July 8, 2014

 

The charges against Houston father, Clifford Hall, are quite disturbing especially when accompanied with the fact that was that he actually spent time behind bars.  Mr. Hall became a trending topic last year when headlines screamed about a father in jail for spending too much time and paying too much child support to his son.  According to Demond Fernandez of ABC Eyewitness News (2014), court documents show a judge ordered Hall in contempt back in December after determining that he owed for inconsistent payments over several months.  Inconsistent payments, however, is a far cry from willfully failing to pay child support.  Since the latter is the legal reason one can be jailed for outstanding child support debt, it is baffling as to why this father was subject to such a violation to his constitutional rights.

 

The reasoning behind the jail sentence that is supposed to offer some solace to those outraged over the decision is a new piece of legislation.  Although the ruling is confusing at the surface, a new Texas law is being held responsible for this clear miscarriage of justice. In Texas, family court judges can decide whether delinquent child support payers spend time in jail, (Jeffrey L. Boney, 2014).   This punishment can be enforced even if, once the error has been identified, the debt has been satisfied by the parent.  Hall quickly paid the outstanding amount due, but found himself under the same punishments administered to those who fail to pay the debt in full.  Even though the money was being deducted from Hall’s paychecks and the company admitted fault the judge refused to reverse the sentence.  Behind the absurdity of this court decision lays the repeal of HB 847 by the 83rd Texas legislature. 

 

According to Boney (2014), this law makes a jail sentence a judgment option for being in contempt of court for failure to pay child support.  This option, of course, is common practice across the country.  Even though there have been many proponents to the punishment of incarceration for owing child support debt, there seems to be no relief in sight for underemployed, unemployed, or low-income parents. Accompanied with the fact that parents face imprisonment when they are not in debt but are mere victims of computer errors is an even more frightening situation.  Although the company admitted its fault during the appeal process, it did not do so at the hearing in which Hall was initially found in contempt of court for late payments, (Boney, 2014).  This only proves how extremely inflexible the legislators are when deciding laws and guidelines about child support enforcement.  The lack of flexibility to personal situations is one of the main flaws in the current child support system and needs to be changed as soon as possible.

 

This case defies every argument that legislatures and judges have been forcing people to believe since the child support reform was passed in the 1990s.  That argument is that child support enforcement is governed by what is in the best interest of the child.  There is no rational person that can convincingly argue that sending a father to jail over a clerical error supports the best interest of the child.  As these horrendous laws continue to plague our children, families, and parents, lawmakers must be forced to reform these unconstitutional laws.  Removing parents from their children’s lives in a camouflage of concern is a hypocritical action.  The government and courts screech about fathers being more involved with their children but will lock them up for an extended period of time with no remorse when money is not paid.  While the parent is incarcerated, the child is missing both time and money from the absent parent.  We must end the justification of jailing people for debt because of the unconstitutionality of the act and the immorality of the reasoning.  Most parents that owe child support debt are low-income and jailing a disadvantaged person for any profitable gain is akin to slavery.  It is time to put an end to modern day slavery which is currently named child support.

 

References:

 

 Fernandez, D. (2014, January 21). Houston man who says he overpaid child support turns himself in | abc13.com. Retrieved July 3, 2014, from http://abc13.com/archive/9401923/

New Family Texas Law Claims First Victim African American Dad Separated From his Son and Sent to Jail after Employer Makes Crucial Child Support Withholding Error. (n.d.). Retrieved from http://forwardtimesonline.com/2013/index.php/state-local/item/1438-new-family-texas-law-claims-first-victim-african-american-dad-separated-from-his-son-and-sent-to-jail-after-employer-makes-crucial-child-support-withholding-erro

 

 

 


Comments

ANOTHER NEW TEXAS CHILD SUPPORT LAW DENIES DISABLED VETERANS DUE PROCESS

Here's a recent article that shows the disdain of a family law judge for both the military and federal preemptive law:  http://seattle.cbslocal.com/2014/06/20/judge-orders-deployed-us-sailor-to-attend-custody-hearing-or-lose-daughter-face-contempt/

Last year, Steve Bresnen [ https://www.facebook.com/pages/Steve-Bresnen-Associates/226727480709665 ] was hired as a lobbyist by the Texas Family Law Foundation to ensure that well over 10,000 of their clients, disabled vets, would continue to be regularly paying subjects until the veteran's last child aged out of the contentious, adversarial system. 
http://www.legis.state.tx.us/tlodocs/83R/witlistbill/html/HB03017H.htm

http://www.acf.hhs.gov/sites/default/files/programs/css/veterans_in_the_caseload.pdf

http://governor.state.tx.us/files/twic/Veterans_in_Texas.pdf

Lobbyist Bresnen was paid handsomely, a reported $50,000 to $100,000, to twist Texas Legislator arms for TFLF last year:

http://www.texastribune.org/library/data/lobbying/lobbyist/33363/bresnen-steve/

"With over 6,000 members (including family court judges), the Family Law Section has become the fourth largest section of the State Bar... and is made up of smart, hardworking and compassionate lawyers from across the State committed to the practice of family law"...

Legislative Session

"May 27, 2013 brought a close to the 83rd Regular Session and another successful legislative effort by Texas family lawyers. While it would be impossible to acknowledge and thank every individual that had a hand in our legislative success, it was a great team effort. The Sections Legislative Committee, chaired by Jack Marr and Diana Friedman, began work in August 2011 and drafted 16 family law bills. We owe a huge thank you to the legislators who sponsored these Section bills including Rep. Eddie Lucio III, Rep. Senfronia Thompson, Sen. Royce West, and Sen. Jose Rodriquez. When the legislative session began, the Bill Review Committee, led by Chris Wrampelmeier, reviewed and analyzed hundreds of filed bills. During each week of the regular session, members of the Texas Family Law Foundation, at their own expense, spent the week in Austin reviewing and amending bills, meeting with legislators and lobbying on behalf of Texas family law.

The Section is also thankful to Rep. Tryon Lewis, Chair of the House Judiciary and Civil Jurisprudence Committee and Sen. Royce West, Chair of the Senate Jurisprudence Committee for working with the Foundation. Last, but certainly not least, none of our success would be possible without the hard work and dedication of our lobbyist and friend, Steve Bresnen"....from  http://www.sbotfam.org/chair.html

HB 3017, which became law in September 2013, ensured that a disabled veteran's due process would not be codified in the new family code.   Lobbyist Bresnen assured legislators that the 1987 Rose v. Rose U.S. Supreme Court case was the definitive ruling on disabled veterans and child support. TCC letter signee, Rick Miller, even co-authored Rep. Moody's legislation:

"In 1987 the United States Supreme Court held that a state court has jurisdiction to hold a disabled veteran in contempt for failing to pay child support, even if the veteran's only means of satisfying this obligation is to utilize veterans' benefits received as compensation for a service-connected disability.  Rose v. Rose, 481 U.S. 619 (1987).  Currently the application of child support guidelines presumptively includes a disabled veteran’s compensation and pension as a net resource, pursuant to Section 154.062 (Net Resources).  Although sections of the Texas Family Code provide guidance for treatment of a disabled obligor’s net resources when the obligor is receiving Social Security benefits the code is silent as to how to appropriately calculate and allocate a disabled veteran’s United States Department of Veterans Affairs (VA) compensation and pension benefits... 

H.B. 3017 addresses the inconsistency of the law as it treats disabled parents who struggle with contributing to the economic well being of their children.  The treatment of disabled parents under the law should be the same regardless of whether the disabled parent is receiving Social Security benefits or VA benefits...

H.B. 3017 amends the Family Code to clarify the treatment of disability payments from the VA in determining child support".  http://www.legis.state.tx.us/BillLookup/Text.aspx?LegSess=83R&Bill=HB3017

However, Mr. Bresnen didn't mention to legislators that for all of the disabled veterans appearing in family court for a child support hearing, only about 10% waive a portion of military retired/retainer pay in order to receive their VA benefits award. 

For about 90% of the disabled veterans, their benefits award was not remuneration for employment i.e. not disposable earnings/income and

07/09/2014 2:20pm

contiued... therefore, not legally equivalent to Social Security Disability Insurance benefits which are disposable earnings. Other laws signed post 1987 were not mentioned in the Bill analysis include 38 U.S.C. Section 5301, 5307 & 511, or 42 U.S.C. Section 659 (h)(1)(B)(iii), nor the federal Consumer Credit Protection Act beginning at 15 U.S.C. 1671. 

Public policy directive, IM-98-03, Financial Support for Children from Benefits Paid by Veterans Affairs failed to make the guidelines.

http://www.acf.hhs.gov/programs/css/resource/financial-support-for-children-from-benefits-paid-by-veterans-affairs

18 U.S.C. Section 641 is also deemed irrelevant in Texas when it comes to converting VA disability benefits awards, defined as not gross income at 26 U.S.C. 104 b.2.D, into taxable child support income.  And despite the fact that the Family Code had long ago engrossed the benefits award as not gross income in Section 8.055.  But then again, how else can Texas receive promised federal incentives for child support enforcement mentioned in 42 U.S.C. Section 658(a) if it merely honors the VA Apportionment laws, regulations and policy directives which provisions non-taxable benefits directly to the veterans children?

Perhaps Mr. Bresnen was not aware that U.S. Congress actively legislates to repeal discovered deficient laws and to preclude a detrimental Supreme Court ruling from standing in the way of their intentions? After all, what new laws, regulations and policy directives regarding this legal issue could the U.S. Congress possibly pass in 26 years time?

http://www.avvo.com/legal-answers/can-us-congress-render-a-supreme-court-decision-mo-1501098.html

The Department of Veterans Affairs Act of 1988 (Pub.L. 100–527) changed the former Veterans Administration, an independent government agency established in 1930, primarily at that time to see to needs of World War I, into a Cabinet-level Department of Veterans Affairs and resulted in implementation of many new, additional legislative Public Laws.

https://en.wikipedia.org/wiki/Department_of_Veterans_Affairs_Act

From http://www.acf.hhs.gov/sites/default/files/ocse/ending_homelessness_among_veterans.pdf

"Since early 2010, the Department of Health and Human Services through its Office of Child Support Enforcement (OCSE), the Department of Veterans Affairs (VA), and the American Bar Association have been engaged in a pilot project to develop models of collaboration to help veterans who are homeless or at risk of being homeless with their child support issues".   Really?  Where was Houston & Waco Department of Veterans Affairs Regional Counsel during the vetting of HB 3017 last year?  They did not register for any of the public hearings held in April to voice concerns about the above mentioned deficiencies that would lead to substantial harm to disabled veterans within their jurisdiction. 

The functions and responsibilities of Regional Counsel found at 38 C.F.R. Section 14.501 includes (d) ... "is authorized to cooperate with affiliated organizations, legislative committees, and with local and State bar associations to the end that any State law deficiencies relating to Department of Veterans Affairs operations may be removed. No commitment as to proposed legislation will be made without the approval of the General Counsel".  Will anybody take the blame for this inexcusable federal harm that has come to pass for thousands of unsuspecting disabled veterans who continue to pay recurring, substantial amounts of their benefits award to Texas family attorneys entrusted to realize due process of all laws, regulations and policy directives in contentious, adversarial child support hearings?  Hearings that only include the following due process guideline for all judges:   

"Sec. 154.062.  NET RESOURCES.  (a)  The court shall calculate net resources for the purpose of determining child support liability as provided by this section.
(b)  Resources include:

(5)  all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits other than supplemental security income, United States Department of Veterans Affairs disability benefits other than non-service-connected  disability pension benefits, as defined by 38 U.S.C. Section 101(17)...."

Finally, from a recent UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT...

"We conclude that granting VCS its requested relief would transform the adjudication of veterans’ benefits into a contentious, adversarial system—a system that Congress has actively legislated to preclude.  See Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 323-24 (1985). The Due Process Clause does not demand such a system".    case link  http://cdn.ca9.uscourts.gov/datastore/opinions/2012/05/07/

Parsons
07/09/2014 2:23pm

continued ... case link  http://cdn.ca9.uscourts.gov/datastore/opinions/2012/05/07/08-16728.pdf

LT(j.g.) Gregory Parsons USN, PDRL                  June 22, 2014

contiued... therefore, not legally equivalent to Social Security Disability Insurance benefits which are disposable earnings. Other laws signed post 1987 were not mentioned in the Bill analysis include 38 U.S.C. Section 5301, 5307 & 511, or 42 U.S.C. Section 659 (h)(1)(B)(iii), nor the federal Consumer Credit Protection Act beginning at 15 U.S.C. 1671. 

Public policy directive, IM-98-03, Financial Support for Children from Benefits Paid by Veterans Affairs failed to make the guidelines.

http://www.acf.hhs.gov/programs/css/resource/financial-support-for-children-from-benefits-paid-by-veterans-affairs

18 U.S.C. Section 641 is also deemed irrelevant in Texas when it comes to converting VA disability benefits awards, defined as not gross income at 26 U.S.C. 104 b.2.D, into taxable child support income.  And despite the fact that the Family Code had long ago engrossed the benefits award as not gross income in Section 8.055.  But then again, how else can Texas receive promised federal incentives for child support enforcement mentioned in 42 U.S.C. Section 658(a) if it merely honors the VA Apportionment laws, regulations and policy directives which provisions non-taxable benefits directly to the veterans children?

Perhaps Mr. Bresnen was not aware that U.S. Congress actively legislates to repeal discovered deficient laws and to preclude a detrimental Supreme Court ruling from standing in the way of their intentions? After all, what new laws, regulations and policy directives regarding this legal issue could the U.S. Congress possibly pass in 26 years time?

http://www.avvo.com/legal-answers/can-us-congress-render-a-supreme-court-decision-mo-1501098.html

The Department of Veterans Affairs Act of 1988 (Pub.L. 100–527) changed the former Veterans Administration, an independent government agency established in 1930, primarily at that time to see to needs of World War I, into a Cabinet-level Department of Veterans Affairs and resulted in implementation of many new, additional legislative Public Laws.

https://en.wikipedia.org/wiki/Department_of_Veterans_Affairs_Act

See Legal Jurisdiction JPGs below by Protect Veterans Benefits facebook Community owner, Peter Barclay

From http://www.acf.hhs.gov/sites/default/files/ocse/ending_homelessness_among_veterans.pdf

"Since early 2010, the Department of Health and Human Services through its Office of Child Support Enforcement (OCSE), the Department of Veterans Affairs (VA), and the American Bar Association have been engaged in a pilot project to develop models of collaboration to help veterans who are homeless or at risk of being homeless with their child support issues".   Really?  Where was Houston & Waco Department of Veterans Affairs Regional Counsel during the vetting of HB 3017 last year?  They did not register for any of the public hearings held in April to voice concerns about the above mentioned deficiencies that would lead to substantial harm to disabled veterans within their jurisdiction. 

The functions and responsibilities of Regional Counsel found at 38 C.F.R. Section 14.501 includes (d) ... "is authorized to cooperate with affiliated organizations, legislative committees, and with local and State bar associations to the end that any State law deficiencies relating to Department of Veterans Affairs operations may be removed. No commitment as to proposed legislation will be made without the approval of the General Counsel".  Will anybody take the blame for this inexcusable federal harm that has come to pass for thousands of unsuspecting disabled veterans who continue to pay recurring, substantial amounts of their benefits award to Texas family attorneys entrusted to realize due process of all laws, regulations and policy directives in contentious, adversarial child support hearings?  Hearings that only include the following due process guideline for all judges:   

"Sec. 154.062.  NET RESOURCES.  (a)  The court shall calculate net resources for the purpose of determining child support liability as provided by this section.
(b)  Resources include:

(5)  all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits other than supplemental security income, United States Department of Veterans Affairs disability benefits other than non-service-connected  disability pension benefits, as defined by 38 U.S.C. Section 101(17)...."

Finally, from a recent UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT...

"We conclude that granting VCS its requested relief would transform the adjudication of veterans’ benefits into a contentious, adversarial system—a system that Congress has actively legislated to preclude.  See Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 323-24 (1985). The Due Process Clause does not demand

contiued... therefore, not legally equivalent to Social Security Disability Insurance benefits which are disposable earnings. Other laws signed post 1987 were not mentioned in the Bill analysis include 38 U.S.C. Section 5301, 5307 & 511, or 42 U.S.C. Section 659 (h)(1)(B)(iii), nor the federal Consumer Credit Protection Act beginning at 15 U.S.C. 1671. 

Public policy directive, IM-98-03, Financial Support for Children from Benefits Paid by Veterans Affairs failed to make the guidelines.

http://www.acf.hhs.gov/programs/css/resource/financial-support-for-children-from-benefits-paid-by-veterans-affairs

18 U.S.C. Section 641 is also deemed irrelevant in Texas when it comes to converting VA disability benefits awards, defined as not gross income at 26 U.S.C. 104 b.2.D, into taxable child support income.  And despite the fact that the Family Code had long ago engrossed the benefits award as not gross income in Section 8.055.  But then again, how else can Texas receive promised federal incentives for child support enforcement mentioned in 42 U.S.C. Section 658(a) if it merely honors the VA Apportionment laws, regulations and policy directives which provisions non-taxable benefits directly to the veterans children?

Perhaps Mr. Bresnen was not aware that U.S. Congress actively legislates to repeal discovered deficient laws and to preclude a detrimental Supreme Court ruling from standing in the way of their intentions? After all, what new laws, regulations and policy directives regarding this legal issue could the U.S. Congress possibly pass in 26 years time?

http://www.avvo.com/legal-answers/can-us-congress-render-a-supreme-court-decision-mo-1501098.html

The Department of Veterans Affairs Act of 1988 (Pub.L. 100–527) changed the former Veterans Administration, an independent government agency established in 1930, primarily at that time to see to needs of World War I, into a Cabinet-level Department of Veterans Affairs and resulted in implementation of many new, additional legislative Public Laws.

https://en.wikipedia.org/wiki/Department_of_Veterans_Affairs_Act

From http://www.acf.hhs.gov/sites/default/files/ocse/ending_homelessness_among_veterans.pdf

"Since early 2010, the Department of Health and Human Services through its Office of Child Support Enforcement (OCSE), the Department of Veterans Affairs (VA), and the American Bar Association have been engaged in a pilot project to develop models of collaboration to help veterans who are homeless or at risk of being homeless with their child support issues".   Really?  Where was Houston & Waco Department of Veterans Affairs Regional Counsel during the vetting of HB 3017 last year?  They did not register for any of the public hearings held in April to voice concerns about the above mentioned deficiencies that would lead to substantial harm to disabled veterans within their jurisdiction. 

The functions and responsibilities of Regional Counsel found at 38 C.F.R. Section 14.501 includes (d) ... "is authorized to cooperate with affiliated organizations, legislative committees, and with local and State bar associations to the end that any State law deficiencies relating to Department of Veterans Affairs operations may be removed. No commitment as to proposed legislation will be made without the approval of the General Counsel".  Will anybody take the blame for this inexcusable federal harm that has come to pass for thousands of unsuspecting disabled veterans who continue to pay recurring, substantial amounts of their benefits award to Texas family attorneys entrusted to realize due process of all laws, regulations and policy directives in contentious, adversarial child support hearings?  Hearings that only include the following due process guideline for all judges:   

"Sec. 154.062.  NET RESOURCES.  (a)  The court shall calculate net resources for the purpose of determining child support liability as provided by this section.
(b)  Resources include:

(5)  all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits other than supplemental security income, United States Department of Veterans Affairs disability benefits other than non-service-connected  disability pension benefits, as defined by 38 U.S.C. Section 101(17)...."

Finally, from a recent UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT...

"We conclude that granting VCS its requested relief would transform the adjudication of veterans’ benefits into a contentious, adversarial system—a system that Congress has actively legislated to preclude.  See Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 323-24 (1985). The Due Process Clause does not demand such a system".    case link  http://cdn.ca9.uscourts.gov/datastore/opinions/2012/05/07/

Torrey Eubaire
07/09/2014 4:14pm

I'm paying child support for a child that isn't mind. Why I was away my ex wife had an affair. Got pregnant by the individual. She ran back to her home state Texas. When I could not make two of the court dates they judge passed a default judgment against me and said because I was able to show up the child is mine because we're married and the divorce was not final so I was order to pay child support. I even did 90 days and money was being taken out of my check.and they still put me in jail and it caused me my job. And I been asking for DNA and they would not give it to me. And she is refusing.

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