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China Child Custody and Criminal Defense Matter

Here is the scenario.  Children come into state custody. There is protracted litigation because there was also a companion criminal case involving both parents. Each parent has two attorneys who are all working together (mostly).  In the middle of the proceedings (January, 2012) the department files a petition for child support for the kids.  Parents not served, attorneys not served.  In May, 2013 after all litigation in all matters has been resolved, parents get a hearing notice for child support. I ended up attending the hearing on behalf of both parents (who are still together and married) and assumed that someone had been served with the petition.

It is only when I am at the status conference that I realize that my clients have never seen the petition, the department cannot produce any evidence that it was ever served on anyone, and that it was filed in January, 2012. Department seeking support from January, 2012 - March, 2013 (when the last case was resolved). I practice criminal law and a China family lawyer.

I only ended up on the child support case because I ended up working most closely with the parents during all the litigation and I was responsible for getting criminal charges dismissed.  The parents asked me to assist with child support because, of the four lawyers, I was really the only one to do anything substantive. I am a bit out of my area of expertise here.  I understand that child support can go back to the date of the petition, but not serving the parents for 17 months and then seeking retroactive support seems to be a huge due process issue.

Then I talked this case with a friend of mine, also an experienced China family lawyer and a criminal defense lawyer. Here is his response. Not really much to gain by getting it dismissed for lack of service; it would be dismissed without prejudice and they can just re-file the case. If they have voluntarily appeared at any hearing, they may have waived the right to challenge on improper service anyway. At least in our state, DHHS is entitled by statute to recover all expenditures made on behalf of the family during the period of time the children are in the custody of DHHS, to the extent the family is able to pay. That amount is probably significantly higher than what the department is seeking through their petition. It is unlikely the family can escape paying some portion of those expenses no matter what you do, so the best course of action may be to negotiate a settlement amount and terms that improve your clients current exposure to liability.

Chasing your tail fighting over proper service and procedure is not likely to serve any real purpose. First, check to see if your state has a similar statute allowing DHHS to recover all expenditures made on behalf of the family; if so, negotiating a settlement is probably the best service you can provide for your client.

This matter seems nothing to do with divorce law, but this matter finally leads to a divorce case...

I am working with a China divorce lawyer later...

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China Lawyer BLog AuthorPeter Zhu, an experienced China attorney licensed to practice law for more than ten years, the author of this China Lawyer blog, welcomes any enquiry or consultation related to Chinese law.