Child Support Continued

Before personal computers, attorneys used to have to do the guideline math themselves, based on the formula, which can still be found in the Family Code. There are many factors used, many of them minor, for example, deductions within the formula for payment of medical insurance premiums, catastrophic medical expenses and travel expenses for visitation. But the main factors are each party’s income, and the amount of time the children spend with each parent. The principal of the formula is that when children are in a parent’s custody – that is, in a parent’s actual, physical control – that parent is supporting them directly. Thus, if parents make the same income, but their timeshare is unequal, the higher timeshare parent will be entitled to child support. Similarly, if the parents’ respective incomes are unequal, but the timeshare is equal, the parent who makes less money will be entitled to child support. There are, of course, many variations on this theme. It can even be the case that a minority timeshare parent is entitled to child support if the majority timeshare parent’s income is much higher. By the same formula, of course, if the parents’ incomes and times of physical custody are equal, the guideline support order will be zero. In close cases like these, where the guideline amount under the formula turns out to be less than $100 per month, parents may agree, and the court may order, that no child support be paid, and it will still be considered a guideline-based order One of the toughest situations is for a true “non-custodial” parent, where the actual timeshare of that parent is zero, and he or she has no contact at all with the children. In those cases, most often involving absent fathers, it does not matter how much money the custodial parent makes, their income’s influence on the outcome of the support calculation is also zero.

In my experience, I have often heard the parent ordered to pay child support say that it is too much money, while the parent granted child support say that it is not enough money. To me this means that the legislature pretty much got it right when it developed the guideline formula.

The obligation to support minor children cannot be waived by either parent, because it is a right enjoyed by their children. Parents can agree that neither pay child support to the other, but even after such an agreement becomes a court order, either parent can apply for guideline child support at any time, and, if entitled to it under the guideline formula, support will be granted by the court, without the parent having to show any “change in circumstances,” such as a change in income or timeshare. In cases where the parents make such an agreement, it must include a series of statements assuring the court that the agreement was not made under coercion or duress, that the needs of the children will still be met despite no support being paid by either parent, and that neither parent has applied for public assistance. If one of the parents would otherwise be entitled to child support, but is okay with agreeing to a zero order, this is known as a “non-guideline” order. The right to go back to court to request child support at any time thereafter, however, may not be waived. The only time the child’s right to be supported by a biological parent terminates, is when the child is adopted by another adult after the biological parent’s parental rights are terminated.

Department of Child Support Services: In some cases the paying parent is called the “non-custodial parent” and the parent who receives support the “custodial parent.” These labels are used by the Department of Child Support Services (DCSS) when a parent who needs support requests the help of DCSS to obtain support. In some cases, the labels are accurate, but in most cases, both parents have some form of court-ordered custody, regardless of the label. If the parent requesting child support has applied for or is receiving public benefits from the state, that parent is required to sign over his or her right to collect child support to the state. In these cases, the state, itself, through DCSS, files a motion to establish child support, and collects it from the other parent. Depending on the nature and amount of benefits being received by the parent on public aid, that parent might receive a portion of the support paid, or none at all, with the state receiving the support to compensate for the benefits being paid to the parent on public aid. However, it is not necessary for a parent to be on aid to request that DCSS open a child support case. The role of DCSS is to represent the state’s interest in seeing that children are properly supported, and, although the agency employs attorneys who go to court, these attorneys do not represent either parent, but are required to work with both parents, if they are not represented by private counsel, to develop a fair and lawful child support order.

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