Continuing, exclusive jurisdiction under UIFSA | Modification of support

The Indiana Supreme Court recently reversed a ruling by the court of appeals that the Full Faith and Credit for Child Support Orders Act preempted UIFSA. The issue before the court concerned when continuing, exclusive jurisdiction to modify a prior child support order may be lost by a state. The basis for the Supreme Court’s decision was an interpretation of the federal and state laws that eliminated conflict between them. The Court cited similar results in cases decided in Arizona, Oklahoma, Delaware and Kansas. The Court held that where no party or related child continues to reside in the issuing state, the issuing state may lose continuing, exclusive jurisdiction to modify a child support order despite the fact that one party refuses consent to transfer or release of jurisdiction to another state.

The child support order at issue was entered in Indiana in 2002. Thereafter Mother (custodial parent) and children moved to California and Father remain in Indiana. In 2004, Father returned to Jordan to care for his ailing mother. He lost his job in Indiana and remained out of the country. In 2005, Mother registered the Indiana Order in California. Although Father objected to the transfer of the case, the Indiana court transferred all issues—child custody, parenting time, and support—to California in May 2005 and Father did not appeal.

California, however, only accepted jurisdiction of custody and visitation issues. In 2007, the CA court asked the Indiana Court to concede jurisdiction over child support. The Indiana Court did so, indicating that this had been its intent in 2005. The father—now residing in Saudi Arabia—then appealed. It is important to note that since 2004, no party and no related child had resided in Indiana.

The Indiana Court of Appeals [hereafter “COA”] reviewed Indiana’s version of the Uniform Interstate Family Support Act (“UIFSA,” sometimes referred to as the “Uniform Act”) and the federal Full Faith and Credit for Child Support Orders Act (“FFCCSOA,” sometimes referred to as the “Federal Act”). The court determined: (1) Father was not a resident of Indiana within the meaning of the Federal Act, and (2) the Federal Act preempts the Uniform Act because of a conflict between the two statutes. The father appealed the COA’s ruling.

Thus, the issue before the Supreme was whether the Federal Act preempted the Uniform Act.

Indiana’s version of the Uniform Act provides in relevant part:

An Indiana tribunal that issues a support order consistent with Indiana law has continuing, exclusive jurisdiction over a child support order:

(1) if Indiana remains the residence of the:

(A) obligor;

(B) individual obligee; or

(C) child for whose benefit the support order is issued; or

(2) until each individual party has filed written consent with the Indiana tribunal for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction. Ind. Code § 31-18-2-5(a) (emphasis in original).

The Federal Act provides in relevant part:

Continuing jurisdiction.  A court of a State that has made a child support order consistently with this section has continuing, exclusive jurisdiction over the order if the State is the child’s State or the residence of any individual contestant unless the court of another State, acting in accordance with subsections (e) and (f), has made a modification of the order.  28 U.S.C. § 1738B.

The COA’s conclusion that the Federal Act preempted the Uniform Act was based upon its conclusion that since the Uniform Act required written consent of the parties and the Federal Act did not, there was conflict between the two and the Federal Act preempted state law.

To avoid preemption in the area of domestic law, where federal law rarely intrudes, the Indiana Supreme Court interpreted the word “or” in a manner that avoided ambiguity and conflict. Looking to the Comments to Section 205 by the Commissioners of Uniform Laws, the Court said that the word “or” should not be interpreted to mean that either of the two conditions could be used to provide for jurisdiction. The Court held that where no party or related child continues to reside in the issuing state, the issuing state may lose continuing, exclusive jurisdiction to modify a child support order despite the fact that one party refuses consent to transfer or release of jurisdiction to another state.

You may read the case Basileh v Alghusain, Docket No 29S02-0810-CV-584 here. The Court cites similar results in cases decided in Arizona, Oklahoma, Delaware and Kansas.