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.