Presented by Mary Helen Carlson
United States of America
In this presentation I will discuss the question of how the new Convention addresses the topic of maintenance obligations toward persons other than children. In particular, I will address U.S. perspective on this issue.
Article 2 of the draft Convention states that “[t]his Convention applies to maintenance obligations in respect of a child [regardless of the marital status of the parents], as well as maintenance obligations arising from other family relationships, parentage, marriage or affinity.”
Related to Article 2 is draft Article 44, which provides that any Contracting State may reserve the right not to apply (all or part of) the Convention to maintenance obligations in respect of any specified family relationships or relationships based on affinity, other than maintenance obligations of holders of parental responsibility towards a child under the age of 18. The question of whether the reservation should apply to all of specified parts of the convention has not yet been decided. And there is some support for the view that no reservation should be permitted with respect to spousal support, as well as child support.
In analyzing this issue, it is useful to keep in mind the following points:
1. The overwhelming majority of international family maintenance cases involve child support obligations. This point is acknowledged in the title to the draft Convention: It is the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance.
2. Many countries with the most developed child support systems, i.e., extensive government programs that assist custodial parents and children in the recovery of maintenance from non-custodial parents, restrict those systems to the recovery of child support. The systems cannot be used for the recovery of other forms of family maintenance.
3. At the same time, nearly all countries recognize support obligations toward spouses and ex-spouses, and some countries recognize obligations toward other relatives.
4. While some of those countries provide administrative services to applicants seeking to enforce maintenance obligations other than child support, in many countries there are no such services and the applicant must hire a private attorney and apply directly to the tribunal.
5. Finally, two of the major goals of the new Convention should be:
-- widespread acceptance of the new Convention by a large number of countries all over the world; and
-- the broadest possible range of services.
With those key points in mind, it is clear to us that we need to allow for a reservation so that countries that need to limit the scope of the convention to child support can become parties. At the same time, we need to make the convention available to countries that want to use it between themselves for the enforcement of other forms of family maintenance.
I would note that this is the solution found in the 1973 Convention, which allows a Contracting State to reserve the right not to recognize or enforce a decision in respect of maintenance between persons related collaterally or by affinity.
III. U.S. PERSPECTIVE
Where does the United States fit in this scheme? In order for us to become a party to the new Convention, we would need to limit the scope of application to child support, with two additions: first, our child support agencies would handle requests for recognition and enforcement of spousal support orders where there is also a child involved in the case; and second, we could probably also agree to accept the application of Chapter V on Recognition and Enforcement (but not the other chapters, on Administrative Cooperation) to “spousal-only” support orders, i.e., orders which do not involve a child. So, we can call our position “child support plus.”
The reasons for this position are grounded in our federal system. Under the U.S. Constitution, any power not explicitly granted to the federal government is reserved to the individual states. Family law, including maintenance, is one of those matters that traditionally has been governed by the laws of the individual U.S. states. Indeed, one of the reasons why the United States is not a party to the New York convention is that when it was concluded the federal government did not play a major role in child support enforcement and it would have been difficult if not impossible for the federal government to agree to a child support treaty that bound all of the states.
Obviously much has changed. The United States has a number of federal-level bilateral child support agreements, and we are taking an active role in the negotiation of this new convention. What has made it much easier legally and politically for the federal government to take such an active role in international child support is the fact that in recent years the federal government has, by means of conditions imposed on the granting of large amounts of federal funds to state child support programs, been able to impose various requirements on state child support systems.
A state that is willing to lose federal subsidies could choose not to comply with the federal requirements. No state has to date made such a decision. As a result of a federal requirement, every U.S. state has enacted the same statute, called the Uniform Interstate Family Support Act or UIFSA. Substantive child support law still varies greatly from state to state. But the procedural rules for handling interstate and international child support cases are identical for every state. The legislation requiring states to adopt UIFSA as a condition to receiving federal funds is contained in Title IV-D of the Social Security Act. State child support agencies in the United States are thus referred to as the “IV-D agencies.”
The drafters of UIFSA, a group appointed by the U.S. state legislatures and named the National Conference of Commissioners on Uniform State Laws, considered and rejected expansion of UIFSA to include duties of support other than the duties of child support and spousal support.
Thus, UIFSA defines a support duty as “an obligation imposed or imposable by law to provide support for a child, spouse, or former spouse.”
Although every state thus recognizes spousal support obligations as well as child support legislation, the federally funded IV-D program is limited to establishment, enforcement and modification of child support. This includes the establishment of paternity, where necessary to establish a support decision. These services are available at virtually no cost to applicants from countries with which we have a reciprocal agreement.
That is the background of our position on the scope of the convention, which can generally be summarized as follows:
1. Under the new Convention, all of the extensive resources of our IV-D child support agencies will be available for the establishment, enforcement and modification of child support obligations, as well as for the enforcement of spousal support orders where there is a child involved in the case.
2. We will probably also be in a position to agree to apply Chapter V of the Convention to direct applications for recognition and enforcement of spousal-only orders, although we cannot agree to provide the service of the Central Authority to such cases.
3. Some IV-D agencies may choose to provide services for requests for recognition and enforcement of spousal-only cases. Therefore, in order to allow the Convention to be applied in such cases, we will phrase any reservation so that the Convention will apply to cases involving an obligation towards a spouse or former spouse where there are no children in those states of the United States that elect to apply it.
IV. SUPPORT OBLIGATIONS OTHER THAN THE OBLIGOR’S CHILDREN, SPOUSE OR EX-SPOUSE
All of the above is not meant to suggest that individual U.S. state laws do not establish duties of support towards persons other than the obligor’s child or spouse. The statutory duty of an adult child to provide support for his or her elderly parents currently exists in about 28 U.S. states. It is also possible that other states might in a particular case enforce such an obligation as a matter of common law. However, notwithstanding the fact that a majority of states have imposed a theoretical responsibility for adult children to support aged parents, in fact those laws on the books are virtually never enforced. Criticism of these so-called filial responsibility laws has been building to the point that the number of state statutes has fallen from 39 in 1956 to about 28 in 2002. We will consider whether we could treat parental support cases the same way that we are proposing to handle spousal-only cases: i.e., to state that the Convention will not apply to such cases except that Chapter V’s provisions on recognition and enforcement will apply in those U.S. states that elect to apply them.
Our research has not disclosed any state statute that imposes a duty of support based on other relationships, such as grandparent/grandchild, adult sibling/minor sibling, uncle/aunt-niece/nephew, etc.
In conclusion, I think it is important to keep this issue in perspective. The overwhelming majority of international support cases are child support cases, or alimony cases that also involve a child. The draft text of articles 2 (on scope) and article 44 (on allowing a reservation on scope) strike the appropriate balance between the interest in having a convention that applies to other forms of family maintenance for those countries that recognize such support duties, and the interest in having a convention that is widely accepted.
Thank you very much for your attention.