You’re beyond frustrated. After being divorced from your husband for now three years it has become apparent to you that he is not interested in paying child support. He will tell you that the check is in the mail, and that type of thing, but each month you go without. First, your daughter couldn’t get the new clothes for school you promised her. The following month you had to pull a double shift twice a week at work so that you could pay rent. Not only that, but your daughter also needs braces soon. What are the chances that there’s an issue with the dental insurance your ex is supposed to be paying for?
So, you do what you always do. You text him on the last day of the month practically begging him for the child support you are promised in your divorce decree. By now it is pointless to cite the specific page and lines where the judge said that he pays, and you receive child support. Your ex-husband is aware of what he needs to do. With so much going on in the life of your child, you know that this can’t continue. She has the same expenses as every other middle schooler. The only difference is you don’t know if you can make ends meet while helping her do those things.
What makes the situation worse, in your opinion, is that you continue to make your daughter available for visitation on the assigned days. You and your ex-husband share possession of your daughter under a Standard Possession Order. This is the tried-and-true method of parental custody division after a divorce. First, third, and fifth weekends of each month for dad with extended periods of possession during the summer and split holidays. That part has always worked for your family. Your ex is always on time to pick her up each weekend. Never misses band concerts or choir recitals.
The one thing that gives your family trouble is a major issue, however. Child support is built into your household budget. That you’ve been able to shoestring the finances of your family for years since your divorce is a small miracle. Every time you bring it up to your co-parent, he will tell you that he is doing the best he can to find a stable job that would allow him to pay the $1,000 per month in support. Times are tough, he says.
Well, they’re tough for you at home, too. The frustration of this entire situation leads you to decide to not allow your child to see her father until he pays the child support he owes. You haven’t quite determined if he needs to pay just one month’s support or whether he needs to pay you the full amount he owes. Otherwise, you are just trying to be fair to yourself and your daughter.
In today’s blog post from the Law Office of Bryan Fagan, we are going to discuss whether you can withhold visitation from your ex based on his failure to pay child support. This is an emotional topic, to say the least. Being frustrated after years of not receiving the child support that you would otherwise be entitled to is the last place you want to find yourself.
However, you do have options during this time, and you can make up your mind to do something about it. Contact the Law Office of Bryan Fagan today with any questions you may have about what you read. Some of the issues in your situation may not be perfectly contained in this blog post. We aim to provide the most amount of content possible to appeal to the widest audience. For specific questions about your life, a free-of-charge consultation with one of our experienced family law attorneys is just what you need.
Child support- what is it and how is it paid?
Child support is a feature of just about every child custody case involving a minor child in Texas. Please note that child custody cases can be stand-alone cases or part of a large divorce case. Parents in Texas must support their children financially. The ordering of child support reflects that duty. No matter what your custody situation looks like you can expect that child support will be a part of your case. This is to ensure that both parents have skin in the game, so to speak when it comes to raising your children.
Child support is paid by the non-custodial parent to the custodial parent. Let’s continue with the hypothetical situation involving you, your ex-husband, and your daughter from the introduction to today’s blog post. In that scenario, you would be the custodial parent who has primary custody of your daughter. This means that she lives with you during the school year. Your ex-husband would be the non-custodial parent. He has visitation rights on the first, third, and fifth weekends of each month in addition to split holidays with you.
When your ex-husband was ordered to pay child support it meant that he was going to have a portion of his net monthly income paid out as a percentage to you in support each month. This support would be paid until your daughter either graduates from high school or turns 18, whichever occurs later. The number that you all arrived at as far as child support is concerned is $1000 per month.
Instead of having parents pay each other directly, the Office of the Attorney General Child Support Division administers the payment of child support. Child support payments are sent through the OAG and then paid to you as the custodial parent. A wage withholding order was signed by the family court judge after your divorce which informs your spouse’s employer of how much of his wages each month need to be withheld and sent to the OAG.
The payment of child support through the OAG is intended to keep parents like you and your co-parent from having to keep a running tab of how much child support is owed. I’m sure you have already run into situations where there have been disputes about child support. Well, all you need to do is go to the OAG’s website to determine what the official tally looks like. Informal child support payments are those made directly from your co-parent to you. These payments may be appreciated but are not counted as “official” payments of child support for the OAG’s purposes.
In an ideal world, this is how child support is supposed to function. Your ex-husband would never miss a payment and you would receive all the payments without a hitch. Unfortunately, this is not a perfect world that we live in. There are all sorts of mistakes that can be made when it comes to child support. Your ex-husband could lose his job and not have the money for child support. There may be disputes about the amount that is supposed to be paid.
Given that you are considering withholding visitation from your ex-husband over his failure to pay child support we know that this is a serious situation. Your decision to do so can have huge impacts on your family’s dynamics, the relationship between you and your ex, and the well-being of your child. Making this decision is one that you need to do after careful consideration.
Should you withhold visitation from your ex for not paying support?
Ultimately, this is the question that you need to ask yourself in this situation. Every fiber of your being could be pushing you towards denying your ex-spouse visitation with your child. The failure to pay child support is a big deal in a Texas family law case. Not only does it violate court orders, but it also puts you in a position where you cannot make your budget each month with any confidence. $1000 per month is a lot of money. Not knowing whether that money is going to be in your checking account on the first of the month is a huge question mark.
The answer to the question of whether you should withhold visitation from your ex for not paying child support is “no.” Were you to come into the Law Office of Bryan Fagan for a free-of-charge consultation that is the response that we would give you. As the primary conservator of your child that means you have more rights when it comes to making day-to-day decisions on behalf of your child. You may feel empowered to make decisions on behalf of your child that attempt to hold your ex-spouse responsible for their actions.
What you need to remember is that you are not trying to do things that are necessarily in the best interests of your finances or the household budget. Rather, you need to approach this issue from the perspective of what is in the best interests of your child. While it is true that your child will suffer from not having a full amount of monetary support each month it is also true that he will not do as well when he cannot see his father.
On top of that, if you get into the habit of withholding visitation from your co-parent at every opportunity then he may end up with some valid grievances against you. Just as quickly as you could file an enforcement lawsuit against him for the failure to pay child support, he could do the same to you for failure to make your child available for visitation. Finding yourself in court, the judge may end up being upset with both of you for not co-parenting well.
Visitation – custodial versus non-custodial parent
When your co-parent, as the noncustodial parent, attempts to retrieve your son for his periods of visitation then you need to make him available. This is the law in Texas. There is no exception to this rule for when your co-parent has not paid you child support in a month or a year. You are technically violating your court order when this happens. Two wrongs, in other words, do not make a right. This is a situation where you and your co-parent could be found to have violated your court orders and therefore be in contempt of court. Attorney’s fees and other penalties may be the result of having to file an enforcement case.
Other reasons why you may consider withholding visitation
There are a range of circumstances under which you may consider withholding visitation from your co-parent. Many times, you will hear reports from your child about conditions in your co-parent’s home that do not seem safe. This is a situation where withholding visitation until he fixes the issue may seem reasonable to you. You may be justified in doing so if there is an emergency condition in the home of your co-parent. Otherwise, a simple conversation with him could lead to a fix for that issue where visitation does not have to be withheld.
A major concern that is unfortunately becoming more of a problem for families is when a parent engages in substance abuse, either drugs or alcohol. When this happens, you may be understandably concerned about their day-to-day well-being when they are away from you. Substance abuse is something that is concerning not only from the perspective of actual abuse- physical harm done to your child, but also neglect. Neglect occurs when your child is put in a position where harm could occur due to the negligence of an adult who is caring for your child.
When your co-parent is on a substance of some sort that impairs their cognition, this means that your child may be harmed in many ways. Is this enough of a risk for you to violate court orders and withhold visitation? Certainly, you would need to consider the precautionary principle- better safe than sorry. If you believe that your child is going to be put in a position that he or she cannot come out of safely then your duty as a parent is to do whatever is necessary to prevent that harm from occurring.
How can you proceed if you have a legitimate and immediate concern over the safety of your child? If you decide to withhold visitation from your co-parent, you may consider filing an emergency hearing to modify your child custody orders. This would allow you to potentially present your case to a judge within a few days. It would speak to the immediate concern that you had regarding the well-being of your child, as well. A judge could consider the evidence presented in this hearing to determine whether further action is needed.
Visitation being withheld- where to go from here?
Let’s say that you are the noncustodial parent, and your co-parent has withheld visitation from you. Where can you go from here to figure out what the best course of action to take maybe? For starters, you should begin to document every delayed or denied period of visitation that you have coming to you. Familiarize yourself with the court orders and know what your rights are. This is not something that you can approach with a half-hearted attitude. Rather, you need to have your facts straight as far as these periods of visitation that have been denied to you.
You can do something as simple as keep track of the dates in a notebook or on the Notes app on your phone. Doing something like this is wise since it will allow you to build a case using nothing but your diligence. It does not cost any money to perform steps like this. On top of taking diligent notes, you should make yourself available for pickup at every opportunity. You cannot just rely upon a text message from your co-parent stating that she is not going to allow you to see your son. Rather, you must show up at the appointed location and be prepared for pick-up.
From there, once you are denied visitation you can swing by a gas station, fast food restaurant, or other store in the area and make a small purchase. The receipt will show that you were around the corner from the pick-up location purchasing at the same time you were supposed to be picking up your child. This puts you at the time and location that you would need to establish for your visitation denial case.
While there certainly can be steps that need to be taken to prove a visitation denial case, much of the work can be performed by you as a parent before ever hiring an attorney. No matter if you are the custodial or noncustodial parent there is certainly a benefit to hiring an attorney in your family law case.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as how your family may be impacted by the filing of a divorce or child custody case.
Evan Hochschild was raised in Houston, TX and graduated from Cypress Creek High School. He went on to graduate from Southwestern University in Georgetown, TX with an undergraduate degree in Political Science. While in college, Evan was a four-year letterman on the Cross Country team.
Following in the footsteps of his grandfather and uncle before him, Evan attended law school after he completed in his undergraduate studies. He graduated from St. Mary’s University School of Law and has practiced in a variety of areas in the law- including family law.
Mr. Hochschild is guided by principles which place the interests of clients first. Additionally, Evan seeks to provide information and support for his clients with the heart of a teacher.
Evan and his wife have four small children together. He enjoys afternoons out and about with his family, teaching Sunday school at his church and exercising. A veteran attorney of fourteen years, Mr. Hochschild excels in communicating complex ideas in family law simply and directly.
