People move around a lot. It is not uncommon for a father and mother to enter into a child support order and then the parent with primary custody of the child move to another state. If the custodial parent and the child move to Illinois, the custodial parent may want to modify child support without returning to the original jurisdiction of the original state where the child support order was entered. I mean, why not? The child lives in Illinois now…so shouldn’t Illinois law govern the child support?
Out-Of-State Child Support Orders In Illinois
The parents are still bound by the original court order from the original state no matter where they live.
In Illinois, an out-of-state child support order “is entitled to full faith and credit as to future payments.” Light v. Light, 147 NE 2d 34 – Ill: Supreme Court 1957
Likewise, an Illinois child support order would be acknowledged by whatever state the non-custodial parent is living in. It’s in the United States’ Constitution.
“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” U.S. Const. art. IV, sec. 1.
The problem is…there is another constitutional requirement in order to make the non-custodial parent subject to an Illinois child support order.
Specifically, the entire American legal system is based on “due process”
Due process is “the conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case.” Black’s Law Dictionary (11th ed. 2019)
The requirement of due process for ANY lawsuit in the United States requires that the defendant/respondent have some kind of relationship with the state wherein the lawsuit is occurring.
“[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the [state], he have certain minimum contacts with [the state]” International Shoe Co. v. Washington, 326 US 310 – Supreme Court 1945
“An orderly and fair administration of the law throughout the nation requires protection against being compelled to answer claims brought in distant States with which the defendant has little or no association and in which he would be faced with an undue burden or disadvantage in making his defense. It must be remembered that lawsuits can be brought on frivolous demands or groundless claims as well as on legitimate ones, and that procedural rules must be designed and appraised in the light of what is fair and just to both sides in the dispute.” Gray v. American Radiator & Standard Sanitary Corp. (1961), 22 Ill.2d 432
EVERYTHING after an order is entered in an Illinois family law court is either a motion to enforce an existing order or a motion to modify an existing order.
The notice required to enforce an out of state child support order in Illinois is outlined by the Uniform Interstate Family Support Act.
“In a proceeding to establish or enforce a support order or to determine parentage of a child, a tribunal of this State may exercise personal jurisdiction over a nonresident individual or the individual’s guardian or conservator if:(1) the individual is personally served with notice within this State;(2) the individual submits to the jurisdiction of this State by consent in a record, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;(3) the individual resided with the child in this State;(4) the individual resided in this State and provided prenatal expenses or support for the child;(5) the child resides in this State as a result of the acts or directives of the individual;(6) the individual engaged in sexual intercourse in this State and the child may have been conceived by that act of intercourse;(7) the individual asserted parentage of a child in the putative father registry maintained in this State by the Illinois Department of Children and Family Services ; or(8) there is any other basis consistent with the constitutions of this State and the United States for the exercise of personal jurisdiction.” 750 ILCS 22/201(a)
If the out-of-state parent visits their child in Illinois, simply serve the out-of-state parent with the motion to register the foreign judgment and the motion to enforce.
There is no dispute that after serving an out-of-state parent in Illinois, the Illinois resident parent “would…be able to assert personal jurisdiction over respondent in order to establish or enforce a support order.” In re Marriage of Vailas, 406 Ill. App. 3d 32, 36 (Ill. App. Ct. 2010)
Modifying An Out-Of-State Child Support Order In Illinois
If both parents now live in Illinois after getting an out-of-state child support order then the out-of-state child support order can be modified in Illinois.
“If all of the parties who are individuals reside in this State and the child does not reside in the issuing state, a tribunal of this State has jurisdiction to enforce and to modify the issuing state’s child-support order in a proceeding to register that order.” 750 ILCS 22/613
There is a big problem is if an Illinois parent wants to modify child support in Illinois…but the other parent lives elsewhere.
“[J]urisdiction over petitions for modification is only proper pursuant to sections 201 and 611 of the Family Support Act” In re Marriage of Vailas, 406 Ill. App. 3d 32, 42 (Ill. App. Ct. 2010)
“The bases of personal jurisdiction set forth in subsection (a) or in any other law of this State may not be used to acquire personal jurisdiction for a tribunal of this State to modify a child-support order of another state unless the requirements of Section 611 are met” 750 ILCS 22/201(b)
Section 611 of the Uniform Interstate Family Support Act states the standard for personal jurisdiction over an out-of-state parent for the purposes of modifying an out-of-state child support order.
NO ONE can live in the original state any more, the child must live in Illinois AND the out-of-state parent must be properly served with notice.
“[U]pon petition a tribunal of this State may modify a child-support order issued in another state which is registered in this State if, after notice and hearing, the tribunal finds that:(1) the following requirements are met:(A) neither the child, nor the obligee who is an individual, nor the obligor resides in the issuing state;(B) a petitioner who is a nonresident of this State seeks modification; and(C) the respondent is subject to the personal jurisdiction of the tribunal of this State.” 750 ILCS 22/611(a)
These are tough standards!
If the out-of-state parent lives in the original state, you cannot modify in Illinois. “[N]either the child, nor the obligee who is an individual, nor the obligor resides in the issuing state” 750 ILCS 22/611(a)(1)(A)
If the parent seeking modification of the child support is a resident of Illinois…you cannot modify in Illinois. “[A] petitioner who is a nonresident of this State seeks modification” 750 ILCS 22/611(a)(1)(B)
The other parent must be served under the requirements of 750 ILCS 22/201(a). “[T]he respondent is subject to the personal jurisdiction of the tribunal of this State.” 750 ILCS 22/611(a)(1)(C)
Basically, the statute doesn’t allow one parent to run off to Illinois without the other parent’s permission and then ask for more child support in Illinois.
An agreed relocation order would include that both parents consent to Illinois having jurisdiction over the matter of child support which would allow subsequent modifications of the child support order in Illinois.
Alternatively an out-of-state child support order may be modified if “[Illinois] is the State of residence of the child, or a party who is an individual is subject to the personal jurisdiction of the tribunal of this State and all of the parties who are individuals have filed consents in a record in the issuing tribunal for a tribunal of this State to modify the support order and assume continuing, exclusive jurisdiction.” 750 ILCS 22/611(a)(2)
Without this agreement to be subject to Illinois’ jurisdiction, the Illinois parent will have to modify child support in the original state or the state where the out-of-state father currently lives.
The same rules in 750 ILCS 5/611 will be found in whatever state the out-of-state parent now lives in because the Uniform Interstate Family Support Act is the law of every state.
“Congress mandated adoption of UIFSA by all states as a condition of receiving federal funds for child support enforcement ( 42 U.S.C. § 666 (2000)), and by 1998, it had been enacted in every state. ” In re Marriage of Vailas, 406 Ill. App. 3d 32, 35 (Ill. App. Ct. 2010)
The Uniform Interstate Family Support Act “contemplates interstate cooperation to effect an expeditious collection of child support across state borders. It provides `unity and structure in each state’s approach to the modification and enforcement of child support orders.” In re Marriage of Gulla and Kanaval, 917 NE 2d 392 – Ill: Supreme Court 2009
This same language will be in the statutes of whatever state the out-of-state parent lives in and the requirements should be easily satisfied in that state. “(1) the following requirements are met:(A) neither the child, nor the obligee who is an individual, nor the obligor resides in the issuing state;(B) a petitioner who is a nonresident of this State seeks modification; and(C) the respondent is subject to the personal jurisdiction of the tribunal of this State.”
Why Can’t You Just Serve The Out-Of-State Parent When They Are Visiting Their Children In Illinois?
If you are a lawyer or a law students, your brain probably just exploded. Anyone who has studied the requirements of personal jurisdiction learned the rule that so long as you serve someone in a particular state, you can sue someone in that particular state.
“Among the most firmly established principles of personal jurisdiction in American tradition is that the courts of a State have jurisdiction over nonresidents who are physically present in the State.” Burnham v. Superior Court of California, 495 U.S. 604 (1990)
Illinois, however, decided to limit this rule of personal jurisdiction when Illinois adopted the Uniform Interstate Family Support Act.
“[S]tates may choose to limit their own jurisdictional reach to something less than that allowed by the due process clause…With the enactment of the [Uniform Interstate]Family Support Act in 2004, however, Illinois elected to limit its jurisdiction over petitions for modification of child-support orders… By adopting UIFSA in Illinois, the legislature has chosen to create a specific statutory process for establishing personal and subject matter jurisdiction in child-support order modification cases. It is compliance with this procedure alone, as set forth in sections 201(b) and 611 of UIFSA, that confers jurisdiction over an obligor in modification cases.” In re Marriage of Vailas, 406 Ill. App. 3d 32, 40 (Ill. App. Ct. 2010)
Do not think you can trap an out-of-state parent into an Illinois child support modification by inviting them to Illinois for the purposes of serving them (as a reminder, this does work for enforcement of an out-of-state order).
How Does Illinois Modify An Out-Of-State Child Support Order
If the personal jurisdiction requirements do finally get met and an out-of-state child support order can be modified in Illinois, the procedure to do so is still governed by the Uniform Interstate Family Support Act.
The requirements to modify a child support order in Illinois require a showing of a“substantial change in circumstances” 705 ILCS 5/510(a)(1)
The Illinois modification requirements will be the standard when modifying an out-of-state child support order.
“Modification of a registered child-support order is subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by a tribunal of this State and the order may be enforced and satisfied in the same manner.” 750 ILCS 22/611(b)
Everything else, however, must follow the law of the original child support order’s state.
“A tribunal of this State may not modify any aspect of a child-support order that may not be modified under the law of the issuing state, including the duration of the obligation of support” 750 ILCS 22/611(c)
“In a proceeding to modify a child-support order, the law of the state that is determined to have issued the initial controlling order governs the duration of the obligation of support. The obligor’s fulfillment of the duty of support established by that order precludes imposition of a further obligation of support by a tribunal of this State.” 750 ILCS 22/611(d)
Finally, once Illinois establishes jurisdiction over the child support issue, jurisdiction remains with Illinois until further order another state’s court under their own Uniform Interstate Family Support Act.
“On the issuance of an order by a tribunal of this State modifying a child-support order issued in another state, the tribunal of this State becomes the tribunal having continuing, exclusive jurisdiction.” 750 ILCS 22/611
Even a simple child support modification can become enormously complicated in the hands of an educated practitioner. If you are enforcing or modifying an out-of-state child support order, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.