Child Support
Criminal Nonsupport Handbook


Pretrial Considerations
Conclusion

Finding a case that meets the elements of a criminal nonsupport charge is not difficult. Getting a grand jury to indict a defendant in such a case is also not difficult. However, there are other considerations, issues, and arguments of which a prosecutor should be aware.

This section addresses the major reasons or defenses raised by defendants and their counsel, and the appropriate answers, reasons, or justifications.

I didn't receive notice of the paternity suit.

Suits to establish paternity are subject to the same rules of service as any other civil proceeding. If an obligor did not receive notice of the paternity suit, then a bill of review is the appropriate mechanism for attacking the underlying order.

If the underlying paternity order was a default, the OAG is very cautious about proceeding against the obligor in a criminal nonsupport case. The OAG will have brought the obligor to court at least once before proceeding to criminal prosecution, so the prosecutor will not be presented with default issues.

It's not a real order; it's just from the OAG.

Child support orders can be issued in an administrative proceeding initiated by the OAG, called the Child Support Review Process. [TFC § 233] These administrative hearings are usually held at an OAG office although hearings by phone are becoming more common. An OAG employee, called the child support review officer, works with the parties to determine the facts and reach an agreement. Parties can request paternity testing and can present evidence regarding the appropriate amount of child support. Parties do not have to participate, but the OAG can still issue an order, which is signed by an AAG. Before an order is binding, it must be approved by a court. [TFC §§ 233.024, 233.0271]

If the parties agree, the OAG submits the order to the court for approval without further notice to either party. If the parties do not agree, the OAG files a petition to confirm the order. The non-agreeing party has the option of requesting a hearing, which is a trial de novo regarding the non-agreed sections of the order. §233.025(b).

It's not my child.

A criminal nonsupport case is neither the proper time nor the proper place to make such an argument. If the OAG presents a prosecutor with a case, the obligor's paternity has already been established, either by execution of an Acknowledgment of Paternity or by an adjudication in a paternity action. Under res judicata, these findings may not be collaterally attacked in a criminal nonsupport case. [In re E.L.P., 636 S.W.2d 579 (Tex. App.–San Antonio 1982, no writ)]

I want (or wanted) a blood test.

At the time paternity is established, the OAG encourages potential fathers to have a paternity test if there is any question that the child may not be theirs. If the paternity test shows that the child is not biologically related to the alleged father, there is no charge for the paternity test. Once again, res judicata applies.

The OAG no longer uses blood to conduct paternity testing. Instead, the inside of the cheek is swabbed to collect samples of buccal cells which are then tested. This procedure is non-invasive and painless. The DNA in the buccal cells is the same as the DNA in blood or any other tissue sample and yields the same results without the safety concerns connected with needles and blood samples.

The order was unclear; I didn't know what to do.

This is a Slavin challenge from Ex parte Slavin, 412 S.W.2d 43 (Tex. 1967). In it, the Texas Supreme Court held that for a person to be held in contempt for disobeying a court decree, the decree must spell out the details of compliance in clear, specific, and unambiguous terms so the person will readily know exactly what duties or obligations are imposed upon him. [Slavin at 44]

The OAG is well aware of the requirements of Slavin and its progeny. Since the OAG will almost always seek contempt of court before criminal nonsupport, this issue will have already been addressed, and the prosecutor will not receive a case with Slavin issues.

The records are wrong; I paid the other parent in cash.

Standard child support orders require that child support payments be made through either a local registry, or the State Disbursement Unit (SDU). [TFC § 154.004] Most orders state that the child support obligation may be met only by payments as prescribed and that any other payment or remuneration is treated as a gift. The OAG is required to investigate any discrepancy between the payment record of the SDU and the records of the parties. The person claiming a discrepancy must provide documentary evidence of payments. TFC § 234.0091]

The other parent doesn't spend the money on the child.

The nature of child support is well-settled. The Texas Supreme Court held, in Williams v. Patton, 821 S.W.2d 141 (Tex. 1991), that the characterization of past child support as mere reimbursement for amounts already expended oversimplifies the true situation. The function of child support is to help a custodial parent maintain an adequate standard of living for the child. When child support payments are not made, the result is a loss of funds available for the child's food, clothing, education, and home environment. Characterizing arrearages as nothing more than a debt owed to the custodial parent ignores the reality that the child is frequently the one who has been harmed by the nonpayment. The payment of arrearages compensates for the wrong to the child at least as much as it reimburses the custodial parent for monies spent on the child. [Williams at 145]

The Trust theory is based on Bailey v. Bailey, 987 S.W.2d 206 (Tex. App.–Amarillo 1999, no pet.). In this case, the Court of Appeals held that child support payments might constitute a hybrid express trust for the benefit of the child, but the Court was specifically addressing a requirement that $100 of a party's child support be deposited into the registry of the court, which is unique in its facts.

Any arrearage belongs to the custodial parent, who has the right to enforce the obligation. [TFC § 151.001(c); Office of the Attorney General v. Carter, 977 S.W.2d 159 (Tex. App.–Houston [14th Dist.] 1998, no pet.)] That right may be exercised through civil or criminal proceedings.

The other parent and I have an agreement that I don't have to pay child support.

An agreement to modify the terms of a court order is void unless reduced to writing, presented to the court in the form of an agreement, and approved by the court. [Rogers v. Griffin, 774 S.W.2d 706 (Tex. App.–Texarkana 1989, no writ)]

I never get to see my child.

This is an unfortunate situation, but it is not a defense for failure to pay child support. TFC § 154.011 makes it clear that support and visitation are not connected.

My employer is withholding child support but not sending it in.

The obligation to pay the child support remains with the obligor, regardless of whether a wage withholding order is in place. The failure of an employer to remit child support withheld creates liability on the part of the employer. [TFC § 158.206] The OAG actively pursues employers in these circumstances. If the obligor has complained of this situation to the OAG and it has not been resolved, the OAG will not submit such a case to a prosecutor.

If the obligor's payment record was so bad, why didn't the OAG ever request more than 180 days in jail?

Contempt of court for failure to pay child support is a quasi-criminal proceeding. Obligors have the right to an appointed attorney and cannot be made to testify against themselves. Obligors are also entitled to a jury if there is a possibility that they may be held in punitive or criminal contempt and sentenced to more than 180 days. Because of the OAG's massive caseload, we find it more expeditious to pursue only up to 180 days.

Conclusion
The excuses and rationalizations that obligors think up to justify their failure to support their children are as varied as the needs of the children. This section covers some of the most frequent ones. When the prosecutor accepts a case from the OAG, the AAG assigned to the case can address any "new and creative" theories raised by the defendant.


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Revised: May 06 2010