Do you have questions about child support? Do you not know if you have been ordered to pay child support? Are you outworked and unable to afford the child support payments that you know that you need to make? Have you been to court? Was the court appearance one that resulted in a child support order being issued? These are the questions that we come face to face with today.
The fact of the matter is that many mothers and fathers who have been to family court do not know the first thing about the process that required that they step in front of a judge. You may have gone to court and now you have a lot more questions than answers. Maybe you didn’t get to have an opportunity with you to explain the ins and the outs of the process. Maybe you did but the lawyer wasn’t all that great at explaining the steps involved and advising you on what would be in your best interests. Now you are left with a lot of questions regarding a very important topic.
Today’s blog post from the Law Office of Bryan Fagan will seek to explain to you some of the issues related to child support in Texas. Specifically, I want to address those parents who have no clue about their prior involvement with the legal system. It seems like it was a lifetime ago that you stood before a judge. You can’t remember what was said, only that you signed something and now you have an upset ex-girlfriend calling and asking you about unpaid child support. What can you do? Before you do anything, read this blog post and go from there.
Who (if anyone) has to pay child support?
The key thing for us to understand is that you need to have gone before a judge (most likely) to have the responsibility to pay child support. Your child's mother can't just call you out of the blue and demand money for diapers. Likewise, you cannot just mail her a check for $100 and expect that will take care of your responsibilities for a year or more. There have to be some things already set into motion for there to be a legal obligation for you to do anything.
If you had gone before a judge previously or met with a representative from the Office of the Attorney General’s child support division to talk about child support then you probably do have a court order. The Office of the Attorney General administers child support payments in Texas. If you and your child’s mother went to one of their offices and talked about money and agreed that some amount of support should be paid it is probable that you now have to pay child support.
Likewise, if you went in front of a judge and spent a great deal of time in court then you probably also have a child support order in place. Unfortunately, many fathers who go to child support court do not have the opportunity to hire an attorney. These men will often sign paperwork just to be able to leave and go back to work. Not wanting to get in trouble with the law and simultaneously wanting to make sure their child is cared for, men like you will sign orders they have no idea about. You may even count yourself among this group of men.
If you are divorced then you almost certainly have a child support order in place. The child support orders will be included in your Final Decree of Divorce. You can call the district clerk’s office in the county where you got divorced and ask him or her about obtaining a copy of your orders. Once you have a copy you should read through it and focus on the section dealing with child support. It is here that you will learn what your obligations are every month to pay child support.
Are you a custodial or non-custodial parent?
The answer to this question will determine whether you are the parent who has to pay child support (non-custodial parent) or the parent who will receive child support (custodial parent). Look at the section of your child support order or final decree of divorce that deals with conservatorship issues. A good way to be able to tell if you are the non-custodial or custodial parent is to see whether or not your child lives with you during the week. If he or she does not then it is a good bet that you are the non-custodial parent.
If you can’t pay child support are you still able to spend time with your child?
This is a literal pay-to-play situation. Many fathers are under the impression that because they cannot afford to pay child support, and have not done so in months, their ex-wife or partner can withhold visitation of their child. It surprises many fathers to learn that the right to possession of your child is not dependent on your successfully being able to pay child support to your child’s mother.
I would recommend that you go back and read your order but for the most part you cannot have your visitation restricted or denied due to your failure to pay child support. If this was the case your ex-wife could essentially hold your child hostage until you came up with the child support money being requested. Possession and child support are separate issues in Texas family law and one is not dependent upon the other.
If you also have possession orders signed by a judge then your child’s mother must make your child available to you during the pre-determined times for visitation. Even if you are not paying child support, even if you have never paid child support and even if you have told the other parent that you are never going to pay child support, she must allow you to see your child. Whether or not she holds you accountable for failing to pay child support is up to her.
Enforcement motions to ensure that you can see your child during your visitation periods
Just as she can file a motion to enforce the section of your order that obligates you to pay child support, you too can file an enforcement motion that forces her to allow you to see your child. This is the tough part for many dads to wrap their heads around. I tell clients that what is contained in the order is like a law. You can’t break the law against drinking and driving and not expect to be held accountable for doing so. Likewise, you cannot violate a court order from your divorce and not expect to be held accountable. However, the process involved in holding a person accountable is different in the world of family law than it is in criminal law.
If you commit a crime the police can apprehend you and either hold you until the legal process can effectuate a punishment, or the police themselves can administer punishment on you. Think about drinking and driving versus getting a speeding ticket. A speeding ticket means that you will be pulled over, given a ticket, and sent on your way. Drinking and driving involve being arrested and held until the courts can have their say in what happens next.
Both of those scenarios differ from family law. In family law, you cannot simply go up to a police officer and ask him or her to arrest your ex-spouse for not allowing you the opportunity to see your child during one of your visitation weekends. If your ex-spouse withholds your child from you then it is incumbent upon you to hold her responsible.
The method of “holding someone accountable” for their bad acts is best done through an enforcement lawsuit. An enforcement lawsuit is one in which you are seeking to enforce particular portions of a court order. You would identify the particular portion of the order that your ex-spouse has violated, determine how many times it was violated, specify the number of violations, and then request a remedy from the court. Some remedies include fines, attorney's fees, and even jail time in extreme cases.
What is a motion to redirect child support?
A judge’s order does not change just because your circumstances have changed. This is sometimes hard for people to understand. You could lose your job, lose a limb, or anything in between after you have been to court and received a child support order. Just because those extreme, life-altered events have occurred does not make your order any less valid or enforceable. You need to address any necessary changes through the court. Until a judge issues a new order you have to follow the old order.
The Office of the Attorney General can file a motion to redirect child support if your child’s custodial parent has voluntarily relinquished the primary care and possession of your child for at least six months, is incarcerated, or has been sentenced to be incarcerated for at least 90 days or has otherwise relinquished care of your child to the state of Texas.
I am envisioning a situation where you are a non-custodial parent who is obligated to pay child support. You are living away from your child and are not in a position to take over the role of custodial parent when your child’s mother is sent to jail for a year. Instead of paying child support to a woman who is in jail, a motion can be filed by the Office of the Attorney General (or through a private attorney that you hire) to have those child support payments go to another person who will be caring for your child on a primary basis.
The person who receives your child support payments through the court order does not take on the rights that a custodial parent has. What ends up happening is that the parent retains all the rights concerning health, education, and medical decisions but loses the right to receive child support and make decisions regarding spending the money that is received.
When your child’s mother is out of jail or prison, she would then have to file an affidavit with the judge stating that he is no longer incarcerated, that no modification of the prior conservatorship orders took place while she was incarcerated and that she now has regained physical possession of your child.
While you and your ex-spouse can work on doing this on your own, it is always advisable to seek the counsel of an experienced family law attorney before you set off to do so. When it comes to money and your child you want to make sure that everything is handled without a glitch or hiccup. Getting the correct paperwork drafted, filed, and presented to a judge is necessary before any of the above steps can take place.
The office of the Attorney General can file the necessary requests with the judge but keep in mind that their office represents the state of Texas, and not anyone individually. Thus, while you may get the case sorted out eventually, it will not be done quickly and your interests will not be looked out for.
Questions about family law in Texas? Contact the Law Office of Bryan Fagan
If you have any questions about the information that we wrote about today or are seeking additional information, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys can meet with you six days a week where you can ask questions and receive feedback regarding your particular circumstances. We represent clients across the family courts of southeast Texas and do so with a great deal of pride. Please let us know how we can help you and your family by contacting our office today.
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Other Articles you may be interested in:
- Handling a child support case as the noncustodial parent, Part Five
- How to handle a child support case as the noncustodial parent, Part Four
- How to handle child support as the noncustodial parent, Part Three
- Defining a material and substantial change in a child support modification case
- How to properly calculate child support in Texas
- Is Overtime Pay or Bonus Pay Considered for Texas Child Support?
- Child Support in Texas: What is the most you will have to pay and what are the exceptions to that rule?
- The Dirty Trick of Quitting Your Job to Avoid Child Support During a Texas Divorce
- Can I get child support while my Texas divorce is pending?
- Do I Have to Pay Child Support if I Have Joint Custody of My Child in Texas?
- Can I Sue My Ex for Retroactive or Back Child Support in Texas?
- Child Support and College Tuition in Texas
Law Office of Bryan Fagan, PLLC | Houston, Texas Child Support Lawyers
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding child support, it's important to speak with one of our Houston, TX child support lawyers right away to protect your rights.
Our child support lawyers in Houston are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact the Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles child support cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County, and Waller County.