June 21, 1998
To the Honorable -----
In many Texas divorces involving child support, there is the possibility of fraud in the determination of who should pay
the child support. Often this is because the mother despises or hates the man that she is divorcing, and likes or loves the man that
fathered the child or children in question. She is willing to secure child support from the man that she is divorcing,
using perjured testimony, as revenge for her spite and hate. She may use the excuse that she is doing it "for the
children". Fraud is a crime. A crime committed "for the children" is still a crime.
I believe that the following ideas could help eliminate the possibility of paternity fraud and correct
other problems in the Texas Family Code.
- In divorce cases involving children and child support, paternity testing should be automatic and required, except for
adopted children and children from a previous marriage.
- If testing shows that the divorcing husband is not the father of one or more of the children, the biological
father should be required to pay child support.
- If the biological father is deceased or cannot be located, the husband may make informed consent to pay child
support, but should not be required to pay child support. If he consents to pay child support, he may elect at
any time to cease paying child support upon sixty days notice to the mother and the court.
The current guidelines for child support amounts allow for child support to be assessed well in excess of the amount
required for raising and educating the child or children.
- There should be a legal cap or maximum amount for child support.
The current procedures available for modification of child support make it difficult for a paying parent to get changes
in the child support amount in hardship situations. When I became disabled in 1989, I was told that in order to get child
support modified, I had to (1) be current with my child support payments, and (2) have $1500 for attorney's fees and
court costs. Since my income after disability was a small fraction of my income before disability, those requirements
were impossible for me to meet.
- An inexpensive process should be implemented to modify child support where the paying spouse becomes disabled
or otherwise has a major change in financial status.
There is currently no system in place to insure that child support money is indeed being used for child support.
- The custodial spouse should be required to make financial reports (with supporting documentation) specifying how
the child support money is being spent.
- Reports monthly to the paying spouse.
- Reports annually to the court.
- Credit card statements would not be valid documentation.
With the above changes, there should also be a system to encourage and enforce restitution where there has been fraud or error
in divorces which occurred before required paternity testing.
- There should be restitution in past divorce cases where child support was paid and where later evidence proves
that the husband was not the father of the child in question.
- The amount of the restitution should be the entire amount paid for the child in question, plus interest.
The amount should be calculated by setting up a schedule where each child support payment should be
treated as if it were a deposit into a savings account at compound interest.
- If the mother offers restitution without being asked, the interest rate used should be six percent and
the compounding should be monthly. Criminal proceedings against the mother for fraud would be
- If the father requests restitution and the mother agrees without argument, the interest rate used
should be eight percent and the compounding should be monthly. Criminal proceedings against the
mother for fraud would be disallowed.
- If the father requests restitution and the mother refuses the request, and paternity testing proves the
father's allegation that the child is not his, the interest rate should be ten percent, and the
compounding should be semi-monthly or weekly (depending on the payment frequency in the
original child support order). In this instance, the mother should pay for the paternity test and
court costs. Criminal proceedings by a District Attorney against the mother for fraud would be
- The amount (principal and interest) should be paid in a lump sum.
I believe that modifying the Texas Family Code as outlined above will go a long way toward correcting both future
and past child support abuses.
Gerald L. Busby