Family Law Cases in Texas: Defenses to Child Support Enforcement Suits

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Houston Family Lawyers: If you find yourself in a position where you have been unable to pay the child support you have been ordered to pay there are defenses that you can offer in an enforcement hearing.

The fact of the matter is that one of these defenses will hopefully be applicable to your situation because if not, child support enforcementcases can be very cut and dry. Did you make the full payment, on time to your child’s other parent in the manner stated in your prior order? If not you will likely be held in contempt of court. Let’s get into those defenses without further delay.

If you as the possessory conservator of your child and the custodial parent allowed your child to reside with you for any period of time then you are not on the hook for paying support for those periods.

This stands to reason. The reason why noncustodial parents are on the hook for paying child support in the first place is that they have a duty to support their children at all times. The child support payments are supposed to act as a substitute for your care and support when you are not able to be in possession of your child.

VOLUNTARILY RELINQUISHMENT OF YOUR CHILD TO YOU

Houston Family Law Attorney: Voluntarily relinquishment to you by your child’s other parent is a defense to your having to pay child support.

If you have actual care, control and possession of your child over and above what you are ordered to have in your prior order then you should not have to pay “double” support.

If you did pay child support for these periods of time that your child was in your possession when he or she was not necessarily ordered to be you can earn credits for payments made. It is important that you be able to show that your child was actually living with you on a day in day out basis for whatever period of time you are offering this defense.

BEING UNABLE TO PAY THE CHILD SUPPORT OBLIGATION

Divorce Lawyers in Houston: An inability to pay the child support you had been ordered to is another defense that you can offer at an enforcement hearing. To do so you must prove that you had no options in terms of your ability to provide the support that you were ordered to. This means that you could not have had the property that could have been sold in order to get the money you needed to pay the support as ordered.

Do you have a wealthy parent, or friend or another relative that you could have borrowed the money from to pay your child support?

If you did and did not inquire about a loan then the court may find your defense lacking and order you to pay any back support that you may owe. I realize that asking a relative or friend for a loan is uncomfortable but courts have been swayed by evidence of relatives with deep pockets who were not contacted for a loan in order to meet a child support obligation.

DIRECT PAYMENTS TO THE OTHER PARENT THAT ARE NOT REFLECTED IN THE ATTORNEY GENERAL’S LEDGER OF PAYMENTS

Family Lawyer Houston: The Office of the Attorney General has a ledger that details the date payments for child support are due, along with the amount paid (if any) and the arrearage in place for any partial payments received. It is fairly standard for payments to go through the State Disbursement Unit and then on to the bank account of your child’s other parent. In this way, there is typically no issue as far as proving payments were either made or were not made.

In some scenarios, you and your child’s other parent may have spoken or worked out an arrangement where you pay him or her directly rather than going through the Disbursement Unit. For instance, you may have switched jobs and not had a new Wage Withholding Order submitted to the court with your new employer’s information. Or, perhaps you and the other parent are on friendlier terms where he or she feels comfortable accepting money for child support directly from you.

From my experience, while this sounds like a nice idea, in practice it almost always blows up in the obligor parent’s face the first time a payment is missing, late or made only partially. You have no protection other than offering this defense at an enforcement hearing if the other parent decides to file an enforcement suit against you for failure to pay child support. You must prove that you were not given credit for all payments made.

How can you prove to a judge that you made the payments directly to the other parent? Check copies, money order receipts or cashier’s checks are examples of documents that could save you if you find yourself needing to offer defenses to a child support enforcement case.

The bottom line is that some judges simply will not give you any credit for direct payments made to the other parent for child support purposes. If your prior order does not allow for direct payment of child support then my advice would be to never indulge in that practice.

No matter how much easier it may seem or no matter how friendly the other parent is it is a bad idea to make direct child support payments. Pay through the State Disbursement Unit. Have the money taken out of your check and take it out of your hands.

PAST BEHAVIOR AS AN INDICATOR OF COMPLIANCE

Divorce Lawyers Houston: In criminal law, there is the idea that a person’s “prior bad acts” cannot be used as an indicator that he or she committed a present crime. Your past should not influence the legal system in charging you with a crime, in other words.

However, in a child support enforcement case a judge can consider your past behavior as far as compliance with paying support when determining a punishment for you … Continue Reading