THAT'S NOT MY KID!!!!! AND WHY IS THE OFFICE OF THE ATTORNEY GENERAL BOTHERING ME?

After working as an Assistant Attorney General (AAG) in the Child Support Division of the Office of the Attorney General (OAG), I’ve heard that lament far more times than I care to remember. But, it’s reasonable one to exclaim if the State of Texas is attempting to make you a dad with all the rights and duties of a father. It’s a paternity issue, true and simple. Did you or did you not make a baby?

So, what are the dynamics in this case? First, in an OAG case, momma is coming to the State to ask it to wield its considerable power to make daddy pay child support. “Put child support on him,” momma demands. And under the Texas Family Code, the OAG has just that power to wield against you.

The OAG gets involved in these paternity cases, initially, one of two ways. First, if the mother is either on TANF (Temporary Aid to Needy Families) or on Medicaid, there is a referral from the appropriate State agency to the OAG to establish paternity and get child support set.

The second way is if the mother comes to the OAG and requests that the daddy be found and child support be put on him regardless as to any prior State financial aid.

The State provides the financial support for the child until there is a daddy is found and who will be ordered to pay child support and repay the State financial aid. That daddy is the alleged father until he is the adjudicated father. (For a refresher to these “father” terms, re-read Article Four, THAT’S NOT MY KID!!!!OR IS IT???? of this Blog.) The OAG’s threefold mandate is to establish paternity, set child support and collect child support.

At that time, there are two routes for the OAG to pursue to accomplish this threefold mandate. Administratively, there is the Child Support Review Process (CSRP). Notice is given to the parties that a “meeting” will be held at the offices of the OAG Child Support Unit, and at that “meeting,” paternity will be established and child support set. The issue of collections will be resolved by an Income Withholding Order being prepared for submission to the daddy’s employer. Meeting in the OAG office with the parties is a Child Support Officer (CSO) who is not an attorney but whose goal it is to meet the mandate. The CSO always works from the assumption that momma is the primary custodial parent and that daddy gets the Standard Possession Order for visitation. I will leave it to your own imagination what and how this CSRP plays out. Let’s just say that, like sausage, you don’t want to see it made.

But, if the CSRP is a bust because one or both of the parties do not agree with the outcome, the case is referred to court and treated like any other lawsuit. The same procedures apply with notice and a right to be present guaranteed to the parties. At court, daddy can request the DNA test so that science can be used to establish paternity. If he “wins the lottery” (as we AAG’s used say) and is the biological daddy, he becomes the adjudicated father, Daddy with a capital “D”.

Not only is Daddy now on the hook for a monthly child support obligation, he may also be looking at a minimum of four years of back child support if his child is over the age of four. That back child support will accrue simple interest at the rate of six percent per year until it’s paid off. If Daddy falls behind in making those periodic payments for the benefit of his child, the OAG will be sending him another invitation come to court to deal with every one of those unpaid child support payments. And, here’s the fun part, this new invitation comes with a Go to Jail card. If Daddy fails to come to court, the Court will issue a warrant for Daddy’s arrest and he will be picked up, fitted with one of the fashionable one-size-fits-all orange jumpsuits and the classical brown plastic flip-flops, and brought to court to show off his new silver jewelry.

Daddy will be given the right to be a weekend Disneyland Dad for his child. Daddy will probably be awarded the Standard Possession Order granting him, primarily, odd numbered weekends, two hours during a mid-week day, alternating holidays, and some extended time in the summer months. Remember, the OAG has no dog in the custody hunt and unless Daddy gets an attorney and contests custody or wants more parental rights as in the “normal” case, Daddy gets what the OAG gives him.

Not a pretty picture, is it? For the ostensible pleasure of the initial encounter, Daddy is now facing a lifetime of parental and financial responsibility. But, it’s not your kid, is it? That’s what you lament. Science comes to your rescue because you can request a DNA test that will be used to determine paternity. You get to play the Lottery: if you win, you're not the father and you miss the bullet; ah, but if you lose, you're Daddy forever.

That's not my kid!!!!! Or is it????

Whether it is a divorce action or litigation involving unmarried people, paternity can be a complicated and contentious issue. Telling the mother of the child that you are not the daddy is akin to tossing a live grenade into an ammo bunker; nothing constructive will follow. But before we deal with this fascinating subject of paternity, let’s define some legalese.

Of course, as we have seen in the past, the bible for a Family Law practitioner is the Texas Family Code, better known as the TFC. Since we don’t necessarily establish maternity, the TFC focuses on paternity. Consequently, there are three defined “daddies”. There is the presumed father, who is the husband in a marriage where there are children. This is in line with public policy not to bastardize children. This definition also makes sense….on the surface.

There is the alleged father, and he is the man who is “accused” of being the father of the child under consideration. He could be the man with whom a wife may be having an affair. Or he could the lover, one night stand or the sperm donor of an unmarried woman.

Finally, there is the adjudicated or legal father. After a legal proceeding, the presumed/alleged father is declared the winner of the father lottery. Are you getting confused by all the players?

But how is this done in this time of science? How does the law interface with science to declare the winner? The wonderful world of DNA testing, that’s how. The TFC states that if the result of the DNA test indicates a probability of at least 99%, with a fudge factor of .5, bingo!!! The alleged father is the winner!!! In my experience, most of the probability results have been between the 99.90 % to 99.99 % range. I have tried a case that had a test result of 99.83 % probability which the Judge took to meet the plus or minus .5 variation. However, if the DNA test shows a 0.00 % probability of paternity, the alleged father is not the father of the child.

So, if there is a question about the paternity of the child, there may be a way to eliminate the doubt. That could be very important in a divorce action for purposes establishing the ground of adultery. It can obviously reduce post divorce financial obligations. For a man accused of siring a child with a woman to whom he is not married, a DNA test that excludes him as the father will save him untold financial stress.

Now that we defined some crucial terms, let’s put them into real world context. Where there is a marriage, the TFC presumes that the husband of the wife is the father (presumed father) of any child born during the marriage. As I said, this is common sense. But if there is a reason to believe otherwise during a divorce proceeding, a husband may want a DNA test to make sure. But, the TFC requires a married man to make this request within four years of the birth of the child. If the child is more than four years of age, husband is the dad by law. That means child support, heath insurance coverage, and the opportunity to be the typical “Disneyland Dad.”

When the conception of a child occurs where the parties aren’t married, who’s the father? Since there is no presumed father, there is no legal father. Without a legal status, Daddy here has no rights OR support responsibilities. Momma gets no child support. This may lead to a request for the State to provide financial support in the form of TANF. The State doesn’t like that, and the Office of the Attorney General gets involved. But the involvement of the Office of the Attorney General into your personal life is the topic of another article and I will publish that before the end of this month.

Paternity is a critical issue in family law cases. It can tear a marriage apart. Even where there is no marriage; paternity is part and parcel of the drama and emotion that visits the family law courthouse every day.

He Can't Divorce Me! I Don’t Want a Divorce!

I’m sorry to have to tell you this, my dear; but, yes, he can. And he doesn’t even have to prove that you’ve committed some kind of fault. “That’s not fair,” you exclaim! As a judge I know would say; “There is no place in my court for the ‘F’ word, because here we follow the Texas Family Code.”

Before we deal with the “F” word, we must recognize that a divorce is a lawsuit in its simplest terms. It has at least two parts. First, there is the ground for the divorce, the reason to justify granting it. Secondly, once the ground is proved, issues involving the child, if any, are considered. And finally, the issues concerning property and debt require and deserve attention.
But, you still ask why he thinks he can get a divorce even if you don’t want it. The answer is very clear because Texas is a no-fault state. That means that there is no requirement by a party to prove any of the fault grounds in order to prove his reason why he should be granted a divorce. Some states refer to this no-fault ground as irreconcilable difference or conflict of personalities. However, the Texas Legislature calls this no-fault ground “insupportability.” So, in order to” prove” this ground, an experienced family law attorney will have his client answer the following questions:

1. Has your marriage become insupportable due to conflict or discord of personalities that tends to destroy the legitimate ends of a marriage relationship? The answer is “yes.” But what does this really mean? It means that he can’t get along with you. He can’t find any common ground with you on the matters that are important to him. You two have become, in his mind, two totally different persons and have grown so far apart that there is no hope of returning to the place that you both were. It’s as if he woke one day, rolled over and looked at you and said to himself, “I don’t like you or your values or what you think or your character.” (These represent my opinions on this matter. Surely there are shrinks out there that can give you more studied and sophisticated answers. I only know this from personal and professional experience.)

2. Is there any reasonable expectation of reconciliation? The answer is “no.” This really means that he is not willing to reconcile. Unfortunately, you can’t force him to reconcile or even try. To do so would be like pushing a wet rope; it can’t be done.

These questions aren’t up for discussion by you, and these questions aren't asked of you. At this point, it’s all about him. The questions and their answers are from his point of view; not yours.
But why does this no-fault ground exist in the first place? Public Policy. Because the legislature decided thirty-nine years ago that that the public was best served not to force a person to remain in situations that a person doesn’t want to continue. To do so may cause such a person to resort to more drastic and serious means to get out of that situation. That may be melodramatic, but there is also the emotional price of alleging and proving a fault ground like adultery or cruelty. That was viewed as being far more devastating on and painful to the litigants than a no-fault divorce. There is some validity to these thoughts in theory, but how much devastation and pain has been prevented by the benevolent governmental implementation is hard to measure. In my estimation and from my professional experience, little of that devastation and pain has been alleviated by no-fault. A divorce is still granted. A family is still torn apart. Dreams are shattered. Lives --- both adults and children --- are forever changed.

If you are served with divorce papers and exclaim that it’s not fair, you are right, it is not fair. But you also need to realize that it is in all likelihood going to result in a final divorce. You need to begin to concentrate on protecting your children, your property, and yourself. But most especially, you need to contact and hire a good, competent family law attorney who will treat you with respect and tell you the truth about this divorce.

Are you ready for a divorce? Part II

Are you ready for a divorce? But first, did you say “I do?”

After considering the facts in your case, you’ve either decided to file for divorce or, that’s already been decided for you since your spouse was just as unhappy, dissatisfied as you. In any event, there is a divorce in your future.

After you’ve chosen your attorney, one of the first questions that he should ask is: “How long have you lived in Texas?” This crucial because in order for a Texas Court to hear a divorce action one or more of the parties has to have lived in the State for at least six months and in the county for 90 days; this is called Jurisdiction and without it, the court does not have the power to hear a divorce case. Because of the jurisdiction issue, if you, your spouse, or even your child has not been in Texas for that magic six months, you will have to wait until that period of time has been met. There are some exceptions, but those are rare and very fact specific involving military personnel.

The second question is: “Are you married?” It seems simple that the answer would be assumed and obvious. But the truth is that that are two types of marriages recognized in Texas. The Formal Marriage is the most obvious and prevalent type. It’s the one where there is a formal wedding ceremony ranging from the “Cecil B. deMille” church or religious wedding production with the cast of thousands to the Informal Marriage. The latter is referred to generally as the “Common Law Marriage. Both the Formal Marriage and the Common Law Marriage are recognized as valid, legal marriages. Most family law attorneys are well versed with the differences because there are distinct, special issues arising in the case of the invalid Informal Marriage as opposed to the Formal Marriage.

I went to Law School in the 1970’s at the height of the Love Generation with its chants of “Make Love, Not War” and “Free Love and Nickel Beer”. The social mores were changing during those times, and cohabiting with the opposite sex was becoming more commonplace and open than ever before. I surmised in my then intellectually superior state as a Law Student that the only way out of a bona fide Common Law Marriage was by a legal divorce. The status of the law at that time fairly well supported that position with one case holding that an overnight stay in a motel room as Mr. and Mrs. Jones was sufficient to prove a Common Law Marriage with all the rights and duties appertaining thereto. Thus, I supposed, living together without the benefit of the license could create legal obligations that may not have truly fit with the scheme of “Make Love, Not War” and “Free Love and Nickel Beer”. Some call it the Doctrine of Unintended Consequences.

The law has progressed since then, and the proof of a Common Law Marriage is far more problematic now than in the early1960’sand 1970’s. However, parental rights and duties and the disposition of property interests are affected quite differently in situations where the Common Law Marriage is really a “live together and not be married” situation where there is no present intention to being married. The issues about children concerning paternity, custody and child support can turn on whether or not the parties were ceremonially married. Whether or not the parties were legally married can dramatically affect the characterization of property and therefore how it will be divided.

So, the second question is more than perfunctory; there is a legitimate concern that only an experienced family law attorney can answer.

Are you ready for a divorce?

The family has just relocated here to the Metroplex from… wherever. You and your spouse were having marital problems or maybe you were feeling unhappy or unfilled in the marriage. In any event, things were just not right. You were hoping that a new surrounding would make for a fresh start, a new beginning. But, family problems, like most problems, aren’t cured by a change in scenery. The same problems still exist and are only getting worse. In your mind, divorce is the only solution to your problems. But what do you do?

First, divorce is a very serious matter and should not be considered just because of a bad mood or an emotional hiccup. A divorce is a very personal matter. It is going to destroy a longstanding relationship not only the one with your spouse but probably the one with her --- and your child’s --- extended family. It may even severely strain the one with your own family. I guarantee it will disrupt the life of your child on a grand scale and in ways you will not understand for years. During all of the turmoil, a child can get lost. Life as you know it will change in an absolutely dramatic way.

A divorce will change forever your relationship with your child. In Texas, when dealing with children’s issues, we now use terms like “conservatorships,” “parenting plans,” “access agreements.” But these are nothing more than politically correct terms for custody, visitation and possession schedules. Joint Custody is always the mantra of most dads; however, the Texas Family Code does not contain that phrase. Child support, literally, deals with dollars and cents as it relates to the child. (But, this money is not the child’s money; more on this later.) That can be problematical because if it’s true that two cannot live as cheaply as one, it’s definitely true that two can’t live any cheaper when they are divorced. Clearly, this is the most contentious issue in any family law case.

Property and assets are going to be divided, often in a manner that you are not going to like. Texas is a community property state. That simply means that what’s yours is really half your spouse’s and vice versa. The definition of community property is any property that was acquired during the marriage is jointly owned by the spouses. So, any attorney who does not tell you about these things should be avoided like the plague!

If you are thinking about a divorce, you need to speak with a lawyer who well versed in family law and understands not only the law but also the emotional upheaval that a divorce will necessarily create.