Dear Esq.

My husband has a 9 year old daughter from a woman he barely knew. She is a woman who has 4 kids by 3 fathers and was never married to any of them. My husband found out he had a child from the District Attorney, not the woman. She had previous experience with the DA from the other kids and fathers, and really knows how to make his life difficult!

Now I am in the picture and we are married and expecting our first child next month. And, unfortunately, he was laid off back in May and has not successfully found a job yet (one where he can make as much as he was). So, he is getting threatening letters from the DA’s office. They are threatening to suspend his driver’s license etc. (which makes no sense to me).

Anyway, he has an attorney who seems to be too intimidated by the DA. He seems useless to me.

He does owe back child support from the time before he even knew he had a child and then while he was determining whether the child was his. My husband says if he pays it all off, they will only apply half to his arrears and give the mother half. Is this true? If so, how can he ever get the back payments paid off? This is a nightmare in our lives and I can really see the fathers who are not deadbeats’ side now!

Is there a way some of that money could go into a trust fund for the child, since the mother does not use his payments on the child, mostly on herself? Is there anyone I can write to about changing these crazy laws? It is so unfair to the fathers!

Thank you.

Stephanie

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Dear Stephanie,

First, congratulations on the upcoming arrival of your child!

Child support is paid to the custodial parent, and not directly to the child. The public policy is to consider that a custodial parent will act in the best interest of the child, and provide for the child including things such as food, clothing, and shelter. The child support is to help the custodial parent to provide those things. It is for this reason that, typically, no, you cannot have the monies paid into a trust account. If the mother is feeding and clothing the child, then even if she takes the child support check and cashes it and takes the money to the racetrack, it is considered to be defraying, or offsetting, the money she is spending out of her own pocket to provide for the child. Put another way, the money paid for child support is not earmarked specifically for the child, but to allow the parent to provide for the child.

Because you mention half of his payments going to the arrears, with the other half going directly to her, it sounds as if the mother of your husband’s child may have been, and perhaps still is, collecting Aid for Families with Dependant Children (“AFDC”), what some people still refer to as ‘welfare’. Under those circumstances it is common for a portion to go to arrears, and another portion to go to the custodial parent. So long as the portion going to the custodial parent is keeping your husband from falling further behind in his payments, then the portion which is going to the arrears will cause the arrears to be paid off eventually.

A perhaps more pressing issue is that your husband has been laid off, and it doesn’t sound as if he filed an action with the Court ot have his child support reduced while he is out of work. If this is the case, it means that every month he is getting further behind, when he should be asking the Court to reduce the amount he must pay until he finds a new job.

Also, once your baby is born you are entitled to a “hardship deduction”, which should reduce the amount of support he must pay by at least a small amount.

If he has not already done so, your husband should really consult with another attorney to get a second opinion as soon a possible, especially if, as you believe, his current attorney does not know how to deal with the DA. The amount of ongoing support they may be able to save him due to his being laid off should more than make up for what he will need to pay the attorney.

Finally, the persons to whom you should write about these crazy laws are your elected officials, including both your state and federal assembly and congresspersons. You can find out who represents you in Washington at http://www.visi.com/juan/congress. People in California can find out who are their California representatives at http://www.leginfo.ca.gov/yourleg.html.

DEsq.