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Amer-Asian Child Support Cases in Practice and the Potential of the 2007 Convention

Kazumi Hasegawa, Esq.Annette Eddie-Callagain, Esq.Gary Caswell, Esq.Child Support in Japan Kazumi Hasegawa Japan and USALegal Basis for Child SupportStatistics, Process, and ExecutionRecognition of Foreign Child Support OrdersPractical Considerations Pertaining to the 2007 Convention

Overview Child Support: National Law Not Individual Prefecture Law

Divorce, Separation, Parentage

Calculation and Duration of Support

Enforcement of Support; Garnishment of Wages

Obligation to Pay Child SupportPrior to 2012, parents participating in uncontested divorce settlement should resolve the issue of child custody

Since 2012, parents participating in uncontested divorce settlement should also resolve child visitation and child support based on the best interest of the child (Civil Code 766; revised in 2011 and effective 4/2012).

No joint custody system in Japan and the non-custodial parent pays child support to custodial parent

Unmarried couple acknowledgment of father in the family registry is required to obtain child supportVoluntary acknowledgment Civil Code 779 Involuntary acknowledgment Civil Code 787Child support obligation from the birth Civil Code 784

Statistics: Divorce Rates in JapanMinistry of Health Labor and Welfare

Statistics: Divorce Rate in International CouplesMinistry of Health Labor and Welfare

Statistics: Ratio Between Marriage and Divorce Rates

Ministry of Health Labor and Welfare (4/2013 3/2014)Ministry of Health Labor and Welfare (4/2013 3/2014)Ministry of Health Labor and Welfare (4/2013 3/2014)Single Family Homes and Receipt of Child SupportSingle Mother HouseholdSingle Father House HoldChild Support Arrangements37.7% 17.5%Actual Receipt of Child Support 19.7% 4.1%(Based on: 2011 Survey on single families in Japan Ministry of Health Labor and Welfare Effect of Amendment of Civil Code 766 (4/2012)Divorce cases with minor children (4/2012 3/2013)131,2564With Visitation Terms72,770 (55%)With Child Support Terms73,001 (56%)Ministry of Justice 2013Process: Where to get helpChild Support Consultation Support CenterSponsored by MHLW

Legal Affairs Bureau free legal clinics

Non- Profit Organizations

Bar Associations / Attorneys

Child Support Obligation:Begins When the Custodial Parent First Requests it Retroactive only to Date of First RequestIn Parentage Case may be Retroactive to Date of BirthFrequency of payment:Periodic payment most common, i.e., monthlyLump Sum payments have been ordered in international cases where NCP is a foreignerEstablishment: How Child Support Arrangement is MadeThe process depends on the type of divorce proceeding Uncontested divorce Civil Code 763Notarized documentOral or written agreement

Conciliation Proceeding Domestic Relations Case Procedure Act 268 / 284 (in effect 1/2013)

Trial (Civil Code 770)Duration and Calculation of Child SupportDuration: not established by lawtypically paid until the child reaches the age of majority (20 years old) unless otherwise agreed (e.g. through college, etc.)Calculation:Goal: Maintain same standard of living the child is accustomed toBased on matrix prepared by courtIncome of both parentsSpecial circumstances (needs of child)Enforcement of Child SupportConciliation Proceeding May be Utilized:To obtain enforcement when oral or written agreement of child support is not complied withTo seek modification of amount of child supportNotice of request for payment or Notice of order to pay child supportCompulsory execution Court-Ordered Support Notarized Agreement to Pay SupportCompulsory ExecutionPre-requisite:Notarized uncontested divorce agreementConciliation ProcessTrialGarnishment of wages Amount entitled to garnishPrior to amended civil code (in effect 4/2004)Post amendment applicable to all matter specified in Civil Execution Law 151(2)(1)How to terminate garnishment order Civil Execution Law 153Defenses

Defenses to Garnishment of Child Support Child Support Obligor Loses Job/Ability to Work

Lump Sum Payment

Death of Obligor may claim inheritanceRecognition of Foreign Child Support OrdersEnforcement of foreign judicial orderComityFairness in outcome and procedure

Effect of 2007 Hague ConventionAvoid the trouble of dealing with different judicial processRecognition and enforcement of order202007 Hague Convention Requires New Legislation to Implement More Streamlined Japanese Establishment, Enforcement and Modification Procedures

Would be very helpful to Japanese Custodial Parents Applies to All U.S. States

Good compliment to Hague Abduction Convention

ESTABLISHING AND ENFORCING CROSS-BORDERCHILD SUPPORT OBLIGATIONS

E-C Gaikokuho Jimu Bengoshi Jimusho E-C Law Center)E-C Law Center Bldg., Suite 1F2-4-2 Isa, Ginowan CityOkinawa, Japan 901-2221

PH: 81-98-898-0162Fax: 81-98-899-2142

E-mail: bigfoot.account@gmail.com

NOVEMBER 9 12, 2015 HHC Hague Conference on Private International Law22OVERVIEW OF THE PROGRAM

BACKGROUND OF CHILD SUPPORT ISSUES

JURISDICTIONAL CHALLENGES

PATERNITY CHALLENGES

NUTS AND BOLTS OF THE EXISTING PROGRAM

CHECK-CASHING CHALLENGESBACKGROUND OF CHILD SUPPORT ISSUESNumber of International Children in Japan Fathers Location UnknownPaternity in Dispute Lack of Agreement Between Japan and U.S. May be Viewed as Lack of JurisdictionU.S. Involvement PIQ 99-01JURISDICTIONAL CHALLENGESUIFSA APPLICATIONS

VS.

DIRECT APPLICATIONS25UIFSAUnder the Uniform Interstate Family Support Act, the obligee living in one state can establish or enforce a child support order against the obligor in another state or vice versa. Under UIFSA, a foreign country is considered to be a State only if it has enacted law and established procedures for issuance of support orders that are substantially similar to those under the UIFSA or URESA. Japan has not done so.

POLICY INTERPRETATION QUESTION (PIQ)According to PIQ 99-01, from Judge Ross who was then with the Office of Child Support Enforcement, Washington, DC, States are required to provide child support enforcement services to individuals who reside in a foreign country and who apply directly to State for paternity or support enforcement services.

Section 454(4)(A)(iii) of the Social Security Act imposes a literal requirement that State agencies must provide Title IV-D services to anyone who has filed a proper application for services with the agency.NEVADA

The couple had been divorced in Japan, and a court order was obtained by the Petitioner, which ordered the Respondent to pay child support. This was an enforcement action only. The Respondents position was:

1. The Court should not enforce the foreign order

2. The way the foreign order was obtained was not proper

3. The Court should modify the foreign order

HOLDING: The Court did have jurisdiction of the parties and subject matter of this case; that the Respondent personally appeared and participated in the Japanese proceeding (he was living in Japan at the time). After researching the law, the Hearing Master was not able to locate any authority for the Respondents argument.

KENTUCKY:

The Okinawan mother and the American father were never married; however, they are the parents of a son. The American father presently resides in the State of Kentucky where a child support case was filed (under UIFSA). The initial Petition was heard in Jefferson Family Court. The father denied paternity and a test was conducted, with the results as Positive. A court order was issued, ordering the father to pay child support.

The father retained counsel and moved the court to dismiss the action on the grounds of lack of subject matter jurisdiction. The Respondent appealed to the Jefferson District Court, arguing that the Court lacked subject matter jurisdiction because the Petitioner (the mother) did not have standing, since the Mother of the subject child is a citizen of Japan, which is not a state within the meaning of the Statute in that it had not established reciprocal procedures for issuance of enforcement orders, which are substantially similar to procedures in the Commonwealth of Kentucky.

The Jefferson County Circuit Court reversed the judgment and orders of the trial court, holding that the trial court did not have subject matter jurisdiction. The Commonwealth of Kentucky filed a Petition for discretionary review with the Kentucky Court of Appeals. The Appeals Court denied the Motion for discretionary review. The case was then sent to the appeals division to determine whether they could fashion an appropriate federal question which would allow the appeal to the U.S. Supreme Court; and, whether that office would prosecute that appeal.CALIFORNIA:

An Okinawan mother and an American father registered a divorce by mutual agreement in Okinawa, which did not provide for the support of the children. The mother and the children reside in Okinawa and the father resides in California. A UIFSA Petition was filed, seeking the establishment of a child support order. The father contested subject matter jurisdiction and the trial court found that California lacked subject matter jurisdiction because the parents were divorced in Japan and the children continued to live there; also, California was a forum non conveniens. The Petition for child support was dismissed by the trial court.

The Child Support Office appealed the judgment of dismissal, arguing that the court had proper subject matter jurisdiction to establish a child order in any case where the obligor resides in California, regardless of the presence or residence of the obligee; and California is the convenient forum for such a determination because the Respondent and his financial information were located there and enforcement of any order for support will be in California; and, if California did not enter the Order, the children would not have the benefit of support from their father.

The California Court of Appeals reversed the Judgment of Dismissal, and declined to interpret the terms of UIFSA because both parties agree that UIFSA is inapplicable to the facts before the Court. The Court did hold that the Superior Court in California has exclusive jurisdiction over all proceedings under the Family Code. Although the divorce decree was issued in Japan, there is no indication that it has personal jurisdiction over the husband to enforce a support order; nor is there any indication that the husband will voluntarily submit to jurisdiction in Japan. The Court went on to state that the County may properly proceed against the husband in Ventura County Superior Court.

Regarding the allegation of the Husband that California Courts was not a convenient forum, the Appellate Court held that the husband erred in his allegation that Japan is a suitable alternative forum in that the husband had not submitted to jurisdiction in Japan, and does not appear to be amenable to the process there. And, should he insist that a support order may only be issued by a Japanese Court, he is free to submit to jurisdiction in Japan and litigate the matter there.

It was determined that the parents of a minor child have an equal responsibility to support their children, and that a father who is a California resident has a duty to support his children, regardless of the presence or residence of his wife. Further, the Court found that California had subject matter jurisdiction. Regarding the issue of non conveniens, Japan is not a more suitable forum because litigation in either country would require translation of documents, conversion of yen/dollars, and discovery in either would be cumbersome. The Husband filed a Petition for a Rehearing which was denied.

MICHIGANConceded that the interpretation of Direct Application for Title IV-D Services from International Residents [OCSE-PIQ-99-01] is correct, and a direct application to Michigan is proper.However, the custodial parent (CP) must consider:CP must attend an interview in person;CP must attend court proceedings, in person;If an order is obtained in Michigan, then the courts will have continuing jurisdiction over custody and visitation;CP could file in home country which would initiate an interstate action to Michigan; their home country would then retain jurisdiction over custody and visitation;When applying directly to Michigan, the County Prosecutor or Friend of Court can exercise their professional legal judgment and prosecutorial discretion in accepting or refusing to file a case.(The state of Michigan does not have reciprocity for child support purposes with either the Nation of Japan or the regional government of Okinawa. If international reciprocity were established, we would be able to assist you.)

PUERTO RICO

Japan has no reciprocity with Puerto Rico, which is a requisite in our Law. This precludes us from providing the service that you are requesting for your client. The only way we could assist her would be that an Attorney in Puerto Rico represent her.PATERNITY CHALLENGES(PATERNITY IN DISPUTE)

DENIAL BY THE ALLEGED FATHERDIFFERENT GEOGRAPHICAL LOCATIONCOST OF DNA TESTING IN JAPAN33NUTS AND BOLTS OF PROGRAM

CONTACTS FOR CHILD SUPPORT ASSISTANCE

TOTAL CONTACTS FROM 1997 TO 2015: 25419971998199920002001200220032004200520060103174547363037070820072008200920102011201220132014201507151004080603090835LOCATION OF MOTHERSJAPAN 240Aichi2Awamori2Fukuoka4Fussa5Gifu1Hiroshima1Hyogo2Ibaragi1Iwate1Kagoshima1Kanagawa6

Kochi2 Kumamoto1 Nagano1 Nagasaki3 OKINAWA 173 Osaka3 Saitama2 Tokyo17 Yamaguchi6 Yamanashi6

KOREA5PHILIPPINES6THAILAND3

36LOCATION OF FATHERSOKINAWA 45

MAINLAND JAPAN 23UNITED STATES 182

SINGAPORE 1

EUROPE 2

KOREA 1

TOTAL: 254

37CHILD SUPPORT COLLECTEDVOLUNTARY PAYMENTS PER MONTH56 CASES$24,879.30 Monthly Collections

38CHILD SUPPORT COLLECTEDINVOLUNTARY PAYMENTS PER MONTH

39103 CASESINVOLUNTARY PAYMENTS$81,059.90 MONTHLY COLLECTIONS

40TOTAL CHILD SUPPORT COLLECTEDVOLUNTARY AND INVOLUNTARY COLLECTIONS

TOTAL PAYMENTS PER MONTH$105,938.20

TOTAL PAYMENTS PER YEAR$1,271,258.40

ARREARAGES: $497,305.71

COOPERATING STATESALASKAALABAMAARIZONAARKANSASCALIFORNIACOLORADODELAWAREFLORIDAGEORGIAHAWAIIILLINOISINDIANAKENTUCKYLOUISIANAMARYLANDMAINEMICHIGANMISSOURI

MONTANANORTH CAROLINANEVADANEW MEXICONEW YORKNORTH CAROLINAOHIOOKLAHOMAPENNSYLVANIAPUERTO RICOSOUTH CAROLINASOUTH DAKOTATENNESSEETEXASUTAHVIRGINIAWEST VIRGINIAWISCONSINWYOMINGTOTAL 36

42OTHER ASSISTANCE PROVIDEDLOCATE ABSENT FATHERS (175)PSYCHOLOGICAL/PSYCHIATRIC COUNSELINGDNA COLLECTIONJOB TRAININGSHELTER SHORT AND LONG TERMCASHING CHILD SUPPORT CHECKS

(INTEGRATED INTO THE CHILD SUPPORT PROGRAM)DNA TESTS RESULTSPOSITIVE RESULTS73

NEGATIVE 4

PENDING 0

TOTAL CASES INVOLVED: 77

THANK YOU!ON BEHALF OF THE WOMEN AND CHILDREN

45Processing Amer-Asian Cases Gary Caswell USA, InternationalProcessing Amer-Asian cases in the U.S. TodayU.S Child Support Program OverviewUIFSA 2008, Federal Regulations and IV-D Policy2007 Convention Impact on the Recovery of Child Support and Other Forms of Family Maintenance

U.S. Child Support ProgramSocial Security Act, Title IV-DOCSE www.acf.hhs.gov/programs/css 50 States + Guam, Puerto Rico, U.S. Virgin Islands & Washington D.C.Federal Funding - Law/Regulations/Policy15.1 Million Cases (FY 2014) 28.2 Billion Dollars Collected (FY 2014)State Disbursement Unit (SDU) 1 per StateSocial Security Act, Title IV-DOCSE50 States + Guam, Puerto Rico, U.S. Virgin Islands & Washington D.C.Federal Funding and Regulations15.9 Million Cases23 Billion Dollars Collected

47U.S. Interstate Cases1,037,644 Interstate Cases (FY 2014)Texas sent 44,280 , received 68,381

Total number of collections sent to other U.S. states: $1,572,574,644 Texas sent $ 126,834,421 to other U.S. States

Social Security Act, Title IV-DOCSE50 States + Guam, Puerto Rico, U.S. Virgin Islands & Washington D.C.Federal Funding and Regulations15.9 Million Cases23 Billion Dollars Collected

48Reported International Cases -2014U.S. Foreign Countries: 4,232Foreign Countries U.S. : 9,207 Total Reported 2014: 13,439

$ from Foreign Countries to U.S. : 5.2 M$ U.S. to Foreign Countries : 15.3 M Total Reported 2013: 20.5 M49Legal Basis Multi-national Conventions (2007 only)Federal Declared Foreign Reciprocating CountyState Level (Political Subdivision) ArrangementsParallel Unilateral Policy DeclarationsComity Multi-national ConventionsBilateral TreatiesState Level (Political Subdivision) ArrangementsPUPDsComity

50Processing International CasesIV-D Services = PIQ-99-01 = Anybody Anywhere Establishment of Paternity and/or Child Support for anybody/anywhere. Use OCSE FormsEnforcement of Foreign Order if Foreign Country meets definition of State FRC, SRC, Sub Sim Law/Proc = Order is RegisteredComity Local law to recognize and enforcePhysical Presence of Non-Resident not RequiredTelephonic Testimony UIFSA 2001 RegistrationTransmittal Letter Two copies of order, incl. one certified copySworn Statement of Arrears by Creditor or Copy of Payment Record Certified by Custodian of RecordObligor Name, Location and Employer InformationObligee Name and where to send paymentsIf multiple orders, copies of all for determination of controlling orderNotice of Registration sent to ObligorContest must be filed within 20 daysRegistration Confirmed or Vacated

UIFSA 2008http://uniformlaws.org/Act.aspx?title=Interstate%20Family%20Support%20Act%20Amendments%20%282008%29 In the Process of Being Enacted by All U.S. StatesLaw and Procedures for Processing International CasesContinuing Exclusive Jurisdiction - Controlling OrderArticle 7 for Processing 2007 Convention CasesArticles 1-6 for Processing Interstate and Other International Cases

CEJ Original Issuing States Order for c/s retains jurisdiction to modify so long as 1 party (debtor/creditor/child) resides in the State. Method for Determination of Controlling Order in multi-order cases so only 1 order at a time is recognized in all U.S. states53UIFSA Foreign Country 102 (5) Country which:(A) Federally Declared Foreign Reciprocating Country(B) Individual U.S. State Reciprocity Arrangement(C) Enacted a Law or Procedures Substantially Similar to UIFSA Procedures(D) 2007 Convention is in Force with Respect to the U.S.** Japan, China, etc. are Not Foreign Countries!!!Foreign Country CasesIV-D Support Enforcement Agency will work case for free (Location, Establishment, Enforcement, Modify)Foreign Support Orders from FRCs, SRCs, Sub Stan Similar Law/Procedure Countries Registered and worked per Ch 1-6Convention Country Cases worked per Ch 7States may require individuals in Foreign Countries to apply through own support agency U.S. Implementing LegislationPreventing Sex Trafficking and Strengthening Families Act, 128 Stat. 1919; 43 USC 1305.Requires US States to Enact UIFSA 2008UIFSA 2008 Gives State IV-D Support Enforcement Agencies Options of Only accepting applications from Foreign Countries and Requiring Individuals in Foreign Countries to apply through their own agencyOCSE allows, but does not require IV-D agencies to provide anybody, anywhere IV-D Services

UIFSA 2008 Ch.7 RegistrationTransmittal Letter Complete text of order [or abstract by issuing foreign tribunal]Record that order is enforceable in issuing countryIf default order, a record attesting to due process re: notice & opportunity to be heardRecords re: arrears, automatic adjustment of support, receipt of free legal assistance in issuing countryTribunal can vacate if manifestly incompatible with public policy. Notice of Registration 30 days to contest (60 if Respondent is NR)Registered Order is Enforceable

Defenses to EnforcementRecognition and enforcement of order is manifestly incompatible with public policy, including failure of issuing tribunal to observe minimum standards of due process;

Issuing tribunal lacked personal jurisdiction consistent with Section 201;

Order is not enforceable in issuing country;

If default order, there was a lack of due process re: notice & opportunity to be heard

Duty to Establish OrderIf Foreign Order cannot be recognized for:Lack of personal jurisdictionProcedural fraudA proceeding between same parties in other state pending and filed firstDefault order violates due process Then the tribunal may not dismiss the proceeding without allowing a reasonable time for a party to request the establishment of a new Convention support order.

New Policy Impact on U.S.NegativeNot allowing Anybody/Anywhere to be entitled to IV-D agency assistance suddenly provides debtors a potential U.S. sanctuary from supporting innocent childrenDenies equal protection under the law to U.S. citizens working abroad Discriminates against U.S. Taxpayor Creditors abroad whose taxes paid to the I.R.S. help fund the IV-D ProgramPositiveAllows States option to use the program fairly to Direct Applicants and Direct Requestors

UIFSA 2007 Impact on U.S.Policy or Law? Shrinks the Universe of Children who benefit from the lawApplications from Creditors from Non Foreign Countries may be refused by IV-D agencyApplicants making Direct Requests to Establish or to Recognize and Enforce a Convention Support Order not entitled to IV-D assistanceAllows states to force direct requestors to use inefficient Central Authorities

2007 Convention Impact on U.S.Immediate Increase in Number of Countries Providing Child Support services to U.S. creditorsFocus on value of administrative cooperation and accountabilityRecognition of how model forms and abstracts can save costs of translationRecognition of need for expeditious and cost-effective transfer of funds

Interesting CasesCreditor in U.S./Debtor in Asian Country (no FRC, SRC, or PUPDA) Creditor in Non-FRC, SRC, PUPD Country / Debtor in U.S. State A - Enforcement Denied (not a state; AND violates Public Policy and Due Process)B) LATER country becomes a FRC and tries to register and enforce SAME ORDER in States B AND then C!!!!!Thank You