February 28, 2014 by Robert Franklin, Esq.
Would you like to know just how dogged states are when it comes to collecting child support? Gilbert Tso’s story offers a good illustration of exactly that. In his case, an Illinois court that plainly has no jurisdiction of the case went ahead and issued a child support order anyway, plus hefty arrearages just so, if it collects anything from Tso, it can chalk it up as another “success” and get paid by the federal government’s Office of Child Support Enforcement. Maybe the Illinois court is onto something. After all, if a court doesn’t have to have jurisdiction of a case to issue a support order, why not issue more of them? Why not pick fathers in Alaska, Maine, Florida, or anywhere else? Hey, you might get lucky, and every time you do, Uncle Sam sends the state more money.
It’s not like states haven’t been in that racket before. It doesn’t happen as much anymore, but it used to be that, when states wanted to “establish paternity” for a child, they would simply give notice to any man with a name the same as – or similar to — that of the man named by the mother as the father of her child. So, if she named John Smith or Jose Rodriguez, the state could send out a letter announcing to the man that he’d been named as father. Of course if they sent the letter to the wrong man, he’d likely take the attitude that he’d never heard of the mother, much less had sex with her, so the court hearing didn’t apply to him. Then, when he didn’t show up for the hearing, he’d be adjudicated the father and a support order would be issued against him. When he protested he’d be told, “You had your opportunity to contest the matter but failed to do so. The matter is now res judicata. Pay up. For the next 18 years.” Meanwhile, the actual dad — the one with half the responsibility for bringing the child into the world, the one whose DNA the child carries, the one who might want to know about and care for his son or daughter — would never be the wiser and neither would the child.
That system of tagging any man who was stupid enough to believe the child support system wanted only actual fathers to pay support for children who were actually theirs so infuriated one California judge that he risked his job by simply refusing to go along with what was plainly a scam.
The point being that, when it comes to keeping the cash flowing from Washington, states will do just about anything. Gilbert Tso just discovered another way they can do that.
Tso and his ex-wife Rebecca Murray have a daughter. Tso is a professional, educated at Cornell and the University of Chicago. They lived in Illinois and Tso worked for Methode Elecronics and briefly for Echelon. But Tso had been laid off his job for only two weeks when an odd thing happened. He showed up at his house one day to find his wife leaving with their daughter. They weren’t going to the supermarket; they were going to Colorado.
It seems Murray had been planning to do so for over a year and subpoenaed evidence showed she’d been having extended conversations with her attorney in preparation. (As an aside, that strongly suggests that lawyer ought to lose his/her license to practice, but something tells me that won’t happen.) On the day Tso caught Murray leaving with their daughter for Colorado, the police could not intervene and advised Tso to talk to an attorney. To prevent his wife from absconding with their daughter, who was then four, Tso filed for divorce, assuming that this clear evidence of an intention by his wife to marginalize him in the girl’s life would be viewed harshly by the court.
He was wrong. During the course of an extended divorce and child custody case, the judge found nothing amiss with his ex’s attempt to separate a little girl from her beloved dad. Keep in mind that no arrests, no history of violence, no felony or misdemeanor convictions and no restraining orders were ever lodged against Tso. The court found both parents to be fit and loving. As we’ve come to expect, when there are two fit parents, and despite the fact that children need both parents to optimize their chances in life, courts will seize the opportunity to remove the father from the child’s life. And that’s just what happened to Gilbert Tso.
Mom got primary custody. Not only that, but she asked the court to allow her to move to Colorado with the child and the judge cheerfully obliged. This overrode the court-appointed custody evaluator’s recommendation that the requested move-away be denied. Yes, the little girl had friends in Illinois and yes, she was in school there. And yes, it’s the only place she’d ever lived and her loving father was there too. But, in keeping with the “best interests of the child,” (courts do nothing that’s not in children’s interests, you know) Mom was permitted to uproot the girl, destabilize her life and move away.
That meant Tso had to move as well. He’s a passionately dedicated father and the idea of seeing his daughter only rarely and at a distance of hundreds of miles was out of the question for him. He didn’t have anything left to keep him in Illinois, so off he went trailing after his wife and daughter.
Once in Colorado, the issue of child support came up. Given the fact that all three people involved in the case lived in Colorado, Tso sought a child support order there. He also requested more time with his daughter than the Illinois court had allowed him. But remarkably, Murray sought an order of support from the Illinois court.
Now, it’s well known that family courts have continuing jurisdiction of child custody matters. That makes sense because many issues can crop up after the original order is issued. Child support can go up or down, parenting time can be changed, custody can be altered, etc. That type of jurisdiction is called “subject matter” jurisdiction; in other words, the court has the power to decide the legal matters between the parties.
But every court everywhere has to have two types of jurisdiction in order to issue valid orders — subject matter jurisdiction and in personam jurisdiction. They have to have jurisdiction of the legal matters and the parties.
Without question, the Illinois court no longer had jurisdiction of Tso, his ex-wife and their daughter. All agree that those three people are residents of the State of Colorado and have been for many months. Tso also notified the Illinois trial judge, the chief circuit judge, the head judge presiding over the family court division in that circuit court and Murray’s Illinois attorney, that he is contesting Illinois jurisdiction, and that there are simultaneous proceedings in Colorado.
So what did the Illinois court do? It issued an ex parte order requiring Tso to pay child support, that’s what. It did so on February 19, 2014 some seven months after the last family member had left the state and established residency in Colorado.
Into the bargain, the court imputed income to Tso. Of course he’d presented clear proof that his lay-off was involuntary, but the judge decided otherwise. After all, what’s going to result in a higher child support order, a finding that Tso didn’t have a job through no fault of his own (i.e. the truth) or that he, for some unknown reason, voluntarily quit a well-paying job in order to impoverish himself and his family? The judge chose the latter.
Of course the court knew that to be false and common sense strongly suggests the fact, but, given a choice, judges can be counted on to issue child support orders in the maximum amount possible. Again, that’s because Washington sends money for child support recovered, so the higher the support order, the more stands to be paid by the dad and therefore by the feds. Never mind good sense; never mind justice.
The Office of Child Support Enforcement has issued some rather plaintive statements pointing out that, if state judges issued orders fathers could actually pay, there’d be fewer arrearages to deal with. But that sort of honesty and decency tends to take a backseat to the prospect of cold hard cash.
Why didn’t Tso’s ex-wife just go to court in Colorado to get her child support order? Rather than litigating in two states, it would have been much easier and cheaper to do so in Colorado where she lived. Following the money, we learn that Illinois child support guidelines are much more beneficial to custodial parents in the Land of Lincoln than they are in Colorado, so, once again, money drives the car that runs over the non-custodial parent, in this case, the dad.
With all the blatantly anti-father shenanigans in his case, you might wonder how Tso is making out. Not well. He’s been representing himself because he no longer has money for a lawyer. He’s considering declaring bankruptcy because he’s utterly out of money. Of course he can do that, but his brand new $18,000 child support liability won’t be phased if he does. Child support indebtedness is not dischargeable in bankruptcy.
Now, from where I sit, Tso has a good chance of prevailing on appeal. A court without jurisdiction that issues an order, legally has issued no order at all. Jurisdiction is a primary legal issue. Any order issued by a court without jurisdiction is a legal nullity, void ab initio. Since all parties are residents of Colorado on the date the child support order was issued, and had been for many months, it seems clear that the Illinois court lacked jurisdiction over them. Tso should be able to get this order reversed on appeal.
But even if he does, that’ll be even more hours he’ll have spent fighting his ex and the courts. He’s spent hundreds already. Those are hours he could have spent being a father to his daughter; those are hours he could have spent looking for work. Those are hours he could have spent simply trying to get his life back to some semblance of normalcy.
But no, those things won’t happen for a long time. Yes, they’d be beneficial to his daughter and to him, but that’s too bad. An Illinois court ruled, months after it had lost jurisdiction of the case that Tso owed money he didn’t have, so whatever the consequences, Tso must fight on.
It’s how life goes when fathers get hauled into divorce court. They enter a world in which black is white, up is down and wrong is right. Time and again, these men go into the case naively believing that family courts care about children and justice. Time and again they’re blindsided by the fact that what family courts care about is money. Time and again they learn that family judges assume fathers to be violent deadbeats who only want to flee their responsibilities.
Their naiveté can be excused. Most dads only divorce once, so they can’t be expected to know what they’re getting into. But family judges are a different matter. Their jobs consist mostly of divorce and custody issues. They do those jobs every day. Why haven’t they learned the facts borne out by huge volumes of social science, that most fathers are strongly attached to their children, that children need their dads, that visitor status erodes to nothing over time, that setting child support orders higher than fathers can pay makes no sense for anyone?
The anti-father bias of family court judges is proven and re-proven every day. Uncle Sam’s largess only exacerbates that bias. Lots of people know that, but few know it like Gilbert Tso.
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