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

When hospital staffers ask fathers to sign the form, the paperwork cites DNA testing as an option, but young, unwed fathers are unlikely to request it in front of the mother and her family.

Hanschen's second problem with the Child Support Division procedures arose last summer, when he heard about a case in which a man, ordered to pay child support, said he hadn't gotten notice of the proceedings against him. By law, the attorney general's office may notify presumed fathers of these proceedings with a first-class letter instead of personal service by a constable, deputy sheriff or process server. If the man doesn't get the letter—for example, if his address has changed—and fails to show up for court, a default judgment is entered against him, and he can no longer contest paternity or the amount of child support.

These letters, Hanschen says, are not adequate notice. "The Family Code laws are in conflict. One says you have to be served by a process server, with instructions to let you know this is serious stuff, as opposed to a one-page letter that says, 'Come down and talk,'" he maintains. "To give people proper due process rights, you have to give them proper notice."

Strickland, however, says the Child Support Division does in fact serve most presumed fathers by a constable or sheriff. But men often dodge service. "Obviously there are non-custodial parents who are not living up to their responsibility," he says.

Yet Hanschen isn't the only judge who has problems with the division's efforts to notify presumed fathers. Family court Judge Tena Callahan, who also came to the bench in the Democratic sweep, says she's had several child support cases with the attorney general's office in which inadequate notice has come up. "It's a problem," she says. "The presumption is they get [the letter], but sometimes they don't. And next thing they know they're getting child support taken out of their paychecks."

Whether men feel wronged by inadequate notice, misguided legal principles or dishonest mothers, those who find themselves paying for children who aren't theirs can turn to advocacy organizations that fight what they call paternity fraud. Carnell Smith, founder and executive director of Georgia-based U.S. Citizens Against Paternity Fraud, organized the group after discovering that a child he'd supposedly fathered with a former girlfriend and supported to the tune of $40,000 over 11 years wasn't actually his. The U.S. Supreme Court declined to hear his case, but Smith finally was relieved of the financial burden by legislation, which he has successfully spearheaded in several states—including Georgia—that allows men to use DNA tests to disprove previously acknowledged paternity.

Smith says thousands of men across the country have contacted him since he started the group in 2001, but he also hears from women, mostly the wives of men wrongly paying child support.

Dallas resident Belinda Odum-Gaston founded Texas Families Against Paternity Fraud after a lengthy legal battle to free her husband of financial responsibility for a child he didn't father. He had signed an Acknowledgement of Paternity after a woman with whom he'd had an affair claimed he fathered her son.

Odum-Gaston received a statement showing that the attorney general's office was seizing their joint tax refund to pay child support—her first indication that her husband had engaged in an affair and fathered a child. She confronted her husband, who had little contact with the child, and convinced him to get DNA testing. After test results revealed her husband was not the biological father, Odum-Gaston hired a private investigator to track down the real father and confirm his paternity.

"I was devastated [by the affair], but I was more devastated by how my husband was played," Odum-Gaston says. "I can't do anything about what two consenting adults did, but I damn sure can do something to protect the estate I've worked to accumulate."

Though the attorney general's office fought review of the case, the couple hired an attorney. They were relieved of the child support obligation, winning a $4,000 judgment against the mother.

To avoid such entanglements, Smith proposes that paternity testing be required before presumed fathers sign anything. Opponents say it would reduce fatherhood to biology alone and ruin family stability by allowing men who have already established fatherly relationships with children to disappear from their lives.