If you or your co-parent becomes incarcerated after a family law case, then that may impact your child's ability to receive child support. Since child support is intended to help pay for essential items like clothing, food, shelter and the like it can be a difficult situation for a child to find themselves in when it comes to a parent finding themselves facing downtime in jail or prison. You or your co-parent, or both of you, need to be able to communicate with the Office of the Attorney General to stay in touch with them while managing both the incarceration and the return to our community once the jail or prison sentence comes to an end.
The Office of the Attorney General for the State of Texas is the entity that oversees and administers the payment of child support. After a divorce or child custody case, you likely have been sending or receiving child support payments through the attorney general's office. this is as opposed to making and receiving payments of child support directly from a co-parent. The Texas Family Code states that informal payments like these are not official and therefore they do not count towards any child support balances owed through the official ledger that is maintained on their website.
Paying child support is simple when it comes right down to it. There is a monthly child support obligation that you will need to pay moving forward. This number is calculated in a variety of different ways depending upon the circumstances of your case. However, the guidelines for child support in Texas indicate that you can take your net monthly income and then multiply that number by a percentage which is based on the number of children currently before the court. For one child you would multiply 20% against your net monthly income to receive the guideline level of support that would need to be paid for your child.
Child support should be paid until the date or event stated within your final court orders has occurred which will allow you to stop paying child support. For most cases, this event would be your child's high school graduation or their turning 18 years of age- whichever occurs later. For example, if your child's birthday is March 19th then it is likely that you would need to pay child support through their high school graduation date which would be later than their birthday.
This is an important distinction to make. Our office represented a gentleman who stopped paying child support for his daughter when she turned 18. The issue here was that she turned 18 at the very beginning of her senior year of high school in September. That meant that he had not made his child support payments from October through May of her final high school year. The man's ex-wife filed an enforcement lawsuit against him when he refused to acknowledge the mistake that he had made. Eventually, we were able to sort out the issue but not before these folks had to hire lawyers and get involved with another lawsuit. That this had to happen just a few months before the child support was set to end just added insult to injury.
What happens to incarcerated people when it comes to child support?
If you are facing jail or prison time or has recently been released, then you undoubtedly have a lot on your mind right now. Making sure that your children are taken care of is probably at the top of that list. Staying out of jail and not having to go back to family court soon are also concerns that you may have. Jail time is a possible outcome of a child support enforcement case that could be filed if you do not pay child support. As a result, you may be especially motivated to avoid what could be a return trip behind bars for the failure to pay child support. As we talked about earlier in today's blog post, you must be able to communicate with the Attorney General and your co-parent about your circumstances to minimize the likelihood of this occurring again in your life.
Fortunately, there are resources available to you as you transition out of jail or prison and into the community to once again take part in your life and that of your child. For instance, the Office of the Attorney General has set up several partnerships with different criminal justice organizations to help you be able to navigate all the details of your reintroduction into society successfully. There is a lot on your plate right now, but these groups want to help you manage your way back into the workforce and the community as a whole. Child support is a big part of this equation for you as a parent.
If you have any contacts in the community through different organizations and groups, then they have likely been made aware of the details associated with child support and your responsibility to stay current, and the need for you to possibly catch up on any child support payments that may have been missed over the past few months or years. The better prepared these groups are to face these challenges with you the better off you will be in the long run. The same can certainly be said for your child who stands to benefit or suffer the most when it comes to child support.
No matter if you are recently released from jail or prison, have been out for some time, or are facing a future term of some sort there are options for you to consider that can position you and your child well when it comes to child support. Nobody is going to argue with you that jail or prison can lead to disruptions and problems for your children. This is not the ideal situation for you to find yourself in, but you can make the best of a relatively bad situation by learning about your options and being proactive when it comes to communication.
The Office of the Attorney General works to have child support established for you while you are in jail. For instance, if your child's mother files a child support case with a family court or statutory child support court then a judge can consider the application even though you are in jail. You will be provided with notice of the lawsuit and any pending court dates. The judge should give you every opportunity to attend a hearing. However, you should not operate under the assumption that you cannot be ordered to pay child support because you are incarcerated.
There are steps that you can take while incarcerated to make life better for your children. For example, DNA testing can be arranged while you are incarcerated. If you have been sent to prison shortly after or even before the birth of a child, then you may not be the legal parent to that child. Biologically you may be the father, but legal fatherhood is different. If you are not married to the child’s mother, then there is no presumption of paternity. In that case, you would need to have paternity established through a court case that involves DNA testing. The Office of the Attorney General can help to facilitate this testing to help you establish paternity and get on the right track when it comes to paying child support and getting everything set up for you to do so.
If you are further along in the process then the attorney general’s office can help you learn more about the most important factors when it comes to child support such as how child support is calculated, how much child support is owed per month, how much (if any) back child support is owed and to provide you with a copy of your child support orders. Importantly, the OAG also reviews child support cases to determine whether your child support orders are accurate based on your current circumstances.
Child support while incarcerated
Child support can be set while you are incarcerated. A court cannot assume that you can earn minimum wage like they can for other parents who are not incarcerated but also not working. In this circumstance a court, if it seeks to establish child support for you while you are incarcerated, must consider factors like your wages from any work performed in recent years, the money you have saved in a bank account as well as any outside sources of income that are not from your 9-5 job. Your net resources will be calculated and then a percentage of your income will be determined to calculate the child support obligation that you have.
Back child support can be calculated based on whatever date you became aware that you had a child to support. If you have given any money to your co-parent after this date, then you can get credit for those payments. A court order from the judge will include monthly support based on network resources and the number of children you have before the court. A visitation order may also be a part of this order. Any visitation that you have with the child will be based on your relationship with the child as well as the safety and well-being of the child when he or she is with you. Your sentence or jail term will also factor into whether any visitation will be awarded to you at this time.
A major mistake that many people make in your position is to assume that their obligation to pay child support is suspended when they become incarcerated. The truth of the matter is that your obligation to pay child support ends or is suspended only when a judge issues orders to this effect. If you have not been to court to have your child support obligation terminated or suspended, then you must pay child support as ordered. The failure to do so may result in a large amount of child support arrears being assessed against you.
Even while you are incarcerated you can ask a court to review and possibly adjust your child support obligation. This request can be made through the attorney general’s office and is a type of child support modification that can be requested. If you file for this type of adjustment, you can contact the attorney general and be clear about your status as an incarcerated person. You may qualify for a lower child support monthly payment. Incarcerated parents have rights. If you are incarcerated there may be information provided by the attorney general available to you in your law library.
After you have asked for your case to be reviewed you will be served with a citation that details your rights as a litigant as well as information about the hearing date for your child support proceeding before the court. You can file an Answer to the Modification lawsuit that was filed by the Office of the Attorney General. The answer is your way of providing the court with information about you and your case. Information that can be included in this document includes your length of incarceration (a term that you expect to serve), the date on which you are expected to be released as well as information about any income or resources that are available to you like bank savings or investments.
You can appear by telephone or by video depending upon the court and the judge. The judge would work out the details with your prison or jail to make sure that you can participate. You will need to communicate with the appropriate people in jail or prison to make sure they have the information needed to help you set up the phone call or video for the hearing date. By the same token, you need to take advantage of any of the opportunities given to you by the court to participate in the hearing even if it means having to make some sacrifices of your time while incarcerated.
Do not ignore court correspondence
One of the major mistakes that a person can make in your position would be to not respond to any court filings or requests for an Answer on your part. Not filing a timely answer means that you waive notice of future court dates or events in your case. This can mean that child support or paternity of a child can be established without your participation in a case. You may also have child support established despite not having any resources or a history of employment. Filing an Answer may take some time, but it will help you avoid a situation where a court case is held in your absence and without your input.
What to do when you are released from prison
Contact the Office of the Attorney General in your area when you are released from prison. You can find out how many children support you owe and set up a payment plan to begin to pay back any child support that you have not paid. In the meantime, you can even ask them to review the child support orders to determine if a modification may be justified based on your circumstances or your income. Once you find employment you should contact the OAG about your new income so that an appropriate can be established for you. Not having income can mean that you face a situation where you owe a lot of child support. This is an intimidating situation for you to find yourself in.
Child support payments may be set at an amount where your obligation is based on your working a minimum wage job. This can be ordered even if you never go out to look for employment. Even while you are looking for employment you can try to keep in contact with your child. This can also take time and can be emotionally difficult but is worth the effort. Co-parenting with your child's other parent is also essential to be able to avoid huge child support debts and to stay current in the life of your child. These are more on the relational rather than the legal side of things, but you can be sure that your obligation to pay child support goes hand in hand with your obligation to your child on an emotional level.
The bottom line is that you must take the steps necessary to care for your child and child support obligation as best you can while you are incarcerated. Nobody is going to do the work for you. However, you have resources available to you and people outside of jail and prison who are poised to assist you if you ask them for a hand.
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 about how your family's circumstances may be impacted by the filing of a divorce or child custody case.