Family Court Judge Sheds Light on Unfair Child Support Practices in Texas

The problem began the night his wife didn't come home. He had left his construction job, then fed their kids. He put them to bed, watched TV and tried to sleep. Often his wife worked past midnight at an Arlington restaurant, but it was 4 a.m. and she was still gone. Another few hours passed. Finally, she called. She'd been out with friends. Could he pick her up?

Antonio grew suspicious. Had she been with another man? No, of course not, she told him. But in his mind, it was the first crack in a marriage that continued to crumble.

Financial stress compounded their problems, causing terrible fights. The conflict reached a fever pitch in 2005. He left and moved in with his mother. Shortly after that, he got a phone call from a relative of his wife's. Your youngest daughter, he told Antonio, she isn't yours. She belongs to another man. Antonio refused to believe it. But after his mother heard similar rumors, even she began talking about how the little girl didn't look like their side of the family.

Over the next 18 months, Antonio tried to visit his children, but his wife wouldn't allow it. There were more fights—his wife claimed he hit her and slammed her against a car, which he denied. She moved and he couldn't find her. Then, last summer, shortly before his wife filed for divorce, Antonio received a letter from the Texas Attorney General's Office, the state agency charged with enforcing child support obligations.

The letter instructed him to go to a Dallas County child support court where in August 2007, he faced making monthly payments equal to 30 percent of his take-home pay, which was around $1,500.

Antonio (not his real name) requested DNA testing. If what his relatives said was true, he argued, why should he have to support a child who wasn't biologically his? He would later learn that under Texas law, a man is presumed to be the legal father of any child born during his marriage to the child's mother, and if he questions his paternity, he has only four years to challenge it. All of Antonio's children were older than 4 by the time he and his wife went to court.

What happened next focused attention on the growing availability of DNA testing and caused a legal uproar that ricocheted from the halls of the Dallas County family courts to the Austin headquarters of Republican Attorney General Greg Abbott.

On January 14, family court Judge David Hanschen ordered Antonio and both of his daughters, ages 5 and 7, to undergo paternity testing immediately. The next day, lawyers within the attorney general's office who represent the state on behalf of the mother and children—asked the 5th Court of Appeals in Dallas for an emergency order halting the testing. These lawyers cited the four-year statute of limitations and argued that because Antonio was already the legal father, he had no grounds to request DNA testing and dispute that he was the biological father.

The Court of Appeals agreed and ordered that no testing be conducted. But it was too late: On January 16, the lab released the results, which placed the probability of Antonio fathering either of the girls at zero percent. On January 25, appeals court Justice Carolyn Wright ordered that the test results be sealed and kept from the children. This was followed in March by the court's written opinion that slapped Hanschen for ordering the testing in the first place and ordered the DNA results destroyed.

Hanschen refuses to comment on specific cases, but says that in certain situations, a court's denial of DNA testing may violate a father's constitutional right to equal protection and the legal system itself may be condoning fraud. "In my court, the truth does not have a statute of limitations," he says. "It's just the truth, and if we have the means to know the truth, we should."

DNA testing has garnered widespread attention for freeing the innocent. Yet the growing availability of biological testing in paternity cases complicates efforts to balance the rights of fathers with the interests of children, who could be emotionally damaged by losing a father figure simply because he doesn't share their DNA. "Part of the problem," Hanschen says, "is science has gotten so ahead of the law that the law hasn't been able to catch up."

Hanschen, a tall, bearded man with a sober demeanor and deep baritone voice, has stood out as a maverick at the courthouse since he was elected in 2006 as one of more than 40 Democrats who swept the Dallas County judicial contests in a partisan sea change. He wears his hair in a ponytail that hangs down to his lower back and has been mocked by conservatives such as former state Republican Party chair Tom Pauken for being a "New Age" judge who chomps on "weird nuts and seeds" and has lawyers "sit under a Buddha which is prominently placed in his conference room." Hanschen calls the criticism "scurrilous." "Because I have a Buddha I bought in Thailand five years ago they think I'm operating some kind of cult in here," he says. "Come on, it's an amazing piece of art."