Texas Court May Order Primary Custodial Parent to Pay Child Support


A court may order one joint managing conservator to pay Texas child support to another joint managing conservator.  Tex. Fam. Code Ann. § 153.138.  The child’s best interest is the primary consideration in determining child support.  There may, therefore, be occasions where a court orders the parent with primary physical custody to nonetheless pay child support to the other parent, when they are both joint managing conservators.  A mother recently challenged an order to pay child support when she had been awarded the exclusive right to determine the child’s primary residence.

Child Support Paid to Non Custodial Parent in Texas

The mother was a registered nurse who worked three twelve-hour shifts each weekend during the marriage.  The father cared for the child on weekends, and the mother cared for him during weekdays while the father was at work.  Both helped him with his homework.

The mother started having an affair in 2015 and the father learned of it a few months later. The mother filed for divorce in 2017, alleging insupportability.  She asked both parents be named joint managing conservators and did not request child support.

The father also alleged insupportability, asked to be granted the exclusive right to designate the child’s primary residence, and requested child support.  However, he later amended his counterpetition to include adultery as an additional ground for divorce, asked for spousal maintenance, and asked for a disproportionate share of the community estate.

The trial court’s letter ruling granted the mother the exclusive right to designate the child’s primary residence and gave her the right to make certain decisions regarding the child.  The ruling gave the father possession of the child on the first, second, and fourth weekends, the third Friday of each month, for two weeks during the summer, and on holidays according to Texas’s standard possession order.  Interestingly, however, it also ordered the mother to pay the father $1,000 per month in child support and to provide for the child’s health insurance.  The home was to be sold, with proceeds going toward the credit card debt and any remainder being split 60%/40% in favor of the father.  The mother was to pay 60% of the income tax debt from her share, and the father 40% of the income tax debt plus his remaining medical bills.  The father was awarded 100% of his own retirement plan and $224,380 from the mother’s retirement plan.

The final divorce decree gave both parents the right to receive child support.  The trial court failed to issue findings of fact and conclusions of law following the mother’s request, and she appealed.  She argued the trial court abused its discretion in ordering her to pay child support when she was named joint managing conservator with the exclusive right to determine the child’s primary residence.

The appeals court considered a previous case that had noted that the Family Code allows a court to order “either or both parents” to pay child support.  Tex. Fam. Code § 154.001(a).  The appeals court found the evidence in this case was sufficient to support awarding the father child support, even though the mother had the exclusive right to designate the child’s primary residence.  There was evidence that the mother consistently earned significantly more than the father while they were married.  There was evidence showing the father’s monthly income was less than his expenses.  The court heard evidence the father needed additional education for a more lucrative career.  The father did not have the money to take the child to activities during the divorce, and the mother refused to give him money when he asked.  There was evidence the mother wanted the father to have the child more than the standard possession schedule allowed and that she wanted the child to have a comparable lifestyle with both parents.  The appeals court found this evidence supported the trial court’s order that the mother pay child support and the implicit findings that it would be in the child’s best interest.  The appeals court noted that the Family Code allows the court to order one joint managing conservator to pay child support to the other joint managing conservator.  The appeals court further found that decision was reasonable here based upon the evidence, the joint-managing-conservatorship, and the modified possession schedule.

Additionally, the appeals court found the evidence was legally and factually sufficient to support the unequal division of the estate in favor of the father.  The trial court considered a number of factors, including the mother’s affair, the mother’s filing for divorce, the difference in incomes and earning capacities, the mother’s control of the finances, the couple’s debt, and the father’s need to support himself and the child and to fund his college education. The appeals court also found the trial court’s decision was reasonable.  There was no abuse of discretion in the disproportionate division of property.

Accordingly, the appeals court affirmed the trial court’s order.

Hiring the Right Attorney for Fair Child Support

Divorce and child support can be complicated when one party makes significantly more money, as seen in this case.  The skilled Dallas child support attorneys at McClure Law Group can help you fight for a fair child support order.  Call (214) 692-8200 to schedule a consultation.

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