Haggling Over Who Collects Late Child Support Payments Could Leave Some Kids Without

The legal sparring began in late 2002, when citing amendments to the family code, the state notified O'Donnell that he would no longer receive any cases or payments without first having parents sign documents giving their consent. O'Donnell argued that he already had their consent as part of the divorce decrees. He sued Abbott's office in federal court, accusing the Child Support Division of intercepting child support payments and refusing to forward them and the corresponding fees to his McKinney office.

U.S. District Judge Lee Yeakel sided with the state in September 2005 and ruled that the divorce decrees didn't constitute parental consent to collect and disburse payments. The ruling was upheld on appeal in 2007. Following the decision, O'Donnell says, he asked Alicia Key, director of the Child Support Division, for a list of cases that involved her office so he could get the required consent from the parties. She refused, he says.

But according to Strickland, the division did agree to provide the list, and while GAL had collected consent forms from 950 families as of March, the company was still attempting to collect payments for 1,200 parents without written permission.

O'Donnell, however, says his staff worked to ferret out the cases that involved the attorney general and by early this year had collected nearly 2,000 consent forms, but the attorney general's office declared it was taking immediate control of the 2,300 cases his firm had been appointed to enforce anyway. According to O'Donnell and Judge Cherry, the move will disrupt payments and keep children from getting what they need (though the office claims the opposite). When Cherry scheduled the hearing on O'Donnell's request for a temporary restraining order, she expected the office would send one or two local attorneys. Instead, the state flew seven attorneys up from Austin in a private jet.

"It was highly unusual," she says. "Did it really take a dozen people to fly out here from Austin to reset a hearing? That's our tax dollars not at work."

As Cherry sought to block the office's effort to divert the cases, she found herself the target of a mandamus, along with the other judges who have appointed Guardian Ad Litem. The state requested that O'Donnell's firm be removed from "all child support orders in Dallas and Collin counties that require payment be remitted to Guardian Ad Litem" and requested they stop appointing the firm. The 5th Court of Appeals denied the mandamus on February 28. The attorney general's office appealed to the Texas Supreme Court, and briefs are due to be filed in May.

In the meantime, Cherry has scheduled a meeting with attorney general higher-ups on April 17 to come to an agreement so that families aren't left waiting for their child support. Cherry, calling the office's efforts an "an infringement on the autonomy of the court to enforce its own orders," says the parties shouldn't wait for the Supreme Court to resolve the issue. "Frequently it takes a long time for the Supreme Court to come back with rulings, sometimes even years," she says. "What are we going to do—blow off court orders for years?"