In March of 2015, the Idaho Department of Health & Welfare collected more than $19 million in child support on behalf of 183,170 children. But, a last minute action by the Idaho House Judiciary, Rules and Administration Committee, just before the Idaho Legislature adjourned a week ago, may have put substantial federal funds and Idaho child support payments at risk beginning in July.
Others think the threat is overblown and that the committee action was a principled stand against the federal government.
On the final day of Idaho’s legislative session, the House Judiciary Committee, on a motion by Rep. Trujillo (R-Idaho Falls) voted to table (or set aside) SB 1067, a bill that had passed the State Senate 34-0 and was considered by most to be non-controversial. This measure, incorporating the language of the Uniform Interstate Family Support Act (“UIFSA”), creates a mechanism to enforce foreign child support judgments in Idaho.
The U.S. Congress in 2014, unanimously, had directed all 50 states to pass the 2008 version of UIFSA in order to allow the United States to join the 2007 Hague Convention on the International Recovery of Child Support.
The Hague Convention was a treaty pushed by the Bush Administration and signed by then-Secretary of State Condoleezza Rice. The purpose was to make it easier for U.S. residents to enforce American child support orders overseas. Today, most U.S. states (including Idaho) recognize foreign child support orders but most countries will not recognize U.S. child support orders without a treaty in place.
The 2014 federal statute provides a penalty for failure to pass UIFSA -- a cutoff of federal funds to a non-compliant state for child support enforcement, and also a reduction in Temporary Assistance for Needy Families. In Idaho’s case, the total is estimated to be $46.5 million. Last Tuesday, the Commissioner of Child Support Enforcement for the U.S. Department of Health & Human Services, Vicki Turetsky, gave Idaho formal notice of intent to terminate Idaho’s eligibility for these funds, including access to the federal child support system databases which are the basis for Idaho collection efforts, as of July 1.
Opponents of SB 1067 on the Judiciary Committee have provided a series of justifications for their actions. “We don’t need to allow foreign law into Idaho,” argued Rep. Sims (R-Coeur d’Alene). Sen. Sheryl Nuxoll (R-Cottonwood) testified in front of the committee that the bill might introduce Sharia law into Idaho, pointing out that two Muslim-majority countries, Bosnia and Albania, had adopted the treaty. Rep. Ron Nate (R-Rexburg), in a guest editorial, justified his vote as a blow against federal tyranny: “It’s not right for Idaho to be bullied into losing protections for children and families just to keep a few more federal dollars.”
Rep. Luke Malek (R-Coeur d’Alene), another committee member, disagreed: “Scuttling 1067 without debate was heavy-handed opportunistic theatrics at the expense of single-parents and children...the most vulnerable in our society. I do not support the erratic behavior that will lead to the dismantling of our child support system, nor the implication that this mockery of a legal analysis in any way represents our Republican caucus.”
Given the confusion about what SB 1067 does or does not do, I’ve put together the following Q&A to share what I have learned about this issue:
What led to the Hague Convention in 2007?
The U.S. has a strong system of enforcing child support orders, both within a state and between states. But, many countries do not. The Bush Administration proposed the Convention to strengthen the system for collecting child support across national borders. In 2007, the final treaty was signed by Secretary of State Rice. Given that foreign child support orders are already generally enforced in the U.S., the primary impact would be to allow U.S. children to obtain support from non-custodial parents overseas who owe support.
Has the U.S. Senate approved the Hague Convention as required by the U.S. Constitution?
Yes. On September 29, 2010, the U.S. Senate gave its consent to the Convention. The treaty was negotiated between the United States and various other countries. But, implementation with respect to recognition of child support orders requires state level action under our federal system.
What countries have approved the Hague Convention?
Right now, the Convention has been adopted by the European Union, Norway, Ukraine, Bosnia and Armenia. There is some frustration that the sponsor, the United States, has not yet joined. More countries are expected to follow, the vast majority U.S. allies.
Why is Idaho being pressured to enact SB 1067 or its equivalent now?
In order to implement the treaty, in 2014, the U.S Congress, including Idaho’s senators and representatives, directed all 50 states to implement the latest version of the UIFSA this (2015) legislative session or face cutoff of federal funds and federal support for child support collections. The federal government imposed similar requirements after welfare reform was adopted in the 1990s.
Where did the Uniform Interstate Family Support Act come from?
The Uniform Law Commission was the drafter. This is a well-respected nonpartisan group established in 1892 to allow states to obtain help in drafting laws that have broad application. The 300 commissioners are judges, law professors, attorneys and attorney-legislators. The Conference, since 1892, has proposed model laws in a host of areas (donation of organs, commercial law, probate, structure of legal entities and more) which have been widely adopted by various states.
One of the Idaho members is Senate Majority Leader Bart Davis (R-Idaho Falls). In an interview, he points out that “It [the Uniform Commission] is intended to provide non-partisan, well-conceived and well-drafted legislation to resolve issues. The Commission is designed to help states to solve their own problems and provide uniformity when appropriate. After we adopted the 2008 version on child support, the federal government required states to adopt it exactly.”
What does SB 1067 itself do?
The bill provides mechanisms for enforcement in Idaho of child support orders in foreign jurisdictions where that country has joined the Hague Convention or has worked out a reciprocity agreement with both the U.S. government and Idaho. It also allows Idaho courts to disallow enforcement of foreign child support orders if the issuing country 1) Fails to meet minimal standards of due process, 2) Fails to meet Idaho’s requirements for personal jurisdiction, 3) The order is not enforceable in the issuing country, 4) The order was obtained by fraud, 5) The order submitted lacks authenticity or integrity, 6) A proceeding is pending in Idaho and that was the first filed, 7) The order is incompatible with a more recently support order, 8) The alleged deficiency in payments has been paid in whole or in part and 9) Lack of proper notice to the Idaho resident of the foreign proceeding. These protections are stronger than those required by Idaho courts now for foreign child support judgments.
How many child support orders in Idaho involve foreign countries?
Kandace Yearsley, director of the Idaho Child Support Program, testified in front of the House Judiciary Committee that 97 child support orders in Idaho involve foreign countries, with 22 being efforts by such to collect against Idaho residents and 75 involving Idaho residents trying to collect overseas against individuals in those countries.
Will SB 1067 bring Sharia law into Idaho.
No. None of the countries governed by Sharia law have joined the Convention nor are any likely. Both Bosnia and Albania, despite large Muslim populations, have civil law systems, not a Sharia law-driven structure. More importantly, the bill does not change the substantive law of Idaho at all with respect to child support or any other topic.
Is the threat of the cut-off of federal funds real?
Some opponents of SB 1067 claim that the feds have not cut-off other states that have failed to pass UIFSA. That is a bit misleading. As part of welfare reform in the 1990s, Congress required every state to pass the then-current version of UIFSA. All 50 states did – so none were cut-off from federal funding for child support. This year, 19 states have already passed UIFSA with more working through the process right now. Idaho is the only state at risk of a funding cut-off because of the recent action.
What is the potential impact on children and families that depend on child support?
On Thursday, April 16, the Idaho Department of Health & Welfare announced it was sending letters to the 155,000 Idaho families that receive child support warning that non-voluntary payments could cease in June. The total amount at risk is estimated to be $174 million of the $205 million in child support collected in Idaho each year. Department Director Dick Armstrong told the Spokesman-Review that: “To me, we have a human tragedy that we’re faced with. These people will need to make significant adjustments in their daily lives if we are unable to transfer this money to their households.”
How does this get fixed?
Governor Otter has promised to do “something.” Rep. Malek, one of the leading opponents of the Judiciary Committee’s action, believes “the only path that would be successful is a special session.” In a special session, a new bill would be introduced and, perhaps, would be considered again by the House Judiciary Committee. If so, the key question is whether any of the nine who voted to table the measure would reverse their vote? House Speaker Scott Bedke opined to the Spokesman-Review: “This issue is grave in nature, obviously, and we’re doing a lot of research at this point to measure the breadth and scope of it. I assume that we’ll act accordingly at some point.”