Articles Posted in Child Support

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) governs which state’s courts have jurisdiction over an initial custody determination.  Texas has codified the UCCJEA in Chapter 152 of the Texas Family Code.  A Texas court has jurisdiction if Texas is the child’s “home state” when the proceeding commences or was the child’s home state within the six months before the proceeding commences and a parent still lives in Texas.  Tex. Fam. Code § 152.201(a)(1).  “Home state” is defined as the state where the child lived with a parent or person acting as such for the six months immediately before the custody proceeding commenced.  If the child is less than six months old, the home state is where “the child lived from birth with a parent or a person acting as a parent.”  Tex. Fam. Code § 152.102(7).  The court that made the initial custody determination generally retains exclusive continuing jurisdiction over the custody determination.  Generally, once a home state is determined, no other state has jurisdiction to make an initial custody determination.

A father challenged a court’s finding that Texas was the child’s home state in the six months before suit was filed and another state was the child’s current home state.  The mother relocated with the child to Indiana when the child was about five months old.  The father petitioned to adjudicate parentage in Harris County, Texas, about five months later.

The parents reached a mediated settlement agreement (“MSA”) that neither would pay child support at the time.

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It can be difficult to modify a child support order to decrease the child support obligation.  A father recently appealed the denial of his request for a decrease in his above-guideline child support obligation without step-downs.  Generally, a child support order for multiple children will provide for a decrease in the child support obligation as support ends for each child. In this case, however, the parties signed an agreement for additional child support.

Original Order

The children were 17, 15, and 12 when the parents divorced in 2019.  The parents were named joint managing conservators.  The father’s gross yearly income was about $500,000. Pursuant to the decree, he was required to pay the mother $4,000 per month until all of the children graduated high school or were emancipated.  He was also required to pay all of their uninsured medical, vision, and dental expenses until they reached the applicable deductible, and half after the deductible was met.  The parties signed a separate “Agreement Regarding Additional Agreed-Upon Child Support” that required the father to pay an additional $2,000 per month if his gross income was more than $500,000 in a calendar year.  Neither the decree nor the agreement had any provisions for step-downs.

The father testified he agreed to the extra provisions so the children and mother could stay in the area and in their current schools.  The mother claimed she would not be able to stay in central Austin without the above-guideline support and the children would be required to go to different schools.

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The Seventh District Court of Appeals recently considered a case involving significant issues of custody and child support. The trial court had appointed the father sole managing conservator and ordered him to pay child support to the mother. Both parents appealed.

Sole Managing Conservator

The mother argued the trial court erred in finding an incident in June 2021 prevented it from appointing both parents joint managing conservators.  According to the appeals court, the mother pleaded guilty to misdemeanor assault on the father as a result of the referenced incident.  The trial court found a history of abuse by the mother against the father and that the mother pleaded guilty to misdemeanor assault on the father regarding an incident on or about June 13, 2021. The court named the father sole managing conservator and the mother possessory conservator.  The court stated in its conclusions of law that “[b]ecause Petitioner pleaded guilty to misdemeanor assault of Respondent, the Court cannot appoint the parties joint managing conservators.” The mother argued, based on this statement, that the trial court had concluded it was required to find a history of abuse based only on the guilty plea.

Tex. Fam. Code § 153.004(b), prohibits a court from appointing joint managing conservators there is credible evidence “of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child . . .” The statute does not define the meaning of “history.”  The appeals court noted that it had not held that a single instance of physical abuse against the other parent necessarily constitutes a history of abuse, but had ruled that the trial court has the discretion to conclude that a single incident can constitute a history.  The appeals court therefore concluded that the trial court could have found the mother’s guilty plea to a misdemeanor assault charge sufficient to prove the existence of a history of abuse against the child’s father.

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Texas family law matters are often complex.  A father recently challenged a modification order changing his child support obligation after a lengthy and somewhat complicated litigation involving the child.

The mother petitioned for enforcement of child support and medical support in September 2022, asking the father be held in contempt and ordered to pay arrearages for child support and medical support, as well as attorney’s fees.

Enforcement and Modification Hearing

According to the appeals court, the parties and court treated the matter as a modification action as well as an enforcement action during the bench trial. The father had previously been ordered to pay $592 in child support and $92 in medical support monthly. It was established at trial that the mother had been receiving $834 in monthly Veterans Administration payments on behalf of the child since January 2021 because the father was a veteran.  The mother also testified the father received social security disability benefits and income from business ventures.  The father was not present, but was represented by counsel at trial.

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If a parent does not comply with a Texas custody or child support order, the other parent may seek enforcement of the court order and, in some cases, request the parent be held in contempt.  A father recently challenged an order granting the mother’s motion to enforce the divorce decree.

When the parties divorced, one of their two children was still a minor.  Pursuant to the divorce decree,  the parties were required to equally share health care costs, the cost of a vehicle, and college fund for the minor child.  The decree also ordered the father to pay for the minor child’s phone plan until she finished high school, and then that expense would also be split.  The decree incorporated an agreement incident to divorce that required the mother and father to share the other child’s healthcare costs.

Both parties moved to enforce the decree in 2019, each seeking contempt, or clarification if the court found the decree was not sufficiently specific.  The trial court’s subsequent order required the parties to communicate and exchange expense sharing exclusively through MyFamilyWizard.  The court’s order also clarified that the father was required to pay full cost of the minor child’s phone.

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A court may retroactively modify a Texas child support order in some circumstances, but it generally may only do so as to child support obligations that accrue after the earlier of the date of service of citation or an appearance in the modification suit.  Tex. Fam. Code 156.401.  A father recently challenged a modification terminating his child support obligation, arguing it should have applied retroactively to the date of his son’s eighteenth birthday.

When the son was fourteen, he enrolled in the American School, which is a private, distance-learning school.  Students complete their course by correspondence and computer-based work.  Students take two courses at a time and must complete a course before being provided another.  Courses earn one-half to one unit, and students must earn eighteen units to graduate high school.

The son’s brother sadly died in April 2017.  The mother moved out of the marital home in June and the parents filed for divorce in July.  The son remained in the home with his father.  With all of this going on, the son fell behind and performed no work for his courses for a period of nine to ten months.

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A trial court may modify a Texas child support order if there has been a material and substantial change in circumstances since the rendition of the prior order. The party seeking the modification has the burden of establishing the change in circumstances. The court may also modify an order if it has been at least three years since the prior order was rendered or modified and the order varies by 20% or $100 from the guidelines.  Tex. Fam. Code § 156.401(a).  As with many issues involving child custody or support, the court’s primary consideration should be the child’s best interest.  A father recently appealed a court’s denial of his request to modify his child support obligation due to a change in income.

Petition for Modification

According to the appeals court, the father’s monthly child support obligation under a 2015 agreed order in a modification suit was $1,231.78 and his monthly medical support obligation was $105. There were no findings as to the father’s net resources or any indication in the order that the child support was based on the guidelines.

The father petitioned for modification in October 2021, alleging a material and substantial change in his circumstances based on his income.  He requested a decrease in his child support obligation.  The mother argued that the previous modification agreement had not been based on the child support guidelines.  She further argued that a change in the father’s income did not constitute a material and substantial change in circumstances because there was no indication the parties had relied on the father’s income in setting the child support obligation in the agreed order.

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During its most recent session, Texas lawmakers adopted and passed several amendments and updates to the Texas Family Code, which were then formally signed into law by the Governor.

These revisions and additions to the Texas Family Code impact numerous areas of family law, including but not limited to: (1) suits for the dissolution of marriage; (2) suits affecting the parent-child relationship; (3) protective orders; and (4) discovery in cases filed under the Texas Family Code.

Ranging from modifications to elements necessary to prove a claim, clarifications to existing codified law, and the removal of automatically triggered disclosure requirements, family law practitioners throughout the State of Texas should familiarize themselves with these changes and how such changes impact their practice.


Insurance agent checking policy documents in office.

Parties to a Texas divorce may enter into a Rule 11 agreement to resolve issues in their case.  The agreement must be made in open court and entered into the record, or be in writing, signed, and filed with the court.  A Rule 11 agreement must be complete in material details and contain all of the essential elements of the agreement.  It is an abuse of discretion for a court to enter a judgment that is not in compliance with material terms of the agreement. A mother recently appealed a final divorce decree that she claimed did not comply with the terms of the Rule 11 agreement.

Parties Enter into Rule 11 Agreement

According to the appeals court’s opinion, the parties’ Rule 11 agreement provided they would be joint managing conservators of the two minor children, with the mother being primary for determining their residence with a geographic restriction. The father would continue picking up the daughter from school.  The father would have a standard possession order for the son.  The son had the option to have dinner at the father’s on Thursday. No alcohol was to be consumed during or for four hours prior to the father’s possession. Child support would be calculated according to the guidelines based on the father’s 2019 Schedule C “unless Schedule C gross receipts are higher for 2020 as filed.”

The parties both moved to enter the final decree, with the mother indicating they had not agreed regarding child support.  At the hearing, she argued the parties intended child support to be calculated without subtracting expenses from the gross receipts if the 2020 gross receipts were higher.  The father argued different language would have been used if that was the intent. He argued the language required the child support to be calculated according to the guidelines, which require calculation of net income before determining child support.

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iStock-531351317-300x200Texas family law presumes that is in the child’s best interest for both parents to be appointed joint managing conservators.  Tex. Fam. Code § 153.131(b).  When the court appoints joint managing conservators, it must give one the exclusive right to decide the primary residence of the child.  Tex. Fam. Code 153.134(b)(1).  The court may order a joint managing conservator to pay the other joint managing conservator child support. Tex. Fam. Code § 153.138. In both custody and child support determinations, the trial court’s primary consideration must be the best interest of the child.  In a recent case, a father appealed a court’s custody and child-support determinations.

Texas Office of the Attorney General Files Paternity Suit

The Office of the Attorney General petitioned to establish the parent-child relationship, asking the court to determine the child’s parentage and order conservatorship, possession, access and support.

The father testified he earned $25 per hour working as a contractor, but the availability of the work varied.  At the time of hearing, he worked between 32 and 60 hours per week.  He also testified he had the child the majority of the time and requested the right to establish the child’s residence, but he had not filed paperwork to be named primary custodian.  The father testified his parents kept the child during the day.  He said he spent a lot of time at their house and went home after putting the child to bed.

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