Monday, September 7, 2009

Indiana Supreme Court on Interstate Child Support

On September 3, the Indiana Supreme Court handed down Mahmoud M. Basileh v. Arwa G. Alghusain.

The Indiana Supreme Court summarized the issues this way

In this post-dissolution action the Indiana trial court relinquished its jurisdiction over matters of child support to a California trial court. At issue is the interplay between the Full Faith and Credit for Child Support Orders Act and the Uniform Interstate Family Support Act. We affirm the judgment of the trial court.
 Following the dissolution of the marriage, the mother moved to California and father moved to Jordan.  Opinion at 2.  The California courts took jurisdiction over the case and father objected:
Thereafter, the California court accepted jurisdiction over child custody and visitation matters, but concluded that jurisdiction over child support matters had not been transferred from Indiana. In August 2007, the California court sent a “Memorandum” to the Indiana court informing the court that Mother and the children resided in California, that Father “now resides in Saudi Arabia,” and that the parties had conducted visitation following orders issued by the California court. Id. at 66. The California court also inquired “whether Hamilton County [Indiana] will cede jurisdiction to Monterey County [California].” Id. The judge of the Hamilton Superior Court issued an order ceding jurisdiction “in all matters pertaining to visitation, custody, and child support matters[,]” noting that this is what he intended to do in 2005. Appellant‟s App. at 11-12.
Father appealed and the Court of Appeals affirmed the judgment of the trial court. In doing so the Court of Appeals 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. Basileh v. Alghusain, 890 N.E.2d 779 (Ind. Ct. App. 2008). We granted transfer to address the Court of Appeals‟ preemption determination. We summarily affirm its determination concerning residency.

Opinion at 3.

On pages 5 and into 6, the Indiana Supreme Court reviews the different types of federal preemption before answering the question if there was preemption.
The application of general rules of federal preemption leads us to conclude that Congress did not intend the Federal Act to preempt the Uniform Act. Rather, it appears that FFCCSOA was intended to follow the contours of UIFSA. There is no indication in the text of FFCCSOA or its legislative history of any intent to preempt UIFSA. And importantly for our purposes the specific provisions here at issue in Indiana‟s version of the Uniform Act – the nonresidency requirement and the consent requirement – are closely modeled after the federal version of the Uniform Act. See supra note 2. “The very fact that Congress mandated that all fifty states adopt UIFSA strongly mitigates against a construction of FFCCSOA that would impliedly preempt UIFSA to any degree.” LeTellier v. LeTellier, 40 S.W.3d 490, 498 (Tenn. 2001). We therefore also conclude that the FFCCSOA does not preempt the Indiana version of UIFSA.

Opinion at 8. 

The Indiana Supreme Court then proceeded with reconciling federal law and Indiana's UIFSA. Opinion at 8-10. The court concluded with this:
...Given that the 1996 version of section 205 of UIFSA and I.C. § 31-18-2-5(a) are almost identical, we find the language of the Comment to UIFSA (1996) § 205 to be a strong indicator of the legislative intent when it enacted I.C. § 31-18-2-5, namely: subsection (a)(1) (the nonresidency requirement) and subsection (a)(2) (the consent requirement) are separate and alternative methods by which an Indiana court may maintain its continuing, exclusive jurisdiction over a child support order; and thus do not require both the absence of the parties and consent before a court loses jurisdiction.
In this case it is of no moment that the parties did not file a written consent with the Indiana court for the California court to modify the Indiana support order. Rather, the Indiana court lost its jurisdiction because Father, like Mother and the children, is no longer an Indiana resident.

Opinion at 10 with a footnote omitted.

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