Family Law: Child Support

Front 1

Court-ordered support terminates at 18 or HS graduation (whichever's later); except in case of disabled child, a parent is not responsible for a child's support after they turn 21.

Payment of child support can't be conditioned on granting visitation rights (and vice versa)

Back 1

Visitation order can't be so vague as to be unenforceable. Unless otherwise agreed, must be standard possession order:

- noncustodial- 6-8 thurs; weekends; 30 days in summer, etc. More flex rules if child under 3; different rules if parents over 100 miles apart. PC must pay for travel expenses related to visitation if he has resources to do so.

Front 2

Court may order support for disabled for indefinite period, as long as child physically/mentally disabled before attaining 18.

* Upon death, remaining balance of obligation is accelerated. Amount discounted to present value, and is claim against obligor's estate.

To secure payment of such amounts, court in dissolution proceeding may require obligor to acquire decreasing term life insurance coverage.

Back 2

* Jury trial as to support and visitation are precluded by statute.

Front 3

Statutory Child Support Guidelines: unless parties agree on (and court approves) some other amount of support.

1 child: 20% obligor's net resources
2 child: 25%
... 4 children: 40%
Over 5 children: not less than amount for 5 children

Back 3

Net resources: cash revenue from all sources; less deductions for FICA (social security), union dues, health insurance for obligor's children, and income tax withholding for single person claiming 1 personal exemption and a standard deduction

Guidelines are starting point,tweaked depending on:
- special needs of child; ability of parents to contribute to support; fin resources avail for supp; amt of possession/access to child

* If there is deviation from guidelines, court order must contain written explanation justifying derivation from statutory guidelines

Front 4

Guidelines apply to first $7500/month of net resources ($90k/year). If obligor's net resources exceed $7500/month, court may order additional support if it shows child's needs warrant a greater award. Obligor parent's income (even great wealth) and family lifestyle not to be considered. Despicable conduct doesn't warrant deviation.

Back 4

In no event may the obligor be required to pay child support that exceeds proven needs of the child. In det needs of child, special needs are best to support increase in guideline support. Not more 'normal' expenses (camp, pets,etc.)

Child support are made to state disbursement unit. No reduction if obligor's actual income is muchlower due to intentional unemployment or underemployment.

Front 5

All final orders for periodic child support must provide for mandatory withholding. Applies to severance pay, bonuses.

Max amount subject is 50% disposable earnings (take-home pay): salary and wages minus 'usual' deductions: income tax withholding, FICA (social sec), retirement contrib., etc.

1) Det amt of support (based on net resources) per guidelines.
2) Det amt of mandatory withholding based on disposable income.
--> available for arrearages. Up to 50% max of disposable income.

Back 5

Mandatory withholding doesn't apply to investment income. Only earned income, where obligor has employer.

If self-employed, he can be ordered to post bond or post security that's forfeited if he falls into arrears.

Front 6

Court can order Order Suspending License if obligor is 3 mos in arrears and has been given chance but failed to make payment under agreed sched. Driver's license of business/occupation license. Includes hunt/fishing!

Back 6

Must be served w/notice advising that license will be suspending 60 days after service unless he pays all arrearages or enters into reasonable repayment sched. Licenses suspended may be restored when obligor pays off arrearages.

Delinquent- can't obtain state grants, loans, contracts.

Front 7

Child support lien for arrearages against obligor's real property (other than homestead) and non-exempt personal prop. also attaches to claims for neg, pers inj, workers comp held on/after date on which lien attaches. Lien secured by filing child support lien notice in county where oblig owns nonexempt prop or in which obligor resides.

Back 7

If obligor remarries, spouse can petition to release from lien any community prop of spouse and obligor, if sale would result in unreasonable hardship upon the spouse or obligor's family

Front 8

If judgment for arrearages, claimant can deliver a notice of levy to financial institutions holding obligor's assets. Freezes assets; obligor has 10 days to pay, enter into paym sched, or file suit. Financial institution must pay no sooner than 15 days and no later than 21 days after notice delivery. Unless obligor contests levy.

Contempt (up to 6 mos in jail, $500 fine, or both--> probation up to 5 years). Agreement to pay support in settlement agreement but NOT incorporated into divorce decree isn't enforceable by contempt

Back 8

Periodic child support payment not timely made becomes money judgment for amount due. In action to reduce arrearages to judgment, plus interest at 6%, court's only fxn is to confirm amount of unpaid support, subject only to defense of actual payment.

SOL- 10 yrs after child-->adult; obligation not dischargeable in bankruptcy

Front 9

Interstate Enforcement of Support Order: brought by registering an order under the Uniform Interstate Family Support Act (UIFSA)

- send 2 copies (1 cert) to court w/sworn statement
- future violations of support order can be enforced by contempt (but not for arrearages before reg)

Back 9

Also might reduce arrearages to money judgment in court; bring money judgment under Full Faith and Credit

Or, mail copy of income-withholdign order to employer. Under UIFSA, automatically triggers income withholding unless order validity contested. Or mail to TX AG Child Support Enforcement division, which seeks admin enforcement.

Front 10

If question involves parent withholding possession in violation of custody (MC) order, MUST discuss habeas corpus: Is there a valid court order awarding custody?

Venue of habeas proceeding: county in which child is found OR court of continuing jurisdiction

Habeas may be brought w/o court order if parent, relying on entitlement to possession as parent, bringing habeas against non-parent who withholds custody

Respondent can't cross-file and relitigate custody in habeas proceeding.

Back 10

Exceptions:

- court can consider whether custody order is valid court order (issued w/o due process?)
- temp order can be issued if court finds serious immed question concerning child's's welfare
- if child hasn't been in relator's (mother's) possession at any time w/in past 6 months, court may consider motion or cross-action to modify custody (P = relator; D = respondent)

Front 11

Q involving parent withholding child in violation of MC order may call for discussion of:

Statutory Tort Liability: interference w/child custody. Exemplary damages available. Avail against noncustodial who 'kidnaps' or custodial who withholds in violation of vistation rights.

Avail against 3d party who aids and abets

Back 11

Must give notice by registered/cert mail of intent to file tort suit in 30 days unless custody order complied with. To get attention, and get child back w/o suit.

Front 12

If question in intrastate or all-TX setting, discuss:

Contempt: probation for up to 5 years

Back 12

Finding involves jail time--> quasi-criminal in nature.

All crim due process rules apply to contempt proceeding: right to be present at trial, right to appointed counsel fi indigent, evidentiary std 'beyond w/o reas. doubt"

Front 13

If interstate, discuss: Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA): avoid juris disputes; facilitate interstate enforcement of custody and visitation orders.

Jurisdiction to initially enter a custody order lies in state w/ (descending order):
- Home state jurisdiction: where child has lived for last 6 mos w/parent or person acting as parent
- No home state or home state declines jurisdiction, then sig connection/substantial evid (look for sig connection w/state besides physical presence AND substa. evidence re child's care, protection, training, personal relationships

Back 13

- all other states w/juris decline- then this state has jurisdiction

- default jurisdiction: no other state has juris under any of above grounds, then this state has juris

Once custody order is entered, under UCCJEA issuing court has continuing exclusive jurisdiction as long as one party continues to reside in that state

Front 14

UCCJEA Remedies:
- Registration of order: 2 copies (1 cert) then court can grant any relief avail for enforcement of registered order
Expedited Enforcement in Habeas-type Proceeding: court order directly respondent to appear in person at hearing; possession to petitioner unless custody or visitation order stayed or vacated

Back 14

Warrant to take immediate possession of child- on filing petition seeking to enforce custody or visitation order, petitioner may file for a warrant to take possession of child on a finding that child is imminently likely to suffer serious physical harm or be removed from state

Front 15

Modification of Child Support or Custody Order
- File motion to modify support order, SAPCR Court, Court of Continuing Exclusive Jurisdiction
- Simultaneous w/modify, file motion to transfer
- motion to transfer mandatory if child has resided in new county for at least 6 mos

* Family Code Venue rules are mandatory, parties cannot set venue. Venue can't be changed by agreement.

Back 15

Modification of child support can happen despite agreement not to change. Court can only order child support until child is 21 if child's still in HS. If not the case, obligee has K claim. Test:

1) Circumstances of child or affected party have materially and substantially changed, since date of rendition or signing MSA (mediated settlement agreement), or
2) 3 yrs have elapsed and support sig deviates from guidelines

Must wait 3 yrs if only basis is deviation from guidelines

Front 16

When det. "material change", all kids to whom obligor owes a duty are taken into account.

New spouse's salary and investment income can't be taken into account.

Back 16

Judge's motion on motion to transfer (wrongfully decided) is interlocutory, can't be appealed.

Losing party should file a writ of mandamus, since what judge did was unauthorized and contrary to statute.

Front 17

Motion for modification of MC must be filed in SAPCR, BUT if child has moved to new county and resided there for at least 6 mos, MOT is mandatory.

To prevent frustration of visitation by a surprise move, each conservator must give other party notice of intent to move at least 60 days before. Each must inform other if he or she resides with for 30 days, marries or intends to marry a registered sex offender.

Back 17

To modify MC; 2 pronged-test:
1) Mod. in child's best interest, and
2) Changed circumstances

Since motion to modify custody or primary resid has been filed w/in yr from order to be modified, unless MC consents to modification, must also show: danger to child's phys/emo health

* 2 prong test doesn't apply (only test is best interest of child) if MC voluntarily relinquishes possession/control for at least 6 mos.