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Not sure if you are the biological father to a child? In prison? Read this blog

If you are not sure that you are the biological father to a child (or if the child’s mother is not sure) then neither of you should sign an Acknowledgment of Paternity. You and your child’s mother should make plans for you to get a genetic test in order to confirm that you are the child’s biological father. Once you have gotten the results of the test back and they show that you are the child’s father then you can go ahead and sign the acknowledgment without reservation. The alternative to signing the acknowledgment would be to go to court in order to have paternity established along with custody, visitation and other orders for your child.

If paternity has not already been established, then genetic testing could be provided to you at no cost. To begin this process, you can contact the Office of the Attorney General and inquire about starting a child support case through the agency. If paternity has already been established through court order or by completing an Acknowledgment of Paternity, DNA testing will not be necessary. Keep in mind that over the counter DNA testing results cannot be used as evidence in a paternity lawsuit.

Handling child support matters as an incarcerated person

You may have become incarcerated while in a relationship with your child’s mother. You may have even been residing together at the time that your sentence begins to run. It may, therefore, come as a surprise to you when you find out that a child support case has been filed against you. Aren’t you currently in a relationship with the mother of your child? Why would she decide to file a child support case against you right now?

In all likelihood, a child support case has been opened up because your child’s mother no longer considers herself to be living with you. As a result, it may have become necessary for your child’s mother to file for benefits through the government like Medicaid or food stamps. Once this occurs, the state will check to see if child support orders are in place for your child. If they are not, the Office of the Attorney General will initiate a case even if your child’s mother does not want them to do so.

How much child support are you liable to pay?

The law in Texas states that there are general guidelines in place for how much child support you will need to pay on a monthly basis. The net resources that you earn monthly will be considered relevant for the paying of child support. If you are responsible for the care of one child, you will pay twenty percent of your net monthly resources in child support. If you are responsible for the care of two children, you will pay twenty-five percent of your net monthly resources in child support. The percentages will rise by 5% per additional child until you reach 40% of your net monthly income going towards child support in the event that you have six or more kids.

What happens if you have remarried? How much child support will be owed in that case?

Many fathers have asked me if their new spouse’s earnings and income are relevant when it comes to calculating child support for children from your previous marriage. Your new spouse’s income will not be added to yours in order to calculate child support. I don’t know where folks get the idea that this is a possibility but I can tell you that it is not.

What happens if you have children from multiple relationships? How will a judge determine how much child support you are to pay to each?

When you are the father to children who live in different households and have different mothers the court will use a separate formula to calculate child support. Keep in mind that if you do not the judge or the OAG know about the other children that you are responsible for they may never find out about them.

If a child support case has been opened up and you are entering prison what should you do?

It could be the case for you that a child support case has been opened up right around the time that you are starting to serve a sentence in jail or prison. If this is happening in your life, be sure to contact the OAG before you begin serving your time with an address for the facility where you will be staying. You can get monthly updates from the OAG by doing so that will let you know how much you have paid and how much you owe in past due support.

Just because you are now incarcerated does not mean that your obligation to pay child support has ended. To have your child support obligation decreased or changed in any way you would need to modify the court order by going back to see the judge. Hiring a private attorney to go about this process is highly recommended when and if you choose to go this route. Modifying a child support order is quite difficult, and that is just from a legal argument perspective. The remaining portion of the case is full of drafting and filing documents correctly and on time.

If you have an ongoing child support case with the Office of the Attorney General you can ask for the agency to review the child support order and make adjustments to the amount of support you are obligated to pay (either an increase or a decrease) if your situation merits it. There are special forms for incarcerated parents like you can fill out in order to determine if the assets you own and income that you had been earning demands a lesser amount of child support be paid.

Finally, be sure to keep in mind that you are able to send in all or parts of your child support payments through the State Disbursement Unit of the Office of the Attorney General. This can all be done online. If you choose to pay child support payments directly to your child’s mother then those amounts are not automatically kept track of in the child support system. These direct payments often get counted as gifts by judges and do not count as official payments. Do not put yourself in a position where your direct payments are not credited to your account.

What happens when your child support case is begun once you are already in prison?

The law in Texas is that if you are incarcerated for a period of time that is longer than 90 days, the judge for your court should consider the actual dollars that you earn in income when setting up a specific child support obligation that you will have to fulfill. This amount should be $0 since you are not earning an income while you are incarcerated. That is to say that it should be $0 if you do not have any other means of earning an income or any other financial resources to fall back on. Your court orders should be sent to your most recent mailing address. If you have an opportunity to contact the court directly you can request a copy of your orders if you were not mailed a copy already.

Why doesn’t your child support obligation go down to zero automatically when you are in prison?

This is a pretty reasonable question to ask. Once the court becomes aware that you are behind bars, why shouldn't your obligation to pay child support to be paused? After all, you are obviously not earning an income while in prison and the amount of support that you owe will just keep growing and growing the whole time. Isn't this unfair to those of you who are incarcerated?

The reason why nothing happens automatically to your child support obligation when you are incarcerated is that the Office of the Attorney General cannot automatically do anything in regard to your child support obligation. Only the judge of your court has the ability to change the amount of child support that you are obligated to pay. The judge can consider changing the child support amount after the required paperwork is filed beforehand.

Also, the court has to allow your child's mother to be able to present her own evidence that could impact the decision of the court. In order to modify a child support order, a substantial change in circumstances for you, your child or your child's mother would need to be shown. The law in Texas is that incarceration of at least 90 days is a substantial change in circumstances sufficient to justify a modification. The actual amount of earned income that you have during the case will be what your new child support obligation is based on.

Is it possible to modify your child support obligation while you are in prison?

If you want to modify the amount of child support that you are obligated to pay, you will need to file the appropriate paperwork with the court. The Office of the Attorney General has made forms available online that allow persons that are incarcerated to be able to show what your current income is. You will be asked to provide financial information that will be given to the judge in your case for their consideration.

Until a judge issues a ruling in your favor there is no official change to your child support obligation or the amount of child support that you currently owe. The amount that you owe is growing all the time due to interest being applied against it. If you are in a position where you can pay even a portion of the child support that is owed while you are incarcerated then you should do so through the Office of the Attorney General.

What if you are the parent who receives child support payments and you are sent to prison?

If you are a custodial parent who receives child support, you will continue to do so even if you become incarcerated. Your payments will be sent the same way and you will be the person to whom those payments are made. A court order can be obtained that allows you to redirect those payments to another person of your choosing. You may want to consider whether or not you want the person who is caring for your child to be the one who receives those monthly child support checks.

If you are paying child support while in prison can those payments be directed towards those that are caring for her?

Your child support payments can go to the person who is caring for your children while you are away. You would need to let the Office of the Attorney General know to whom the support should be paid.

Interested in learning how custody and visitation function within this topic? Read our blog post tomorrow

We will continue to discuss child support and incarceration in tomorrow ‘s blog post. Two new topics- visitation and custody will also be introduced for your consideration.

In the meantime, if you have any questions about the material that we shared with you today please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys are available six days a week to meet with you for a free of charge consultation. These consultations are free of charge and can provide you with a great deal of very important information relevant to your case.

Our attorneys practice in every family court in southeast Texas. We aim to achieve the goals of our clients through hard work and putting our clients first in every regard We will treat you and your family with the respect and care that you all deserve. In your most uncertain times, the attorneys with the Law Office of Bryan Fagan are here to help you develop a game plan to help you.

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