The US Ratifies The Child Support Convention: What About COCA?

Christophe Bernasconi, Sharla Draemel, Coos ‘t Hoen, and Philippe Lortie with the US instrument of ratification
The US deposits its instrument of ratification. Credit: Hague Conference on Private International Law

The United States signed the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance in November 2007, when the Convention was concluded. It was the first state to sign. The Senate gave its advice and consent to ratification in 2010. There were a few signatures in the following years, but there was no real action until the European Union signed in 2011. But even then, the United States did not ratify the Convention until August 2016.

This is hardly surprising considering what the Convention does. It requires (and I’m paraphrasing here) recognition and enforcement of judicial or administrative decisions “in respect of a maintenance obligation,” with the standard exceptions for fraud, public policy, etc., as long as there is a sufficient connection between the foreign state and either the creditor or the respondent. (The relevant articles, if you want to know exactly what the Convention says about recognition and enforcement, are articles 19 through 31). Family law is clearly on the “state law” side of the federalism ledger, and traditionally the states have handled recognition of foreign child support and similar orders under the Uniform Interstate Family Support Act, a uniform state law that does for child support what the UFCMJRA does for civil or commercial judgments. In order to ensure that the United States can meet its international obligations, the Congress, in 2014, enacted the Preventing Sex Trafficking and Strengthening Families Act, Pub. L. 113-183, 128 Stat. 1919 (2014), which requires the states to enact the 2008 amendments to UIFSA promulgated by the National Conference of Commissioners on Uniform State Laws. Those amendments implement the Convention’s requirements. It took some time for the states to meet this requirement, which is, I think, why there was such a delay between advice and consent to ratification by the Senate and the President’s recent ratification.

I have to ask—if we can amend a uniform law to ensure compliance with a new international obligation to recognize and enforce foreign child support orders, and then enact a federal statute requiring the states to enact the amended uniform law, why can’t we make a deal about the Choice of Court Agreements Convention? Sure, there are some differences. There is no constituency for wholesale federalization of the law of international child support, as there is for federalization of the law of recognition of judgments in civil or commercial cases. The federal government already had an oversight role in the interstate enforcement of child support orders. And so forth. But on the other hand, child support seems much closer to a matter that is to be left to the states than does the recognition of judgments in big international commercial cases; and the Child Support Convention operates without regard to consent of the parties, whereas COCA will apply only when the parties have agreed that it should. So COCA seems like an easier lift to me.

Perhaps the success of all the relevant parties—the federal government, the states, the NCCUSL—will lead to a renewed effort to reach an accommodation on COCA?

The upshot: beginning next year, the Convention will be in force between the United States and the European Union, Albania, Bosnia and Herzegovina, Montenegro, Norway, and Ukraine.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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