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Custody, Visitation and Child Support: How to handle these issues when incarcerated in Texas

The Office of the Attorney General (OAG) in Texas is not able to work on custody or visitation problems that you may have. Although your child’s mother may have filed a child support case against you, you cannot come back and attempt to adjust visitation or custody orders through their office. You will need to hire a private attorney to do so or attempt to file a case yourself. Doing so would prove very difficult (and time-consuming) considering that you are not going to have access to computers and law libraries since you are incarcerated.

You’re finally out of prison- now what?

Once you have been released from prison it is probably going to take you some time to readjust to your new life. Finding a place to live, finding a job and getting your mind right after a stretch of time behind bars sounds completely reasonable to me. The OAG may be able to help you when it comes to paying child support. In the event that you fell behind in your child support payments- which is likely because you were incarcerated and not earning an income- the OAG may be able to delay the proceedings associated with a child support enforcement case filed against you.

You will need to contact your local child support office and speak to an employee of the OAG as soon as you are released in order to get this process started. You can have that office review a copy of your court order when you regain employment or if you start living with your child’s mother again. Provide this office with your updated address, phone number and employer’s name. The more information that you provide the child support office with the more they are able to make good decisions on your case.

It is necessary that you continue to pay child support as much as possible while you are looking for a job. Even if you cannot pay the full amount you should pay as much as you are able to. When you get a job and are able to start paying the full amount you will look back and be happy that you were paying something towards the back child support when times were tougher. You can let the child support office know that you are looking for work. Especially if a child support enforcement case has been filed against you it is helpful to let them know when and if you find a job. A wage withholding order will be sent to your employer asking that child support be withheld from your paycheck. The support will be sent straight from your check to the OAG

What happens if your child support obligation was modified while you were in prison?

If your child support obligation was decreased while you were in prison the court will consider your being released as a reason why your obligation should be increased. Your earning capacity has increased dramatically and the actual income that you have earned has likely increased even in the first few weeks that you have left prison.

In the event that you want to modify your child support obligation, it is not always necessary to go to court to do so. You may be able to have the OAG review your orders to talk with an OAG rep at a local office to determine whether a revised order is appropriate.

What to do about past due to child support?

You are very likely to have past due child support that is owed when you come out of prison. The interest in this unpaid child support accrues at 6 percent annually throughout the year even when you are in prison. There will be an additional monthly arrearage added to your current monthly child support obligation that you will now need to be concerned with.

Again, it is for the best if you reach out to your local child support office and ask them to set you up with a payment plan to start making a dent in those arrears. You should communicate with this office whenever major changes happen to your income or you know changes are going to happen down the road. The bottom line is that you will be expected to pay your child support on time, in full every single month. If you know that this is going to be a problem for you it is a good idea to call the OAG to let them know.

Let’s define some terms that you are likely to hear regarding your child support case

We can talk all day about child support but if I’m using terms that you are unfamiliar with then I am of no help to you. With that said, I wanted to close today’s blog post by discussing with you some definitions of important words.

An arrearage in child support is something that I just finished talking to you about. An arrearage is any past due child support that is owed by a noncustodial parent to the custodial parent. Since you are not able to work while in prison you will likely develop some degree of an arrearage for child support during that time period. An arrearage will cause an extra amount of money to be added to your monthly child support obligation until the arrearage is paid in full.

Acknowledgment of Paternity- this is the document that unmarried parents can fill out and sign that will establish paternity for their child without having to go to court. Two completed and signed acknowledgments of paternity will need to be filed in Austin prior to the documents having any legal effect. Child support, custody, visitation, possession, access and any other related issue are not dealt with by the AOP. You will need to file a lawsuit in family court to have those issues attended to.

A court order is a legally binding document that is issued by a judge. The judge signs the order along with you and your child’s mother. From that moment forward it is something that both of you have to follow. Documents from the court are not orders unless they tell you in the title to the document that they are. Unless the document contains the judge’s signature it is not enforceable or valid. Temporary orders are valid until a final order can be signed off on by the court. Learn the order well once you receive a copy and keep that copy nearby so that you can reference it if need be.

The custodial parent of your child is the parent who cares for your child on a full-time basis. That parent will be the one who receives child support payments. The reason that this parent receives child support payments is that he or she has the child in their possession more frequently and therefore pays for more costs for the child than the noncustodial parent does.

Guidelines level of child support refers to the percentages assigned to a particular number of children that you are responsible for under the Texas Family Code. You will pay a higher percentage of your net monthly income in child support the more children that you have. Most parents will pay guidelines levels of support unless there are other circumstances that indicate you should be paying more or less support.

Income means any form of payment that you can obtain that adds to your ability to pay bills, including child support. Wages, salaries, commissions, bonuses, worker’s compensation, disability payments, pension and retirement pay count as income as far as the courts of Texas are concerned. However, for most of us, our 9-5 jobs will be what is relevant for the determination of income for child support purposes.

Legal father describes when a man is either adjudicated to be the father of a child through courtroom proceedings and an order issued by a judge or through a mutual acknowledgment of paternity with the child's mother. Under either scenario, a man will be able to have rights and duties in connection with the raising of that child, just as the mother has. A man must be declared as the legal father of a child in order to be obligated to pay child support. Legal paternity is often proved by taking a DNA test.

The legal father of a child often becomes the noncustodial parent to the child. The noncustodial parent does not care for the child on a day in and day out basis but is typically provided with visitation rights under a court order. The noncustodial parent pays child support to the custodial parent.

Why is an Inquiry form for incarcerated parents important?

Completing an Inquiry form for incarcerated parents will tell the OAG that you would like information on your case or that you are requesting that the OAG review your case for the possible filing of a lawsuit. This could occur if your child support obligation needs to be decreased, for example.

When you are incarcerated it is important to be able to take advantage of the opportunities that you have to request information and have it handy. To whatever extent that you are able, you can collect information like the address and phone number of the child support office that is handling your case. You can also request using this form that your current child support case be reviewed to see if you could get the monthly obligation reduced. Finally, if you went into prison without first being named as the legal father to a child you can request paternity testing in order to accomplish this objective.

Having questions is a good place to start, but don’t stop there

You will have a lot of time to think about yourself, your children and your family while you are incarcerated. Most would argue that you have too much time to think about these things while you are serving your sentence. If you have questions about how you are going to pay child support or how you are going to adjust to life outside of prison, I would tell you that these are normal concerns that many people in your position share with you.

What I will also tell you is that if you have questions about these issues, you shouldn’t stop at asking questions. Rather, you should seek to discover answers to those questions however you can. Relying on your support system outside of prison is a good place to start. If you have specific questions and do not have the resources available to you in prison or jail to find the answers to those problems, you can ask your family to help find the answers that you need. While you are incarcerated you can use whatever time you have to find out answers on your own. Places like this blog are great resources where you can obtain information at no cost to you.

Finally, if you have recently been released from prison and need to start working on a family law case, you should do what you can to meet with attorneys who can help you. Do not let a problem sit around and get worse. Attack the problem before it becomes an even bigger problem. I can tell you from my experiences as a family law attorney that problems do not go away on their own. They go away only after you meet the challenge head-on. Child support cases are no different.

Questions about being incarcerated and having a child support issue? Contact the Law Office of Bryan Fagan

If you have any questions about the material that we have shared 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 here in our office. These consultations are a great opportunity to ask questions and receive direct feedback about your particular circumstances. Thank you for spending part of your day with us here on our blog.

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