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Mail requirement creates child support loophole

Attorney Lisa J. Schmidt Warns Attorneys of Child Support Loophole

Mail requirement creates child support loopholeEarlier this year, Michigan passed two new paternity laws that make it easier for state agencies to connect parents in need with child support from their former partners. Attorney Lisa J. Schmidt explains why that may not always be a good thing.

On November 12, 2015, Attorney Lisa J. Schmidt of Schmidt Law Services, PLLC, spoke at the Institute of Continuing Legal Education‘s Family Law Institute. In “Proving Paternity” she explained Michigan’s two new paternity laws: The Genetic Parentage Act and the Summary Support & Paternity Act.

View the Presentation: Proving Paternity (PDF)

These two laws have one purpose: to make it easier for “Title IV-D Agencies,” which provide welfare and services to low-income families, to establish paternity and receive child support from non-custodial parents. Michigan law requires both parents to help support a child. To make that happens, parents can file a Complaint for Child Support with their local family court. Whenever a parent goes to a Title IV-D agency for help (including enrolling a child for Medicaid or MI Child insurance), that agency is entitled to a portion of the child support that parent receives. These laws make that process easier.

The Genetic Parentage Act

The Genetic Parentage Act creates a short-cut for couples who want to find out whether the man is the father. When a parent applies to a Title IV-D Agency, both parents can sign an Informed Consent for Genetic Testing. The agency then arranges for genetic testing of mom, alleged dad, and child. If the DNA test comes back positive (99% or more probable), then paternity is established. The child’s mother, father, or the agency can use the Genetic Paternity Determination Form the agency sends to the State Registrar as the basis for a child support, custody, or paternity action.

This offers a quick, inexpensive, and efficient way for low-income families to prove paternity. It is available to pro-bono lawyers and agencies alike. However, there is one catch: when paternity is established, sole legal and physical custody is awarded to mom until a court determines otherwise. If dad was the custodial parent going in, this could cause disruption as the parties wait for the court to make a custody decision.

The Summary Support & Paternity Act

The bigger child support loophole comes in the Summary Support & Paternity Act. This way of proving paternity is only open to Title IV-D agencies, not parents or lawyers. And it all depends on finding the right address for the non-custodial parent. Here’s an example.

Amy has a 10 year old daughter Beth. Amy believes Beth’s father is Chad, but she lost touch with Chad 5 years ago when she moved from Flint to Detroit. Amy lost her job and enrolls Beth for MI Child while she continues her job search.

The Department of Health and Human Services (DHHS) asks Amy for information on Beth’s father. Amy provides Chad’s last known address, from 5 years ago. DHHS sends a Notice of Intent to Establish Paternity and a Statement to Establish Paternity to Chad’s old address by regular mail.

In the meantime, Chad has moved to Novi. The letter from DHHS goes to the new residents of his old home, who discard it. Chad has 21 days from the receipt of that letter to request genetic testing. Because he didn’t receive the letter, he doesn’t respond.

DHHS files the Notice and Statement to Establish Paternity. Now it has to attempt service on Chad (to deliver the papers in person). The agency sends a process server to his old address, but after three attempts, the process server is unable to serve Chad. DHHS may now request an Order for Alternate Service from the court. Alternate service means the court allows DHHS to find another way to let Chad know about the proceeding. The most common ways are to send the information via certified mail (to his old address), post the notice on his door (at the old address), and publish notice in a local paper (in his old town). Once DHHS does all these things, the court will assume Chad knows about the case.

Once Chad has been “served” through alternate service, the court will enter an Order of Paternity, establishing Chad as Beth’s father. DHHS then sends a Notice of Intent to Seek Child Support to Chad’s old address, and the court enters a child support order.

Chad may have no knowledge of any of this until he notices money being withdrawn from his paycheck because of an Income Withholding Order.

Now he needs a lawyer. A family law attorney can help him file a Motion for Relief from Order based on the lack of actual service, or can file a Motion for Revocation of Paternity because the order was entered without access to his genetic material. But he has to do this quickly – probably within one year of the order being entered. All of this will cost Chad far more than if he requested the genetic test from DHHS in the first place.

If Chad doesn’t pay child support or do anything to correct the problem, an arrearage may accumulate together with thousands of dollars in late fees and costs. After a while, the court could issue a bench warrant for his arrest. He may even face felony non-support charges, all for not receiving his mail.

The Summary Support & Paternity Act is not bad law on its own. But when paired with outdated information and easily accessible orders for alternate service, it creates a child support loophole that could ruin the lives of non-custodial parents without knowledge of the system. Family lawyers, judges, and Title IV-D agents need to be on their guard to protect these people and make sure they receive the proper opportunity to assert their right to genetic testing.

Lisa J. Schmidt is a family lawyer at Schmidt Law Services, PLLC, in Ferndale, Michigan. She helps families get paternity, child support, and custody orders that work for them. If you have a difficult family situation, contact Schmidt Law Services today for a free consultation.

 

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