By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
By Eric Nicholson
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."
UT's Sampson says the appellate courts have spoken to the issue and have consistently upheld the four-year limitation. And that is precisely what the 5th Court of Appeals did on January 16, when not two days after Hanschen ruled, Justice Wright stayed his order for testing. And then 10 days later, after the appeals court learned the DNA test already had been conducted, the appeals court ordered the results sealed.
On March 12, a panel of justices agreed with the attorney general's position that Hanschen had gone too far by ordering the testing.
"[A]lthough the judge's position is that there should be no statute of limitations on the truth and it's in the best interests of the children to know who their father is," wrote Justice Douglas S. Lang, "such determinations are a matter for the Legislature, not the trial court."
Hanschen counters that if a trial court fails to make a declaration about a law's shortcomings, there's no way for a higher court to review it. Hanschen might find himself in a position to review the issue if it comes up in a subsequent case; he is running for a seat on the all-Republican 5th Court of Appeals in the November election.
One Dallas family lawyer finds Hanschen's actions "regal" and "ego-driven," while maintaining that most lawyers who have considered the subject feel the four-year statute of limitations is bad law. "But it is the law—and Hanschen is saying, 'I don't like it, so I'm just not going to follow it,'" the lawyer says. "He's set himself up as above the law."
Whether Hanschen is a principled jurist or a rogue judge, he is drawing attention to a controversial area of law that impacts millions nationwide. "You've got a judge sitting up there saying, 'Hey, there's something wrong here,'" says Marr, of the Family Law Foundation. "It highlights the seriousness of the issue, and the problem isn't going to go away just because there's presently a gotcha clause in the law."
In mid-February, rumors began spreading in the courthouse that the attorney general's office had it out for a couple of the district judges. Hanschen heard that higher-ups within the Child Support Division had begun collecting affidavits about him. So did Judge Cherry, who also had clashed with the attorney general's office over child support issues.