April 18, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
This is the story of a child support case gone crazy. It’s another in a long line of exhibits offered to prove the anti-father bias of the child support system, including that of trial courts and state enforcement authorities.
It began simply enough. Ryan West married his girlfriend in 2000; they had a daughter, Alanna, in 2005 whom they both loved dearly and to whom they provided good parenting. But when Ryan came to believe his wife was having an affair with her boss, he filed for divorce and custody of Alanna who was seven.
Ryan had always been an involved and loving father, and, since his ex-wife didn’t seriously contest custody, Judge Margaret Barnes of Denton County, Texas approved their agreed order giving him primary custody and Alanna’s mother ample parenting time – about 33% of the total. The two went their separate ways.
But, after just 13 months of living under the parenting plan she’d agreed to, Ryan’s ex went back to court seeking primary custody of Alanna. Now, as in many other jurisdictions, in order to change a custody order in Texas, the moving party must prove a change in circumstances sufficient to warrant disrupting the existing order and the child’s life. Had things really changed so much in just 13 months as to require a shift in custody?
Judge Barnes appointed a licensed social worker, Toni Sutton, to find out. Sutton investigated the matter, including interviewing not only Ryan, his ex and Alanna, but various friends, relatives, boyfriends, girlfriends, etc. Sutton recommended to Judge Barnes that Ryan continue as primary caregiver to Alanna. That meant that he and his ex would be Joint Managing Conservators (Texas’ term for joint custody), but that Ryan would have sole decision-making authority over where Alanna lives and goes to school. Plus, the child would live with Ryan about 67% of the time. In everything else, the two parents would be equal.
In other words, as Sutton saw it, what had been the case under the existing order should continue. Judge Barnes apparently agreed, because her new order did substantially what Sutton recommended. All’s well that ends well, right?
Not so fast.
At a telephone conference in April, 2015, Barnes announced out of the blue that she would be awarding child support, not to Ryan, but to his ex. Yes, he was the primary custodial parent, but, according to Barnes, he should have to pay child support to the person who, rationally, must be considered the non-custodial parent. Plus, Barnes never found that any change of circumstances had occurred, a prerequisite for modifying the order, but she modified it anyway.
That the issue of child support came up at all is strange in a number of ways. First, the motions to modify the original order never mentioned child support, nor were they orally amended in any hearing before the court. Neither parent had asked for an award of child support.
That’s vital because perhaps the most basic of all due process concepts is that a litigant must provide notice to the other parties of what is being requested. Otherwise, they can’t know why they’re in court or what they’re being charged with/sued for. Second, in order to prevail, a litigant must offer both pleadings that give proper notice of the person’s claims and evidence to sufficiently support them. Again, that’s basic due process law.
Ryan’s ex did neither. She neither pleaded nor proved any claim for child support. But Judge Barnes gave it to her anyway. That’s strange, but the case got stranger.
Previously, Ryan’s ex-wife had given a deposition in the case, in which she provided the following testimony:
24 Q. Since your divorce have you been employed
25 anywhere else?
A. Yes, I have.
2 Q. Where?
3 A. I was employed at YP, LLC.
4 Q. What is that?
5 A. Yellow Pages. Subsidiary of AT&T.
6 Q. What did you do for them?
7 A. I was a telemarketer, commission-based sales.
8 Q. And how long did you work for them for?
9 A. Approximately six months.
10 Q. When did you begin employment at WP, LLC [sic]?
11 A. December 2012.
12 Q. And when did you stop working for them?
13 A. June 2013 or May 2013. I'm not sure exactly.
14 Q. And why did you stop working for them?
15 A. I was unable to spend enough time with my
16 daughter with the commute. It was too much…
24 Q. What was your income at WP, LLC?
25 A. It varied per month. I was commission based.
1 It was an average of around 80 grand a year. I mean, if
2 you were to average out, you know, my commission and
3 everything for the year.
So, according to her own testimony, Ryan’s ex was capable of earning about $80,000 per year doing telemarketing for the Yellow Pages, but quit her job. So, when Ryan’s lawyer calculated child support, he based his figures on her ability to earn $80,000 per year. That, along with Ryan’s income, produced a figure of $586.80 per month. His ex-wife’s lawyer ignored the $80,000 to which she’d testified and came up with $1,361. 86.
Amazingly, Judge Barnes rubberstamped the latter figure. That is, she refused to impute any income to Ryan’s ex beyond what she actually was earning after she quit her job at YP, LLC. Needless to say, that’s not what judges usually do when computing child support. They routinely consider what a person is capable of earning in order to avoid non-custodial parents being willfully underemployed. By her own admission, Ryan’s ex was willfully underemployed, but Judge Barnes ignored that, the same as she’d ignored her failure to plead or prove anything regarding child support. And of course she’d also ignored her failure to prove a change of circumstances.
In short, It looks like judge Barnes was pretty much making up the law as she went and everything she did militated against Ryan and in favor of his ex.
On that basis, the judge issued her new order that was much like the original one, except that now Ryan was to pay $1,361.86 per month to Alanna’s mother who was to have half the parenting time he would. Strange, but true. But the story gets stranger still.
At Ryan’s request, Judge Barnes included in her order a paragraph saying that no order would be sent to his employer for withholding child support from his earnings. That is, his employer would be left out of the child support situation entirely and Ryan would simply pay directly to the Office of the Attorney General (OAG) that would then disburse it to Alanna’s mother. That order wasn’t issued until October of 2015, but it was effective as of May, 2015.
Ever the responsible dad, Ryan began paying in April and continued paying through the date the order was signed and, indeed, to the present. But, because there was no order, he began paying his ex directly. He continued doing so after the order was issued in October. He sent her the checks; she cashed them.
But December, 2015 rolled around and the Office of the Attorney General contacted Ryan saying he hadn’t paid and that he would be subject to a withholding order. He responded that he had paid and sent them his affidavit along with copies of the cancelled checks proving the matter. Then the case got even stranger.
The OAG informed him that, because he had been ordered to pay child support, it considered him the non-custodial parent.
That’s right, despite the fact that he cares for his daughter 67% of the time and has sole authority over her residence and schooling – i.e. the very definition of primary parent – the OAG would consider him the non-custodial parent. Ryan made multiple calls to the OAG, but was told that their computer system was unable to list a primary custodial parent as paying child support, so he would be the non-custodial parent regardless of what the judge’s order says or the reality of the situation.
Ryan then wrote a letter to the OAG pointing out that its own website contains the following definition of “custodial parent:”
You are the custodial parent if you have custody of the child: your child is in your primary care and lives with you most of the time.
That’s about as clear as it gets and obviously defines Ryan as the custodial parent. But the same website defines “non-custodial parent” this way:
You are the noncustodial parent if you do not have primary care of your child: your child lives with the other parent most of the time and you pay child support.
So, while Ryan is clearly defined as the custodial parent, he also meets one-third of the definition of “noncustodial parent.” (Plus, his ex is clearly not the custodial parent and meets two-thirds of the definition of non-custodial parent.) According to the OAG, that makes him the noncustodial parent and her the custodial parent. So far, the OAG is adamant; irrespective of what the judge’s order says and its definition of “custodial parent” on its own website, its computer says he’s the noncustodial parent, even though he only meets one-third of the definition, and, according to them, that’s the end of it.
But, the OAG is causing Ryan bigger problems than any posed by its contradictory definitions. It has so far simply ignored the fact that he paid his ex directly for about eight months. As of now, they consider him in arrears to the tune of over $11,000. Oh, he’s submitted notarized affidavits showing his payments and images of the cancelled checks, but so far, the OAG has refused to agree that he in fact paid his child support.
Oh, remember that paragraph in Judge Barnes’s order prohibiting the issuance of a withholding order to his employer? The OAG is ignoring that too. In mid-January, the OAG issued exactly the order Judge Barnes said shouldn’t be issued. Ryan’s employer is now withholding $1,361.86 from his check every month.
In short, Judge Barnes violated basic notions of due process of law to give Ryan’s ex child support for which she’d never asked. And the OAG continues to ignore its own definitions, known facts and basic common sense. In the process it abuses a man who’s done nothing wrong.
Ryan West is the best of fathers. He’s well-educated and has always provided well for his child and wife while they were married. During their divorce, his ex never objected to his being named the primary parent. The social worker, Toni Sutton had nothing negative to say about him and recommended him as the primary parent. His daughter Alanna is similarly enthusiastic and views Ryan as her primary parent. And of course that’s what Judge Barnes ordered, not once, but twice.
Ryan West is also a man who plays by the rules. He worked hard and earned two post-graduate degrees in college. He was honorably discharged after serving eight years in the Army Reserve. His hard work and sterling record allow him to earn an excellent living with which to support himself, his new fiancée and his daughter. He’s never been in trouble with the law.
In a nutshell, Ryan West is what we want every man to be – a devoted, capable and loving father, a good mate, a good provider and a good employee.
Because of all those fine qualities, Ryan West will emerge from this fiasco intact. Ten years from now, it may all seem like just a bad dream to him. But consider: if the OAG’s abuse can be visited on him, what do other fathers who are less capable, less educated than Ryan experience? Ryan has the intelligence to fight well and the money to hire lawyers to help him. Few men can match his resources.
The case of Ryan West illustrates the anti-father bias not only of the family courts, but of the entire system of child support.
First, Ryan shouldn’t be paying child support at all. As the OAG’s website so plainly states, he’s the custodial parent and custodial parents don’t pay child support. If anything, Texas’ Child Support Guidelines say, as the primary caregiver, Ryan should be receiving child support of at least $300 per month. Why Judge Barnes ordered him to pay is anyone’s guess, but her consistent rulings against a fine father strongly suggest the very anti-father bias so many studies indicate exists in U.S. courts.
Second, if he must pay, it shouldn’t be as much as he does. Judge Barnes should have imputed income to his ex in at least the amount of $80,000. That would reduce his payments by almost 60%, but more importantly, imputation of income is routinely done by courts when the non-custodial parent is a dad. So why not here?
Third, the OAG, like so many child support authorities, sees fit to simply ignore the fact that, by any definition, he has paid what he owes. After all, what does the OAG think all those checks from Ryan to his ex, in the exact amount of the child support ordered, were for if not child support? Each check states that it’s for “child support” and each is dated according to the child support schedule in the order.
The OAG of course knows perfectly well what they were for, but, because the federal government only pays states for child support they can prove they collected, and since the OAG clearly had nothing to do with his direct payments, it’s in the OAG’s interest to pretend that those payments were some other mysterious something. It can then dun him for payment of the $11,000 paid directly to his ex and receive federal largess for having done so.
Finally, the idea that Ryan is the noncustodial parent, despite his meeting the definition of custodial parent, is simply bureaucratic incompetence writ large. The OAG wants him in its system in order to get paid by Washington. Its system can’t deal with the reality of his child custody situation, so the system directly contradicts the reality of that situation. That’s amazing, but equally so is the fact that, to the OAG, it matters not a whit that Judge Barnes ordered that no withholding order be issued. To them apparently, a judge’s order is of little import.
That the entire clown act that’s gone on since that teleconference last April does one thing – abuses a perfectly fine man and father – is no accident. Ryan West’s case is unique, but fathers experience as bad or worse every day in family courts and beyond.
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