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Attorney at Law Plano Tower 101 E. Park Blvd., Suite 600 Plano, TX 75074 (972) 516-3864 FAX: (877) 527-8913 Family Law/Civil Litigation Practice in Dallas County and Collin County (Texas)
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Attorney at Law Plano Tower 101 E. Park Blvd., Suite 600 Plano, TX 75074 (972) 516-3864 FAX: (877) 527-8913 Family Law/Civil Litigation Practice in Dallas County and Collin County (Texas)
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The Child Support Division of the Office of the Attorney General of Texas is a government agency that files Court cases
(1) to establish the paternity of children whose parents aren't married and
(2) to set child support and
(3) to enforce child support orders where the "obligor" (usually Dad) isn't paying and
(4) to modify orders - change the amount of child support (usually upward).
Yes, there ARE cases where Dad has custody, and Mom is ordered to pay child support. Because there are very, very few of them, I will be referring to the non-custodial "visitation parent" as DAD, and the custodial parent as MOM.
When the AG gets involved in collecting child support, they have access to some powerful "tools" for enforcement that aren't available to a private lawyer. For instance, there's a program called FIDM (Financial Information Data Match) whereby the banks report account information to the AG (ever noticed that when you open an account, the bank asks for your Social Security number?). The AG checks this account balance information against the Social Security numbers of non-paying Dads, and they can seize whatever money is in the checking account.
The AG also has access to TWC (Texas Workforce Commission, formerly known as the Texas Employment Commission) records, so that they can sometimes find out about your new job long before anyone else does. If they know where you work, they know where they can garnish your wages.
The AG can also grab your income tax refund and apply it to a child support arrearage.
The AG can send an Administrative Income Withholding writ (AIWH) to your employer and immediately begin taking out extra money for a child support arrearage — they don't even have to get prior approval from a Judge.
The law says that they aren't allowed to discriminate based on your gender (but they may do so anyway. It will be very subtle).
1. If you have an illegitimate child, and the mother stops letting you see him, you can
put in an application with the AG
and ask them to file a petition to establish paternity (if it's successful, you'll get Court-ordered visitation, and possibly even full custody). The down side is that if you don't get full custody, you'll be slapped with a child support order AND (in most cases) be ordered to pay retroactive child support too.
There's no law that says that Mom automatically gets custody of the child when paternity is established. In fact, the Texas Constitution says that there will be no discrimination based on gender (Article 1, section 3a). You have every right to ask for custody when you are a party to a paternity action.
But if you do, don't expect any help from the AG. They do NOT get involved in custody suits.
2. If your child support is currently set too high, the AG can file a motion with the Court to get it reduced. This IS part of their "mission," although they don't like to have to do it. If you put in an application with them and ask them to do this, they're supposed to help you out
The Attorney General hearings (99% of them) are held before a Master. He isn't an elected Judge; he was appointed (and can be fired by the presiding judge of the district). Because of this, you can appeal his decision any time within three days after the final hearing
(§201.015 of the Texas Family Code). Remember that the weekend days count! If your hearing was on a Friday, then your "third day" is the following Monday.
NOTE: If a District Judge "sits in" for the IV-D Master on your hearing day (in Dallas, they're always switching Judges at the last minute), and a District Judge (who was elected) hears your case, then you do NOT have the right to a three-day appeal! You have THIRTY days to file your appeal, and it has to be filed with the Court of Appeals, and you have to post an appeal bond and file a brief.
So How Do I File a Three-Day Appeal?
You have to do three things: (1) create a Notice of Appeal and (2) file it with the District Clerk and (3) mail copies (or fax them, or hand-deliver them) to the (i) Mom and (ii) the AG. Your Notice of Appeal must complain specifically about what you didn't like in the Master's ruling — simply saying, "I appeal everything" won't work.
Remember that there are THREE parties in your case:
1. you
2. the Mom
3. the State of Texas (represented by the Attorney General)
You may disagree with the Master's ruling because
- he held you in contempt;
- he put you in jail;
- he set your child support too high;
- he made a finding of an arrearage amountt that you think is too high;
- (in a paternity case) he awarded retroaactive child support in an amount that's too high;
- he set the monthly payback amount (on thhe arrearage) too high.
Any party can file this appeal — you, Mom, or the Attorney General. Yes, the Attorney General does, on rare occasions, appeal the Master's ruling. Back when I worked for the AG, I appealed a Master's ruling once or twice.
Your appeal goes to the "referring Court" (the one with the elected Judge), which means that you won't have to drive to Austin on the day the appeal is heard. The referring Court will notify you by mail of when the appeal hearing is set; remember to REQUEST a setting from the referring Court (sending them a letter will do the trick). When you get your hearing before the elected Judge, you get a second bite at the apple, so to speak (it's called "trial de novo") — the AG has to present its evidence all over again, as if the first hearing had never happened.
This is the classic catch-22. You were dragged into Court, let's say, because you couldn't pay your child support. Maybe the Judge has told you, "Come back in 30 days ... I order you to return to Court ... bring $1800 or I'll put you in jail."
If you don't have money for child support, how can you afford a lawyer?
If you're served with a motion that asks the Judge to put you in jail (be sure to read the pleading that's served on you!), and you can't afford a lawyer, you will be told (by the Judge — he has to do this — it's the law) that you have the right to have an attorney appointed for you. You WILL be asked questions about your assets and earnings, so that they can make sure that you're really indigent (the Judge doesn't want to appoint an attorney for someone who has $50,000 in the bank). If you qualify ... take the free lawyer !!!
NOTE: You are NOT entitled to a Court-appointed lawyer in a paternity case.
Remember that in response to a Motion for Enforcement that's filed against you, you can (usually) file a Motion to Modify Child Support and ask that the monthly amount be lowered, based on your decreased income. Modification of child support is covered by
§§156.401 et seq. of the Family Code.
When you go to Court (and represent yourself), you may find yourself sitting at a table with the AG and the Mom to "negotiate." Remember that you don't have to talk to ANYBODY (except the Judge, in open Court ... and technically, since a Motion for Enforcement is quasi-criminal in nature, you have the right to remain silent), and you certainly don't have to agree to ANYTHING. If the AG makes an offer that you don't like, or it doesn't pass the "smell" test, just say NO. Your case will then be heard by the IV-D Master (after you've sat around for another hour or so), who will make a ruling based on the evidence.
But if you stand up in front of the Judge and represent yourself at a hearing, the Judge won't cut you any slack — all of the same rules that apply to the lawyers (hearsay objections, rules of admissibility of evidence, rules of procedure) apply to you also. And the AG will be represented by a card-carrying licensed lawyer ... who knows the Judge very well.
Throughout the process, the whole time that you're at the Courthouse for your hearing, the AG people will act as if they're in charge. They're not. They are litigants, just like you, and they have to follow the law and all of the rules of civil procedure. The IV-D Court may have been specially created for their cases, but it's not "their" Court. You're entitled to due process.
Dallas area lawyers charge anywhere from $150.00 to $500.00 per hour. I charge $300.00 per hour, and I tend to bill conservatively. If I have to jump into an AG case, I'll usually get $1,000.00 up front.
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Let's say you're already under a child support order. You're paying every month. All of a sudden, your company finds out that it doesn't need you anymore, and you get fired. You go job-hunting and, after a couple of months, you find a new job ... making much less money than before.
Your child support was calculated (at the last hearing) based on your income AT THAT TIME. Your income is now lower. What should you do?
You can
put in an application with the AG.
You want them to file a Motion for Modification of Child Support (their code is "MMOD") to REDUCE your child support. Do they do that sort of thing? Do they represent the DAD sometimes?
YES. They are (technically) not allowed to discriminate on the basis of gender. It's against the law. But ... they always see their mission as geared toward the Moms, not the Dads. You will be at the bottom of their list, if they even help you at all.
A warning: if you file a MMOD [motion for modification] to reduce child support, and the evidence shows that you're making MORE money, then the Judge will order that the child support be RAISED ... even though you asked that it be LOWERED.
Of course, you can also use a private attorney to file a Motion to Modify.
YES. At an AG docket in Dallas on October 1, 2002, three men were put in jail for non-payment of child support ... all on the same day, by the same IV-D Master
(this particular Judge is no longer a IV-D Master).
But overall, the odds are about 99% that you WON'T go to jail, even if you owe a large amount of back child support. The judge will find you in contempt, and he'll SENTENCE you to 180 days ... but he'll suspend the sentence, and you get to go home and sleep in your own bed that night. Remember to maintain an humble attitude when you're standing in front of the judge.
While you're under that suspended sentence, you want to make sure that you pay your child support each month ... PLUS the extra amount he'll order you to pay that goes toward the arrearage.
By the way, the AG is very, very careful to draft their enforcement pleadings so that they ask for no more than 180 days in jail. Because of this, you are NOT entitled to a jury trial in an AG enforcement case.
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Why would the father want to ask for help from the AG? Two possible reasons: (1) his child support is set too high, and he wants it adjusted [yes, the AG is required to help you with this — don't let them try to tell you otherwise] or (2) he has an illegitimate child, and the mother has decided to stop letting him see the child, and he wants to establish paternity through the Courts so that there will be a visitation order in place. You should contact
your local child support office or call 1-800-252-8014.
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A paternity case (the AG calls it an "establishment case," since its purpose is to establish a child support order) involves five main questions:
1. Is this man (the one named in the petition) the father of this child?
If you're slapped with a paternity case, REQUEST DNA TESTING. Every time. No matter what. Even if you WANT to be named as the father of the child. Nowadays, the AG doesn't even make you reimburse them for the cost THEY pay for the DNA test that YOU demand. No kidding.
2. (If he is the father) Should HE get custody, or should the mother get custody (yes, Dad, you have the right to ask for full custody)?
3. (If Dad doesn't get custody) How much child support should he pay each month?
4. What kind of visitation should be ordered for Dad? Should it be restricted in any way?
5. How much retroactive child support (if any) should Dad be ordered to pay? After all, if he is found to be the child's father today, that means he was ALWAYS the child's father, and has had a duty to support the child all the way back to the child's birth. The Family Code says that there's a presumption that retroactive child support should go back only four years
(§154.131, Texas Family Code). This retroactive amount draws interest at 6% per year.
6. (if retroactive child support is ordered) How much per month should Dad pay toward the retroactive child support (in addition to his regular child support)?
You've gotten behind on child support. With interest, it's now up into the THOUSANDS of dollars. You'll never be able to pay it. Can you just "sign away" your parental rights and get off the hook?
Basically, the answer is NO. Even if Mom agreed to it, it STILL has to be approved by the Court. And I have personally seen more than one case where the Court said, "No. Not even if both parents ask for it."
Most men who go to Court on a "Motion for Enforcement" do NOT get put in jail. If they do, the standard child-support jail sentence is 180 days, although the Judge has the authority to make it 10 days, 45 days, or some other number.
NO. It isn't part of their "mission" to enforce the visitation part of your order.
What is Involved in a Paternity Case?
Can I Just Give Up My Parental Rights?
I have seen cases where Mom and Dad made the agreement and the Judge went along with it.
Believe it or not, you (Dad) have the right to file a suit for the termination of your own parental rights, pay a jury fee, and have a CONTESTED final hearing ... before a jury. Your chances are better in front of a jury (this takes the decision-making power away from the Judge), but you'll be paying your lawyer lots of money. I did a case like this some years ago, and actually won for the father (we had a jury trial). But the odds were definitely against us.
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What Happens If They Send Me to Jail?
There are two ways that you can be sent to jail:
1. "Coercive contempt:" Basically, you're being held for ransom. The final order will state that if you come up with a certain sum of money ($1000, or $2500, or more, depending on the size of your arrearage balance), you can get out of jail. The Judge may tell you that "You hold the keys to your jail cell."
2. "Punitive contempt:" This is a straight jail sentence. You were a bad boy, and the Judge wants to punish you. It's a 180-day sentence, and you will (probably) be there for the whole 180 days. You will be taken directly from the courtroom to the jail, in handcuffs.
If you're sentenced to jail by a IV-D Master, you can file the three-day appeal and ask to be let out on bond while you're waiting for the hearing on the appeal [see
§201.1042(c) of the Texas Family Code]. You'll need a lawyer for this. Be ready to come up with some money for (1) your lawyer [about $1,500.00 up front] and (2) the amount of the bond, which could run into the thousands of dollars. The Master sets the bond amount.
The bond will probably be "cash only," and it is forfeited if the Judge later makes a finding that you were in fact behind in your child support payments. Warn your mother about this before she cleans out her savings account to bring money to the courthouse to spring you from jail. Explain to her that she won't ever see her money again ... your ex-wife will be spending it.
If your case is heard by the Court's "real" judge - the elected judge (or a visiting retired judge) - and he sentences you to jail, there's no three-day appeal.
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Mom Won't Let Me See the Kids. Will the AG Help Me?
You'll need to hire a private lawyer. Plan to bring him about $2,500.00 up front. Your remedies are:
1. You can file a motion for contempt against Mom. This is the same motion used when Mom asks the court to put YOU in jail for not paying your child support. The order that requires you to pay child support also requires Mom to surrender the child to you at the beginning of each period of court-ordered visitation; if she violates the order, she can be found in contempt.
In most cases, the Judge does not actually put the mother in jail for refusing visitation — at least not for a "first offense." In 30 years of law practice, I've seen only one woman put in jail for not allowing her ex-husband to see the children (it was in Angelina County. The Judge was a woman).
2. You can sue Mom for money damages under provisions of
Chapter 42 of the Family Code. It is a tort to "interfere with a child custody order" (this includes refusing visitation). I once got a $227,000.00 jury verdict in this kind of case (we never actually collected the money, but it was nice to get the judgment).
One such lawsuit in Houston (Bryna Monica Solnick vs. Irving Albert Solnick, out of the 308th District Court) resulted in a money judgment of $1.5 million being awarded against the party (the Dad) who interfered with possession of the child.
3. You can file an application that asks the Judge to issue a writ of habeas corpus for your next visitation. If the writ is granted, you will be accompanied by a sheriff's deputy when you go to pick up your child. This remedy is best exercised when you're up for summer visitation.
And by the way, you should expect Mom to respond (in Court) by alleging that you (or your new wife) abused the child, or that you're a drug addict. It's standard stuff. The Judge will then order you to take a drug screening test. It will cost you about $175.00.
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The information on this website is not legal advice, and it may not be applicable to any specific set of facts ... especially your own personal situation. The perusal of this website does not establish an attorney-client relationship. You should consult an attorney for advice regarding your individual situation, and I invite you to contact me; I welcome your calls and emails. Contacting me does not create an attorney-client relationship. Please do not send any confidential information to me. I am an attorney licensed by the Supreme Court of Texas to practice law in all State courts and certain Federal courts, but I'm not board certified by the Texas Board of Legal Specialization. |