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Troubleshooting Your Case
"I never married the mother, but I want to have a relationship with the child"
Rx: Petition to Establish Parental Relationship filed in family court, with an Order to Show Cause hearing re custody and visitation. a supporting declaration with all the concerns about the other parent and the benefits that the client has to offer the child. Set matter for Family Court Services consideration, attend the hearing thereafter, and ya rolls ya dice and ya gets ya order. watch out: the assumption always made by the client in cases like this is that there is no doubt that they are the father. If a petition like this one is brought, then the mother may admit the paternity, and no dna test is ever ordered. It is a terrible thing for a mother to collect child support for years, deny a father access to the child by moving away or otherwise frustrating visitation, then informing the "father" 15 years later that he’s not the real dad but that she thoroughly enjoyed his money over the years! What should I do about that? Maybe a better solution is to file the petition to establish asking for a dna test right up front. It will create friction from the outset to distrust the mother of your child in this manner, but will solve the problem once and for all, right up front.
"The District Attorney is garnishing my wages for child support, and I don’t even know if the child’s mine!"
Solution: Frequently, a default judgment has been taken on such cases without the client having any idea it was going on. The papers were frequently unserved, or went to an address where the client was no longer living. In such cases, a motion to set aside the default under CCP 473.5 is appropriate, and will often be unnecessary if the District Attorney will send the matter to the "default review" team. Demand a dna test, and be ready to show up and give blood. If you are excluded as the father, then you owe nothing and will not even have to pay for the blood test. If you are not excluded (usually with a 99% chance of paternity) then you will not only lose your paternity case and owe support, but will also have to pay for the test. If there’s no default yet taken, then simply file an answer to the petition denying paternity and demanding a blood test. The garnishment: Usually, this will go on during the pendancy off the case, with the money held by the District Attorney in case paternity is proven. All the money will be released to the client if paternity is not proven. It’s always best to tackle the case before the garnishment has issued, but with faulty service of process the District Attorney doesn’t always give you a chance.
"They’re claiming I owe a lot of money in child support arrearages, but I wasn’t always working during the years I didn’t pay"
If it was a default judgment that the order was based on, then there exists a possibility of setting the default aside on a number of grounds, one of which is "excusable neglect". If the "default team" doesn’t cooperate in setting it aside, then an attorney will be your best bet.
If there was no default, and you were aware of the order, then the judge will not retroactively modify the child support to suit your financial ability (or lack thereof) to pay at the time the arrearage accrued. It’s against the law for a judge to modify child support retroactive to a time prior to the moving party (you) first filing a motion to modify support. That’s the bad news, gentlemen, because it puts the entire burden on the person who just lost their job to incur the cost and effort required to change an order, at a time when money for counsel is least available. Knowing how to bring this basic kind of motion yourself is a valuable skill that few men have.
" . . . but she told me that I could pay a lot less child support when I wasn’t working, and now she’s trying to say that I owe the whole amount!"
Ordinarily these oral agreements are worth the paper they’re written on. Nothing at all. Remember, these are adversarial proceedings, and what you thought was an agreement will probably no longer be considered an agreement by her when it comes time to collect. It will be your word against hers. If she can say it verbally, she can write it down. If she can’t write it down, then she’s lying. It’s really that simple. Don’t be satisfied with an oral agreement in matters of child support. Ever. HOWEVER: For those of you that cannot travel back in time and handle things differently now that you are older and wiser, there does exist a doctrine of law that in some rare cases has been applied to retroactively relieve a person of support arrearages in rather extreme cases. Where a promise has been made, and there is believable evidence that this promise actually occurred, then promissory or equitable estoppel can keep the moving party from collecting their arrearage. The court must find that because the person entitled to receive payments under the court order promised other party that less payments would be required, and that the person hearing that promise relied on it in making the decision not to bring a hearing to modify the child support order, then the court may conclude that it is unfair for the person who reneged on the promise to bring a motion to collect at all. In this manner, the judge completely avoids the rule against retroactive modification by NOT changing the order itself, but rather by refusing to hear the motion to collect on the old debt! Judges can be pretty tricky in making a fair outcome occur, regardless the usual law, when the exact right evidence is placed before them. Again, the better practice is to get your agreement in writing, as the estoppel argument frequently falls on deaf ears.
"The District Attorney’s filing a lien against me, taking my driver’s license, and intercepting my tax returns"
Yes, they are. Those are among the many means of enforcement that the District Attorney’s office has that we regular attorneys do not have. Here’s the standard settlement offer to reinstate a license: pay 10% of the outstanding debt, make payments that are larger than the monthly accumulating interest, and you can have your license back. If its for nonpayment of ongoing support, you’ll need to voluntarily make a few month’s payments before you bother to ask for reinstatement.
They will still intercept your tax return, so you might stop and consider why you’re deciding to overpay your taxes in the first place. The second time they intercept your tax return, who’s fault is it? Only the truly devious thinkers find ways of incorrectly filing their taxes when they think a refund might be intercepted. See, if taxes are inadvertently overstated then the IRS doesn’t send them a refund at all. Then the following year, they underpay the next year of taxes in an amount about equal to the previous year’s overpayment, and refile the error on the previous year so that they owe nothing and get no refund. Not that I want anyone to avoid the enforcement of our laws, regardless how legal that avoidance might be.
The lien is standard, it’s not for any predetermined dollar amount, and there’s nothing you can do about it. if you’re selling your home, or buying another, then you’ll need a statement from the District Attorney that your child support is current, and your title insurance and escrow people will know what to do. I’ve handled dozens of these transactions, and if you’re paid up, you’re going to be delayed, but OK. If you’re not paid up, then you’ll need your new love interest to qualify for that new house loan without you. Welcome to your next legal problem, unless you make sure that she signs and notarizes a deed from herself to the two of you jointly, which you can hold unrecorded until the financing clears.
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