answer. On October 1, 2009, the Department of Health and
Human Services sent to the Speaker of the House of
Representatives and to the President of the Senate the
Administration's draft bill, the ``Multilateral Child Support
Convention Implementation Act of 2009.'' That bill would, among
other things, require that as a condition for receiving certain
federal funds, states enact the July 2008 amendments to the
Uniform Interstate Family Support Act (UIFSA). The funds at
issue are substantial federal funding for child support
enforcement programs as well as funding for the Temporary
Assistance for Needy Families (TANF) program. The July 2008
amendments were adopted by the Uniform Law Commission to bring
the provisions of UIFSA into conformity with the obligations of
the United States under the Convention. As stated in the
testimony of Battle R. Robinson, Uniform Law Commissioner,
Delaware, three states (Maine, Nevada and North Dakota) have
adopted the amendments. We understand that the Uniform Law
Commission maintains on its website (www.nccusl.org) a list of
states that have adopted these amendments.
Should the Senate provide its advice and consent to
ratification of the Convention, enactment by Congress of the
Multilateral Child Support Convention Implementation Act of
2009 and enactment by the states of the July 2008 version of
UIFSA would together enable the United States to comply with
its treaty obligations. The United States would not deposit its
instrument of ratification until both of these actions were
completed.
Question. Article 55 of the Convention envisions the
possibility that parties to the Convention may agree to amend
the forms annexed to the Convention for use in processing
applications and cases under the Convention. What process does
the Executive Branch intend to follow with respect to
considering any such proposed amendments? Does the Executive
Branch intend to submit any such amendments to the Senate for
advice and consent? If not, will the Executive Branch commit to
consulting with state governments and with the Senate before
agreeing to any amendments to these forms?
Answer. Article 55 of the Convention provides that
amendments to the forms annexed to the Convention may be
adopted by the Contracting States present at a Special
Commission to which all Contracting States are invited. Article
55 further provides that such adopted amendments shall enter
into force for all Contracting States on the first day of the
seventh calendar month after the date of their communication by
the depositary to all Contracting States, except for those
Contracting States that make a reservation with respect to that
amendment before the end of the stated period.
The forms contain check lists of information that must be
provided by the Central Authorities in submitting or
acknowledging receipt of an application. The forms are aimed at
facilitating and harmonizing the transmission of such
information in order to expedite processing of applications in
implementation of the Convention. The forms repeat verbatim the
confidentiality provisions of the Convention to remind the
Central Authorities of those obligations and provide a
standardized way for the Central Authorities to indicate
whether they have made a determination under Article 40(1) of
the Convention regarding confidentiality. Based on the intended
purpose of the forms, our expectation is that any amendments to
the forms would be technical and administrative in nature and
would not, in the normal course, require the advice and consent
of the Senate. If, however, a proposed or adopted amendment
were to go beyond a technical and administrative amendment
aimed at facilitating implementation of the Convention, the
Executive Branch would consult with the committee in a timely
manner regarding the question of whether advice and consent is
warranted. Under such circumstances, the Executive Branch could
make appropriate use of the ``reservation'' procedure described
in Article 55(3) to prevent an amendment from entering into
force for the United States before the conclusion of
consultations with the Committee.
During the negotiation of the Convention, the Department of
State and the Department of Health and Human Services worked
closely and consulted extensively with a variety of domestic
stakeholders, including representatives of state child support
enforcement agencies and the Uniform Law Commission, to ensure
that their views were taken into account. We would expect to do
the same with regard to any proposed amendments to these forms.
Because Article 55 requires parties to ``make a
reservation'' in the event that a State does not wish to be
bound by a particular amendment to the forms, we recommend that
language be included in the Senate's Resolution of advice and
consent along the following lines:
Article 55 of the Convention sets forth a special
procedure for the amendment of the forms annexed to the
Convention. In the event that the United States does
not want a particular amendment to the forms adopted in
accordance with Article 55(2) to enter into force for
the United States on the first day of the seventh
calendar month after the date of its communication by
the depositary to all parties, the Executive Branch may
by notification in writing to the depositary make a
reservation, in accordance with Article 62 of the
Convention, with respect to that amendment and without
the approval of the Senate.
Question. The Convention does not establish procedures for
amendments to the Convention's text (as distinct from
amendments to the forms attached to the Convention addressed by
Article 55). What procedures would apply for the adoption of
any amendments to the Convention's text? Does the Executive
Branch intend to submit any amendments to the Convention's text
to the Senate for its advice and consent?
Answer. Like other Conventions developed under the auspices
of the Hague Conference on Private International Law to which
the United States is a party (such as the 1993 Convention on
Protection of Children and Cooperation in Respect of
Intercountry Adoption, the 1980 Convention on the Civil Aspects
of International Child Abduction, the 1970 Convention on the
Taking of Evidence Abroad in Civil and Commercial Matters, and
the 1965 Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters), this
Convention's text is silent on the procedures for amending the
text of the Convention itself (other than to the forms annexed
to the Convention that are subject to a special amendment
process).
In such cases of silence, customary international law rules
regarding the amendment of multilateral treaties, as reflected
in Article 40 of the Vienna Convention on the Law of Treaties,
would apply. The Executive Branch would ordinarily expect such
amendments to this Convention to be transmitted to the Senate
for its advice and consent.
Question. Currently, only one other country--Burkina Faso--
has signed the Convention. What steps does the Administration
plan to take to encourage other countries to become parties to
the Convention?
Answer. Should the United States become a party to the
Convention, we intend to take every opportunity to encourage
other States to take similar action. In the meantime, we have
been monitoring the progress of other countries' ratification
efforts and in fact, a number of countries are taking steps to
become parties to the Convention. The member states of the
European Community (EC) strongly support the Convention. It is
anticipated that all the member states and the EC would join
together, perhaps in 2011. Canada also is a strong supporter of
the Convention and we understand that the federal government
there is working with the provinces and territories on
implementation under Canada's federal system. We understand
that other countries such as Norway and Australia are actively
considering becoming parties.
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RESPONSES TO ADDITIONAL QUESTIONS FOR THE RECORD
SUBMITTED TO VICKI TURETSKY BY SENATOR RICHARD G. LUGAR
Question. Articles 4 through 8 of the Convention address
functions that Central Authorities are obligated to perform
under the Convention. Please indicate what costs federal and
state governments are expected to incur to implement these
obligations. Please also indicate to what extent, if any, these
costs would be additional to costs federal and state
governments already incur as part of existing federal and state
programs.
Answer. The administrative cooperation requirements for
Central Authorities under the Treaty are similar to those
required for interstate child support agency activities as
performed under the existing title IV-D program. Therefore,
none of the activities mandated under the Treaty would
measurably increase costs in the short term as the federal and
state governments already incur these expenses as part of
existing federal and state programs.
Currently, less than one percent of the existing 15 million
cases in the title IV-D caseload involve a parent living in
another country. Even over the next 10 years, as more countries
ratify and implement the Treaty, costs are not expected to
increase significantly. Those countries expected to be the
first to ratify the Treaty are, for the most part, the
countries with the most developed child support systems that
are working already with State child support agencies under our
existing Federal bi-lateral or State-level arrangements. While
we expect that the international caseload will continue to
increase over the long term, the added efficiencies (uniform
forms, standard operating procedures) of the treaty and future
anticipated enhancements in communication and technology are
expected to greatly reduce the cost-per-case.
Question. Article 15 of the Convention requires state
parties to provide free legal assistance in connection with
applications concerning maintenance obligations. Please
indicate what costs federal and state governments are expected
to incur to implement this obligation. Please also indicate to
what extent, if any, these costs would be additional to costs
federal and state governments already incur as part of existing
federal and state programs.
Answer. State child support agencies and the Federal
government already provide all services mandated under the
treaty, including provision of any necessary legal assistance,
in international cases free of charge, as required under
sections 454(32) of the Social Security Act. Since we are
currently providing services in international cases, and do not
anticipate an imminent substantial increase in cases coming
into this country, we do not anticipate measurably increased
costs to federal or state governments in the foreseeable
future.
Treaty countries are not required to provide free legal
services ``if and to the extent that the procedures of that
State enable the applicant to make the case without the need
for such assistance and the Central Authority provides such
services as are necessary free of charge.'' Most child support
activities under the IV-D program in the United States are
conducted without the need for a lawyer or other legal
assistance. A majority of international cases already have
orders which we expect can be routinely recognized and enforced
without significant cost because most enforcement activities
are automated and do not involve individual case processing.
Moreover, at least half the States rely extensively on
administrative, rather than court-based, procedures to
establish orders when required.
Even in those cases requiring establishment or modification
of an order, the Convention provides many procedures which will
greatly simplify and reduce costs, in existing cases as well as
future expenses. For instance an ``abstract or extract of the
decision drawn up by the competent authority'' may in some
instances be substituted for the complete order, greatly
reducing translation costs of extraneous passages in a divorce
decree. The possibility of electronic transmission of many
``documents'' also is contemplated in the treaty and it is
expected that other innovations in presentation of witness
testimony and corroborating evidence will similarly be
utilized. A basic premise of the Convention is that it should
``take advantage of advances in technologies and create a
flexible system which can continue to evolve as needs change
and further advances in technology create new opportunities.''
