Articles Posted in Child Support

A Texas custody case can become complicated when a person learns he is the biological father of a child years after the child’s birth.  Although a potential father of a child with a presumed father generally must file for adjudication of paternity prior to the child’s fourth birthday, in some cases, a delay may be excused.  TEX. FAM. CODE ANN. § 160.607.  In a suit adjudicating parentage, the court may order retroactive child support based on the child support guidelines if the parent has not been previously ordered to pay child support and was not party to a suit where support was ordered. TEX. FAM. CODE ANN. § 154.009.

In a recent case, a biological father challenged an order requiring him to pay retroactive child support and granting custody to the mother’s ex-husband.  The mother was not sure who the father was, but married during her pregnancy.  The mother and her husband also had a child together.  The husband was the presumptive father and was adjudicated the father of both children when he and the mother divorced.  The husband was named managing conservator with the right to establish the primary residence for both children.

The mother had told the biological father about the pregnancy when she realized she may be pregnant, and he acknowledged he was aware he could be the father from that time.  He went to the hospital the day the child was born.  He said the mother told him he was not the father and he did not pursue paternity at that time.  The mother told him he may be the father when the child was four years old and a paternity test confirmed that he was the probable father.

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Texas family law was written before marriage between same-sex partners was recognized.  Many of the statutes are written in gendered terms that do not contemplate the possibility of marriage between same-sex partners or parents who are the same sex.  A recent case considered whether the female spouse of a child’s biological and birth mother was a parent under Texas law.

The appellant had a child at the time of the marriage and the parties discussed having a child together.  A friend of the parties agreed to be their sperm donor.  They agreed the appellee would carry the child.  According to the appeals court’s opinion, the appellant performed the insemination in the parties’ apartment.   The appellant accompanied the appellee to most of her doctor’s appointments.  She was at the hospital when the baby was born and took family leave to be with the baby. When the parties divorced, the trial court found the appellant was also a parent to the child and ordered her to pay child support. She appealed.

The appellant argued “parents” are defined as a mother and father in the Texas Family Code.  The appellee argued that same-sex marriage and related benefits are recognized in the United States pursuant to U.S. Supreme Court decisions and Texas law must be read in light of those decisions.

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In calculating child support, a Texas court must consider each parent’s net resources.  The Texas Family Code defines which resources are to be included, and which types of resources are excluded from consideration.  In a recent case, a wife challenged an order to pay child support and medical support, partly because the court had improperly considered certain resources.

The husband testified that he lacked health insurance and did not have access to private insurance.  Although the wife did not appear at the trial, the husband was previously the trustee of her supplemental social security income (SSI) and testified that he believed that she still received $750 per month.  There was no other evidence of her income or ability to work.

The trial court designated the husband as the sole managing conservator of the children and ordered the wife to pay child and medical support.  The court calculated the payment based on her SSI.

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The Texas Office of the Attorney General (OAG) is responsible for certain child support services, including collecting and enforcing Texas child support orders.  Recipients of certain public assistance programs may automatically qualify for the OAG’s child support services, but others have to apply for the services.  The OAG has a variety of ways to enforce child support, including filing liens, issuing writs of withholdings to the parent’s employer, suspending driver’s licenses, and intercepting tax refunds or other money from state or federal sources.

In a recent case, a father challenged the OAG’s enforcement actions against him.  The father was ordered to pay child support beginning in December 1996.  The court also issued an Order Enforcing Child Support Obligation in October 1999, including a cumulative money judgment for $15,000 plus interest against the father in favor of the Attorney General.

In 2015, the OAG sent a notice of child support lien to the father’s bank and issued administrative writs of withholding to his employers.  The OAG also filed a petition with the State Office of Administrative Hearings for the father’s driver’s license suspension.

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The Texas Family Code provides guidelines to assist courts in calculating child support that are based on a percentage of the parent’s net monthly resources.  The statute sets forth what types of income are included and excluded from the parent’s net monthly resources.  In many families, it is fairly straight-forward to determine what is included in the calculation.  If a parent’s only income is from the wage or salary he or she earns from employment, it is relatively simple to identify the net monthly resources.  Some families, however, have more complicated financial circumstances making it less clear what should be included.

In a recent case, a father appealed the inclusion of an annuity payment in his net monthly resources for purposes of the child support calculation.  Prior to the marriage, the father settled a claim for a work-related accident with his employer.  As a result of the settlement, the father receives $6,970 per month from an annuity.  The payments will continue until either the the father’s death or June 1, 2044.

The couple had one child during the marriage.  The mother filed for divorce less than a year after the couple was married.  Although the couple reached agreement on some issues, they were unable to agree on child support and medical support.  The trial court found the annuity payments were “resources” under Texas Family Code 154.062 and included them in the father’s resources when calculating the child and medical support payments.

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Sometimes, a parent may face significant changes in his or her financial circumstances that affect the ability to pay a Texas child support obligation.  If the change in the parent’s financial circumstances is both substantial and material, the court may modify the obligation.

In a recently-decided case, a father sought to modify his child support obligation after he was determined to be disabled.  The original support order was entered in 2006.  The court entered an agreed order in 2012, ordering the father to make payments on the support he owed and increasing his monthly obligation based on his net resources.

Soon after the 2012 order was entered, the father had a stroke.  The Social Security Administration (SSA) found him to be disabled and awarded him Supplemental Security Income (SSI) benefits.  He moved to modify the support order on the grounds his circumstances had materially and substantially changed.

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Parents have a duty to support their minor children and generally cannot avoid that duty through intentional unemployment or underemployment.  If a Texas divorce court finds a parent is intentionally unemployed or underemployed, it may consider that party’s earning potential instead of his or her actual income in determining child support.

A mother recently appealed a trial court’s finding that she was intentionally underemployed.  The parents reached a mediated settlement agreement on all issues except child support.  After a bench trial, the court ordered the father to pay child support for five months. There were some circumstances under which the child support could end earlier, and after the five months passed, there was to be no child support paid by either parent.

The court provided the reasons it varied from the guidelines in its findings of fact.  It found the parties had agreed to having the children for equal amounts of time.  The father had been found to be disabled.  He received disability income, and his health issues prevented him from earning additional income.  The mother had two degrees and could work as a licensed school teacher.  She had not presented evidence of disability nor a physical handicap that would keep her from earning additional income.  The mother had been awarded the marital residence and newer vehicle.  The father had to seek new housing to get equal visitation with the children as well as obtain another vehicle.  The trial court found the mother was underemployed and could have resources comparable to those of the father.

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After a court issues a Texas child support order based on an agreement of the parties, the trial court may only modify the order if there has been a material and substantial change in circumstances.  If there has been such a change, the court has the discretion to modify the order.  The court’s analysis depends on the resources of the obligor.  If the parent paying child support has net monthly resources equal to or less than an identified amount, currently $8,550, the court must base the presumptive award on a percentage of the net resources and the number of children.  If the net monthly resources are greater than this amount, then the court has the discretion to order amounts greater than the presumptive award, depending on the parties’ income and the “proven needs” of the children.  Thus, the court must determine the proven needs of the children before awarding an amount greater than that set by the guidelines.  If the children’s needs exceed the presumptive award, the court allocates the difference between the parties.  No party can be required to pay more than 100% of the proven needs of the children.  Unfortunately, neither the legislature nor the courts have clearly defined “needs,” but the Texas Supreme Court has stated that needs are not determined by the family’s lifestyle or the parents’ ability to pay.

In a recent case, a father challenged a modification that ordered him to pay an amount greater than the monthly guidelines.

The father also challenged whether there was a material and substantial change in circumstances, but the appeals court readily found that a significant increase in the father’s income since the Agreed Order was sufficient to support a modification.

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In some Texas child support cases, the court may find a party to be “intentionally underemployed.” Although child support is generally based on the party’s income and resources, the calculation may be based on earning capacity if the party is found to be intentionally underemployed or unemployed.

A father recently challenged a child support obligation in which he was found to be intentionally underemployed.  The father had petitioned for the bill of review on the grounds the child support determination had been based on an IRS tax-lien notice that contained incorrect information.  He alleged he had amended his earnings information with the IRS and asked the court to order a reasonable amount based on his true earnings. The trial court declared the child-support portion of the divorce decree void, reopened the issue of child support, and ultimately issued a new order.

After the court declared the child support void, the father filed an amended counter-petition, but did not allege any of the children had been emancipated or request a credit for amounts already paid.  The mother did not file an amended pleading.

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A parent can seek enforcement of the custody provisions of a court order through contempt of court.  Texas custody attorneys know, however, that contempt is only available if the original order is clear and specific enough to allow the other person to readily know what duties or obligations are expected of him or her.

In a recent case, a father sought contempt against his child’s mother.  The father moved for enforcement of possession or access to his child.  He asked that the court hold the child’s mother in contempt for violating his visitation rights in the divorce decree.  In the alternative, he requested that the court issue a clarifying order if it found the previous order was not specific enough to enforce through contempt.  The mother moved to dismiss the motion. The trial court granted the mother’s oral motion for dismissal of the father’s motion and the father appealed.

The appeals court noted that the trial court’s refusal to hold the mother in contempt was not appealable, but the dismissal of the father’s request for clarification was.

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