By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
By Eric Nicholson
A mounting struggle over the collection of child support recently came to a head between Dallas County family court judges and the Texas Attorney General's Office.
In mid-February, the office's Child Support Division ordered some 2,300 child support cases diverted from Guardian Ad Litem, a private, court-appointed child support collection company. The state claimed it had to take control of the cases in order to comply with federal law and avoid losing $300 million in federal funding used to enforce child-support obligations to parents on public assistance.
Robert O'Donnell, owner of the McKinney-based company, filed a temporary restraining order in an attempt to prevent the office from seizing the cases. The order was filed in the court of family Judge Lynn Cherry, who says the private Guardian Ad Litem enforces child support obligations more efficiently than the attorney general's office.
"I use the Guardian Ad Litem program in more difficult cases because they get the job done," says Cherry, who worked as a divorce lawyer before taking the bench in 2006. "GAL starts collecting much quicker and stays on top of it." In contrast, the beleaguered state bureaucracy's slow pace often results in parents accumulating tens of thousands of dollars in back child support, she says. "I understand it's a big operation," she says, "but your normal person, how do they pay out $50,000 plus interest?" Cherry was determined not to allow the wrangling between the company and the state to affect families. "I issued a temporary restraining order against the attorney general's office for not complying with the court orders. They decided to arbitrarily take over, and it's inappropriate for a state agency to arbitrarily take over."
Yet Jerry Strickland, attorney general's office spokesman, says there is nothing arbitrary about the state's effort. "The Child Support Division's goal is serving Texas families within the confines of state and federal law," he wrote in an e-mailed statement. A 1996 federal law requires private child support collection firms to get written parental consent before claiming and disbursing payments, and Strickland points out that more than a decade later, "GAL continues to deem itself above the law." O'Donnell, though, says he'd already collected nearly 2,000 consent forms by February 15, when the state moved to seize the cases. As O'Donnell and Judge Cherry fought the order, the attorney general's office slapped Cherry and the other family judges with a mandamus—an extraordinary judicial order that in this case was intended to require the judges to remove Guardian Ad Litem from 2,300 court-ordered child support judgments.
The Texas Attorney General Office's Child Support Division has been recognized for leading the country in child support collections, with $2.3 billion in the 2007 fiscal year, and Attorney General Greg Abbott touted the office's pursuit of deadbeat dads in his 2006 re-election campaign. Yet Cherry and other family court judges say Guardian Ad Litem is often a better alternative to a state office that faces the classic problems of any large bureaucracy—an overwhelming amount of work, an unwieldy staff and a stubborn reliance on layers of procedure that handicap the state's ability to help poor, single mothers.
O'Donnell, who started Guardian Ad Litem in 1986, says the attorney general's office is engaging in a "witch hunt" against him in order to shutter his business. "They want me gone," he says, pointing out that the state office receives federal funding based in part on the amount of child support it collects. "It's all about the money. It's expanding the bureaucracy."
Strickland, the attorney general's spokesman, says that claim is untrue because regardless of whether payments are made through the GAL or directly to parents, they're included in federal funding calculations.
Today's power struggle between O'Donnell's company and the attorney general's office goes back nearly a decade. O'Donnell, the son of a retired district judge, in 1985 designed software to track child support obligations and began a pilot program for automated enforcement. He began with 300 cases and raised the compliance rate from 30-40 percent to around 90 percent in one year. He'd planned to sell his software to the state but wound up building his own business when family judges started to appoint him to track missing child support payments. Formerly called Child Support Systems Inc., O'Donnell's Guardian Ad Litem charges non-custodial parents a flat $10-per-month fee for collecting payments, instead of the 30 percent levied by most private collection agencies.
"The program proved itself under the direction of the family judges," O'Donnell says. "We had a great relationship with every attorney general from [Jim] Maddox to [John] Cornyn." By the mid-'90s, his agency was managing some 22,000 cases in Dallas and Collin counties and boasted an 87 percent success rate in securing and disbursing child support.
The legal sparring began in late 2002, when citing amendments to the family code, the state notified O'Donnell that he would no longer receive any cases or payments without first having parents sign documents giving their consent. O'Donnell argued that he already had their consent as part of the divorce decrees. He sued Abbott's office in federal court, accusing the Child Support Division of intercepting child support payments and refusing to forward them and the corresponding fees to his McKinney office.
By 2005, the legal deadlock was affecting children and families. "A shocking lack of support," read a Dallas Morning News headline in February 2005. "Firm's legal war with AG disrupts child payments." The problems that resulted from the shuffling of paperwork and payments between the office and the company ranged from late or absurdly low checks to jail threats for parents wrongly accused of missing payments.
U.S. District Judge Lee Yeakel sided with the state in September 2005 and ruled that the divorce decrees didn't constitute parental consent to collect and disburse payments. The ruling was upheld on appeal in 2007. Following the decision, O'Donnell says, he asked Alicia Key, director of the Child Support Division, for a list of cases that involved her office so he could get the required consent from the parties. She refused, he says.
But according to Strickland, the division did agree to provide the list, and while GAL had collected consent forms from 950 families as of March, the company was still attempting to collect payments for 1,200 parents without written permission.
O'Donnell, however, says his staff worked to ferret out the cases that involved the attorney general and by early this year had collected nearly 2,000 consent forms, but the attorney general's office declared it was taking immediate control of the 2,300 cases his firm had been appointed to enforce anyway. According to O'Donnell and Judge Cherry, the move will disrupt payments and keep children from getting what they need (though the office claims the opposite). When Cherry scheduled the hearing on O'Donnell's request for a temporary restraining order, she expected the office would send one or two local attorneys. Instead, the state flew seven attorneys up from Austin in a private jet.
"It was highly unusual," she says. "Did it really take a dozen people to fly out here from Austin to reset a hearing? That's our tax dollars not at work."
As Cherry sought to block the office's effort to divert the cases, she found herself the target of a mandamus, along with the other judges who have appointed Guardian Ad Litem. The state requested that O'Donnell's firm be removed from "all child support orders in Dallas and Collin counties that require payment be remitted to Guardian Ad Litem" and requested they stop appointing the firm. The 5th Court of Appeals denied the mandamus on February 28. The attorney general's office appealed to the Texas Supreme Court, and briefs are due to be filed in May.
In the meantime, Cherry has scheduled a meeting with attorney general higher-ups on April 17 to come to an agreement so that families aren't left waiting for their child support. Cherry, calling the office's efforts an "an infringement on the autonomy of the court to enforce its own orders," says the parties shouldn't wait for the Supreme Court to resolve the issue. "Frequently it takes a long time for the Supreme Court to come back with rulings, sometimes even years," she says. "What are we going to do—blow off court orders for years?"
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