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Child support: interstate dimensions.

Interstate relations are an inherent feature of a federal system; yet, literature on such relations in the United States is sparse and generally old. The importance of such relations can be highlighted by examining the constitutional and statutory provisions governing enforcement of interstate child-support orders, the difficulties encountered by numerous custodial parents in their efforts to collect such support, and the controversy surrounding the question of whether the Congress possesses the authority to supersede state child-support systems and to establish a national system.

Enforcement of child-support orders has become a major problem because of the conjunction of sharp increases in the numbers of out-of-wedlock births, legal separations, and divorces with the great mobility of the population. Many custodial parents and their children live in poverty because of parents' inability to collect child support. Although the economic and social ramifications of the failure to collect child support are important, such ramifications are outside the scope of this article.

The U.S. Office of Child Support Enforcement (OCSE) reported in 1994 that states collected $17.96 billion in child-support payments in federal fiscal year 1992, or only 33 percent of the $23.91 billion owed for that year and previous years.(1) Interstate collections reached a record $626 million in the same year, an increase of 83.6 percent compared to 1987.(2) Nevertheless, the amount is only 7.9 percent of total collections, whereas interstate cases are approximately 30 percent of the total caseload. Furthermore, enforcement of child support in cases with an interstate dimension takes three to six months compared to three to nine weeks for intrastate cases.(3) Mothers living in the same state as the fathers reported receiving on average 70 percent of the anticipated support compared to 60 percent if the fathers lived in other states.(4)

This article examines a key provision of the U.S. Constitution governing relations between states, effectiveness of state cooperative efforts to collect interstate child support, congressional use of conditional grants-in-aid to regulate state child-support programs to improve their effectiveness, and proposals for establishment of a centralized child-support program or federal enforcement of interstate child-support orders.

KEY U.S. CONSTITUTIONAL PROVISIONS

The U.S. Constitution contains five provisions relative to interstate relations. Three provisions have direct relevance to the collection of interstate child support. States may enter into interstate compacts for the collection of child support, and interstate rendition may be employed in certain cases if a noncustodial parent fled the state while in child-support arrears in violation of a state criminal law. The most important provision that relates to child support is full faith and credit (Article IV, Section 1).

Utilizing the overarching principle of reciprocal recognition of public acts, records, and judicial proceedings of each state, the framers of the full faith and credit clause sought to promote a national legal system protecting the U.S. government against the policy of an individual state, including its judges' rulings, which might be based on provincialism, and to establish such a system without expanding the powers of the Congress. Judicial proceedings, including final child-support orders, are civil court judgments subject to the clause. Administrative child-support orders also are entitled to full faith and credit if they are considered to be "final" by the state in which the issuing administrative agency operates. A limitation of the full faith and credit clause is the fact that it does not extend to future child-support payments because they are not considered to be final. However, a state is free to extend full faith and credit to a modifiable judgment of a court in another state on the basis of comity.

Section 1 of Article IV of the Constitution grants the Congress the power "by general laws to prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." The Congress has enacted two very general laws, in 1790 and 1804, prescribing the method of authenticating public acts and records.(5) The U.S. Supreme Court has clarified the constitutional provision only partially by ruling that state constitutions are public acts entitled to full faith and credit, and that the guarantee applies only to civil laws and final proceedings and not to criminal laws. There is a consensus that the clause does not require recognition of the law of another state, but merely prevents the application of the forum state's law if the forum state has no significant interest in the problem.

Relative to child support, the final orders of a state to be enforced under full faith and credit are accrued arrearages. Assisting in collection of such arrearages is the Uniform Enforcement of Foreign Judgments Act (UEFJA), drafted by the National Conference of Commissioners on Uniform State Laws (NCCUSL), which establishes a procedure for judgment creditors to enforce a judgment in another state provided it has enacted the uniform act.(6) Thirty-six state legislatures have enacted one or the other of two versions of the act. The act does not require that the state originally entering the judgment must have enacted the act before the judgment will be enforced in another state. Once a "foreign" judgment is filed in a court, it is treated in the same manner as a domestic judgment, and the respondent is entitled to due process of law.

Although the Congress granted exclusive jurisdiction to the U.S. District Court if the amount in controversy between residents of different states is $50,000 or more, the Congress exempted interstate child-support cases from the $50,000 threshold.(7) Nevertheless, no state utilized the federal courts to enforce child-support orders against an obligor in another state.(8)

CHILD SUPPORT AND INTERSTATE COOPERATION

Laws in individual states historically made parents responsible for the support of their children, but did not address the question of establishing and/or enforcing interstate child support. If the noncustodial parent moved to another state, only interstate rendition was available, and its effectiveness was limited by the difficulty of locating the parent, by cumbersome due process procedures, and by the availability of rendition only if criminal charges had been filed.

Uniform Reciprocal Enforcement of Support Act

To address the problem, NCCUSL in 1950 drafted the Uniform Reciprocal Enforcement of Support Act (URESA), which was amended in 1952, 1958, and 1968. The last revision was a substantial one and is referred to as the Revised Uniform Reciprocal Enforcement of Support Act (RURESA). All states, except New York, have enacted one version of the act. Amendments to the New York law in 1981 and 1987 have brought it into nearly total conformity with URESA.(9) URESA is devoted principally to civil procedures, but authorizes an enforcement procedure, similar to interstate rendition, for an individual charged with the crime of nonsupport. The act mandates that the prosecuting attorney in the initiating state, if requested by a court or department of welfare, represent the obligee in URESA proceedings. The act also requires the prosecuting attorney in the responding state to prosecute the case with diligence.(10)

The purpose of each version of the uniform law is to allow the custodial parent an expeditious alternative to appearing in the noncustodial parent's state or seeking to employ "long-arm" jurisdiction; the latter is a problem because "long-arm" statutes are not uniform across the United States.(11) A "long-arm" statute also may be ineffective if it fails to comport with the due process of law requirements of the Fourteenth Amendment to the U.S. Constitution. A key 1978 U.S. Supreme Court decision - Kulko v. California Superior Court - held that due process requirements were not satisfied by a California court in applying the Supreme Court's "minimum-contacts" test to the case.(12) The Supreme Court opined:

A father who agrees, in the interest of family harmony and his children's preferences, to allow them to spend more time in California than was required under a separation agreement can hardly be said to have "purposefully availed himself" of the "benefits and protections" of California's law.(13)

Kulko extends beyond the involved couple and limits forum shopping (choice of court) by the custodial party desiring to modify the original court order.

Despite URESA's potential contribution to solving the problem of nonsupport, the U.S. Commission on Interstate Child Support (CICS) in 1992 identified nine major problems with URESA proceedings, including adoption of different versions of the law by various states, subsequent enactment of nonuniform modifications, and divergent judicial interpretations of the law.(14) That led NCCUSL in 1992 to draft the Uniform Interstate Family Support Act (UIFSA), superseding URESA. The new model law has been enacted by nineteen state legislatures and (1) contains a new section on "long-arm" jurisdiction, (2) makes clear that the act may be used to establish an initial support order and to impose a duty to enforce an existing order, (3) utilizes a "one order, one time" approach allowing one state to exercise exclusive jurisdiction over a case on a continuing basis, (4) permits modification of the child-support amount only by the original court unless both parties no longer reside in the state or they sign a written agreement that jurisdiction by another state is more appropriate, and (5) stipulates that a state requested to enforce an out-of-state court order must accept the decisions of the court and employ its state laws only to enforce remedies. The model law is not a reciprocal one, and a state enacting the model law has an obligation to utilize it regardless of whether the other involved state has enacted the model law.

One section of UIFSA resulted from problems with the Child Support Enforcement Amendments of 1984, which require states to expand wage withholding procedures to enforce the support orders of other states.(15) To facilitate child-support arrears collection, the American Bar Association and the National Conference of State Legislatures drafted a Model Interstate Wage Withholding Act. Although its major provisions have been enacted into law by eleven state legislatures, the act "is not working well" according to the U.S. General Accounting Office.(16) As a consequence, UIFSA includes a section authorizing direct income withholding; that is, the state sends wage-withholding requests directly to out-of-state employers of obligors and bypasses the other state's central registry.(17) A state also may use intrastate income withholding by service of the withholding order on any employer who does business in the state. In each case, wages are withheld and sent to the requesting child-support office.

Use of Uniform Laws

States frequently utilize uniform laws in attempts to collect child support from obligors residing in other states. In federal fiscal year 1992, 581,599 requests for assistance in collecting child-support payments were sent by various states to other states.(18) More than 50 percent of the cases sent and requests received involved seven states - Florida, Illinois, Michigan, New York, Virginia, Ohio, and Pennsylvania.(19) Several obstacles impede collection efforts. The first obstacle is the difficulty in locating the absent parent. If a noncustodial parent is found in a second state, he or she may flee to a third state before action can be initiated in the second state to enforce the creditor judgment. URESA does not address the question of what actions the first two states should take under these circumstances, and state legislatures have not enacted statutes to address this problem.

A survey of case workers revealed "that 25 to 67 percent of the cases referred to them by other states lacked a correct address, 40 to 78 percent lacked accurate employment information, and 50 to 96 percent lacked wage or income information."(20) Collection of child-support payments also may be delayed for a significant period if an alleged father denies paternity and seeks to prove in a court of law that he is not the father. Every state provides for paternity establishments, but not every state has a paternity "long-arm" statutory provision. Relative to support-payment amounts, many state statutes provide for court hearings, which may result in major payment delays because of crowded court calendars.

Collection problems may result from the due process requirements of the U.S. Constitution and the respondent's state constitution. An obligor may challenge collaterally the validity of a judgment rendered by a court in another state on the grounds that the court rendering the judgment lacked personal jurisdiction over the defendant or subject-matter jurisdiction, there was no due process notice or proper service on the defendant, and there was no opportunity for the defendant to be heard. The defendant also may allege that the judgment was obtained by fraud. Service of process is a key due process element, and the organization responsible for serving process may not assign priority to interstate service. A related complication is the lack of uniformity in state statutes of limitations relative to the life of judgments, duration of support, and time for service of process.

Payments may be delayed if there is a dispute involving which court has jurisdiction over an interstate case, because it is possible for courts in more than one state to exert jurisdiction and to issue orders that conflict. Resolving such conflicts is time-consuming, expensive, and frustrating for the custodial parent, and also reveals the complex nature of the full faith and credit guarantee. Lack of cooperation by officials in the responding state, including a lower priority assigned to interstate cases, may also frustrate efforts to collect child-support payments.

The lack of uniformity in state child-support statutes and administrative rules hinders the collection of payments as well. Reliance on paperwork processes also contributes to delays in collecting interstate child-support payments. In addition, variations in procedures and forms between counties, which often are responsible for collection, in the same state delay collections. Should the judgment debtor move to another county in the same state, delays in payments may result. The Commission on Interstate Child Support identified another problem: "inadequate training of child support case workers, attorneys, and judges."(21)

THE NATIONAL GOVERNMENT ROLE

The Congress limited its role in interstate child-support cases for nearly 200 years to its 1790 and 1804 statutes prescribing the method of authenticating public acts, judicial proceedings, and records. The Congress initially became interested in interstate child-support as a means of reducing Aid to Families with Dependent Children (AFDC) payments to the custodial parent.(22) Subsequently, the Congress commenced to pressure the states to enact uniform child-support laws and to establish uniform procedures. The Congress in 1974 authorized the Internal Revenue Service (IRS) to collect specified child-support arrearages in the same manner as delinquent federal taxes are collected.(23)

The following year, the Congress enacted Title IV-D of the Social Security Act establishing a cooperative federal-state program to collect child-support payments.(24) To be eligible for federal funds, a state must develop a plan and have it approved by the U.S. Department of Health and Human Services. The plan must include procedures for locating an absent parent, establishing paternity and child-support payments, enforcing collection of payments, and cooperating with other states seeking to collect payments from an obligor.(25) The Title IV-D program requires each state's child-support office to provide specified services - such as establishment of paternity and location of a noncustodial parent - free of charge to a custodial parent receiving AFDC. Most funds collected on behalf of AFDC families are utilized to offset AFDC payments.

In 1982, the Federal Income Tax Refund Offset Program was launched to intercept tax refunds to provide funds to pay child-support arrearages. The Child Support Enforcement Amendments of 1984 made non-AFDC families eligible to participate in the program. These families received $174 million in federal tax year 1992, and families receiving public assistance were able to collect $457 million.(26) The amendments also require, among other things, speedy action by states in child-support cases and reporting at the request of credit bureaus of child-support arrearages exceeding $1,000 in IV-D cases.(27)

A state may request OCSE to seek IRS's assistance in intercepting an income tax refund in order to pay child support. Upon receiving verification of a IV-D child-support delinquency certification from the secretary of Health and Human Services, IRS must treat the child-support arrearages as a tax debt, and may seize property owned by the obligor for failure to pay the arrearages. The state initiating the request must notify OCSE and any other concerned state of the receipt of IRS funds. In 1990, OCSE issued regulations requiring the states to submit all eligible non-AFDC child-support cases for IRS income-tax refund withholding. The states also are required to have a program to intercept state income-tax refunds of obligors with arrearages.

Under the 1984 amendments and the Family Support Act of 1988, states must notify the noncustodial parent and that parent's employer in advance that support payments must be withheld from the wages of the parent who becomes one month or more delinquent in court-ordered support payments. The requirement applies to interstate as well as intrastate cases. All states have complied with the act's immediate wage-withholding requirement in non-IV-D cases. A 1993 report revealed that small business firms object to immediate wage withholding because of the administrative burden and because noncustodial parents view such withholding as an "intrusion into their personal and financial affairs."(28)

The Department of Health and Human Services was authorized by the Congress in 1980 to make grants to the states to cover up to 90 percent of their costs of designing, developing, and installing statewide automated child-support systems.(29) The Family Support Act of 1988 requires all states receiving Title IV grants to have such a system meeting federal government standards by 1 October 1995.(30)

A 1986 amendment to the Social Security Act prohibits retroactive modification of a support order by stipulating that child-support installments are vested judgments as they fall due and are entitled to full faith and credit.(31) CICS identified an unanticipated consequence of the amendment:

By virtue of their judgment status, support installments are subject to a state's statute of limitations from the date each installment is due. States have varying statutes of limitations, resulting in uneven ability to enforce arrears in interstate cases.(32)

The Family Support Act of 1988 seeks to improve the financial status of families receiving child-support payments by improved enforcement of obligations and by enrolling them in the Job Opportunities and Basic Skills (JOBS) training program.(33) Specifically, the act places additional emphasis on (1) establishment of paternity, (2) mandatory guidelines for establishing child-support orders, (3) review and adjustment of Title IV-D support orders every three years, (4) provision of child-support enforcement services by the responsible state agencies within specified deadlines, and (5) immediate wage withholding on establishment or modification of child-support awards unless the concerned parties have signed an agreement for a different arrangement or the concerned court decides not to implement wage withholding for good cause. Under these exceptions, an arrearage exceeding thirty days results in wage withholding. The act also requires that each state install by October 1995 an automated statewide information system to improve case handling and record keeping, and that each parent provide his or her social security number when a child is born.(34)

The Office of Child Support Enforcement operates the Federal Parent Locator Service, a computerized network, to assist the states in identifying the location of a child-support obligor and his or her place of employment to facilitate wage withholding for child support. The service accesses data collected by federal agencies, including the Internal Revenue Service, Social Security Administration, and Department of Defense. The Worldwide Military Locator Service can be employed only by Title IV state offices to locate members of the armed forces who are obligors with child-support payment arrearages.

In 1992, the Congress amended the Fair Credit Reporting Act to require credit bureaus to record child-support delinquencies exceeding $1,000 of the parent failing to make the payments reported by the Office of Child Support Enforcement.(35) A 1994 report reveals that the reports to credit bureaus are "having a positive enforcement impact" and may have a greater effect in the future when creditors deny credit to delinquent obligors.(36) In 1992, the Congress also enacted the Child Support Recovery Act (CSRA) making it a crime for an obligor residing in a state other than the one in which the obligee resides willfully to refuse to pay a past-due support obligation, which is defined as one "that has remained unpaid for a period longer than one year, or is greater than $5,000."(37) The act is not designed to be applied generally, but is intended for special cases to act as an impetus encouraging obligors with arrears to make payments.

The act was applied for the first time in Massachusetts on 14 July 1994, when a Michigan surgeon who owed more than $100,000 in child support was charged with a misdemeanor in the U.S. District Court in Boston.(38) Robert Melia, first deputy commissioner of the Massachusetts Department of Revenue, described the act as "the nuclear bomb of child support; drop it on the few to deter the many."(39)

An indication of the movement for a greater national policy role is the introduction by Senator Christopher J. Dodd (D-CT) of the Child Support Reform Act of 1994 (S . 1977) amending the IV-D program by federalizing enforcement of child-support orders. In particular, interstate child-support cases subject to the wage-withholding requirement or with more than one month in arrears would be referred to IRS. The bill also establishes a process for adoption of national child-support guidelines to ensure "that economic security does not depend on where a child lives."(40) The senator noted that "too often, children whose parents are in similar economic circumstances end up with vastly different awards . . . simply because of what state they live in."(41)

COMMISSION REFORM PROPOSALS

Upon completing its study of this important problem, the U.S. Commission on Interstate Child Support reached the following conclusions relative to federal government leadership:

The role of the federal government in child support enforcement lacks clarity. On the one hand, the Office of Child Support Enforcement has . . . promulgated increasingly stringent regulations governing program operations. OCSE also has begun . . . to exact financial penalties from states that fail to satisfy audit criteria. On the other hand, OCSE has become increasingly delinquent in conducting audits. States complain that audits are being conducted on three-year-old performance and that the audit process is unduly long and cumbersome.

At the same time that OCSE is becoming more demanding of state program performance, it is pulling back from its customary role of providing support to state programs through its central and regional offices.(42)

In 1992, CICS recommended that the Congress:

* expand the Federal Parent Locator Service into a national one and require states, as a condition-of-aid, to develop and maintain a registry of support orders.

* mandate a child-support obligor to report the amount and recipient of support on a modified W-4 form and require the employer to send a copy to the state employment agency.

* require each state, as a condition of aid, to enact a law requiring employers to implement an income-withholding order transmitted directly from a child-support enforcement office in another state.

* add as a condition-of-aid that each state establish procedures granting the voluntary acknowledgment of parentage the same effect as a judicial determination.

* amend current law to mandate the health insurance industry to cooperate with custodial parents and the states in providing benefits to children under a health insurance plan.

* establish minimal staffing standards for state child-support agencies and a training program for all personnel involved in the child-support process utilizing a core curriculum developed by OCSE.

* define child-support enforcement agencies as law enforcement agencies and require the states to report warrants (child support) issued to state law enforcement agencies.(43)

In addition, CICS urged that other states follow the lead of Arizona, California, and Vermont, and deny the issuance or renewal of an occupational license to an obligor who has child-support arrearages.(44) Similarly, each state motor-vehicle agency should be authorized to deny an application for the issuance or renewal of an operator's license or vehicle registration if there is an outstanding failure-to-appear warrant in a child-support case.(45)

Finally, CICS urged the states lacking criminal nonsupport statutes to enact such statutes, yet indicated "that criminal enforcement is a last resort enforcement device."(46) Two state supreme court decisions relative to such statutes are in conflict. The Nevada Supreme Court in 1991 opined that a nonresident criminal nonsupport defendant could be tried in the state even if the offense occurred while he was a resident of another state.(47) Earlier, the California Supreme Court struck down the state's criminal nonsupport statute as violative of the equal protection of the law clauses of the U.S. and California constitutions because nonsupport by an in-state obligor was a misdemeanor, whereas nonsupport by a defendant resident in another state for thirty days was a felony.(48)

AN ALTERNATIVE

In its present form, despite new federal policies, child-support enforcement is a nearly exclusive state government responsibility, with the federal government providing financial and other assistance to make state enforcement more effective and by making it a federal crime for an interstate obligor to have arrears for more than one year or greater than $5,000.

An alternative arrangement would be an exclusive federal government system with IRS or the Social Security Administration being responsible for modifying and enforcing child-support orders, and collecting payments for disbursement to the custodial parent. This approach, according to its proponents, would produce a uniform law with a nationwide jurisdictional reach and administrative economies and efficiencies, including access to various federal government data bases, and improved collection of payments if child support is treated in the same manner as taxes.(49)

CICS rejected such unitary approaches in part because "the relatively short history of the Title IV-D scheme did not allow for a fair review of its success."(50) Other CICS concerns were loss of state-agency innovation, expense of a national system duplicating the existing system, establishment of a dual family-law system with many issues remaining with state courts, inability of the federal judicial system to give priority to child-support cases, relative inaccessibility of federal courts compared to state courts, danger that greater emphasis would be placed on AFDC cases to the neglect of establishment of parentage and non-AFDC cases, and a more depersonalized provision of services.(51)

William L. Reynolds recommended a more limited proposal: "The federal government should solve interstate problems, especially when the states have shown themselves incapable of doing so effectively. Moreover, if the federal courts limit themselves to questions of enforcement, and do not address modification, emancipation, etc. they will be handling the 'federal' (e.g., inter-state) issues. The state courts can then address the 'state' issues such as modification."(52) CICS did not favor the type of approach suggested by Reynolds because it saw the following problems:

(1) inherent coordination difficulties between the state courts and agencies that set and modify orders and the new federal child support enforcement agency;

(2) the loss of local knowledge of the appropriate enforcement remedy tailored to the local economy;

(3) the lack of priority historically given support enforcement by federal agencies such as the Internal Revenue Service;

(4) the shifting of resources to favor recoupment of AFDC at the expense of non-AFDC case enforcement;

(5) greater difficulty in tracking down the correct obligee for disbursement of payments if identifying information in inadequate.(53)

CICS reported in 1992, however, that "some scholars believe Congress may extend the reach of a state's 'long-arm' statute based on a Fifth Amendment analysis, through delegation of its own national reach to state courts and agencies. If so, then a state-potentially would have the reach of the national government."(54) As noted, the U.S. Supreme Court in 1978 held that the presence of children with a parent in a state does not confer jurisdiction over the noncustodial parent who had "minimum contacts" with the state. CICS acknowledged that extending the reach of the federal government through the Fifth Amendment would have to be based on a delegated power and cited "the general welfare clause, the commerce clause, and the full faith and credit clause."(55)

Can the Congress override Kulko's "minimum-contacts" requirement and extend the reach of the "long-arm" statutes of the states? The U.S. Supreme Court probably would rule the extension violative of due process of law and hold that a state must have in personam jurisdiction over an obligor prior to rendering a binding child-support order. If the statute were upheld as constitutional, the custodial parent could use his or her state as a forum to establish or modify a child-support order, and the delays and required papers associated with a uniform law would be avoided.

CICS specifically recommended that the "Congress make a finding that it is appropriate to allow a state where the child resides, and with which the noncustodial parent has not had contact, to assert jurisdiction over the noncustodial parent in parentage and child support cases" and urged inclusion of a provision in the statute for an expedited appeal to the U.S. Supreme Court.(56) If the statute were to be upheld as constitutional, CICS urged the Congress to mandate that the states extend their "long-arm" statutes in accordance with the federal statute.

The Congress may lack the power to establish such a system and may fail to provide adequate resources in the event it possesses the power.(57) Being part of a limited government, the Congress may exercise only delegated powers. Whereas one can argue that certain delegated powers could serve as the basis for a federal statute providing for total or partial preemption of the child support powers of the states, it is apparent that the Congress cannot exercise these powers in all cases because such an exercise of power would violate the due process of law guarantee of the Fifth Amendment. Hence, it is reasonable to conclude that the Congress may be unable to preempt state child-support laws. However, the Congress could attempt to justify its statute on the basis of the (1) general welfare clause as authority to restrict Social Security grants to states according broad jurisdiction to the "home state" in child-support cases, (2) interstate commerce clause, (3) full faith and credit clause, and (4) Fourteenth Amendment. The interstate commerce clause has been cited as authority for the Congress to enact a jurisdictional statute, and references have been made to Wickard v. Filburn, holding that the Congress may impose marketing quotas on the intrastate sale of wheat, and Heart of Atlanta Motel v. United States, upholding the Congress' prohibition of racial discrimination in places of public accommodation.(58)

The U.S. Supreme Court gave an extended reach to the interstate commerce power in Garcia v. San Antonio Metropolitan Transit Authority by allowing the Congress to regulate states as polities.(59) This decision might lead one to conclude that the interstate commerce clause could be employed to preempt the states relative to interstate child-support. However, the reach of the commerce clause is narrower when individuals are involved because of the due process of law guarantee of the Fifth Amendment. The Congress can employ the interstate commerce clause to preempt completely the regulatory powers of the states relative to air pollution abatement, for example, but it is questionable if the power can be employed without limit to preempt the states in cases involving individual rights.

The full faith and credit clause was employed by the Congress in enacting the Parental Kidnapping Prevention Act (PKPA). The clause also has been cited as a source of authority for a congressional jurisdictional statute.(60) A law professor informed CICS that "it seems likely that, by citing its full faith and credit authority, Congress could require states to apply one another's domestic relations law."(61) Law Professor Paul M. Kurtz, however, stressed that the act "is limited to defining precisely which custody orders are to be given full faith and credit in other states. There is nothing in PKPA that requires any state to actually exercise any particular type of jurisdiction."(62) Child-support custody cases differ from child-support cases, and it is possible, according to Kurtz, that "the PKPA itself may be found to be unconstitutional at least in some applications."(63) William L. Reynolds, in a somewhat similar comment, observed that "the law has long treated status determinations differently from questions concerning an obligation to pay money."(64) While conceding that the full faith and credit clause may authorize the Congress to extend the jurisdiction of a state court in child-support cases beyond its territorial limits, Kurtz noted that an obligor might claim that his or her Fifth Amendment due process of law rights have been violated in the absence of "minimum contacts" with the state exercising extraterritorial jurisdiction.(65)

Section 5 of the Fourteenth Amendment, which authorizes the Congress to enforce the guarantees included in the amendment, also may give the Congress "the authority to alter the due process limitations on state courts. This rationale is quite controversial, however, and has rarely been tested in court."(66) Kurtz pointed out that the use of Section 5 powers by the Congress "to restrict court-recognized due process rights is an open one" and added that "the Supreme Court never has squarely dealt with the issue, but has provided dicta suggesting that such Congressional action 'diluting' previously established due process rights would be authorized under the 14th Amendment."(67) Nevertheless, use of Section 5 may be held by the Court to violate the Fifth Amendment's due process of law restraint on the exercise of powers by the Congress.

Due process of law is designed to protect the rights of individuals from arbitrary government actions and not to resolve interstate disputes. Assuming the Congress possesses the authority to enact a jurisdictional statute, a question may be raised relative to the fairness of a congressional statute assigning jurisdiction to the "home" state of the child. Under such a statute, the custodial parent would have the unilateral right to move to another state, possibly for forum-shopping purposes, and the obligor would have no recourse.

CONCLUSION

The federal system often makes it difficult for a custodial parent to obtain child support because the obligor benefits from a labyrinth of child-support laws and may abrogate his or her obligations over a long period by moving from state to state.

Historically, a state attempting to enforce a child-support order on an out-of-state parent relied on the cooperation and good will of the state where the obligor resides to enforce the order. The latter state, however, is burdened enforcing its own child-support orders on its residents, In an era of tight finances, elected state officials are apt to devote available resources primarily to collecting child support for their own constituents rather than for nonresidents.

The failure of interstate cooperation to solve the problem and the increasing cost of AFDC to the federal government motivated the Congress to employ incrementally conditional grants-in-aid to regulate states' efforts to enforce child-support orders. The federal assistance, however, has not produced the desired result, and, in 1992, the Congress took direct action by making it a federal crime for an obligor residing in a state other than the one in which the obligee resides to refuse to pay support that is more than one year in arrears or exceeds $5,000. This shift in congressional regulatory statutes reflects what John Kincaid identified as a policymaking shift "from places to persons" during the past two decades.(68)

Adoption of the Commission on Interstate Child Support's recommendations should assist the custodial parent to obtain child support from an out-of-state obligor. Nevertheless, adoption of the recommendations by all states and the Congress would not guarantee that the custodial parent would collect the full amount of support or any support in a timely manner from an obligor who moves from one state to another state to avoid obligations. It is questionable that all states would devote the requisite resources to interstate child-support enforcement, and individual states may give priority to intrastate cases.

Continued dissatisfaction with state and interstate enforcement of child-support orders has led to proposals for an exclusive federal government system with a federal agency responsible for modifying and enforcing such orders, and collecting payments from obligors for distribution to the custodial parents. Our analysis suggests that the Congress lacks the constitutional authority to establish such a system. The powers of the Congress are limited, and it must rely principally on conditional grants-in-aid, cross-over sanctions, and tax sanctions to persuade states to implement national policies, including enforcement of child-support orders by IRS or another federal agency.(69)

These observations lead to the conclusion that the Child Support Recovery Act of 1992, if enforced, would be a positive approach to solving the problem by making it a criminal offense for an interstate obligor to have arrearages. This act does not raise questions relative to the constitutional authority of the Congress, and should not place an inordinate burden on the U.S. District Court. Unfortunately, the U.S. Department of Justice "does not intend to use CSRA as a mere mechanism to collect child support," but will prosecute "egregious cases" and publicize such cases.(70) The department has prosecuted only a handful of cases and refers nearly all inquiring obligees to their respective state agencies, which have been unable to collect the arrears.(71)

The proposed Child Support Reform Act of 1994, if enacted by the Congress, would be effective in persuading states to refer obligors with arrearages to the Internal Revenue Service, which possesses great potential for collecting support payments provided IRS assigns priority to such collection and the Congress provides the funds needed to support the operation. Experience suggests, however, that IRS would not pursue aggressively the collection of child-support payments.

In summary, interstate collection of child-support payments is likely to be a serious problem for the foreseeable future.

AUTHOR'S NOTE: I am indebted to Stephen L. Wasby for critical comments and suggestions. A version of this article was delivered at the 1993 annual meeting of the American Political Science Association.

1 U.S. Office of Child Support Enforcement, Child Support Enforcement: Seventeenth Annual Report to Congress for the Period Ending September 30, 1992 (Washington, D.C.: U.S. Government Printing Office, 1994), pp. 19 and 70.

2 Ibid., p. 55.

3 Bill Bradley, "Interstate Child Support Enforcement Act," Congressional Record, 1 October 1992, p. S16144.

4 U.S. Commission on Interstate Child Support, Supporting Our Children: A Blueprint for Reform (Washington, D.C.: U.S. Government Printing Office, 1992), p. 4. See also U.S. General Accounting Office, Interstate Child Support: Mothers Report Receiving Less Support from Out-of-State Fathers (Washington, D.C.: GAO, 1992).

5 Authentication Act of 1790, 1 Stat. 122. The 1804 Authentication Statute (2 Stat. 298) provides an additional method for authenticating nonjudicial records. The acts are codified as 28 U.S.C. [sections]1738 (1988).

6 A foreign judgment is issued by a court in another state.

7 Justice Improvement Act of 1988, 102 Stat. 4646, 28 U.S.C. [sections]1332 (1992 Supp.) and Deficit Reduction Act of 1984, 98 Stat. 1170, 42 U.S.C. [section]660 (1991).

8 U.S. Office of Child Support Enforcement, Child Support Enforcement: Fifteenth Annual Report to the Congress for the Period Ending September 30, 1990 (Washington, D.C.: U.S. Government Printing Office, 1992), p. 17.

9 New York Laws of 1958, chap. 146 and New York Domestic Relations Law, [sections]30-43 (1988 and 1993 Supp.). See also, New York Laws of 1981, chap. 763 and New York Laws of 1987, chap. 815.

10 Uniform Reciprocal Enforcement of Support Act, [section]12 and [section]18.

11 A "long-arm" statute authorizes a court to exercise extraterritorial in personam jurisdiction over a nonresident defendant and to treat the interstate case as an intrastate case.

12 Kulko v. California Supreme Court, 436 U.S. 84 (1978). This case was not one of forum shopping. For an extensive examination of in personam jurisdiction, see Patrick J. Borchers, "The Death of the Constitutional Law of Personal Jurisdiction: From Pennoyer to Burnham and Back Again," U.C. Davis Law Review 24 (Fall 1990): 19-105.

13 Kulko v. California Supreme Court, 436 U.S. 84 at 94 (1978). For additional details on "minimum contacts," see World-Wide Volkswagen Corporation et al. v. Woodson, 444 U.S. 286 (1980).

14 U.S. Commission on Interstate Child Support, Supporting Our Children, p. 21.

15 Child Support Enforcement Amendments of 1984, 98 Stat. 1305, 42 U.S.C. [section]1305 note (1991).

16 U.S. General Accounting Office, Interstate Child Support: Wage Withholding Not Fulfilling Expectations (Washington, D.C.: GAO, 1992), p. 3.

17 Ibid., p. 4.

18 U.S. Office of Child Support Enforcement, Child Support Enforcement: Seventeenth Annual Report to Congress for the Period Ending September 30, 1992, p. 147.

19 U.S. General Accounting Office, Interstate Child Support: Case Data Limitations, Enforcement, Problems, Views on Improvements Needed (Washington, D.C.: GAO, 1989), p. 13. There were 18,522 filings in the New York Family Court under the Uniform Support of Dependents Law in calendar year 1992. See the Fifteenth Annual Report of the Chief Administrator of the Courts (New York: State of New York, 1993), p. 36.

20 U.S. General Accounting Office, Interstate Child Support: Better Information Needed on Absent Parents for Case Pursuit (Washington, D.C.: GAO, 1990), p. 15.

21 U.S. Commission on Interstate Child Support, Supporting Our Children, p. vii.

22 For details, see Linda H. Elrod, "The Federalization of Child Support Guidelines," Journal of the American Academy of Matrimonial Lawyers 6 (1990): 103-111.

23 Social Services Amendments of 1974, 88 Stat. 2358, 26 U.S.C. [section]6305 (1982).

24 Social Security Act Amendments of 1975, 89 Stat. 1051, 42 U.S.C. [section]1395u (1991).

25 For an analysis of the shift from assistance to regulation, see U.S. Advisory Commission on Intergovernmental Relations, Regulatory Federalism: Policy, Process, Impact, and Reform (Washington, D.C.: ACIR, 1984).

26 Child Support Enforcement Amendments of 1984, 98 Stat. 1305, 42 U.S.C. [section]1305 note (1991), and U.S. Office of Child Support Enforcement, Child Support Enforcement: Seventeenth Annual Report to Congress for the Period Ending September 30, 1992, p. 20.

27 Child Support Enforcement Amendments of 1984, 98 Stat. 1305, 42 U.S.C. [section]1305 note (1991).

28 U.S. General Accounting Office, Child Support Enforcement: States Proceed with Immediate Wage Withholding: More HHS Action Needed (Washington, D.C.: GAO, 1993), p. 2.

29 Social Security Disability Amendments Act of 1980, 94 Stat. 463, 42 U.S.C. [section]654 (1991).

30 Family Support Act of 1988, 102 Stat. 2343, 42 U.S.C. [section]1305 (1991).

31 Omnibus Budget Reconciliation Act of 1986, 100 Stat. 1973, 42 U.S.C. [section]666(a)(9) (1991).

32 U.S. Commission on Interstate Child Support, Supporting Our Children, p. 27.

33 Family Support Act of 1988, 102 Stat. 2343, 42 U.S.C. [section]1305 (1991).

34 For the final rule on the required computerized support-enforcement systems, see Federal Register, 14 October 1992, pp. 46988-47005. The rule is codified as 45 CFR 205, 250, 302, 304, and 307.

35 Ted Weiss Child Support Enforcement Act of 1992, 106 Stat. 3531, 15 U.S.C. [section]1681s-1 (1993 Supp.).

36 U.S. General Accounting Office, Child Support Enforcement: Credit Bureau Reporting Shows Promise (Washington, D.C.: GAO, 1994), pp. 6-7.

37 Child Support Recovery Act of 1992, 106 Stat. 3403, 18 U.S.C. [section]228(a)(d)(1)(A) (1993 Supp.).

38 Judy Rakowsky, "Michigan Doctor Sued in US Court for Child Support," The Boston Globe, 15 July 1994, pp. 19 and 22.

39 Ibid., p. 22.

40 Christopher J. Dodd, "Child Support Reform Act of 1994," Congressional Record, 24 March 1994, p. S3708.

41 Ibid.

42 U.S. commission on Interstate Child Support, Supporting Our Children, p. 28.

43 Ibid., pp. 34-35, 37-39, 65-73, 171-173, and 178.

44 Ibid., p. 171.

45 Ibid., pp. 172-173.

46 Ibid., p. 178.

47 Epp v. State, 107 Nev. 510, 814 P.2d 1011 (1991).

48 In re King, 3 Cal.3d 225, 474 P.2d 983 (1970).

49 U.S. Commission on Interstate Child Support, Supporting Our Children, p. 81.

50 Ibid.

51 Ibid., pp. 81-82.

52 William L. Reynolds, "Conflicts and Child Support: A Working Paper" (Baltimore: University of Maryland at Baltimore School of Law, 29 November 1990), pp. 12-13.

53 U.S. Commission on Interstate Child Support, Supporting Our Children, p. 82.

54 Ibid., p. 83.

55 Ibid. This recommendation is incorporated in the Interstate Child Support Enforcement Act (S. 689) introduced by Senator Bill Bradley (D-NJ) on 1 April 1993.

56 U.S. Commission on Interstate Child Support, Supporting Our Children, p. 86.

57 For an analysis of the expansion of the powers of the Congress, see Joseph F. Zimmerman, Federal Preemption: The Silent Revolution (Ames: Iowa State University Press, 1991).

58 Memorandum to Deputy Executive Director/Counsel Jeff Ball, U.S. Commission on Interstate Child Support, from Patrick J. Borchers, Albany Law School, 4 September 1991, p. 1. See also Wickard v. Filburn, 217 U.S. 111 (1942) and Heart of Atlanta Motel v. United States, 279 U.S. 241 (1964).

59 Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).

60 Memorandum to Deputy Executive Director/Counsel Jeff Ball, U.S. Commission on Interstate Child Support, from Patrick J. Borchers, Albany Law School, 4 September 1991, p. 2.

61 Memorandum to the U.S. Commission on Interstate Child Support from R. Lea Brilmayer, Yale Law School, 29 November 1990, p. 8.

62 Memorandum to the U.S. Commission on Interstate Child Support from Paul M. Kurtz, 29 November 1990, p. 3.

63 Ibid.

64 Reynolds, "Conflicts and Child Support," p. 4.

65 Kurtz, Memorandum to the U.S. Commission on Interstate Child Support, pp. 7-8.

66 Memorandum to the U.S. Commission on Interstate Child Support from R. Lea Brilmayer, Yale Law School, 29 November 1990, p. 3.

67 Kurtz, Memorandum to the U.S. Commission on Interstate Child Support, p. 5.

68 John Kincaid, "Constitutional Federalism: Labor's Role in Displacing Places to Benefit Persons," PS: Political Science & Politics 26 (June 1993): 172-177.

69 Joseph F. Zimmerman, Contemporary American Federalism: The Growth of National Power (Leicester, U.K.: Leicester University Press, 1992).

70 Letter to U.S. Senator Richard C. Shelby from Assistant Attorney General Sheila F. Anthony, 25 April 1994; Congressional Record, 21 July 1994, p. S9426.

71 Congressional Record, 21 July 1994, p. S9425.
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