It does not happen very often that laws regarding child support and driving under the influence come into any sort of contact. However, with the passage of House Bill 393, the Texas Legislature and Governor Greg Abbott have seen to it that those who choose to drive under the influence of alcohol and who then cause the death of a parent will be made to pay child support into that parent’s minor children.
Texas is not the only state in the country to pass a law like this during the 2023 legislative session. To better understand what the law says let’s spend some time discussing the legislation itself. Then, we can discuss the practical effects and other considerations regarding family law which may be appropriate given the circumstances. As always, if you have questions about any of the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan for a free-of-charge consultation.
House Bill No. 393 upon closer examination
Immediately, we see that the House of Representatives member who sponsored this legislation intends for the new law to relate to restitution payments for the support of a child whose parent or guardian is a victim of intoxication manslaughter. Meaning, that the driving force behind the creation and passage of this law is to intend to compensate a child whose parent or parents were killed by a drunk, intoxicated, or impaired driver. Restitution is a kind of compensation that can be given to a person to make up for a loss or injury that has been caused by another person. While the goal of restitution is to help make the victim whole again by paying the victim damages it is obvious that no amount of money can make a child whole again after losing a parent due to drunk driving.
The new law will become a part of the Texas Code of Criminal Procedure since it relates to matters involving intoxicated driving. Once a defendant is convicted of an offense as contained in the Texas Penal Code, that defendant will be ordered to pay restitution for a child whose parent or guardian was the victim of the offense. Meaning, that if a parent is killed as the result of an intoxicated driver in that intoxicated driver is found guilty of the crime of intoxication manslaughter, then that defendant will be ordered to pay child support for the minor children of the deceased parent.
The Texas Criminal Court will determine the amount of child support that shall be paid monthly until that child reaches 18 years of age or has graduated from high school, whichever is later. Many times, parents who go through child support cases will have a question regarding when child support ends. The minimum length and time that child support can last four in Texas is until that child turns 18 or graduates from high school whichever happens later. The Texas Legislature wants children to be provided for at least until he or she is a High School graduate or turns 18 years of age. In certain circumstances, child support may last even longer such as if the child is disabled.
The trial court is given a great amount of discretion to determine an amount for restitution that is reasonable and necessary to support the child. This is also common in Texas family courts where judges are given wide discretion to interpret the laws associated with the Texas Family Code. In this case, a Criminal Court judge will be interpreting the Texas Penal Code. The financial needs and resources of the child will be relevant factors for a judge to consider as well as the financial needs and resources of the surviving parent or guardian.
What happens if the drunk driver ends up in jail and is unable to pay child support? In that case, the defendant will begin paying the child support no later than the first anniversary of the date on which the defendant is released from jail. In other words, the defendant is allowed to find work and stabilize their life after release from prison. After that point, the defendant will need to pay all back child support owed regardless of whether the payments were scheduled to end while the defendant was confined to jail or imprisoned.
An interesting part of this newly passed law is that a defendant’s drunk driver can be ordered to pay child support following the standard of living to which the child is accustomed. As any of the experienced family law attorneys with the Law Office of Bryan Fagan can tell you, this is not the case in the world of Texas family law. Whichever parent becomes obligated to pay child support in a child custody or divorce case cannot be ordered to pay by the standard of living to which the child is accustomed. Rather, child support is intended to be a supplement to the lifestyle that can be provided by the primary conservator.
Child support basics for Texas families
The reality of the situation is that most families in Texas will not interact with this new law and what it holds for families and defendants alike. Rather, you and your family are much more likely to face circumstances surrounding the traditional payment of child support by one parent to another because of a child custody or divorce case. With that in mind, we can go through the basics of child support in Texas so that you can have an understanding of how child support is ordered and paid.
First, parents in Texas must support their children. This obligation means that parents such as yourself should understand how it can be that child support is ordered in your case and what it means for you and your family. In Texas, there are two roles for child support as far as parents are concerned. The first role is that of a custodial parent. The custodial parent is the parent with whom the child resides primarily. The second role is that of a non-custodial parent. The non-custodial parent has visitation rights with the children but does not live with them on a full-time basis.
From there, the parents in a divorce or child custody case must negotiate which role they will fulfill for their child. Factors that are relevant to consider in these circumstances are the age of the children, the prior role that each parent has played in the life of the children, the preferences of the children especially teenagers in the abilities of each parent relative to caring for children on a primary basis. This is one of the most hotly contested issues in child custody and divorce cases. If you and your co-parent are unable to settle on this issue in your family law case, then you would be necessarily asking a family court judge to play tiebreaker and decide it for you.
Before going to court for a trial on the subject you will be able to attend mediation. Mediation involves working with an experienced family law mediator who acts as a third party independent of the proceedings. He or she is likely a family law attorney, as well, and will have experience in helping folks just like you negotiate a settlement in their case on a range of topics but most notably on that of conservatorship and child support. Mediation is typically ordered before a trial or temporary orders hearing. In Texas, most families are successful at avoiding the courtroom by attending mediation.
What needs to be determined regarding child support and what is the basis for assigning child support rights and duties?
At its most basic level, parents like you need to be able to determine who will be paying child support and who will be receiving child support. The parent who pays child support will have visitation rights related to the children. On the other hand, the parent who receives child support will be the primary conservator of the children and will live with the children on a primary basis. However, that does not mean that the primary conservator will be spending significantly more time with the children. Rather, most parents who go through a family law case will have what is known as joint custody of the children and be classified as joint managing conservators.
Joint managing conservators share in the responsibilities and benefits of raising a child. This means that you and your child’s other parent will need to be able to communicate and work together in supporting your child, helping make decisions about your child’s education and health as well as a host of other subjects. Families like yours need to be able to coordinate on a range of different topics especially when it comes to the payment of child support. This is oftentimes a topic that can lead families to return to court after initially setting child support orders in a child custody or divorce case.
For instance, if you are the parent who is responsible for paying child support then you will be responsible, as well, to pay attention to what you are paying in child support and if you ever start to owe money. Falling behind in child support means that you are in arrears. This is just a fancy, legal word for owing child support. The reason why you need to pay attention to child support payments is that there are consequences for not only failing to pay child support but also falling behind in child support. Those consequences include facing an enforcement case where you may be fined on top of an order to pay the back child support you owe through a payment plan.
Not falling behind in child support means ensuring that The Child Support you are ordered to pay gets to your child’s other parent on time and in full. This is usually accomplished by a wage withholding order. After your child custody or divorce case, a wage withholding order will be completed and signed by the judge. From there, this wage withholding order will be sent to your employer where your human resources or payroll department will be told to withhold a certain amount of money from each of your paychecks to ensure that child support is paid on time and in full.
From there, these child support payments must be made through the Office of the Attorney General. The Office of the Attorney General oversees the payment of child support and ensures that payments are made to the parent who is owed that support. One of the benefits of this system of child support is that all parties understand what and when child support must be paid. For instance, you may have found yourself in a situation previously where your child’s other parent has asked you for varying amounts of money each month to be paid in child support. Rather than continue in a situation like this, you can make your payments through the Office of the Attorney General and there will be no question as to what has been paid and what is owed.
Child support is based upon a set of guidelines as contained in the Texas family code. These guidelines create a predictable means for a court to order child support if you and your child’s other parent are unable to agree on your own. These guidelines take a calculation based on your net monthly income and multiply a percentage based on the number of children before the court to determine what child support needs to be paid by you to your child’s other parent.
For instance, let’s say that your net monthly income is $5000. Additionally, you have one child before the court. This means that 20% of your net monthly income, based on the Texas child support guidelines, will be paid in child support. For each additional child who comes before the court, 5% will be added on to the percentage taken against your net monthly income. If you have six or more children before the court that means that no less than 40% of your net monthly income will be assessed for child support.
However, please bear in mind that these are only guidelines. These guidelines may be followed in circumstances where families earn an average amount of income and where the children do not have special needs. However, if your child suffers from a special need then additional sums of money on top of the guideline amounts of child support may be ordered. It may be ordered because you agree with your co-parent that an above guideline level of support is needed. Or a judge may consider all the available evidence in a trial and then assess child support at above the guideline level.
If you are in a position where you will be arguing that an above-the-guideline amount of child support needs to be paid in your family case, then this should tell you that having sufficient evidence to make your case is important. A history of consistent doctor bills, proof of out-of-network doctor visits as well and an organized case showing that your household budget is not able to make ends meet unless an above guidelines level of support is ordered are examples of the type of preparation you should be considering as you begin a Texas child support case.
Closing thoughts on the new Texas child support law and its impact
Certainly, I think we can all agree that drunk driving and driving under the influence generally is a blight on our great State and that efforts should be made to discourage people from getting behind the wheel after they have had too much to drink or have consumed any substance which impairs their cognition and ability to operate a motor vehicle. There is a certain suddenness and violence to a car accident involving a drunk driver. This is especially true when a motor vehicle accident takes the life of a parent.
It will be interesting to see how this new law functions and how it impacts Texas families. We hope that this blog post has been entertaining and in my atoning. At the Law Office of Bryan Fagan, we aim to provide you with up-to-date information on the world of Texas family law.
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Other Articles you may be interested in:
- Child Support Modification in Texas (Part 1)
- What do I do if I have overpaid child support in Texas?
- Texas Child Support – Trust and Annuities
- Examining the newest Texas law on child support enforcement
- New Texas child support law seeks to hold impaired drivers accountable
- What Kind of Support Does a Guardian Provide in a Family?
- Child Support Modifications: Adapting to Economic Shifts and Life Changes
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- Navigating Child Support Modifications: A Comprehensive Guide