0.1 Client intake: child support enforcement  (Page 3/10)

Look at section 157.008 of the Texas Family Code and create questions to address each element of each defense listed. For example, to evaluate the viability of the defense that the children were living with the obligor, you would want to ask:

• Are the children now living with obligee or obligor?
• If with obligor, then how long have the children been living with you?
• If six more than a month, Why are they living with you?
• How can you prove they have been living with you?
• Did the other parent consent to the children living with you?
• How can you prove that consent?

1. The obligor may show up with paper that purports to prove the payment of certain expenses. The obligee may show up with paper purporting to prove notification of medical expenses and demands for payment.
   
2. Any piece of paper is subject to a hearsay objection. Any live testimony offered by a witness who did not actually see demands made or payments tendered with his or her own eyes is subject to a lack of personal knowledge objection.
   
3. The rules of evidence do not apply at mediation. If you know that your obligor client is going to face insurmountable hearsay objections at trial, then move the court for mediation and bring the otherwise inadmissible documents to mediation. If the case cannot be resolved at mediation, then obtain business records affidavits from the obligor's bank showing canceled checks or transfers to obligee. (NOTE: Bank subpoenas can be a very expensive undertaking.) If the obligee deposited checks or other instruments from obligor, demand copies of those from the obligee through discovery and rely on the self-authentication rules for admissibility. (This also shifts the financial burden of providing records to the obligee, but obligor's attorney must be willing to compel production.) Bring in live testimony from family members and friends who can truthfully testify that the obligor attempted to borrow money from them to pay the child support.

This author most frequently hears obligors offer the following reasons for making direct payments of child support:

• Obligor and obligee just thought it would be simpler this way. When this reason is given, it is often because, to the obligee, "simpler" meant, "I get my money faster," and to the obligor, "simpler" meant, "Now the AG won't be able to track me if I'm a few days late."
  
• Obligee pleads with obligor to pay directly so that obligor will get the money faster--after all there are bills to pay.
  
• Before the prior final order was entered, there were temporary orders. During the pendancy of the matter, under the temporary orders, obligor made direct payment and didn't think to switch to paying through the CSDU once a final order was signed.
  
• Obligor prefers to avoid interaction with government agencies.
  

This points out that if you represent the obligor, you should take the obligee's deposition--in the presence of the obligor--and ask about direct payments. People are surprisingly unlikely to lie when the lie would create an injustice AND the person who knows the truth is sitting right in front of them. If the obligor has admitted receiving direct cash payments, you cannot let the obligor testify to the contrary. Tex. R. Disciplinary Conduct 3.03(a)(5), 3.03(b), and 3.04; see also, Texas Lawyer's Creed II.6, II.7, and III.15.