Visitation Cannot Be Denied Because Child Support Is Unpaid
TEXAS Family Code 154.011: SUPPORT NOT CONDITIONED ON POSSESSION OR ACCESS.
A COURT MAY NOT RENDER AN ORDER THAT CONDITIONS THE PAYMENT OF CHILD SUPPORT ON WHETHER A MANAGING CONSERVATOR ALLOWS A POSSESSORY CONSERVATOR TO HAVE POSSESSION OF OR ACCESS TO A CHILD.
A Custodial Parent cannot refuse or cut back on visitation of a non-custodial parent just because child support has not been paid. Many custodial parents use denial of visitation as an effective way of getting child support paid. Such conduct is against the law and punishable by contempt.
A child has an absolute right to visitation and child support. Absent compelling reasons, visitation with both parents is always considered in the best interest of the child. Non-payment of child support should be dealt with and enforced in a proper court. The non-custodial parent is still very important to the child’s life and must be allowed to participate in her/his life.
Conversely, a non-custodial parent cannot stop paying child support just because a custodial parent is denying visitation.
Unpaid Child Support and Visitation with a child are two separate and distinct duties indigent of one another. The non-custodial parent cannot be denied visitation for unpaid child support.
Parents Who Interfere with Custody/Visitation
It can be difficult to tell the difference between what is and is not custodial interference. Below, we take a look at some examples of each.
Problems that may NOT be custodial interference
• Being late to custody exchanges after notifying you of a delay
• Arguments over a child’s extracurricular activities
• Failing to wash a child’s clothes before sending him or her to you
• Buying extravagant gifts for a child
• Allowing a child to call when he or she is with you if necessary
If specific problems get worse or they start having a detrimental impact on your child or your time with your child, then they may cross the line into interference.
Problems that CAN be considered interference
• Refusing to return your child to you
• Taking your child out of the country or state without your knowledge or permission
• Prohibiting a child from calling or contacting you
• Spending time with your child during your parenting time without your consent
• Requiring your child to stay in constant contact while he or she is with you
• Consistently keeping a child longer than the time allotted in your parenting agreement
What to do if your ex is interfering with your parenting time?
You may file with the court if your claims have merit. The courts can modify your custody plan, restrict visitation for your ex, issue fines and/or order mediation to remedy the situation.
Usually, the non-custodial parent or “payer” will be ordered to pay certain recurring amount of support. This may be monthly, weekly, or bi-weekly, often depending upon the structure of that person’s income schedule. The amount can be taken directly out of a non-custodial parent’s paycheck through an “income deduction order,” which may be the easiest to enforce a child support order. However, in many cases, either an income deduction order isn’t issued, or can’t be enforced due to the type of employment of the payer or other circumstances. In these cases, the noncustodial parent is responsible for making the payments.
When the parent responsible for paying child support does not, arrearages can add up quickly. This is to the detriment of the child, and the law has a few different ways custodial parents may attempt to enforce their children’s right to support.
The state may intercept tax refunds or certain other government payments owed to the nonpaying parent and distribute this to the custodian. The delinquent parent may have his or her driver”s license or professional licenses suspended until support is paid. Liens may be filed for the amounts owed on property owned by the nonpaying person. Finally, a motion for contempt can be filed against the noncustodial parent so that he or she must pay some amount to avoid being found in civil contempt and possibly even sent to jail.
For various reasons, Texas parents may fail to abide by their legal obligations to financially support their children, and in those instances, it is important for custodial parents to understand their options to enforce their children’s rights.
Modifying a Standard Possession Order in Texas
Parents in Texas who are no longer in a relationship with one another will want to see that, despite their differences, they are both able to provide their child with a supportive and stable environment in which to grow. Therefore, the parents will either work out a standard possession order out-of-court or one will be decided upon by a judge that meets the child’s needs and allows each parent to have a meaningful relationship with their child.
Sometimes a standard possession order that had been working for years is no longer tenable. When that happens, a parent may want to pursue a modification of the order. However, there are certain elements that must be met to modify a standard possession order. These modifications will be considered on a case-by-case basis.
There are three circumstances in which a standard possession order may be modified:
1. If there has been a material and substantial change in either the parent’s circumstances or the child’s circumstances.
2. If the current order is no longer workable or, due to existing circumstances, is no longer appropriate.
3. If one parent relocated with the child without notifying the other parent 60 days in advance.
Moreover, a child’s needs will change as they grow. Sometimes as time goes by, an original standard possession order is no longer meeting the needs of the child.
Property Division Not restricted to 50-50
Property division is not always 50-50 in divorce under Texas Family Law
Contrary to what many people believe, Texas Family Law does not mandate a 50/50 division of property in a divorce. Under Texas Family Law, the Court is charged with a duty to divide marital property in a manner that is “just and right.”
Whether a divorcing spouse is entitled to a disproportionately larger share of the community estate under Texas Family Law depends on the facts of a particular case. Each case is unique and one of the primary factors the Court considers in making a disproportionate property division is disparity in earning capacity. The conventional wisdom behind this thinking is that the higher income earning spouse can recover the difference more quickly than the lower earning spouse.
Other Factors Include
• disparity in the ages of the spouses ( a significantly younger spouse has more time to replace assets than the older spouse);
• education of the spouse;
• the relative physical conditions of the spouses;
• the size of separate estates of the spouses;
• education and future employability of the spouses;
• the length of the marriage, and
• attorney fees paid by a spouse in the divorce.