What to do if the
District Attorney (DA) calls.
These answers pertain to California actions. If your case arises out of some other state, this
may not apply to you.
If you case involves the registration of an out of state child support order for enforcement in
California, this may apply to you
SEEK LOCAL LEGAL ADVISE
WHY DOES THE DA CALL?
The District Attorney (DA) for each county in the State of
California is assigned the task of collecting child support.
WHAT IS THE PROCESS?
In the past, the District Attorney notifies FTB once a month via computer who is in default. If they made a mistake, it could take months, and even years to correct the problem. In the interim, your credit report was shot, and your bank accounts were seized. You as a taxpayer were not permitted to speak to a human person at the FTB. You were told by a recording to go back to your local DA if you had any questions. Calling the DA was a joke, cause you also got their machine. I guess enough people complained to Sacramento because, in 1999, some genius in Sacramento got the idea that the FTB should "oversee" (as in set policy for) the new State Bureau of Child Support. Maybe they listened to Mike Bogarslowsky of Channel 2 News when he became unglued (literally) on the air at the DA of one county for trying to collect money in welfare reimbursement from one poor lady who had never even given birth to children in her life). This way, there would be one statewide set of policies and procedures, and Sacramento would no longer have to hear people whine "But the DA is San Diego said I could get my passport back..... How come the DA is Orange wont give it to me now?" A New Child support Czar was announced in July 2000, and the first counties went online 35 days ago. Because as of the writing of this statement, the "bugs" are still getting ironed out of the system, you might want to check back in next sixth months as to any procedural changes that will go into effect in 2003.
Originally, the FTB only collected money owed from tax refunds, or sought payment from Worker's Compensation, unemployment, and other forms of entitlement. Both the FTB and the local DA had the power to issue Earnings Withholding for Support and Tax Liens which
can:
 | Get a tax lien any bank account with the name of the obligor on title;
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| Seek the suspension of both professional licenses and driver's licenses via e-mail to the appropriate state agencies: and
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| Record the obligation on credit reporting agencies.
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| Obtain an administrative tax garnishment for fifty percent (50%) of your net income as payment towards child support arrears.
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| Report all individuals who owed child support arrears greater than $5000 to the State Department for the suspension of passports.
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For some time in 1999-2001, both the FTB and the DA were processing these enforcement's techniques and the chaos was unbelievable. . One would straighten out the DA records only to have the FTB knocking at the door the next month. So, in order to have one clearing house of enforcement, the Bureau has now assumed the FTB's job. (But no one has yet to see the exact "title" of the agency on future
correspondence, since it was not ready as of July 31, 2001) Now, as of July 2001, only the FTB (Or the Bureau of Child Support under the authority of the
FTB) is supposed to process the above enforcement procedures. On a practical level, one still must contact the local authority (be it the DA or the Local Branch of the Bureau of Child Support) to clear up any suspension. Rancho Cordova still does not answer the phone.
WHAT DO I HAVE TO PROVE?
The burden of proof is upon the obligor to prove that the support is paid. One cannot contact the FTB directly, and must go back to the County where the order is being enforced. This does not necessarily mean the same county where the order is made. Depending on the size of the County, this procedure can be a nightmare. Los Angeles alone has seven branches of "the DA." Orange County one. And sometimes, Orange or Riverside or San Bernardino may take either an order made in one county and register it in another county for collection because the "kids" are now living somewhere else, or, drag the obligor into court because no one bothered to show the DA that another county already made an order for support. So, if you find yourself with competing orders for the same children in more than one county, ask all counties involved for a print out of their calculation of arrears, and provide them with copies of ALL court orders for support and all payments through all agencies. Once the bugs get resolved out of the LA county system, (yes folks you heard that right: Sacramento choose to go with the LA county's accounting system, which even the DA's hate, for accounting on statewide child support arrears) at least in theory LA should be able to access Riverside's payment history and give you credit for payments you made in Riverside on their order.
HOW DO I KNOW WHICH COUNTY?
Which county one is dealing with is also dependent upon the residence of the child. If the child lives in Los Angeles County, then their "branch" is enforcing the order. If the child lives out of state, then the County where the obligor lives should be doing the enforcement. Make sure you contact the proper office. Most offices also have an internal file number on the correspondence and billing, which is separate from the court file number. Use that number along with your name is all correspondence to their office and keep a copy of whatever you write them. If all else fails, the system is also operational via your social security number.
WHAT IF I LIVE OUT OF STATE?
 Out of state enforcement of child support orders are subject to Federal Law restrictions. That is fancy talk for
UIFSSA.
Know your rights on personal jurisdiction if you are not a California Resident receiving bills from a District Attorney's/Child support enforcement office here. If this is a new order, and you have not lived in California for some time, personal jurisdiction (that is the ability of the California court to make an order binding on you) is in doubt. If you have recently moved to California, or out of California and the District Attorney is attempting to modify the prior child support order, UIFSSA applies. If you live out of state, once a District Attorney becomes involved, and you dispute the amount of support ordered, or the amount of arrears, or this is a default judgment taken against you which you had no prior knowledge of, you are going to require legal assistance.
It is nearly impossible to file court documents (that is asking the court to review what the Bureau of Child Support has done) out of state. Your local friend who lives here most likely will not get access to the court file, since most cases filed by the DA/Bureau are paternity files, which are restricted files. This means only you, the other parent, the DA/Bureau or your attorney can get documents out of that file.
See
our page on inter-county
support obligation.
Please contact us with any
additional questions or consultation.
THE DA TOOK A DEFAULT AGAINST ME CAUSE I DID NOT SHOW UP AT COURT
HOW CAN THEY DO THAT?
Most likely, a default is entered when a party fails to file with the court an Answer or response to the Complaint filed and served by the DA/Bureau. California law does permit the DA to "perfect" service by mail of paternity actions, so if you moved, most likely you never received the complaint. If you did not receive the Complaint, 30 days later by law the DA/Bureau is permitted to take your default. If you received the Complaint, but mistakenly mailed your Answer to the DA but did not send the original of that Answer to the proper branch of the Superior Court, along with a filing fee (meaning a check or money order for your share of the court fees, anywhere from $192 to $235 depending upon which county in California the action is filed), then the Answer is not "on file" and a default can be entered.
Setting aside a default requires a Motion, a court appearance, a "good reason" (but stupidity is considered good reason) and that less than six months have passed since the Default was entered. You also will probably now pay attorney fees in excess of $2000 to have this motion filed and heard, and then still be paying for an attorney to appear at the hearing on the child support determination. So what could have cost you $1200 in attorney fees will now cost you $3500.
There is now a second "time limit" made especially applicable to DA/Bureau Child support cases: under California Family Code Section 17432 provides that you as the obligor have an additional 90 days after the first notice of collection of child support from you.
This is the caveat: most default orders are made based upon minimum wage imputed income. If your income is higher, you can set aside what may be considered a "good" number for you to only get a higher support order made based upon your actual income, because as part of "setting aside" the default you must file a copy of your tax returns for the years in question with the DA and the court. But if there is another child support order in existence from another county involving this same child and same parent, this child is definitely not yours, you and the other parent have reconciled, or you have physical custody of the minor child in question, setting aside the default is the only way that you will get a hearing. If the issue is that you were not given credit for payments made, then file a Motion to Determine Arrears instead.
I AM ON ACTIVE DUTY IN THE MILITARY. CAN THE DA TAKE MY DEFAULT?
California has adopted the Soldiers and Sailors Act, a Federal Law which precludes anyone (the DA included) from taking a Default against someone serving on Active Duty and station outside of California. If you are on active duty, and someone gets served on your behalf, be sure that you get local counsel to file an Answer on your behalf advising the court where you are stationed, how long you will be there, and when you will next be stateside. If you cannot afford an attorney, at a minimum get your commanding officer to write a letter to the court (and make sure that the case number is on the letter) advising the Commissioner of your active status and when you will next be stateside. The court can then appoint an attorney for you who should contact you immediately.
ITS REALLY NOT MY KID. MOM SAID SO WHEN SHE DENIED ME CONTACT.
I WANT BLOOD TESTS NOW BUT THE DA SAYS IT IS TOO LATE
This is truly one of the most tragic factual stories that are repeated in the headlines weekly in California. Man gets served by the DA for Child Support for child. Man believes that the child is his, so he stipulates that a judgment of paternity be entered and he agrees to pay ______ per month for the next 17 years since the child is only one year old. Man then decides two years later that the time has come for him to know his child, and contacts the Mother requesting visitation. Mother then tells him that the child is really not his. Man then tries to set aside stipulated judgment of paternity and looses. Man files a request for blood tests to prove what Mom says. Motion could be granted or could be denied at the trial level. The Court of Appeals, trying to get some sanity, tells trial judges they have no power to order blood tests. California Supreme Court Refuses to grant a hearing, agreeing with the Court of Appeals that the Legislature must change the laws. So, I have advised all my clients to contact their local legislature to demand that blood testing be permitted in paternity actions post judgment based upon something less than fraud.
First of all, if you were married to the "other parent" forget it. You have no right to a blood test any way, so don't even ask. We in California have what is called a "conclusive presumption" that a child born of a married couple, born within nine month of the marriage, is issue of the marriage. That means that even if you know that another man is the
"bio-dad" of your child, you are the "presumed Father" legally.
Unfortunately, the above is true. I tell all of my male clients at the outset of a paternity action (whether or not brought by the DA) that if there is any remote possibility that this child is not biologically his, he must ask for the blood tests now or "forever hold his peace." Some think I am joking, but this is the truth: Once the stipulation of paternity is entered, only fraud on behalf of the biological Mother can set it aside, and our courts define fraud as something more than "inaction". Lying to the DA as to who is the presumed Father is not fraud.
So, while you may be hesitant to deny paternity (lets face it, if you lived with the Mother for five years, and the child has already thought you were Dad, asking for blood tests now will most likely get back to the child, and will cause some emotional pain) if you don't ask for the blood tests at the time you file the Answer to the Complaint, it may be too late six months from now.
Statistically, chances are this is your child. In handling probably close to 1000 paternity cases over the last 10 years, I have only had blood tests once exclude a man as father (and even he wasn't too sure from the get go that he actually wasn't
bio-dad). I have heard all kinds of stories as to why my client could not be the Dad:
Immaculate conception: "I never had sex with her";
My "thing" does not work, "so we really did not do it";
"I had a vasectomy so how can this be mine";
I never slept with her: my brother did (wrong answer..... only monozygotic twins have the same genetic makeup, so unless you brother is your identical twin, even he can be excluded:
"I was in a different city (state) (country) at the time of conception so it cant be mine."
Nevertheless, in each of the above, genetic testing did not exclude each of these gentlemen as the father with 99% or higher reliability.
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Family Law in California
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