UNWED PARENTS IN MISSOURI:

UNWED PARENTS IN MISSOURI:
BEFORE YOU SIGN THAT PATERNITY/BIRTH CERTIFICATE AFFIDAVIT, PLEASE READ THIS …
First in a Series
By Alan W. Cohen
Attorney at Law
For all you Trekkies, signing the birth affidavit of a child born out of wedlock is like entering a legal nebula, a cluster of energy where logic, reason and common sense dare not enter, for almost nothing is what it seems.
Under Missouri law, two things are required before a birth affidavit is valid. First, the document is an affidavit, and by birth affidavit statute, that means it must be notarized. Second, prior to signing the document, someone – although the statute is unclear as to how – is supposed to inform you of the legal and actual consequences of your signature.
Since this statute became law in 1997, no one has followed it. In fact, it is the stated policy of the State Registrar to accept birth affidavit forms without a notarization, or without proof that you were given legal information to make an informed choice as your legal rights. Moreover, the form the Registrar adopted is geared to trick you. Under the signature, the person that signs states they have been advised of the legal obligations and FULLY UNDERSTANDS THEIR LEGAL RIGHTS AND OBLIGATIONS.
Well here is the rub, or the conundrum, if you want to use legal jargon: How can you know your legal rights and obligations if no one ever told you. For this, the state has an answer. The Registrar has created a two-part form that hospital personnel are supposed to give to new parents shortly after birth of their child. The Registrar depends on hospital personnel to handle this truly legal process. See a problem with that?
Would you trust a lawyer to give a medical diagnosis, or even change a bed pan? I think not. And there is good reason not to trust hospital personnel. Many, if not most, new parents never see the page that is supposed to contain information about their legal rights. And, on top of that, the form was created by the Family Support Division, an agency, not an attorney, that is trying to convince them to sign the form and acknowledge paternity. Finally, on this page that people rarely see is a phone number to learn about their legal rights. If they call the number, they get a recording at the Family Support Division. And, moreover, the information from the message is misleading and plain wrong.
In fact, the consequences for signing this form can be extremely dangerous.
So, before you sign, use your common sense. Contact an attorney to make an educated decision about your legal rights and obligations. For more information, please continue to read this series, or check out my website.
Alan W. Cohen is an attorney licensed in the State Missouri who has practiced primarily in the area of Family Law for more than 20 years. His office is located in Clayton (a suburb of St. Louis).
Visit his website at: alanwcohen.com

The Real Medicaid Fraud (in the Child Support System)

The Real Medicaid Fraud (in the Child Support System)

By Alan W. Cohen
Attorney at Law

Those in the Child Support System know it very well, and it is one of the greatest ironies of President Obama’s health care plan and the real impact on Medicaid. If you force people to buy health insurance coverage for their children, it doesn’t mean that people will stop using their Medicaid. And, in the end, the only winner is the health insurance companies.
Fraud is rampant in the Medicaid arena. It is estimated that 25 percent of all government entitlements are based on fraudulent claims. And that’s just the recipients. The government estimates that 12.5 percent of the claims from providers are fraudulent.
The real fraud, however, is on those poor taxpayers who are required to cover their children on their health insurance. Almost 20 years ago, the federal government, in a claimed idea to save money due the explosion of Medicaid costs, instituted a nationwide mandate that parents, as part of their child support orders, be required to cover their children on health insurance (as long as it is reasonably affordable). The new law required an order regarding health insurance coverage in every child support order, whether it is from a court or administrative agency.
But this same law does not require a parent to use the health insurance. Nor does the new law remove the ability to get Medicaid. Thus, like most government programs, what works on paper doesn’t work in the real world. Let’s say you are a parent who takes your child to the doctor. The medical assistant gives you two choices for coverage: (A) The Paid Health Insurance or (B) Medicaid. If you choose A, you have to pay a copayment. If you choose B, there is no copayment required. Which would you choose? Medicaid, of course, because it is free.
That is why so many people are paying for health insurance for a child that is never used, costing hundreds of dollars a month. Why? Because the federal government says so, that’s why, even if it makes no sense at all.
But, of course, we are talking about the Federal Government and the Child Support System …

Alan W. Cohen is an attorney licensed in the State Missouri who has practiced primarily in the area of Family Law for more than 20 years. His office is located in Clayton (a suburb of St. Louis).
Visit his website at: alanwcohen.com

Attention Mothers and Fathers:

Attention Mothers and Fathers:
The Child Support System is Not Your Friend

By Alan W. Cohen
Attorney at Law

Where were you in ’62?
That is where the Child Support System began. That where it lives, for better or worse. In the eyes of the System, everything is what it was in 1962. Everyone is June or Ward Cleaver. Every father is a worker. Every mother is a stay-at-home mom.
For parents, the System operates primarily through federally-funded state agencies (in Missouri, the Family Support Division). These agencies are not your friends. They don’t care about you or your children. The agencies only care about the System.
For mothers, the government pushes paternity establishment for the promise of future support. It’s a huge smokescreen. If a mother is the only parent on the birth certificate, the mother usually gets complete control. If the government establishes paternity, the government might have tricked you into give up equivalent rights to custody. There is the little matter of the Constitution and Equal Protection. Yes, it protects men as well as women. So if the father is a “deadbeat” or worse, a criminal, you have given away much of your absolute control to a person you wouldn’t trust to hang your blinds. And if you die, the child would probably go to him. It is his right.
For fathers, there is no illusion. You are the enemy. They will threaten, cajole, trick you into signing off on a birth affidavit, or taking that illusive genetic test. If you fail to comply, they will punish you. If you are already a caretaker for the child, they don’t care. You don’t fit their mold. Your job is to work and pay. And if you can’t afford it, well they will take your tax returns, your driver’s license and maybe even your liberty.
For both, the best thing to do is stay away from the System. If you can’t, well then the next best thing is to hire an attorney, go to court, and treat it like a divorce. The Courts, unlike the federal funded agencies, are likely you to treat you as a parent, a person, rather than a number.
The Courts live in the Now, not 1962. Protect yourself because nothing — especially the government — is going to do the job for you.

Alan W. Cohen is an attorney licensed in the State Missouri who has practiced primarily in the area of Family Law for more than 20 years. His office is located in Clayton (a suburb of St. Louis).
Visit his website at: alanwcohen.com

Lack of Procedure: More Danger of Missouri’s Family Support Division

Lack of Procedure: More Danger of Missouri’s Family Support Division
Second in a Series
By Alan W. Cohen
Attorney at Law

One of the greatest and oldest powers that exists in this country is the power of the local county prosecutor to choose his cases. Known as prosecutorial discretion, one person gets to decide whether a person should suffer the wrath of the public prosecution or not. But a prosecutor is an elected official. If the prosecutor really messes things up, the might suffer the wrath of the political process, and lose his job.
Administrative agencies are another matter. Administrative agencies have not public oversight. They operate in the dark, only coming out in the limited light of the individual who comes within in its reach. Administrative agencies are the creature of statute. They are required to create rules that they must follow.
No so with Missouri’s Family Support Division, or its predecessor in name, Missouri’s Division of Child Support Enforcement. It is an agency without rules. It operates within the boundaries only of broad powers granted from Congress and set forth in statutes Missouri must pass in order to get millions of dollars to pay out in public assistance.
Most important, the agency gives prosecutorial discretion to its individual case workers. These case workers earn little money and get just as little in guidance. That is because the agency has never set forth guidelines they must follow, and with the incredible large workload each of these caseworkers must tackle, they are given great discretion, almost prosecutorial discretion, in their choice of creation, modification and, most important, enforcement of child support orders.
In short, the caseworker is the gatekeeper, left with the power of God in some cases. If the caseworker does not believe in criminal non-support, the worker may choose a different remedy. If the caseworker does not believe in the inane remedy of suspending a driver’s license, or just doesn’t think this remedy or that has merit, it doesn’t happen. In creating a support order, perhaps a caseworker thinks it is OK to extrapolate a month’s earnings into a year’s salary, so that when a person has a job for a month once in their life, they are found to be capable of earning that much for their whole life, thus greatly increasing their child support obligation. Another might assume termination at age 18, while another looks to 21.
The result is chaos. The agency, by not giving specific guidelines each worker must follow, creates inconsistent results, leaving individuals, attorneys and judges all scratching their respective heads. The agency was created in part to create consistency and uniformity. This discretion creates the opposite result.
And for those individuals who fall in their path or may suffer the consequences of its actions, well as far as the agency is concerned … they can hire a lawyer.

Alan W. Cohen is an attorney licensed in the State Missouri who has practiced primarily in the area of Family Law for more than 20 years. His office is located in Clayton (a suburb of St. Louis).
Visit his website at: alanwcohen.com

The Dangers of Choosing a Lawyer for Criminal Non-Support in Missouri

The Dangers of Choosing a Lawyer for Criminal Non-Support in Missouri

By Alan W. Cohen
Attorney at Law

From the attorney perspective, nothing is more dangerous than using the threat of criminal prosecution to collect a civil debt. It puts all the power of the government against an individual who can’t afford to defend himself. For those historians, the Founding Fathers did not approve. That is why debtors’ prisons, long the preferred method to collect debts in the 18th century, were outlawed in the early 19th century.
But in the late 20th century, debtor’s prisons have reemerged with the advent of criminal prosecution to enforce the payment of child support, a civil debt. While the threat of imprisonment is by far the most effective method of getting child support paid, those who fail to pay – whether they have the means or not – sometimes end up in the worst result for all involved. Defendants end up in jail, taking up space “real” criminals might otherwise occupy. They are not out in society working so that they can pay their support. Rather, the debtors are locked up all while their debt continues to mount up and hit them even harder when they get out.
When first charged with the crime of not paying a civil debt, most of these people cannot afford to hire an attorney, and those that do generally hire the cheapest attorney because the judge won’t appoint them a public defender. The cheapest attorney, of course, is not the best attorney. The cheapest attorney generally pleads the defendant guilty after making some small concession to the prosecutor, who might have done the same for those who operate without an attorney. The public defender is usually no better, convincing them to plead guilty so they can help the “real” criminals (and even some that are actually innocent), the reason why they took their jobs in the first place.
So none of these criminal law attorneys ask the questions like: Are you the father of the child? Or, did you sign that paternity affidavit? Were you really served with process, or did someone give it to a cousin, your mother or just leave it in the bushes? In short, maybe the Defendant has a civil remedy that could invalidate or void the original civil judgment and keep them out of prison on the criminal charge.
This point of bad lawyering was highlighted recently in the case of State v. Buckler. http://www.courts.mo.gov/file.jsp?id=50051 Here, an attorney with gumption challenged the idea that a person whose paternity had been established in court in a default judgment had the right to challenge it anew in a criminal non-support case. The answer was no, but, as the Court of Appeals pointed out, there was a civil remedy that might invalidate the entire judgment and keep him out of jail, all to the embarrassment of his criminal lawyer.
But what would criminal lawyers know about civil remedies?
For those Defendants in criminal non-support cases, let the buyer beware.

Alan W. Cohen is an attorney licensed in the State Missouri who has practiced primarily in the area of Family Law for more than 20 years. His office is located in Clayton (a suburb of St. Louis).
Visit his website at: alanwcohen.com

TIME IS RUNNING OUT TO DISESTABLISH PATERNITY IN MISSOURI

TIME IS RUNNING OUT TO DISESTABLISH PATERNITY IN MISSOURI
By Alan W. Cohen
Attorney at Law

Men. Time is running out. If you are paying child support for a child that you do not believe to be yours, you have until the end of the year, December 31, 2011, to file a Petition under Section 210.854 of the Missouri Revised Statutes.
Yes. It costs money for attorney fees. Yes. There is a filing fee. Yes. It costs money for genetic testing. But the legislature has given you a once in a lifetime opportunity to wipe out any past due child support and all future support.
Every week courts in every county of the State of Missouri enter default judgments, establishing paternity and child support judgments. Many of these cases the service return is questionable. Does the Defendant really live there? Is the person served really a family member? Sometimes the Plaintiff and Defendant still live together, and the Plaintiff (mother) is the person served. Sometimes an overnight guest is served and the return claims it is a roommate. In each of these cases, the Defendant can hire a lawyer and try to nullify the judgment after the fact because the rules were not followed.
But many times people just put their heads in the sand, or think they have a deal with the mother, or think, for some reason, that, if they don’t participate and take a genetic test, that the court cannot prove paternity. For those people, the legislature has changed the law to require that the clerks add a page stating this fact in big, bold letters to all accused fathers: If you fail to file your Answer, and if you fail to cooperate, a judgment might be entered against you in default that might include a judgment for child support.
Many of these people who might not be the father go to jail for criminal non-support. Many a man in this state has been in jail (with the help of their criminal attorney who believes they have no choice but to plead guilty, and enter a deal to pay current and past due support when they do not have the financial means to do so).
To these men, there are remedies available to you. But the best and biggest is about to expire unless you act very soon.

Alan W. Cohen is an attorney licensed in the State Missouri who has practiced primarily in the area of Family Law for more than 20 years. His office is located in Clayton (a suburb of St. Louis).
Visit his website at: alanwcohen.com

THE PROBLEMS OF MISSOURI FAMILY SUPPORT DIVISION

THE PROBLEMS OF MISSOURI FAMILY SUPPORT DIVISION
A Primer on Paternity and Child Support in the Administrative System
First in a Series
By Alan W. Cohen
Attorney at Law
In the first day of Administrative Law class, we learn the three basic rules of administrative agencies. First, the agency only has authority granted by statute. Second, the agency must create rules that it must operate. Third, if the agency does not act within its statutory authority, and does not create and follow its operational rules, it is acting illegally, and any action it takes not within Rules 1 and 2 can be voided by the court.
Missouri’s Family Support Division apparently never went to law school, but no worries here. The courts have given the agency a free pass to do just about whatever it wants, in complete contravention of the rules. This could be because attorneys have not done their homework in challenging the Division. Or, in my experience, whenever a knowledgeable attorney challenges the agency’s illegal actions, the courts just fix the agency’s illegal actions in that particular case. The result is that the agency gets away with violating the law at least 99 percent of the time, leaving thousands of victims in its path.
FSD, formally the Department of Child Support Enforcement, has been given the charge of establishing, enforcing and modifying child support orders. It has been in place since the early 1980s. This agency has the burden of operating under many “unfunded mandates” that our U.S. Congress has required states to comply with in order to be eligible for billions of dollars to fund Missouri’s welfare recipients and to provide services of the Child Support System. The phrase “unfunded” is paramount here because, in short, Missouri lacks the money to properly comply with all the requirements absent violations of Due Process of its citizens.
Of these citizens who find themselves victims of the agency, many do not have the funds to hire an attorney to assist them, and fall under the cracks, and even sometimes landing in jail. This series will explore the many questionable actions of the Family Support Division, and will demonstrate how to challenge its actions.

Alan W. Cohen is an attorney licensed in the State Missouri who has practiced primarily in the area of Family Law for more than 20 years. His office is located in Clayton (a suburb of St. Louis).
Visit his website at: alanwcohen.com

The Danger of Missouri Child Support Termination Forms

The Danger of Missouri Child Support Termination Forms

The Perils of the Pro-se Litigant (The Series)

By Alan W. Cohen

Attorney at Law

More than ten years ago, the Missouri legislature attempted to draw what is known in law as a “bright line” rule regarding when child support terminates. As is the case with many of these rules, the theory is to make it simple. If you follow these specific criteria, you are eligible for continuing child support after age 18, if not, then child support terminates. If the child fails to provide grade reports, the child is no longer eligible for support.

As part of this new theory, and this new law, the legislature required each county to create forms that anyone, without the benefit of a lawyer, could file with the court to try to stop child support.  The individual would fill out the form stating the reasons why child support should stop. The court would mail the form to the person receiving support by certified mail. Once received, the person receiving support would have 30 days to file an affidavit opposing (or consenting). If it were opposed, the court would treat the request as a Motion to Modify, and set a court date.

The Missouri legislature had good intentions. Why make the average litigant pay for a lawyer just to stop child support? From the beginning, the problems with the theory on termination of child support were plentiful. What if the person paying support had no information about the facts? What if the child was really disabled? What if the person paying support was way overdue for a large increase and child support wouldn’t terminate? What if the child support order did not include college expenses and the child support should continue? Wouldn’t the paying parent be opening Pandora’s Box opening the paying parent open to paying even more? What about the relationship between the child and the paying parent? Wouldn’t the filing of a termination cause a serious wedge between paying parent and child?

Without proper and good legal advice, the litigant is walking through a virtual minefield, never knowing whether their next step would have everything blow up in their face.

Now, more than ten years later, the courts and the legislature have all but erased the bright line tests for termination and ineligibility. And the burden to prove termination still rests with the person seeking to terminate or abate the child support obligation.

So, the minefield is even more precarious and dangerous than ever. Without the assistance of an experienced and knowledgeable attorney, the unrepresented party is apt to pay a lot more money that they saved trying to perform legal surgery on his or herself.

Alan. W. Cohen practices primarily in the area of Family Law. His office is located in Clayton, Missouri.

alanwcohen.com

 

The Myth of Pre-Petition Child Support in Missouri (Part 2)

During oral argument, opposing counsel, Justin Cordonnier, of Green, Cordonnier & House, in Clayton, Missouri, argued that the intention of the statute was to limit the collection of State debt and not to create a new remedy. In retrospect, Mr. Cordonnier was clearly correct, but, in statutory interpretation, the court looks to the intention only if the language was ambiguous, and this language, the court found, was not ambiguous.
It all started with a 1990 decision of the 8th Circuit Court of Appeals in a case styled Jackson v. Rapps. As explained in a 1994 Missouri Supreme Court case, Dycus v. Cross, federal law required that the non-custodial parent is 100 percent responsible to pay back to the government any sums it paid in cash to the custodial parent. The non-custodial parent was, and is, solely responsible regardless of the parents’ true income and regardless of whether the recipient obtained the money fraudulently.
Applying this law without any limitation meant that a non-custodial parent who spent the duration in a coma might wake up to find himself thousands of dollars in debt even though he earned no income during his prolonged snooze.
The Eighth Circuit realized this inequity, and looked at another federal law requiring that each state establish a formula to determine the amount of child support for any given case. Putting those two laws together, the court held that each state court should apply its respective formula to determine what amount of State Debt the non-custodial parent was responsible to pay. If application of Form 14 in Missouri called for support to be $50 per month, or zero if he were in a coma, then the non-custodial parent owed that amount per month toward repayment of State Debt. Under §464.465.1(2), the amount of reimbursement for state debt is limited to the amount paid.
In Martin v. Obiakor, Mr. Cordonnier argued that in 1993, the Missouri legislature had Jackson v. Rapps and Dycus in mind when it created the subsection at issue. As stated in a footnote in a 1996 appellate decision, State v. Estrada, §452.340.9 was intended as a limitation on the reimbursement of State Debt. After all, the statute required using only the non-custodial parent’s income (with the custodial parent’s income at zero). If the statute were intended for pre-petition support, it would have used the custodial parent’s income, as well as costs for day care, health insurance and other extraordinary expenses that were appropriate. Therefore, the Appellant was limited to a claim for reimbursement of necessaries.
To further bolster his claim that the purpose of the statute was specifically for State Debt limitation, Mr. Cordonnier pointed to a 1998 amendment to the statute that occurred while the case was on appeal. The legislature added a phrase, limiting the class of person seeking reimbursement to “persons not parents”. Mr. Cordonnier argued that this amendment showed the legislature intended the statute to apply only to a limitation on State Debt, and not to create a new remedy for custodial parents.
Fortunately for the Appellant, the language had the unintended consequence of creating another remedy, and the Eastern District agreed. The 1998 amendment occurred while the case was on appeal, and thus, on remand, Appellant could seek 60 months of pre-petition support.
As a result of the amendment, however, any parent that wanted to bring an action in the future was limited to a claim for reimbursement of necessary expenses, and had to submit actual proof of those expenses. The legal community saw it differently, and thus, created a legal myth. So, for the past twelve years, attorneys and judges alike have been applying a non-existent remedy to paternity cases, sometimes making current support retroactive for 60 months before filing, and many times using annual Form 14 calculations (using both incomes and adding in extraordinary expenses).
Amazingly, no one has challenged this theory, or at least there have been no published opinions addressing the issue. So, until that day, this legal myth will endure.

Alan W. Cohen is an attorney licensed in the State of Missouri who practiced primarily in the area of Family Law. His office is located in Clayton (a suburb of St. Louis), Missouri.

Visit his websited at alanwcohen.com

 

The Myth of Pre-Petition Child Support (Part 1)

The Myth of Pre-Petition Support in Missouri (Part 1)
By Alan W. Cohen
(Originally pub. Mo. Law. Weekly)
Attorney at Law
Compared to most areas of law, child support and parentage law, are relative toddlers. Growth and understanding has come in spurts, and much of it is confusing and illogical. This is especially true in the area of 1) pre-petition support and 2) necessaries. This series will explore and attempt to clarify these two areas of law and the lingering problems and misunderstandings that still exist in Missouri.
First of a series
They call them “Legal Myths”. They are theories of law lawyers and judges know to be true, but when challenged, after diligent research, just can’t find the source, because they just are not true.
Such is the case with pre-petition child support in Missouri. Lawyers, and sometime judges, make bald-faced statements in paternity establishment cases that “we can take the current child support order under Form 14 and go back five years” making the non-custodial parent immediately 60 months behind. And, as with many legal myths, if you hear it enough, it becomes part of the culture. Lawyers assert it, and judges accept it, applying a non-existent remedy that affects thousands of litigants.
As with many legal myths, the idea of applying pre-petition child support only to paternity establishment cases, and not dissolution cases, defies common sense. Under this theory, if a millionaire husband leaves his wife and pays nothing for his child born during their marriage for more than five years, he is off the hook because it took his wife five years to file for divorce. If a man meets a woman in a bar for a quick tryst, however, and sires a child he never knew existed until the litigation, then he is liable for 60 months of pre-petition support.
For the institution of this legal myth, however, this author takes partial credit, with an assist from the Missouri Court of Appeals, Eastern District. Styled as Martin v. Obiakor, the case was an appeal from a paternity judgment wherein the trial court had denied Appellant’s claim for pre-petition support utilizing §452.340.9 RSMo. (1993). At the time, according to the statute, “In this or any other chapter, when a court determines the amount owed by a parent for support provided to a child by another person prior to the date of filing of a petition requesting support” … the trial court may, using only the non-custodial parent’s income during the applicable periods, could apply Rule 88.01 and Form 14, and require the non-custodial parent to pay five years of pre-petition child support. In Martin, the father had a historically high income, and actual necessary expenditures would have produced a much lower amount.