Can a mother use the Uniform Interstate Family Support Act (UIFSA) to modify a Virginia child support order in a foreign state that is her and the children’s residence, but not the father’s?
Not in the case of Cuevas v. Cuevas, Case No. CL-2007-6974, in which the Circuit Court of Fairfax County, Virginia, ruled that the foreign state had personal jurisdiction over the father from his general appearance there, which allowed it to register, but not to modify, a Virginia child support order.
At the time of the parties divorce on August 29, 2007, the Plaintiff husband and father was a resident of Virginia, while the Defendant wife and mother was a resident of Puerto Rico with the parties’ three minor children. Under the final Virginia divorce decree, the father was obligated to pay child support payments to the mother in Puerto Rico.
After the divorce was entered, the father moved from Virginia to North Carolina. The mother subsequently filed for a modification of the child support in Puerto Rico. The father appeared in Puerto Rico at the hearing, and the Puerto Rico court modified the child support issued by the Virginia divorce court judge. Further, the Puerto Rico court issued an income withholding order to the father’s Virginia employer, requiring a garnishment of father’s wages for the payment of child support. The father filed a motion to dismiss this order raising questions of whether the Puerto Rico court had personal jurisdiction over him and whether the modification was proper under Virginia’s Uniform Interstate Family Support Act (UIFSA).
The divorce court judge dismissed the father’s argument that Puerto Rico violated the federal Full Faith and Credit Child Support Orders Act contained in 28 U.S.C. Section 1738B, by registering the divorce decree in Puerto Rico without personal jurisdiction over him there. The federal Full Faith and Credit Child Support Orders Act provides as follows:
“If there is no individual contestant or child residing in the issuing State, the party or support enforcement agency seeking to modify . . . a child support order issued in another State shall register that order in a State with jurisdiction over the nonmovant for the purpose of modification.”
The Virginia divorce court judge found that the father had submitted to personal jurisdiction in Puerto Rico simply by entering a general appearance, by appearing at the hearing on the issue of the child support modification. [A party can enter a special appearance only for the purpose of contesting the jurisdiction of the court without entering a general appearance, but father had not limited his appearance in this case.]
In addition, the father challenged Puerto Rico’s authority to modify the child support obligation under UIFSA. The appropriate code section, Section 611, establishes three criteria necessary to modify the order: “the child, individual oblige[mother], and the obligor [father] do not reside in the issuing State [Virginia]; a petitioner [mother] who is a nonresident of this State [Puerto Rico] seeks modification; and the respondent [father] is subject to personal jurisdiction in the tribunal of this State [Puerto Rico].” (). [While a support order may also be modified under Section 613 of the Act, all the parties must be residents of the same state, and the child must not be a resident of the issuing state. See Virginia Code Section 20-88.77:1. In this case, the mother could not satisfy the second requirement under Section 611 of the UIFSA, as she was a resident of Puerto Rico. The court held that, as in the case of Van Dyke v. Van Dyke, 50 Va. Cir. 604, 612 (1998), the mother could not use the Uniform Interstate Family Support Act to modify a support order from a different state to her benefit in her home state. Consequently, the Virginia Circuit Court judge dismissed the income withholding order.
You should with a Virginia family law attorney concerning the applicability of the Uniform Interstate Family Support Act to your situation.