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United States Ratifies Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance

Published online by Cambridge University Press:  29 March 2017

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Extract

The United States deposited its instrument of ratification for the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (the Convention) in September 2016. The Convention entered into force for the United States several months later. Ratification was facilitated by the passage of novel federal implementing legislation that—rather than directly mandating alterations to the domestic legal structure—created a financial incentive for states to change their child support laws. While the Idaho legislature displayed some initial resistance, by early 2016 all fifty states had changed the relevant laws, enabling the submission of U.S. ratification.

Type
Case Report
Information
American Journal of International Law , Volume 111 , Issue 1 , January 2017 , pp. 191 - 196
Copyright
Copyright © 2017 by The American Society of International Law 

The United States deposited its instrument of ratification for the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (the Convention)Footnote 1 in September 2016.Footnote 2 The Convention entered into force for the United States several months later.Footnote 3 Ratification was facilitated by the passage of novel federal implementing legislation that—rather than directly mandating alterations to the domestic legal structure—created a financial incentive for states to change their child support laws. While the Idaho legislature displayed some initial resistance, by early 2016 all fifty states had changed the relevant laws, enabling the submission of U.S. ratification.

According to a National Security Council spokesperson, the Convention “contains numerous groundbreaking provisions that, for the first time on a global scale, will establish uniform, simple, fast, and inexpensive procedures for the processing of international child support cases . . . .”Footnote 4 U.S. Secretary of State John Kerry added:

The United States already has a comprehensive system to establish, recognize, and enforce domestic and international child support obligations. The Convention requires that all [parties] have similar systems in place. As a result, more children in the United States and abroad should receive more support, more expeditiously than ever before.Footnote 5

The Office of Child Support Enforcement (OCSE)Footnote 6 identified several key aspects of the Convention. First, it

will greatly speed up the enforcement of U.S. orders. It limits the circumstances under which a court can review and object to an order. It requires recognition of a U.S. order unless a respondent timely raises a challenge and it limits available objections that the respondent may raise to those similar to ones now allowed under U.S. law.Footnote 7

Second,

[t]he Convention recognizes U.S. due process requirements. It allows a challenge to recognition of a foreign support order if there was a lack of notice and an opportunity for a hearing. It allows a challenge if the order does not comply with U.S. jurisdictional rules. And it allows a court to refuse recognition of an order if it is manifestly incompatible with public policy.Footnote 8

Third, the Convention “requires [parties] to provide free legal assistance in child support cases,” something U.S. agencies are already required to do.Footnote 9 Finally, “[t]he Convention provides standardized procedures and timeframes. Each [party] must follow certain procedures to recognize and enforce child support orders. They must meet certain timeframes for allowing a challenge to an order and for providing status updates.”Footnote 10

The United States has supported the Convention since its inception. According to OCSE, “[t]he United States actively participated in the development of the Convention from the beginning of negotiations in 2003.”Footnote 11 The Convention was concluded on November 23, 2007, and the United States was the first country to sign it a few weeks later.Footnote 12 In September 2008, then-President Bush recommended that the Senate consent to ratification “at the earliest possible date,” noting that entry into force of the Convention “would be in the interests of U.S. families, as it would enable them to receive child support owed by debtors abroad more quickly and reliably.”Footnote 13

The Bush administration recommended two reservations to the Convention.Footnote 14 The first proposed reservation related to certain portions of Article 20(1).Footnote 15 Absent a reservation, these provisions would require the United States to recognize and enforce decisions made by judicial or administrative authorities of other states parties in the following cases: (1) where “the creditor was habitually resident in [that state] at the time proceedings were instituted;” (2) where “there has been agreement to the jurisdiction in writing by the parties,” except “in disputes relating to maintenance obligations in respect of children;” and (3) where “the decision [regarding maintenance obligations] was made by an authority exercising jurisdiction on a matter of personal status or parental responsibility, unless that jurisdiction was based solely on the nationality of one of the parties.”Footnote 16

The Bush administration objected to these provisions, for the following reasons: First, “[i]n order to satisfy [U.S.] due process standards, there must be a nexus between the debtor and the forum in order to give the forum jurisdiction over the debtor. In other words, it is the respondent's (debtor's) contacts with the forum, not the petitioner's (creditor's), that are determinative.”Footnote 17 Second, [i]n the United States, the general state-law rule is that forum selection clauses in divorce, spousal support and child support cases are unenforceable if the chosen forum has no nexus with either party.”Footnote 18 Third,

[i]n the United States, a competent authority must have personal jurisdiction over the parties. The fact that a court has in rem jurisdiction over a marriage, for example, does not mean that the court has personal jurisdiction over the parties. Without the requisite minimum contacts for personal jurisdiction, a U.S. court cannot issue a valid order.Footnote 19

The second reservation recommended by the administration related to a provision requiring the acceptance of certain communications in the French language.Footnote 20

On September 29, 2010, the Senate gave its advice and consent to ratify the Convention subject to the reservations recommended by the administration.Footnote 21 The Senate added one further understanding introduced by Senator Jim DeMint.Footnote 22 The preamble to the Convention recalls certain provisions of the UN Convention on the Rights of the Child, a human rights treaty to which the United States is not a party.Footnote 23 The understanding notes the United States nonparty status, and goes on to state: “[A] mention of the Convention [on the Rights of the Child] in the preamble of this Treaty does not create any obligations and does not affect or enhance the status of the Convention as a matter of United States or international law.”Footnote 24

The Senate also expressed its view that the Convention is not self-executing.Footnote 25 Accordingly, additional steps to implement the Convention were necessary prior to its ratification. During its consideration of the Convention, the Senate Foreign Relations Committee observed that

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 [the Uniform Interstate Family Support Act (UIFSA)] by states and other relevant jurisdictions, as well as through conforming amendments to Title IV of the Social Security Act.Footnote 26

The Committee further stated that “the National Conference of Commissioners on Uniform State Laws . . . [had] approved model state implementing legislation for the Convention through proposed amendments to the UIFSA, referred to as UIFSA 2008.”Footnote 27 Those amendments “provide[d] guidelines and procedures for the registration, recognition, enforcement and modification [in state courts] of foreign support orders from countries that are parties to the Convention.”Footnote 28

The Bush Administration submitted a legislative proposal to Congress to effectuate the necessary changes to federal law. In the absence of congressional action, the Obama Administration resubmitted the proposal in October 2009.Footnote 29

On September 29, 2014, President Obama signed the Preventing Sex Trafficking and Strengthening Families Act (the Act), which contained the implementing legislation for the Convention.Footnote 30 That legislation amended Section 466(f) of the Social Security Act, which governs the states’ implementation of UIFSA.Footnote 31 The amended act effectively requires all states to enact the UIFSA 2008 amendments by threatening to withhold federal funds for child support programs from states that fail to make the necessary changes.Footnote 32

This method of implementing the United States’ treaty obligations is a novel one; OCSE explained the administration's approach as follows:

Child support enforcement in the United States has traditionally been the province of state and local jurisdictional authorities. . . .

Beginning in 1984, however, Congress determined that because of the tendency of parents to travel from state to state, and the fact that parents of a child often live in different states, it would be highly desirable to have a relatively few “mandatory state laws” that all states must enact. . . .

To assure enactment of these state laws, Congress tied funding for states’ child support and welfare programs to the enactment of such legislation. . . .

Since 1992, states have used UIFSA to process interstate and international child support cases. In 1996, . . . it was mandated that all states enact UIFSA to improve inter-jurisdictional case processing.

Out of deference to the role of states as the locus of jurisdiction for child support and previous success using UIFSA to implement the interstate child support provisions of welfare reform, there was consensus . . . that UIFSA would be the appropriate vehicle to integrate the treaty into U.S. law. Implementation of the treaty through state law is more consistent with existing family law, as well as more efficient and effective, rather than through a federal law that would govern a segregated portion of international child support cases.Footnote 33

Shortly after the Act was passed, states began enacting legislation to implement the UIFSA 2008 amendments.Footnote 34

In Idaho, the legislation proved quite controversial. In March 2015, Idaho's House Judiciary, Rules and Administration Committee voted to table the bill that would implement the Convention, expressing concern that Idaho might be forced to carry out child support decisions that were based on Sharia law.Footnote 35 According to press reports, none of the states that are currently parties to the Convention is formally governed by Sharia law; in addition, the Idaho attorney general pointed out to the House Committee that the Idaho legislation would allow judges to reject cases that fail to meet the state's standards.Footnote 36 Because of the committee's decision, the bill did not proceed to the full state House of Representatives for a vote, and Idaho risked losing approximately $46 million in federal funding.Footnote 37 The Idaho state legislature later changed course and approved the legislation in May 2015 after the governor called for a special session of the legislature to reconsider the UIFSA 2008 implementing legislation.Footnote 38 He noted that there was “a compelling public interest in maintaining Idaho's established child support program” and “a need for Idaho to operate in full compliance with the reciprocal interstate process as provided by [UIFSA].”Footnote 39 He also posted a draft version of the bill online because, he said, he “want[ed] every member of the Legislature to have a better understanding of what it does and does not do, and a fuller appreciation of what happens if we fail to act affirmatively.”Footnote 40 Despite continued opposition, the state congress approved the legislation on May 16, 2015.Footnote 41

Implementation in the remaining states did not provoke similar controversies. After New Jersey enacted the UIFSA 2008 amendments on March 23, 2016, all states and jurisdictions had implemented the legislation required for compliance with federal law and the Convention.Footnote 42 Because “Article 7 of UIFSA becomes effective concurrently with the Convention,” states “will begin to process cases with Convention countries under the requirements of the Convention and article 7 of . . . UIFSA” on January 1, 2017.Footnote 43

References

1 U.S. Dep't of State Press Release, United States Deposits Its Instrument of Ratification for the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (Sept. 7, 2016), at http://www.state.gov/secretary/remarks/2016/09/261631.htm [hereinafter remarks on Hague Convention Ratification]; Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, Nov. 23, 2007 [hereinafter Hague Maintenance Convention]. President Barack Obama had previously signed the instrument of ratification on August 30, 2016. White House Press Release, Statement by NSC Spokesperson Ned Price on the Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance (Aug. 30, 2016), at https://www.whitehouse.gov/the-press-office/2016/08/30/statement-nsc-spokesperson-ned-price-hague-convention-international [hereinafter Price Statement].

2 Remarks on Hague Convention Ratification, supra note 1.

3 Id.

4 Price Statement, supra note 1.

5 Remarks on Hague Convention Ratification, supra note 1.

6 OCSE is the federal agency responsible for overseeing the national child support program and helping state child support agencies manage state programs in compliance with federal law. About the Office of Child Support Enforcement (OCSE), Office of Child Support Enforcement (last updated Aug. 18, 2016), at http://www.acf.hhs.gov/css/about.

7 Off. Child Support Enf't, U.S. Ratification of Hague Child Support Convention, DCL-16-11 (2016), at http://www.acf.hhs.gov/css/resource/us-ratification-of-hague-child-support-convention; see also Hague Maintenance Convention, supra note 1, Arts. 23 (specifying procedure for recognizing and enforcing orders), 23(7) (describing exclusive grounds for challenging recognition or enforcement).

8 Off. Child Support Enf't, supra note 7; see also Hague Maintenance Convention, supra note 1, Arts. 20, 22, 23(7).

9 Off. Child Support Enf't, supra note 7; see also Hague Maintenance Convention, supra note 1, Art. 14.

10 Off. Child Support Enf't, supra note 7; see also Hague Maintenance Convention, supra note 1, Art. 23.

11 Off. Child Support Enf't, supra note 7.

12 Crook, John R., Contemporary Practice of the United States, 102 AJIL 377 (2008)Google Scholar; U.S. Dep't of State Press Release, Senate Approval of the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (Oct. 1, 2010), at http://www.state.gov/secretary/20092013clinton/rm/2010/10/148555.htm [hereinafter Oct. 1, 2010 Press Release].

13 Senate Consideration of Treaty Doc. 110–21, at iv (2008), at https://www.congress.gov/110/cdoc/tdoc21/CDOC-110tdoc21.pdf.

14 The Convention permits both reservations. Hague Maintenance Convention, supra note 1, Art. 62.

15 Senate Consideration of Treaty Doc. No. 110–21, supra note 13, at xxvi.

16 Hague Maintenance Convention, supra note 1, Art. 20(1)(c), (e)–(f).

17 Senate Consideration of Treaty Doc. No. 110–21, supra note 13, at xv.

18 Id.

19 Id.

20 S. Exec. Rep. No. 111–2, at 8 (Jan. 22, 2010), at https://www.congress.gov/111/crpt/erpt2/CRPT-111erpt2.pdf. The Convention requires parties to designate a Central Authority to “transmit and receive” applications for the recognition and enforcement of orders and “initiate or facilitate the institution of proceedings in respect of such applications.” Hague Maintenance Convention, supra note 1, Art. 6(1). On December 8, 2016, President Obama issued an executive order that designated the Department of Health and Human Services as the Central Authority of the United States for Purposes of the Convention. Executive Order No. 13752, 81 Fed. Reg. 90181 (Dec. 8, 2016).

21 Oct. 1, 2010 Press Release, supra note 12; see also S. Res. of Ratification, paras. 2, 4, 111th Cong., Cong. Rec. S7719, S7720 (Sept. 29, 2010).

22 Cong. Rec., supra note 21, at S7720.

23 Hague Maintenance Convention, supra note 1, pmbl:

“Recalling that, in accordance with Articles 3 and 27 of the United Nations Convention on the Rights of the Child of 20 November 1989,

  • •

    • in all actions concerning children the best interests of the child shall be a primary consideration,

  • •

    • every child has a right to a standard of living adequate for the child's physical, mental, spiritual, moral and social development,

  • •

    • the parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child's development, and

  • •

    • States Parties should take all appropriate measures, including the conclusion of international agreements, to secure the recovery of maintenance for the child from the parent(s) or other responsible persons, in particular where such persons live in a State different from that of the child[.]”

24 Cong. Rec., supra note 21, at S7720.

25 Id.

26 S. Exec. Rep. No. 111–2, supra note 20, at 6.

27 Id. at 6–7. See generally Unif. Interstate Fam. Support Act (Unif. Law Comm'n 2008).

28 The Uniform Interstate Family Support Act Amendments (2008): A Summary 1, Unif. Law Comm'n, at http://www.uniformlaws.org/shared/docs/interstate%20family%20support/UIFSA%202008%20Summary.pdf; see also Off. Child Support Enf't, Uniform Interstate Family Support Act (2008) and Hague Treaty Provisions (2015), IM-15-01, at http://www.acf.hhs.gov/css/resource/uniform-interstate-family-support-act-2008-and-hague-treaty-provisions (summarizing differences between UIFSA 2008 and previous state law).

29 S. Exec. Rep. No. 111–2, supra note 20, at 7.

30 See Off. Child Support Enf't, P.L. 113–183 UIFSA 2008 Enactment, AT-14–11 (2014), at http://www.acf.hhs.gov/css/resource/pl-113-183-uifsa-2008-enactment; U.S. Dep't of State Press Release, President Obama Signs Implementing Legislation for the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (Sept. 30, 2014), at http://www.state.gov/secretary/remarks/2014/09/232337.htm.

31 See Preventing Sex Trafficking and Strengthening Families Act, Pub. L. No. 113–183, sec. 301(f), 128 Stat. 1919, 1944–45 (2014).

32 Unif. Law Comm'n, supra note 27, at 1; see also Pub. L. No. 113–183, sec. 301(f), 128 Stat. at 1944–45. See generally 42 U.S.C. § 655 (2016) (detailing payments of federal funds to states for child support programs).

33 Off. of Child Support Enf't, UIFSA Provisions supra note 28, at 1.

34 Kirk Johnson, Negotiated at The Hague, a Child Support Treaty Falters in Boise, N.Y. Times (Apr. 21, 2015), at http://www.nytimes.com/2015/04/22/us/negotiated-at-the-hague-a-child-support-treaty-falters-in-boise.html.

35 See id.; Press Release, Idaho Gov. C.L. “Butch” Otter, Governor Expresses Concern about Child Support Implications (Mar. 15, 2015), at https://gov.idaho.gov/mediacenter/press/pr2015/2%20Feb/ps_2.html; Katie Zavadski, GOP to GOP: ‘Sharia Law’ Fearmongering Helping Deadbeat Dads, Daily Beast (Apr. 15, 2015, 4:00 PM), at http://www.thedailybeast.com/articles/2015/04/15/gop-to-gop-sharia-law-fearmongering-helping-deadbeat-dads.html.

36 Associated Press, Sharia, Foreign Treaty Controversy Stalling Idaho Child-Support Bill, Wash. Times (Apr. 13, 2015), at http://www.washingtontimes.com/news/2015/apr/13/sharia-controversy-stalling-idaho-child-support-bi; see also Zavadski, supra note 35. The Attorney General appeared to reference a provision in the Idaho legislation that corresponds to Article 22(a) of the Convention, which provides that: “Recognition and enforcement of a decision may be refused if . . . recognition and enforcement of the decision is manifestly incompatible with the public policy (‘ordre public’) of the State addressed[.]” Hague Maintenance Convention, supra note 1.

37 See Johnson, supra note 34. Idaho would also have “los[t] access to the federal database system and tools for enforcing $205 million a year in child support payments to Idaho children.” Press Release, Idaho Gov. C.L. “Butch” Otter, Governor Otter Calls Special Session of Idaho Legislature on Child Support (Apr. 29, 2015), at https://gov.idaho.gov/mediacenter/press/pr2015/2%20Feb/pr_24.html [hereinafter Otter Press Release].

38 Otter Press Release, supra note 37; C.L. “Butch” Otter, Proclamation (Idaho 2015), at https://gov.idaho.gov/mediacenter/Bills/ESP.pdf [hereinafter Otter Proclamation]; see also Julie Turkewitz, Idaho Approves Child Support Bill, Removing Treaty Roadblock, N.Y. Times (May 18, 2015), at http://www.nytimes.com/2015/05/19/us/idaho-approves-support-bill-removing-treaty-roadblock.html.

39 Otter Proclamation, supra note 38.

40 Press Release, Idaho Gov. C.L. “Butch” Otter, Governor Otter Posts Draft Child Support Bill for Special Legislative Session Online (May 4, 2015), at https://gov.idaho.gov/mediacenter/press/pr2015/2%20Feb/pr_26.html.

41 See Turkewitz, supra note 38.

42 UIFSA 2008 Amendments Enacted Nationwide, Unif. Law Comm'n (Mar. 24, 2016), at http://www.uniformlaws.org/NewsDetail.aspx?title=UIFSA%202008%20Amendments%20Enacted%20Nationwide.

43 Off. Child Support Enf't, Pending Effective Date of the Hague Child Support Convention and Resources, DCL-16-12 (2016), at http://www.acf.hhs.gov/css/resource/pending-effective-date-of-the-hague-child-support-convention-and-resources.