HOW DO I GET MY CHILD CUSTODY ARRANGEMENT MODIFIED?

Generally speaking, the person seeking a modification in child custody in Texas is going to have to show that at least one of the following has occurred since the original order was entered:

• The circumstances of the child or parent has materially or substantially changed,

• The child, who is at least 12 years old, wants the change, or

• The custodial parent has voluntarily given the child’s care and custody to another person for at least 6 months.

What Constitutes a Material or Substantial Change in Circumstances?

Examples where Texas courts have ruled that circumstances warranted a modification of custody include:

• Parental relocation affected the child’s relationship with the other parent.

• The parent’s financial circumstances have changed and affect his or her ability to properly care for the child.

• Parental illness affected the parent’s ability to care for the child.

• Parental remarriage negatively affected the family relationships of the child.

When Can a Child Request a Change in Custody or Visitation?

Children who are at least 12 years old have a say about which parent they want to live with. Children are interviewed in the judge’s private chambers and are allowed to explain why they want a change in custody or visitation.

While the court will listen to the child and weigh his or her concerns, the decision is ultimately decided based on the court’s assessment of what is in the child’s best interest.

Retroactive Child Support AND Medical Support

 

A parent can also request the court to order retroactive child support and medical child support. Retroactive child support reflects the amount of money one parent would owe the other parent prior to the filing of the suit if there had been a child support order in place.

Generally, if a court orders retroactive child support, it is in the case of a paternity suit, with circumstances wherein either the father or mother was not a part of the child’s life prior to the suit and not financially supporting the child.

Medical Child Support

Medical child support is in addition to the amount an obligor is required to pay for child support. The court must specify how health insurance will be provided for a child. The court can order one parent to include the child on his or her health insurance plan, or the court can order one parent to reimburse the other parent an amount that is equal to the costs of health insurance for the child.

Additionally, the court will specify how unreimbursed medical expenses will be paid for the child. Generally, courts order that the unreimbursed medical expenses be split 50-50 between the parents.

Parents have the ability to agree to the issues relating to child support without going to trial or hiring a separate child support lawyer later on. They can even agree to an amount that deviates from the child support guidelines. Once the court approves the agreement, it becomes a judgment.

Understanding Child Support in Texas

Eligibility

• CHILD: Generally, child support is due and payable for a child until the child turns 18 years-old, graduates from high school (whichever occurs later), marries, dies, or is emancipated (declared an adult) by court order. If the child is disabled or considered to have special needs, a parent may be ordered to pay support the child indefinitely.
• OBLIGEE: The person responsible to receive the actual payment of child support is called the “Obligee.” Generally, but not always, this is the person with whom the child lives more than 50-percent of the time.
• Who is Responsible/Who Has a Duty to Pay?
• By law, both parents of a child have a duty to care for the financial needs of their child. In Texas, “parents” are considered to be:
• the biological mother,
• a man presumed to be the father,
• a man legally determined to be the father,
• a man who has been adjudicated to be the father by a court of competent jurisdiction,
• a man who has acknowledged his paternity under applicable law, or
• an adoptive mother or father.

Payment Calculations

Texas law gives guidelines on calculated child support, based on the number of children involved and the income of the parties. The standard levels are:

20% of net income for 1 child

25% of net income for 2 children

30% of net income for 3 children

35% of net income for 4 children

40% of net income for 5 children

Not less than 40% of net income for 6 or more children

There are other factors that may influence the amount you will be required to pay or will be eligible to receive on behalf of your child(ren), for example:

• the child’s age and needs;
• the parent’s ability to contribute to the child’s support;
• whether the paying party has actual physical custody of another child or children;
• employee benefits such as housing or a company car;
• health insurance and uninsured medical expenses for the child;
• extraordinary educational, healthcare or other expenses of the child.
• Texas Family Code, Section 154.123

Insurance

Both parents are required to ensure the child is covered by health insurance. Generally, the person who is responsible to pay child support also has a legal duty to provide health insurance, or reimburse the other parent for the health insurance premiums for the child. A court may order that a child be added to a parent’s health insurance policy.

What is Considered Community Property and Separate Property in a Texas Divorce?

 

Texas is one of nine states considered a community property state. This means that in a divorce, most property acquired during the marriage is considered the property of both spouses and must be divided “equitably” under Texas law. Understanding the difference between community and separate property is important to understand how assets and even debts will be divided in a divorce.

What Is Considered Community Property?

As a general rule, property acquired during the marriage is considered as belonging to both spouses equally. Community property may include the family home, the mortgage interest income earned by investments, furniture, and wages earned during the marriage by either spouse. A pension, 401k, or employee benefit plan that accumulates during the marriage is also considered community property.

Separate property is considered any property or debt that was owned prior to the marriage or after the date of separation. Gifts and inheritances received during the marriage are also considered separate property if held separately.

Some property may begin as separate property and become community property during the marriage. For example, some equity in the family home may be separate property if the down payment was provided by one spouse’s separate property prior to marriage but it may become community property as time goes by and assets are mixed. This is also true of an inheritance. While an inheritance is considered separate property, even if it’s received during the marriage, it can become community property if the inheritance is mixed with marital funds and no separation is maintained.

Child Support Modification

When both parties agree on how to modify child support, the modification process will be quite swift. All they will need to do after agreeing to modify the order is submit a proposed custody order reflecting the changes to the court.

The court will then review it and decide whether to approve it. Once it has been approved it becomes legally enforceable. Another way the child support order can be modified is when a substantial changed has happened to either of the parties or the child.

It may also be modified if 3 years have elapsed since the date the prior order was signed by a judge.

Just like most cases involving child support, there is a chance that only one parent may be for the child support modification.

The modification process in this scenario will take a longer time to settle. However, the parent that wants the order to be modified will have to demonstrate that:

• The changes the parent is proposing will serve the best interest of the child
• The child is 12 years old and wants to change the primary caregiver
• There are material and substantial changes in circumstances

3 YEAR RULE

The three year rule exists to prevent either party involved in the child support case from constantly attempting to modify child support.

Without this rule there would be numerous modification cases in court that may clog the court’s dockets. So it is a rule for the benefit of the courts.

The three year rule has a requirement that a change can only be made if child support will be more than 20% or $100 different than what the current order states.

Changing Your Child Support Payments in Texas

 

An individual must show just cause as to why they need a modification.

Some of these reasons include the following:

1. The noncustodial parent’s financial circumstances have changed. This would have likely resulted in a job loss or a reduction in the parent’s income;
2. More than three years have passed since the court order was issued and the support amount awarded would have differed by at least twenty percent or more if calculated by today’s guidelines;
3. The noncustodial parent’s salary has increased;
4. The noncustodial parent is now legally and financially responsible for additional children in their household;
5. The minor child/children’s health insurance coverage has been changed;
6. The minor child/children’s living arrangements have been adjusted.
7. Preparing for the Modification Process

You will need to produce information about your personal income and health insurance coverage costs for the minor children to show your justification for the modification. Income information that can be submitted for review include the following:

1. Copies of paystubs,
2. Tax forms such as W2 and 1099,
3. An offer letter from a prospective employer that lists earnings and has a valid signature for verification.

It is important to know that you should not stop paying your child support payments because you can wind up behind bars for being in contempt of a court order. It can take several weeks for your paperwork to be reviewed. The court typically either conducts a review or holds a hearing. It can be helpful to speak to the other parent involved to try and come up with an amicable agreement regarding support. This can expedite the modification process.

EFFECTS OF NOT PAYING CHILD SUPPORT IN TEXAS

In Texas, parents are required to financially support their children until they turn 18 or graduate high school, whichever comes later. Texas uses a percentage of income model, which can be reduced if the custodial parent is supporting other children from a different relationship.

Child Support Enforcement in Texas

When a child support order is issued through a divorce decree, it is registered with the Office of the Attorney General (OAG), which is the agency responsible for enforcing collection measures for past-due child support. If the non-custodial parent is self-employed or unemployed and failing to pay child support, the OAG will often try to obtain money from the non-custodial parent by using tools available to the state.

Other methods of collecting child support arrears:

• Judgments
• Liens against personal property
• Liens against real estate property
• Tax refund intercept
• Income withholding for current and past-due support

In addition to the above, the non-custodial parent may be held in contempt of court, which can translate into incarceration. The OAG can suspend a parent’s driver’s license and professional license, such as a license to practice law, medicine, or real estate. If the parent owes more than $2,500 in child support, he or she may be denied a U.S. Passport, so the parent cannot travel outside the United States.

Child support does not go away. It cannot be included in bankruptcy and it does not stop being reported on one’s credit after seven years. Even if a child turns 18, the non-custodial parent still owes the money and the OAG can initiate collection measures at any time.

Can a Child Choose Which Parent to Live with in Texas?

Under Section 153.009 of the Family Law Code, children still have a voice but in a more practical way. Sec. 153.009 allows parents to request that the judge speak with their child. If the child is at least 12-years-old, the judge has to meet with the child. If the child is under the age of 12, the judge has the choice to meet with the child, but a meeting is not required.

Section 153.009 of the Family Law Code does more than address where the child will live, it also touches on visitation and a number of other issues in which the child may have an opinion or preference. Under this section, a child can meet with the judge and voice his or her opinions on visitation, (if the judge agrees to hear the evidence).

It’s important for parents to understand that while their request for an interview between the judge and their child may be granted, the interview is still evidence that the court may use to make a decision. As before, the judge is still the one who ultimately makes the decision regarding custody (unless a parent chooses to submit his or her case to a jury) and possession or access; the law does not require that the judge follow the child’s wishes.