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Family Court Judge Sheds Light on Unfair Child Support Practices in Texas

Continued from page 4

Published on April 03, 2008

But to Hanschen and fellow family court judges Cherry and Callahan, the so-called family integrity protected by current law is often nonexistent. "What kind of integrity does this family have when someone is perpetrating a fraud against someone else?" Callahan says. "The law doesn't seem to care." Cherry agrees, saying more access to paternity testing would cut down on fraud and give judges more discretion to determine what's best for families on a case-by-case basis. "You may have a father who says, 'I don't care if he's not mine, he's my baby,'" she says. "But if there's a question, especially when there's misrepresentation and fraud, to slam the door shut [on paternity testing] is an injustice."

"I think the child has an innate right to know who his biological parents are," Hanschen adds, pointing out the importance of genetic testing for health reasons such as identifying hereditary diseases. "Part of the Family Code is that the child's interest overrides everything—I can't figure out how it's in the child's interest to lie to him about who his parents are."

Jack W. Marr, president of the Family Law Foundation, which lobbies lawmakers on family law issues, says presumptive fatherhood bears re-examination by the Texas Legislature. In a one-year period between 2005 and 2006, he says, at least eight cases in which presumed fathers turned out not to be biological fathers were sent to appeals courts statewide (Hanschen points out that since most of the division's cases involve indigent men who can't afford a lawyer much less an appeal, the number of contested cases is likely much higher). "That tells me that in Texas there's a serious problem that needs to be addressed," Marr says. "We're trying to solve it."

Recent legislative attempts have been unsuccessful, but the House Committee on Juvenile Justice and Family Issues is slated to address the problem in the next legislative session. In the 2007 session, Houston state Representative Harold Dutton Jr. wrote a bill that would have made DNA testing available to men in divorce cases, ordered non-biological fathers to pay no more than $100 per month and allowed them to maintain relationships with children without necessarily being financially responsible for them. The bill died in the State Senate.

For now, Marr says, his group has agreed to wait on the "sticky wicket" of married men and focus its efforts in the next session on resolving the notice issue by requiring personal service of process. "The whole thing is based on expediency for the attorney general's office. They don't want to serve people personally," Marr says. "We're going to address situations where there are defaults and allow these people to come in and get DNA testing."

————

The way Antonio found out about his wife's child support claim was fairly haphazard. He was digging through a pile of mail at his mother's house last August when he found a letter from the Office of the Attorney General's Child Support Division. It instructed him to appear in court the following week. He was surprised and angry. Because his wife hadn't let him see the children in nearly two years, he says, he tried visiting them in school. But they were in class, so he left $2,000 with administrators to give to them.

"After all this time not knowing about the kids, she files for child support?" he says. "I was upset."

On August 30, he appeared in IV-D court, and after Antonio raised the question of paternity, Judge Finn ordered DNA testing. The attorney general's office appealed the order, which would become relevant again when Antonio's wife filed for divorce in September. Her attorney declined to comment because the case is ongoing.

Antonio hired his own attorney, Kathy Ehmann-Clardy, and on January 14, they appeared before Hanschen on the issue of DNA testing.

Ehmann-Clardy figured that they had a decent chance of winning: She'd been involved in a similar case where Hanschen ordered DNA testing for a divorcing father who had a relationship with his presumed children.

Hanschen didn't disappoint. "It is clearly in the children's best interest to know who their father is," he announced from the bench. "It is clearly in the state's best interest to know who the father is so the correct person can be paying child support...Testing ordered immediately."

In an interview, Hanschen would argue that current law doesn't give fathers equal protection and requires that a court enforce "a lie" when the truth is just a lab test away. "I'm bound to uphold the laws of Texas, unless I find them to be unconstitutional," he says. "People get all upset about the term 'activist judges'—we're not making up laws here, we're saying there's a problem...and we need the appellate system to sort it out for us."

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