Dallas Divorce Law Blog by Michelle O'Neil

Yesterday I was asked if someone voluntarily terminates their parental rights, then does that automatically end their child support obligation.  Typically, the answer is yes, but the court can, in special circumstances, order the child support obligation to continue post termination.  A court can order financially able individuals to pay child support for a child in substitute care (CPS custody) if CPS has been appointed the managing conservator of the child.  In this instance, support can be ordered until the earliest of (1) the child’s adoption, or (2) the child’s 18th birthday or graduation from high school.

Voluntarily terminating your parental rights is an extremely serious decision with major consequences and shouldn’t be considered because someone wants to evade their child support obligations.  In this economy, Dallas divorce lawyers (as well as lawyers from all across the state) have seen an increase in suits to modify prior child support orders.  Anyone considering terminating their parental rights because of their child support obligation should first consider whether or not they are entitled to modify their child support.

Michelle May O’Neil, Dallas divorce lawyer, was quoted in the Dallas Morning News article More Texans Paying Child Support with Unemployment Checks As Economy Suffers.  The article by Emily Ramshaw was the lead article in the Thursday July 2, 2009 edition, starting on the front page, and with Ms. O’Neil’s picture appearing on page 14a.

During tax time, clients inevitably ask about collection of child support from an obligor’s tax refund. There are two methods available to enforce child support payments from delinquent child support obligors through federal tax collection. The first procedure allows collection of past-due child support by offsetting the support arrearages amount against a federal tax refund due to the delinquent payor. See I.R.C. §6402(c). The second method is an assessment and collection procedure where the U. S. Treasury Department is authorized to collect the certified amount of unpaid child support by levying against essentially any property of the delinquent child support obligor that would be subject to levy when collecting federal taxes. See I.R.C. §6334(c). The regulations for these two procedures may be found in the Treasury Regulations. See Treas. Reg. §301.6402-5(a)(1).

It seems that the economy is having an effect on the child support system.  I have observed an increase in cases involving nonpayment of child support, as well suits to modify and lower child support obligations in the Dallas County Family Courts as well as the Collin County Family Courts.  I’ve talked to other Dallas area divorce lawyers and they report similar observations. 

When a person who owes child support (aka, the obligor) loses his job is having trouble paying his obigation for whatever reason, it is essential to file a suit requesting modification of the obligation as soon as possible.  Failing to pay child support according to the court order can subject a person to the possibility of going  jail for contempt of court for up to 6 months for each occurrence of a violation.  In other words, failing to pay child support per the court order for one month carries a maximum possible contempt sentence of 6 months in jail.  Each subsequent month where the obligator fails to pay child support can also carry a 6 month sentence. 

Once a suit for modification is filed to lower the child support obligation, the court has the ability to grant a temporary reprieve of the child support obligation and even, in some cases, make the child support decrease retroactive to when the suit for modification was filed.

Someone recently wrote to me and asked me to post about my views on “parenting time adjustments to child support”.  The writer wasn’t very clear on what he meant by this, so I will just comment generally.  Side note, it is nice to hear from someone out there that actually reads my posts.  Sometimes it feels like I’m talking to the air. 

As a general rule, child support and parenting time are separate issues.  In other words, just because parent A refuses to allow parent B to see the child does not give parent B the right to stop making child support payments.  And, vice versa.

Texas has standard guidelines that are presumed to apply.  That refers to the standard possession schedule and the standard child support guidelines.  When a situation deviates from the standards, the court has discretion as to how to apply the guidelines. But, the analysis in each case begins with the application of the standard possession schedule and the standard guidelines for child support.  So, in a case where one parent has primary possession and the other parent has the standard possession schedule, it is presumed that the parent with the standard possession schedule will pay child support according to the standard guidelines (i.e., 20% for one child, 25% for two, etc.)

Child support can, however, be adjusted up or down based on the amount of time a child spends with each parent.  On the one hand, if parent B fails to exercise his or her parenting time, leaving parent A with 100% of the responsiblities of caring for the child, the court may award additional amounts of child support to parent A.

On the other hand, if parent A and parent B have a split of time that is roughly equal, the court may take that equal split in account in whether to apply the standard child support guidelines.  I’ve seen courts handle a 50/50 parenting time split in two ways.  First, where the parents make roughly equal incomes, I’ve seen courts call it “even” on child support and make no specific award.  Then, I’ve also seen it where there is a disparity of earning capacity between the parents.  In such a situation, courts will usually calculate what each parent would owe the other in a traditional scenario and net out the difference. 

The bottom line is that the judges have discretion to enter orders taking into account the child’s best interest — as the judge views the best interest.  A judge will almost never be wrong in applying the guidelines, even if the parenting time differs from the standard schedule.  Whether a judge is simply taking the easy route by applying the guidelines, or whether some other factors enter into the decision, the standard guidelines are presumed to apply.  Likewise, a judge will almost never be wrong for deviating from the standard guidelines where the possession schedule also deviates from standard. 

Hope that answers the question………….

A recent national survey of divorce lawyers notes an increase in the number of mothers paying child support.  According to the survey, 55% of attorneys said they have noticed a shift during the past five years in which more mothers are required to pay child support. 

This mimicks the trend that Dallas divorce lawyers are also seeing locally.  Many years ago, the Texas Family Code eliminated the gender bias from the language of the law, equalizing the rights of mothers and fathers.  Over the years since, the Texas Legislature has continued to support an increase in fathers rights overall.  We could have a spirited discussion on why this is… is it because many of the Legislators are fathers that have been involved in custody situations?  or is it because many of the Legislators are male?  Regardless, there has been a definite trend toward equalizing male and female roles related to children of divorce.  This, likewise, means that when a mother is not the primary parent, she will be required to pay child support.  In years past, when a mother did not have custody of the children, most often she was not made to pay support, presuming that the father made sufficient income to support the children financially without assistance from the mother.  But, some women more than or equal to their husbands (baby’s father) and therefore are required under the law to take equal or greater financial responsibility for the children.

Texas has standardized guidelines for the payment of child support based on the income of the paying parent… For example, 20% of the net income of the parent if there’s one child, 25% for two children, etc.  The formula becomes more complex if there are children from multiple relationships, where the parent paying the child support is given a credit for support paid to the children from the other relationship.

Regardless, there has been a trend recently in Dallas area divorces where mothers are being required to pay child support.  This isn’t necessarily because of some inherent unfairness in the legal system, but more because of a trend toward equalizing treatment of each parent regardless of gender.

Custodial parents in areas affected by Hurricane Ike may experience a delay in receiving child support checks, the Texas Child Support Disbursement Unit and Texas Attorney General Greg Abbott said last week. Abbott has urged parents to contact a toll-free child support hotline to inform child support officials about any temporary address changes. Additionally, parents can sign up to receive payments automatically through their bank or through a state ATM card.  Staff, Tyler Morning Telegraph  09/15/2008