Criminal Nonsupport Handbook
Basic Family Law
Custody and Visitation
This section is a basic overview of the current state of family law, as it relates to paternity and child support, as of September 2004.
In 2002, Texas was the first state to enact the Uniform Parentage Act, as Texas Family Code ch. 160. Paternity can be established in three ways: presumption, acknowledgment, or adjudication.
Under the Act, a man is presumed to be the father of a child if:
- He is married to the mother of the child at the time of birth; or
- The child is born within 300 days after the termination of the marriage; or
- During the first two years of the child';s life, he continuously resides with the child, and represents to others that the child is his own. [TFC § 160.204]
Rebutting the Presumption
The presumption of paternity may be rebutted if:
- The presumed father files a denial of paternity along with an acknowledgment of paternity by another man [TFC § 160.204(b)]; or
- A court determines that he is not the father in a suit filed within four years of the child's birth [TFC § 160.607(a)];or
- A court determines that he is not the father, and that he did not cohabitate with or have sexual intercourse with the mother during the time of probable conception, and that he never represented that the child was his own, in a suit filed at any time. [TFC § 160.607(b)]
A mother and a man claiming to be the biological father of a child may sign an acknowledgment of paternity. [TFC § 160.301]. This acknowledgment must state that the child does not have a presumed father, or the presumed father must file a denial of paternity. §160.302. Once an acknowledgment of paternity is filed with the Bureau of Vital Statistics, it is the equivalent of an adjudication of paternity by a court. [TFC § 160.305]
Rescinding the Acknowledgment
An acknowledgment of paternity may be rescinded by filing a motion to rescind within 60 days of the date of signing the acknowledgment. [TFC § 160.307]. A challenge to the acknowledgment may be filed after the 60 day period, but must claim fraud, duress, or material mistake of fact. The results of a paternity test showing that the acknowledged father is not the biological father constitutes a material mistake of fact. [TFC § 160.308].
A suit to adjudicate the paternity of a child with no presumed, acknowledged, or adjudicated father may be brought at any time, even after the child becomes an adult. §160.606. A suit to adjudicate the paternity of a child with a presumed father must be brought within four years of the birth of the child, unless the mother and the presumed father did not cohabitate or engage in sexual intercourse during the period of conception. In that case, the suit may be brought at any time. [TFC § 160.607].
Testing may be ordered by a court or a child support enforcement agency, or voluntarily by the parties. [TFC § 160.501]. A man is the father of a child if the genetic tests show the man has at least a 99 percent probability of being the father. [TFC § 160.505(a)]. These results may be rebutted by another genetic test showing that the man is excluded as the biological father, or identifying another man as the possible biological father. [TFC § 160.505(b)]. For good cause, the court may order genetic testing on the parents, siblings, or other children of a man who may be the father of a child. (A “fatherless draw”). [TFC § 160.508]. For good cause, the court may order genetic testing of a deceased person. [TFC § 160.509]. If a man has an identical twin brother, the court may order testing on both. If the genetic tests cannot determine which brother is the biological father of the child, the court may rely on non genetic evidence to determine paternity. [TFC § 160.510].
The Final Order
An order establishing paternity can be in the form of a final decree of divorce, a final order in a suit affecting the parent-child relationship SAPCR), or an unchallenged acknowledgment of paternity.
Parents are responsible for the support of their children, and a court may order either or both parents to pay support. [TFC § 154.001]. Child support is not a “debt”. Ex parte Davis, 101 Tex. 607 (1908). This support continues until the child dies, is emancipated, reaches 18, graduates from high school, or if the child is disabled, indefinitely. [TFC §§§ 154.001, 154.002, 154.006]. If neither parent has possession of the child, the court may order that both parents pay support to the non-parent with the child. [TFC §§ 154.001(b), 154.001(c)] The parties can agree to an amount of child support, which the court will confirm if it is in the best interest of the child. Such an agreement is not enforceable as a contract. [TFC § 154.124].
The court shall order an “equitable” amount of child support. Child support is based on the obligor';s “net resources” as defined in [TFC § 154.062], and the guidelines are set forth in [TFC § 154.125]. A rough approximation of net resources is take-home pay. The guidelines are 20 percent for one child, 25 percent for two children, and so on. There are adjustments for multiple children in multiple households. [TFC § 154.129].
It is presumed that an obligor can earn minimum wage for 40 hours per week, and child support should be set at that amount. [TFC § 154.068]. It is assumed that the obligor will also provide medical insurance coverage for the child in addition to paying child support. [TFC § 154.064]. It is presumed that an order that follows the child support guidelines is reasonable and in the best interest of the children. [TFC § 154.122]. It is also presumed that if an obligor makes more than $6,000 in monthly net resources, the guidelines only apply to the first $6,000, then judicial discretion applies. [TFC § 154.126]. (The OAG sees very few of these cases.) It is presumed that retroactive child support (support from the date of birth to the date the child support obligation is set) for four years is reasonable. [TFC § 154.131]. All of these presumptions are rebuttable.
The court shall order medical support for the child. [TFC § 154.008]. If the child support guidelines are used, it is presumed that the obligor will also provide medical support for the child in addition to the child support. [TFC § 154.064]. The amount the obligor is required to pay for the child';s health insurance is a child support obligation, and may be enforced as such. [TFC § 154.183].
When the court orders health insurance, it should proceed in the following order:
- Seek insurance through the obligor's employer or membership in a union or other organization. If this is not available at a reasonable cost, proceed to the next option.
- Seek insurance through the custodial parent's employer or membership in a union or other organization. Obligor shall reimburse the custodial parent for the amount of the premium as additional child support. If this is not available at a reasonable cost, proceed to the next option.
- Insurance should be obtained by the obligor through another source. If this is not available at a reasonable cost, proceed to the next option.
- Pursue health coverage through a state medical assistance plan or state children's health care program. If these are not available, proceed to the next option.
- The obligor shall pay the custodial parent a reasonable amount each month as medical support. This is called “cash medical”. [TFC § 154.182].
The term “reasonable cost” means a premium that does not exceed 10 percent of the responsible person’s net income in a month. [TFC § 154.181(e)].
Failure to Provide
A person who fails to provide health insurance is liable for either the reasonable and necessary medical expenses of the child, regardless of whether they would have been covered by insurance; or the actual cost of premiums paid by the other party to provide insurance. [TFC § 154.188].
When Support is Due
Child support is set as a monthly amount, due and payable as set out in the court order. Child support is considered delinquent if it is not received by the 31st day after the payment date stated in the order. §157.266. Interest accrues at a rate of six percent simple interest from the date of delinquency until the date of payment. §157.265. In practice, a payment is considered “late” if it is not received during the month in which it is due.
Where Support is Paid
For every child support order entered after Sept. 1, 2003, support must be paid through the State Disbursement Unit (SDU), a branch of the OAG. [TFC § 154.004]. The SDU is operated by a private contractor. Every IV-D case requires payments through the SDU, regardless of the order date.
For child support orders entered before Sept. 1, 2003, support can be paid to a local registry, through the SDU, the district clerk, the probation department, a private collection agency, or directly to the obligee.
Who Pays Support
Every child support order contains a provision for withholding child support payments from the income of the obligor. If the parties agree, this provision may be held in abeyance until a delinquency occurs. [TFC § 154.007]. However, the duty to pay support remains with the obligor; the failure of an employer to withhold support or pay that support as ordered does not relieve the obligor of that responsibility.
Judgments and Interest
Every delinquent child support payment constitutes a final judgment for the amount due and owing, plus interest. [TFC § 157.261] This judgment accrues simple interest at six percent per annum until paid. [TFC § 157.265(a)] The interest is treated as part of the child support, and is collectable in the same manner. [TFC § 157.265(b)]
Liens and Foreclosures
A child support lien arises by operation of law for all amounts of child support due and owing, including accrued interest. [TFC § 157.261(a)] It attaches to all of the obligor’s real and personal property. [TFC § 157.312(d)] This includes bank accounts, stocks and bonds, insurance proceeds, retirement accounts, and vehicles. It does not attach to homestead real property, nor to the proceeds from the sale of such property for six months. [TFC § 157.317]. It does, however. attach to all of the obligor’s personal property, including household furnishings, livestock, and personal possessions. [Texas Property Code §42.005]
The OAG regularly receives information from financial institutions and insurance companies regarding account holders and claimants [TFC § 231.307], and can place liens on these accounts and claims. [TFC § 157.327]
A child support lien cannot be sent to an obligor’s employer, or attach to worker’s compensation payments, which replace wages. [TFC § 157.312(g)]
Failure to pay court ordered child support is punishable by contempt, both coercive and punitive. Since contempt is quasi-criminal, the obligor charged with contempt is entitled to an appointed attorney. [TFC § 157.163] The obligor is also entitled to a jury trial if there is a possibility of a punitive contempt punishment of greater than 180 days. Ex parte Whitehead, 908 S.W.2d 68 (Tex. App.–Houston [1st Dist.] 1995). A motion for enforcement by contempt must be filed within six months after the child support obligation ends. [TFC § 157.005]
It is an affirmative defense to contempt that the obligee voluntarily relinquished possession of the child to the obligor for periods longer that those set out in the standard possession order. It is also an affirmative defense that the obligor lacked the ability to pay the support ordered. [TFC § 157.008]
“Conservatorship, possession, and access” have replaced “custody and visitation”. A mother or father can be a “managing conservator” with custody; a “possessory conservator” with visitation rights; or a “joint managing conservator” with shared responsibilities.
The joint managing conservator mode is preferred. [TFC § 153.131(b)] Under this arrangement, one conservator has the authority to receive child support, and the other has the obligation to pay child support. Both conservators have possession of the child per their agreement or pursuant to the possession schedule ordered by the court. [TFC § 153.137]
The Connection Between Visitation and Child Support
The payment of child support may not be made contingent on visitation, and the two are not linked in any way under the law. [TFC § 154.011]. However, studies have made it clear that there is a connection; obligors with regular access to their children are more likely to pay their child support.
The federal regulations governing the IV-D program do not permit federal funding to be spent on custody and visitation issues. Since all child support orders in Texas must contain provisions regarding conservatorship, possession, and access, the OAG includes them. [TFC § 153.005] This is the extent to which the OAG can be involved in custody and visitation, except for special grants to fund visitation and access projects.
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