This is a compilation of questions compiled and written by staffs of the Idaho Attorney General’s Office, Department of Health and Welfare and the federal Office of Child Support Enforcement.
Does the legislation threaten the due process rights of Idaho’s citizens?
No. In fact, the amendments expressly say that an Idaho court may refuse to recognize and enforce an order if the issuing tribunal (a court of law in another country) did not observe minimum standards of due process. This legislation actually increases due process protections compared to the current child support law in Idaho.
Does the legislation threaten the privacy rights of Idaho’s citizens?
Nothing in the legislation decreases the privacy and security requirements that apply to federal and state child support programs. The most rigorous and exacting standards already are in place and enforced by the federal Bureau of Homeland Security to protect private information and maintain security. Federal law denies access to personal information in federal databases and imposes substantial penalties for unauthorized use or disclosure of information. If a foreign treaty country does not know where to send an order for enforcement, it may request the federal Office of Child Support Enforcement to search its Federal Parent Locator Service. The federal office is authorized to provide only the state of residence of an individual sought for child support purposes. Foreign countries currently have no access to personal information and do not gain any access with this legislation.
Does the legislation limit an Idaho court’s ability to evaluate a foreign support order?
No. In fact, the legislation adds a new provision that ensures that an Idaho court will always be able to review a support order from a foreign treaty country to determine whether enforcement of that order would be “manifestly (or obviously) incompatible” with Idaho public policy. Existing law is much more restrictive. It only allows the Idaho court to review a non-Idaho order for lack of personal jurisdiction, fraud, prior payment, and appeal in the originating jurisdiction.
Would this legislation require Idaho’s courts to accept all foreign orders?
No. Under the legislation, Idaho courts may refuse to recognize and enforce a support order from a foreign treaty country if a party raises any of a number of specified challenges, including the fact that the order “is manifestly incompatible with public policy.” An Idaho court, on its own motion, may review a foreign order to make sure enforcement of the order is consistent with Idaho public policy. Additionally, the legislation limits the definition of foreign country so that Idaho courts do not have to recognize and enforce support orders issued by nations that do not meet the definition of “foreign country.”
Is there any provision in the law that bypasses court review?
The amendments do not add any provision for administrative enforcement without court review, ensuring due process. Existing law has an allowance for administrative enforcement without court review; however, if the party against whom the order is being enforced objects, the order must then be registered with the court before any additional actions can be taken.
If the treaty is ratified, would foreign countries have direct access to Idaho citizens’ personal information?
No. Foreign countries that have ratified the treaty do not have direct access to personal information of Idaho citizens. The treaty does not change existing privacy and security requirements that apply to federal and state child support programs. Currently the federal Office of Child Support Enforcement is authorized to provide a foreign treaty country, upon request, only the state of residence of an individual sought for child support purposes. No other information may be disclosed from the Federal Parent Locator System.
Would personal data be compromised when countries exchange support enforcement orders?
No. The Convention specifically states that personal data gathered or transmitted under the Convention must be used only for the child support purposes for which the data was gathered or transmitted. It also requires that any authority that processes information has to ensure its confidentiality in accordance with the law of the country.
Is the federal government using threats and coercion to force approval of the bill?
No. Beginning in 1984, Congress determined that because parents often travel and live in different states, it would be highly desirable to have a few uniform state laws relating to child support, such as establishment of paternity to age 18, recognition of income withholding orders issued by other states, and certain enforcement remedies. To assure enactment of these state laws, Congress tied funding for states’ child support and welfare programs to the enactment of uniform legislation, so states can effectively work together. The first of these “federal funding statutes” was established in 1984 in legislation that was passed unanimously by both the Senate and the House, and signed by President Reagan.
In 1996, as part of Welfare Reform legislation, Congress required a state to enact UIFSA 1996 as a condition of receiving federal funds. The federal funding requirement that a state enact UIFSA 2008 is consistent with past practice. Federal support of state child support enforcement programs is only authorized by Congress so long as Idaho or any other state has a program that meets the minimum standards for operation set by Congress.
Congress has updated an existing requirement which created the need for this legislation. Not passing this legislation means Idaho no longer meets the minimum standards for operation established by Congress and does not qualify to receive federal child support funding, or authorization to access federal support enforcement tools.
Would the bill’s adoption in Idaho mean the state would have to enforce Sharia (Islamic) or foreign law?
No. Under the legislation, a U.S. court of law recognizes and enforces only the financial and medical support terms of a valid child support order. The bill’s adoption does not require an Idaho court to enforce any other aspect of the order. Regardless of the court of law that issued the foreign support order, a U.S. court can refuse to enforce an order from a foreign treaty country because that the order is obviously incompatible with public policy. Also, the noncustodial parent in the U.S. has an opportunity to contest the order on the basis of a lack of due process under U.S. law. Similarly, a foreign treaty country has the responsibility to register and enforce an Idaho court order on behalf of an Idaho child against an individual residing in that other country.
What is the process for a new country to join the convention?
Any new country that would like to become a member of the Convention must demonstrate that it has child support laws and procedures in place that meet the Convention requirements, including requirements relating to general concepts of due process.
What is the process for enforcing a foreign child support order?
The process for enforcing a foreign child support order is identical to that of enforcing an order from another state.
Is a court’s review of public policy limited to a review of due process and notice and opportunity to be heard?
No. The provision on review for violation of public policy includes reference to those concepts but is not otherwise limited. It states that an Idaho court can refuse to recognize or enforce a foreign order if, “Recognition and enforcement of the order is manifestly incompatible with public policy, including the failure of the issuing tribunal to observe minimum standards of due process, which included notice and an opportunity to be heard.”
Would every order registered in Idaho be subject to review to determine if it is appropriate to enforce in Idaho?
Every time a support order is registered for enforcement in Idaho – whether it is a state or a foreign order — the non-registering party receives a notice of the registration. The notice informs the person that he or she can challenge the registration or alleged child support arrears within a certain time period. If the person raises a timely challenge, the court must review the order to determine whether it should be recognized and enforced. Even if administrative enforcement is initiated against someone, that person can contest that administrative enforcement, and then the foreign order must be registered with an Idaho court before enforcement can continue.
What would happen if the Idaho court determines a foreign order is not appropriate to enforce?
If an Idaho court determines that a foreign order is not appropriate to enforce, the foreign jurisdiction may request establishment of a new order. In establishing a new order, the Idaho court would be applying Idaho law to determine the support duty and the appropriate amount of support.
Did states have input into the development of the treaty and its requirement for uniform passage of UIFSA 2008?
Yes. In addition to official members of the U.S. delegation from the U.S. Department of State and the federal Office of Child Support Enforcement, state and local child support experts participated in treaty negotiations as representatives of the national Child Support Enforcement Association, International Association of Women Judges, International Bar Association, International Academy of Matrimonial Lawyers, and the Uniform Law Commissioners.
The states provided input to the U.S. delegation during the negotiation of the treaty. Furthermore, UIFSA 2008 was drafted by the Uniform Law Commission which is composed of judges, law professors, and lawyers from every state, including four from Idaho.
Does this bill have anything to do with child custody or abduction laws?
No. This bill is specific to financial support of a child(ren) when one parent lives in Idaho and the other parent resides in another state or foreign country.
Would the amendments subject Idaho to International law?
No. There is no international law requirement,. Under current law and the amendments, an Idaho court may be asked to enforce an order from a foreign country, but the enforcement remedies, payment processing and other issues occurring in Idaho would be determined based on Idaho law. Current law and the amendments require an Idaho court to:
- Apply Idaho law when establishing an order or enforcing a state order or a foreign support order.
- Require an Idaho court to follow the law of the state or country that issued an order in determining the duration of support.
- Apply the statute of limitations of Idaho or of the state or foreign country that issued the order – whichever is longer and therefore provides the most protection to the child.
Additionally, both current law and the amendments provide that the length of time for the support obligation is governed by the law of the jurisdiction where it was established.
Does this legislation jeopardize Idaho’s sovereignty?
No. The legislation does not affect Idaho’s sovereignty. The legislation establishes procedures for how Idaho will cooperate with other states and countries so that children can more easily receive the support they are entitled to regardless of where they or their parents live.
Does the legislation give the United Nations additional authority over Idaho or its citizens?
No. There is no reference whatsoever to the United Nations in the legislation.
Are other states balking at approving the UIFSA 2008 amendments?
The federal Office of Child Support Enforcement is not aware of any other state that has missed its legislative deadline for passage of UIFSA 2008. At last count, 20 states had passed the legislation, and the rest were in the process, depending on when and for how long their Legislatures are in session.