Daphne Trombley | A Family Lawyer’s Guide to the Office of the Attorney General

As a private family law attorney, you may not know the ins and outs of the Office of the Attorney General, but when dealing with a child support case, understanding the OAG can help you get a faster, or better, outcome for your clients.

Today on the podcast, Daphne Trombley walks you through the OAG and child support cases.

Daphne served a 7-year tenure as the Managing Assistant Attorney General for the Office of the Attorney General’s Child Support Division.

In this episode, she lends you her expertise so you can learn…

  • How the OAG enforces child support
  • Best practices for when your client has an open OAG case
  • How to navigate an informal settlement process with the OAG
  • Options for when the OAG doesn’t give your client the desired outcome
  • And more

Mentioned in this episode:


Daphne Trombley: While the Office of the Attorney General, it has its stated purpose, it’s not saying that it doesn’t have a goal. Like it doesn’t, it takes a position. So they’re not a third party neutral. They want to establish and collect support for the children in the state of Texas.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host, attorney Holly Draper.

Holly Draper: Today we’re excited to welcome our own Daphne Trombley as our guest on the Texas Family Law Insiders podcast. She’s a proud Captain in the Judge Advocate General’s Corps of the United States Army Reserves, where she served for over 11 years. Before joining the Draper Law Firm, she was a Managing Assistant Attorney General for the Office of the Attorney General’s Child Support Division. During her nearly seven year tenure at the OAG, Daphne was part of the landmark heroes project, which specialized in support orders for service members across the state. She was selected as one of only 20 Texas attorneys to serve in the State Bar of Texas Leadership Class for the 2021-2022 year. Thank you so much for joining us today.

Daphne: Thank you so much. So first, I just want to say hi, thank you for inviting me on to talk about this topic. Just a little bit about myself over the course of 14 years, I was with the OAG for half of it. But while I was there, I worked in so many counties in Texas, Bell County, Kaufman, Johnson, Tarrant. Collin County, Ellis County, Rockwall, and extensively in Dallas County. Outside of work, I have four children. So when I’m not busy running around with them, I do have some free time, I do like to listen to audiobooks only because that means my toddler cannot destroy them. So I can listen to it without worrying about the pages getting ripped out. And I do like to work out and listen to music. And I do go to girls basketball games for Allen High School.

Holly: So I am very impressed that you spent a lot of time in Dallas County as in the OAG’s office because that seems like not the most exciting place to be.

Daphne: It was a challenge.

Holly: But not the most exciting is not the right way of saying it. It seems like a overly exciting place to be, I’m sure.

Daphne: Yeah, lots of cases, lots of people.

Holly: So today we’re here to kind of dive in on child support and specifically issues involving the OAG because a lot of us who have never been behind the curtain at the OAG can get frustrated or not really know what’s going on, what we should or shouldn’t be doing, and how we can help our private clients fare better when we’re dealing with the OAG. So why don’t we start with you know, kind of the general process. Can you tell us about what happens when a parent contacts the OAG to request child support?

Daphne: So thank you, Holly, when when I talk about the OAG, it’s helpful to think about the agency in terms of three key areas. That’s their purpose, their power and the way they play within the legal system. So everything that we talk about with the OAG, one of those areas is going to give us a clue as to why they do the things that they do. And when private attorneys understand those three things about the Office of the Attorney General, I think they would better be able to utilize the agency for their cases where it can help. And they will better be able to work with the agency in the cases that aren’t going well, because sometimes the system has unintended consequences, and it affects our clients in negative ways.

So to answer your question, the general process is there are there are two kinds of cases. And this is a piece that some people don’t understand. So if you understand that the OAG has two types of cases, one is a full service case and one is a registry only case. So when a person opens up an application online or they can do it via paper, the agency opens up a case and they start full service process. That means they can establish child support, modify child support or enforce a child support order. What another, another thing that people don’t understand is there are ways that child support cases get opened with the OAG that maybe the client did not intend.

So if a client signs up for Medicaid, or if they reach out for TANF benefits, that paperwork that they signed will open up a full service case with the OAG. And sometimes you might have a client It who did not realize that they inadvertently opened up a full service case with the Office of Attorney General. So once the case is open, because of this process, that means the agency has a massive amount of cases. I think, in private practice, we don’t even have a frame of reference to realize how many cases the agency deals with on a daily basis. So that goes to their purpose.

The purpose of the OAG is to establish, enforce and collect child support, like that’s their purpose. That’s what they’re trying to do in any case. The Social Security Act of 1975 required every state to have a child support enforcement agency to do those purposes. And for Texas, the Office of the Attorney General is our agency that does that. So looking at their purpose when they open up a case, and it’s a massive amount of cases, they have to have a system that helps the limited amount of people or the human resources to accomplish those goals. So they have a system that interfaces with many other systems across the United States, as well as state of Texas.

So as we talk about these questions, we’ll talk about how that system can help us or hurt us when we’re trying to assist our client. But when a client opens up a case, it opens it up within this massive system. And the system starts working immediately, even before a human being looks at that application or that case. So it’s pulling data, it’s pulling information. It’s matching social security numbers and dates of birth and names. So that’s why the OAG is able to locate parents quickly and efficiently, because they’re matching up socials, with the Texas Workforce Commission, and other agencies to find where parents are.

So once that data is pooled, then a worker looks at it sees the application is there, and then they start work on it. And they look at what’s the next step in the process. Because you can apply for these services at any stage in your process. It could be when you’re looking to establish child support or establish paternity, or when you already have a case and you’re looking to modify it or have the OAG help with enforcing that case. So once they establish what stage in the process it is, then it’ll get assigned an Assistant Attorney General, who will, they will look at the case and do the next step.

Holly: So something you said in there struck me as surprising or something that private attorneys don’t think about the Attorney General. I believe the word the words you use were quick and efficient system. So as an outsider, I see the OAG Child Support Division as being anything but quick and efficient. And in talking to clients about you know, should you go through OAG or should you go privately? The reason that is often given for not going with the OAG is because it will take a long time. You know, are there things that bog it down in the system? Are there things people can do to help speed it along? Can you talk about that a little bit?

Daphne: Yes. So you’re exactly right, Holly. What we see on the outside, like, even myself, now as a private practitioner, I see that it takes a long time. That’s what we see out here. Even when you open up a case it’s going to take a long time from you filling out that application to actually getting into court and getting your services done. The reason for that is, and the reason why I still would label it as efficient is because you have to look at the numbers and they are massive. So for example, Dallas County, the caseload that they have is in the hundreds of 1000s of cases, hundreds of thousands.

Holly: When you say that, do you mean active at one any given time or all the kids under 18 in their system?

Daphne: Absolutely. So the system is officially working in the background, even when we are asleep. You know, it’s when people talk about Big Brother, this system is what I imagined when they say that because this system is working like a workhorse at all times. So things are happening on the system without human intervention. So the cases that we come in contact with it’s like a big funnel and it narrows down to the cases that we see. But there are tons of actions that are happening efficiently on these cases that we would never even know about. Collections are starting, their system sends out wage withholdings automatically. And I know we’ll talk a little bit more about that.

But it gets to the employers and money starts pouring in without a person having to actually touch that case, because the system is taking all of these actions. So while we might have our criticisms, because it’s not happening as quickly as it would happen if we were to do it, because we have a limited caseload, if you think about it in terms of their purpose, it’s terribly efficient when you have over 100,000 cases in a given area. And that’s just Dallas County. So their in every county in Texas. So it’s it’s a massive process. And some of the mistakes that we see, or some of the errors that come out of it, are because the system, of course, is not perfect, just like people aren’t perfect. And it’s just a matter of trying to work with the system and fix those small number of cases that are going to have issues.

Holly: Very interesting. So you talked a little bit about there’s two different case, two different ways you have OAG involved. You can do registry only or you can have full service. What is the OAG’s involvement if you’re a registry only?

Daphne: So the registry only cases is essentially a clearing house. Because of the Texas family code, it requires all of the child support to be sent through the state disbursement unit. So essentially, an obligor will send his support, his or her support to the state dispursement unit in San Antonio. And they will send that support to the obligee, and they would keep a record of that. So the only thing you can get on those type of cases, is basically a payment record. And the payment record is just going, it’s not going to show how much is due, it’s not going to show anything else about the case other than on this day, at this time, this amount of money came through the system, and it’ll just be a record of the payments. For full service cases of course, there are more detailed reports called financial activity reports. And it has a lot more data on there. And sometimes they’re more helpful and useful in court cases.

Holly: So when will the OAG step in to modify a child support order?

Daphne: So, of course, if there’s a registry only case, they will, they will not step in and modify case because they’re not even keeping track of it. But for full service cases, they do review cases every every few years, to see if the wage data has changed. So this is another part of the powers that they have. Because they have this massive system, it can check what the wages are coming through for an obligor. And when it’s out of sync with what the guidelines would be, the employees of the OAG are able to look in there and see hmm, the obligor is making more money than they made at the time when this order was implemented, I can do a crude calculation on the support and see that this child support would change, you know, greater than $100.

So we were going to send out paperwork saying, do you want a modification? And so then they will have an opportunity to come back and say, yes, I want to do a modification. And there are two ways the OAG would do a modification. This is another process that some people don’t understand. So hopefully, I can shed a little light on the process so it can be less scary for private attorneys. And that’s the child support review process. So that’s an informal process. It’s not, many people misunderstand and they think it’s with a mediator. It’s not with a mediator, and it’s not a mediation. However, it’s just an informal settlement conference, so to speak, between the parties in the case and they’ll have a child support officer there.

And so the child support officer is not even an attorney. It’s basically their equivalent to a paralegal who basically talks about the child support case with the parties and gives them an opportunity to agree. But another thing that people have to understand is while the Office of the Attorney General, it has its stated purpose it’s not saying that it doesn’t have a goal. Like it doesn’t. It takes the position. So they’re not a third party neutral. Like something people think. They want to establish and collect support for the children in the state of Texas. So if there are two parties there, and the parties are not wanting to establish support at all, the Office of the Attorney General, their employee can say, no, we don’t think that’s in the best interest of the children, we do not agree.

So it’s a three way agreement. And that’s the piece that I want people to understand. But it is a cheap process. Because the OAG provides the services, we can’t say for free because there’s like a little fee that’s charged on each case now, but it’s low cost legal services, and you could keep them out of out of court. And if that process doesn’t work, or if the parties elect not to go through that process, they will file paperwork and go through court, and it’ll go through the IV-D court system with the IV-D judges.

Holly: Do you recommend that people involved in that informal settlement process, have an attorney go with them? Or is that something where, you know, go on your own, and if it doesn’t work out, then come see me as an attorney.

Daphne: So they do get a couple bites at the apple. So I will say that, for run of the mill cases where you’re just looking for guideline child support, the obligor has a job, and they want standard possession order or expanded standard, this negotiation conference is not going to be a problem in most cases. And many cases are resolved that way. And those people are able to save the cost of hiring an attorney, and they are able to save the costs of going to court. So it just depends. But if there’s a case where there are special issues regarding child support, meaning you either want above guideline, or the obligor wants below guideline, or the there’s difficulty with ascertaining what the wages are like there’s a self employed obligor, then those are the cases where you might want to consider legal representation. And for cases where people cannot afford attorneys is definitely something they should consider.

Holly: So what about enforcement of a child support order? When does the OAG get involved there?

Daphne: That’s where their power comes into play. And if you follow the OAG, even just a little bit, what we realize is their system is award winning. So they collect billions with a B over the course of a year in child support. And we’re talking multiple billions. So and it goes up every year. So in order for them to do this, their enforcement is pretty strong. And the reason why they’re so great at their enforcement is because of the systems that they have in place, and the processes that they have in place. So along with a system that looks at wage data, they have systems, and they’re able to lobby directly to the legislature for provisions in the statute that helped them enforce child support orders.

So if you’re behind on your child support, they can put a block on you renewing your driver’s license. They can put a block on you, you know, renewing your hunting and fishing licenses. They can intercept your tax refund. There’s all these different systems that they have, in order to enforce these orders. And that’s one of the beauty, the beautiful parts of working with the OAG because as a private practitioner, there are some things that we can do to enforce. Namely, we can go to court and we can, you know, ask the judge to enforce the order, ask for jail time, things like that. But there are so many things that the OAG can do outside of the courtroom that can get the money quickly. They can have they have a match on bank accounts.

So they can tell when an obligor has a bank account, they match it up with the social security number and the name. They look at it, they can see how much money is in the bank account. And they can immediately send out paperwork to try to intercept that money. Something that it would take us a long time to do we would have to get a what, a forensic accountant to try to determine or do discovery to determine if these accounts exist. By the time we figure out that there’s money there, the money is probably taken out and gone. But the OAG can do these things without the obligor even realizing it’s going to happen. So that’s what makes their enforcement process so efficient.

Holly: So that can happen just by virtue of the OAG showing and arrearage. They don’t have to go file an enforcement or take any other steps, they can just start collecting essentially.

Daphne: Absolutely. And there are several avenues, some that I haven’t even touched on, that they’re able to do, and they can file liens on property. They do work with insurance companies, if someone gets into a car accident, and they owe money on child support, they’re able to quickly just send out that paperwork to the insurance company to keep the insurance company from paying that money over to the obligor. And that can come for child support. They also work with in bankruptcy proceedings, and they can put your child support there as a creditor and keep, you know, the obligor from discharging everything in bankruptcy.

Things that would take us a long time to do they’re able to do it quickly. So I would say any private attorney, if you have an enforcement case, and especially if you’re dealing with an obligor, that has like hidden assets and bank accounts and money in different places and property. Go ahead, I would advise you to consider telling your client to open up a full service OAG case so that the OAG can get in, get in there and start doing some of their enforcement efforts. They’re only going to enhance what we do.

Holly: So let’s say a potential client comes into my office and they want to enforce because, you know, deadbeat parent is 1000s and 1000s of dollars behind in child support. And obviously, I could file an enforcement pretty quickly and have a hearing set maybe the next 30 to 60 days, maybe quicker depending on where we are. If the client wants the OAG involved, or if we think it’s a good idea for the OAG to be involved and there is not an open case already. How long is it realistically going to take once they submit paperwork requesting there be an open case for the OAG to sync up with us. And is there a way that attorneys can make it happen quicker?

Daphne: So they have deadlines regarding how long it takes them to open up a case. So and the deadlines are pretty quick. So a case once they submit their application and it hits their system, their employees have a certain length of time to open up the case and and start movement on the case. The issue is we don’t see that movement. So we might not feel like the case is open until our client starts getting paperwork from the OAG or you know things start moving on the case. So the only thing that you can really do to move it along because they do have a massive amount of cases that they deal with, you can utilize the chat feature on the Office of the Attorney General’s website.

And you can get a status update of your case there. One thing that would help streamline and streamline the process of getting that information for a private attorney is to have their clients go ahead and fill out a release of information form. And that’s a form that the Office of the Attorney General needs to be able to talk to an attorney about their client’s case. And so they won’t talk to even an attorney. Even if you send them over. You think just having an open case or just being attorney of record would do it. But they need a special form that says that that client has given you permission to talk about the case. But once they have it, you can then interface with the OAG yourself.

Once you utilize the chat feature, you can try to get the name of the child support officer that is working on the case. And once you have that person’s name and contact information, if you’re able to get it because they they will try to they don’t try to give that information out like really quickly, then you can interface with that person and try to speed the case along. Once you ask for a case to be opened up, if you file on the case, then the OAG would have to intervene in some manner in your case. And so that’s one way that people speed it up, by filing the case and then serving the OAG and asking them to go ahead and intervene.

Holly: So we know that our client has started that process with the OAG to open services and we want to go forward with our enforcement. Even if it hasn’t gotten to a point where there’s been any response yet from the OAG, is it best practice to go ahead and list them as a party and serve them with the suit? Or do we wait for those motions to all work themselves out and add them in later?

Daphne: So I would say that within a week or two of your clients filling out an application for services with the OAG, there’s going to be an OAG case number associated with that case, and it is going to trigger all of those requirements of notifying the OAG and serving them. So I would go ahead and do it. And especially if you want them on the case to help, I would go ahead and do it as quickly as possible.

Holly: So anytime I’ve found myself in IV-D court looking at enforcement’s filed by the OAG, I often find that they’re not really, they’re not really filing enforcement’s, they’re more filing to confirm arrears. Did you see a lot of actual enforcement’s being filed, jail time being requested, contempt sought, in cases going through the OAG?

Daphne: Yes, in each, each office or back when I was there, each office could kind of set it up differently. So there might be days where the docket was an establishment or modification docket. So all the cases that that day were, you know, establishment or modification cases. And then you might have certain days where you will make the docket just heavy on enforcement. And the reason for that is because, you know, you get your judge in that mindset of, okay, we’re here today to try to, you know, give some payments and collect some support. So, maybe that was a reason there maybe wasn’t that many enforcement cases on the docket that day. I do know that COVID has affected the agency with their enforcement actions.

And you know, just the changes in the job market and COVID, making people lose jobs and restaurants closing. So that might have affected, whether they want to go for enforcement like they used to. But you know, back in the day, pre COVID, no enforcement were a thing. And asking for jail time was definitely something that happened that occurred, every docket. People did get incarcerated because of non payment of their their child support, basically contempt. And they asked for attorneys fees, the whole nine yards, but that’s what the agency definitely does. But if there’s a way to figure out how to get the money without having to go to court, they’re definitely they’re gonna take that option.

Holly: So one of the things you’ve talked about is kind of they have these systems in place where things automatically happen, or they get noticed of certain things. What would trigger the OAG to send out a withholding order?

Daphne: I would say the fact that there hasn’t been a withholding order sent out on a case. So the process for private attorneys is we have to fill out the wage withholding, we have to submit it to the court, we have to get the judge’s signature. But there’s special provisions in the family code for the Office of the Attorney General to send out what’s called administrative wage withholding. So they don’t have to get a judge’s signature. They don’t have to get anything, all they have to do is fill out their form and send it to the employer. And the employer has to comply with that wage withholding. So when the system, their system looks on a particular case, and a wage withholding hasn’t been sent out on the case, the system will automatically send out a wage withholding.

Holly: So whenever we wrap up a, say it’s a divorce, or a SAPCR, or a mod, and there is a new child support obligation going in there. If we fill out the paperwork for the AG, we send it off but, it’s going to be a registry only case at this point. Because the clients never applied for services. I would assume there’s no trigger there. It’s only going to be triggered if the client actually requests services.

Daphne: Right. That’s exactly right. And that’s another thing that sometimes it trips attorneys up, where they assume a wage withholding is going to go out from the OAG and it doesn’t because the case is a registry only case. So that attorney would still have to take the necessary steps of drafting up a wage withholding and sending it to the court so it can get signed by the judge and then get sent to the employer.

Holly: One of the other things you mentioned was about tax returns being taken. What would trigger the interception of a tax return from someone?

Daphne: I want to say it’s a formula but it’s it’s not a form they have to be in arrears to a certain amount. So I forget exactly what the amount is. But it’s a couple $1,000, that they would have to be arrears for a certain length of time. And the system automatically looks at those things. And it automatically triggers the case for an interseption. And so the IRS has an interface with the OAG’s system that tells that system if there’s going to be a refund released to the obligor. And the reason why I don’t know the triggers is because a human being doesn’t have to do it. It’s automatically done by the system. So it’s kind of like one of those forms where If This Then That.

So if the case has an arrears of this amount, and if the socials match, and the names match, then these letters are sent out, and there’s a hold put on the refund that’s sent to that person. And then they wait, they even wait a certain length of time before they actually take the money to give that person an opportunity to come in and say, hey, no, that’s the wrong person, somebody used my social, stolen identity, or whatever they’re going to say. And if they don’t say anything, then that money is released. And it’s given to the obligee, and that collection is done.

Holly: So that a letter goes out to the person who is in arrears and lets them know, and they have an opportunity to say, hey I don’t take my money for whatever reason. Okay.

Daphne: And then even after that goes through, they’ll put in the system and there’s a, there’s a hold on it, even then before it is sent to the obligee to say, to give that person another opportunity to say that there’s something wrong with this IRS interception, including the innocent spouse. So this will help attorneys also when they have clients that say, hey, I have a husband, who owes child support on another case, we file our taxes together, and they’re trying to take our refund. There’s a form called innocent spouse form where that person can fill it out and say, hey, don’t take all of it, because I don’t owe child support. And through that process, they’ll look at it again.

Holly: So even though you know the purpose of the OAG Child Support Division is related to collecting and enforcing child support, we all know that there’s another piece to these orders, and that relates to conservatorship and possession schedule. How does the, because the OAG cannot create an order in a new case without addressing these pieces. So what are the general policies and factors that go into that, when it’s strictly going through the OAG?

Daphne: Great question. I’m so glad you asked that question because it comes up a lot in these cases. So that’s correct. The purpose of the OAG is as the Texas Child Support Enforcement Agency is to establish and collect child support. So the reason why the OAG is even messing with possession and access in Texas is because it’s required by the statute in Texas. So there are other states that don’t have this requirement in their statutes, and their child support enforcement agency only deals with the child support piece.

And if you if you need orders for visitation and access, you have to go through a private attorney or represent yourself and go through another process. Their child support enforcement agent doesn’t even deal with it. So because the Office of the Attorney General in Texas has to deal with this piece, that piece is still not their bread and butter, so to speak. It’s not the reason why they were set up, and it’s not, it’s not their stated purpose, if you go on their website, and you go to their mission it’s not going to say anything about visitation and access. It’s something that they have to do just because it’s in the statute.

So because of that, a person who goes through that system is not going to get orders that are custom to them and their situation. They’re going to get a cookie cutter, standard possession order, first, third and fifth, regular rights duties and responsibilities, and that’s going to be the order. If they want something more specialized or that orders is unworkable for them, that’s when I see parties experience the most difficulties when they’re working with the OAG. And that’s because of the way that they play. They’re really trying to do the child support piece, and they’re having to do the visitation and access piece.

Holly: As private attorneys, we can often see the unintended consequences that result from putting those cookie cutter rights and duties and possession schedules into orders. Where we have someone who had a history of domestic violence or we have someone who has a drug history or a lot of reasons where these presumptions now come into play that okay, well, you were named a joint managing conservator and you were given standard possession or so we assumed that it was dealt with, that you were a drug addict, and that you were a violent criminal, you know. And then we can’t, when we’re trying to modify for custody later, we can never go back before that order. And I think your average person going to the OAG has no clue about those types of consequences.

Daphne: That’s true. And, and that’s one of the unfortunate pieces is because there’s not a lot of time in this in this huge system of cases, to educate each person that’s going through the system of the effects of their order, what those rights duties and responsibilities mean. And particularly, the biggest one that I see is the geographic restriction. So just depending on how a particular IV-D judge likes their order, they might put that in every single order. So there’s just a geographic restriction in every order, because it just comes out that way. And so no one’s talking to the person who’s subject to that geographic restriction about the effects of that, or even telling them that they don’t have to agree to that. They can go, you know, try to talk and get something else ordered. And trying to lift a geographic restriction once it’s already in the order, every attorney knows it’s difficult.

Holly: So you just mentioned something about IV-D Court, and child support only cases that don’t really have contested custody issues typically are only and are going to be in IV-D Court if the OAG is involved. What are your thoughts on as a private attorney, keeping cases in IV-D Court versus pulling them out to District Court? And when would you want to do that?

Daphne: Well, it just depends on what the issues are. If we’re having issues about visitation and access, then I would want to pull that case out of IV-D Court, simply because the way they play and how the system is set up. It’s not set up to really specialize in visitation and access issues. So a IV-D judge is not going to have as much experience on visitation access problems as the judges who are outside of the IV-D system. So I would definitely pull those cases out of the IV-D system immediately if you’re having visitation and access issues.

Holly: Does the IV-D judge have the authority to make decisions about possession access?

Daphne: They do, because that’s in the statute that says that once you establish these orders, you have to do possession and access schedules in every order. So they have to be able to do initial ones. That’s why if you’re just doing a cookie cutter, then it’s going to be fine. But if it’s something that’s outside of what’s in the standard forms that the OAG uses, you’re going to need to go to a different court for that. If you want to have the, if you want to try to have the best outcomes.

Holly: So let’s say you decide, you go forward with a hearing in OAG court and it does not go the way that you want. What are the options for a de novo?

Daphne: Well, you can you can still you still have all your options. You can ask for the case to be refered back up and try to get another bite at the apple. You still have all of your options that that you would have with an associate judge.

Holly: Did you ever see above guideline child support happening with cases through the OAG?

Daphne: I did. You mentioned in the introduction that I was with the heroes project. So when I first came onto the OAG, it was specifically for that project and we worked with military only cases. There are cases and it doesn’t happen often, where above guideline support is appropriate. And it’s not always like the ones you think, you know, the basketball players, you know, professional basketball players, professional baseball players, when you’re trying to argue for above cap. Those cases are very difficult and those I didn’t see happen very often, simply because of what you have to prove to prove the needs of the child above the cap guideline support.

But to argue just above guideline support for a case that wasn’t at cap, there are different things that you would look at. And you can look at things like if someone’s having their room and board paid for, and particularly that affected soldiers, because, you know, some soldiers are living on base. And so they’re not having to pay extra for rent, and things like that. So those arguments were being made in those types of cases. Cases where there’s an employee who gets a lot of fringe benefits from their company. They get houses paid for, they get cars paid for.

So the argument is, when the legislator put in the guidelines, they were thinking about someone who had to pay for their own food, house, car and things like that. And so that’s where they came up with the percentages. And if you have somebody that falls outside of those guidelines, and they don’t have to pay for those things that were normally contemplated by the legislature, then the next argument is, well, shouldn’t they have they have more resources to be able to pay support. And so I did see those cases. And it just so happened, a lot of them happened in military related cases.

Holly: So another thing we see a lot, especially as private attorneys, is people following a possession schedule, that is not the standard or expanded standard possession order. You know, we’ll see people agreeing we agree to this 50/50 schedule. And I would assume anything going through the OAG if it’s 50/50, or something else unique is because the parties have agreed to it. But as we know, the family code doesn’t address that and doesn’t provide guidelines for what to do in a 50/50 schedule. How does the OAG tend to handle it when we’re looking at a 50/50 or other otherwise unique schedule?

Daphne: So just from, like I said, their purpose, they’re there for child support, they’re doing the visitation and access because it’s required. In a regular case load for regular docket, they’re not going to have a lot of time to deal with the cases. So just so that the people watching this can understand, if you’ve never been to IV-D court it’s a massive process, like just on like 100 plus cases could be on a docket for that day. And the cases are just rolling through. And while the cases are being, they call the docket at the beginning to make sure everybody’s there, and they you know, weed out the cases where people didn’t show up. But once you have a set of people that are there, and the cases are ready to go, then there are people in other little rooms in the back, doing a informal settlement conference, so to speak on these cases, and they’re in the back trying to work out agreements on these cases.

The cases that don’t have agreements, they put that up there at the bench, and they have what’s called basically a bench attorney who’s going to do those contested hearings in front of the judge. And so many times the attorney that’s at the bench didn’t work that case that’s in that was negotiated in the back and might not have had an opportunity to look at that case and even see what’s going on. So that’s where understanding the way they play helps. That’s why if you’re having issues with access and visitation, the IV-D system might not be the best system to address your needs and concerns. It’s going to take a client or a person who’s in the system to really be a great self advocate.

And then at the end of the day, you’re talking about order drafting. They would draft the orders like on the spot. So the the employees have their computers, they type it up, they they put in the system, it generates the orders, it goes to the printer, they go pick it up, and then they’ll hand write little changes on it. So if there’s a person that has a custom possession schedule, that’s probably not going to be done that day. So the best they could probably hope for is getting in agreement on the matter, reading the agreement into the record, and giving that Assistant Attorney General time to draft that order at a later date in coming back.

Holly: That seems like a prospect that could take a while if you’re expecting one of the assistant AG’s to be able to put any time into drafting an order after the fact.

Daphne: Yeah, it has happened before but like I said, because of the number of cases and the way they play, it doesn’t happen often. So that’s when they play really nice with us, with private attorneys. They will love for the private attorneys, okay, you draft the visitation and access, you know, I’ll stick to the child support pieces. And we can put those together and get an agreed order at the end of the day, and then we’ll be done. But they’re not going to specialize in drafting possession and access schedules that are non non standard possession. And that’s just just the truth of the matter. So if the party can’t draft the order themselves, then they’re just basically going to be relying on that, that AAG to draft that order for them. Results may vary.

Holly: So what advice would you give to family lawyers about how to best work with the OAG instead of against the OAG on a case?

Daphne: Well, my advice would be first to decide that you want to work with them instead of against them. When we discussed this topic, when I discussed this topic with attorneys in the past, it’s there’s a set that always made up their mind that oh, working with the OAG is the worst. But I would encourage everyone to try to look at it in a different light. And just first tell yourself what their purpose is, what powers do they have? And how do they play. And once you figured those three pieces out, you can work with them on any case, okay. They’re not going to do what you want them to do.

Because they have their own purpose, they have their own process, and they have systems that they have to work within the parameters of, but they can help you with certain pieces on your case. So if you have a case, you can look at the pieces that you need help with, and then you can try to focus on getting the help from them on those cases. I just recently finished up a case and the OAG was very helpful in that case. They were they were able to send out notices to insurance companies regarding the arrearages on child support. They were able to come to the hearing, and it just so happened that what we wanted and what the OAG wanted were the same.

So we were together, and then there was opposing counsel over there. So there’s basically two lawyers asking for the same thing on this side. And one lawyer asking for something else on the other side. So of course, that’s extremely helpful when you’re before the judge, when they do come with you to court on a case, I find that judges do listen to what they say because they are considered subject matter experts on child support. So if you utilize them, basically as a subject matter expert on child support issues, then you will be able to see how to utilize them in your case and help your client.

Holly: Well, we’re just about out of time. But one of the questions I like to ask everyone who joins me on the podcast is if you could give one piece of advice to young family lawyers, what would it be?

Daphne: One piece of advice for young family lawyers. Oh, it would definitely be to go to Advanced Family Law. I learned more and made more networking opportunities, and just understood more about family law through going to Advanced Family Law. And that’s something that I did not do early on in my career. And then at the OAG, they have their own separate, basically Advanced Family Law called SWAG. And so I never got to go to Advanced Family Law. But when I finally did, I immediately said, I’m going to tell every young lawyer that I know. Give them money, ask for sponsorships, whatever you have to do in order to make it work but definitely go to Advanced Family Law.

Holly: Excellent advice. It’s a always not only a great time every year but excellent learning opportunities. So where can our listeners go if they want to learn more about you?

Daphne: Well, I’m definitely go to the draperfirm.com and I have a profile there. And all my information is there and just contact me. The information is listed there as well.

Holly: All right, well, thank you so much for joining us today. For our listeners, if you enjoyed this episode, please do take a second to leave us a review and subscribe so you can enjoy future episodes.

Voiceover: The Texas Family Law Insiders podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at draperfirm.com.

Subscribe to the Podcast

Follow Us


This field is for validation purposes and should be left unchanged.