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Houston Divorce & Family Law Attorney Richard J. Tholstrup

The Tholstrup Law Firm, L.P.

440 Louisiana, Suite 800
Houston, Texas 77002
    2002 Timberloch, Suite 200
The Woodlands, Texas 77380
Phone: 713.225.1280 Fax: 713.225.1344
E-Mail:  tholstru@sbcglobal.net
Home Page:  www.tholstruplaw.com

Family Law Attorney Richard J. Tholstrup

CHILD SUPPORT COLLECTION/DEFENSE

For more detail on the following child support collection and defense related issues, simply click on the issue

1. Relevant Texas Family Code Sections & Leading Case Law
2. How may a court enforce a child support order?
3. What are the defenses to failure to pay child support as ordered by the court?
4. What if a person ordered to pay child support refuses to do so?
5. If a person’s parental rights are terminated do they still owe child support?
6. What is the standard of proof in a contempt proceeding?
7. Is a failure to pay child support a criminal offense?
8. Is there a statute of limitations on a child support collection case?
9. Who pays the attorney’s fees in a child support collection case?
10. What is UIFSA?
11. If a child support order is made by an out of state court, does that have any effect on whether can bring a child support collection case in a Texas court?
12. Does interest accrue on unpaid child support?
13. Office of the Attorney General Involvement (OAG)/ Friend of Court/ Do I need an Attorney?
14. Why is it a good idea to hire an attorney to defend me in a child support collection case?
15. Do I need an attorney to collect past due, delinquent or unpaid child support?
16. Child Support Collection: Attorney General vs. Private Attorney?
17. I pay child support through the Office of the Attorney General (OAG), will the OAG assist me in enforcing my rights as a non-custodial parent?

1. Relevant Texas Family Code Sections & Leading Case Law

The following Chapters of the Texas Family Code (TFC) deal with Child Support. To review these statutes, click on www.capitol.state.tx.us/statutes/fatoc.html and proceed to Chapter of interest. When you click on the Chapter of interest, the index for that Chapter of the Texas Family Code will pop-up and you can then click on the Section of the Code that is of interest to you.

• Chapter 154 - Child Support
• Chapter 156 - Modification of Child Support
• Chapter 157 - Enforcement of Child support
• Chapter 158 - Withholding for Child Support
• Chapter 159 - Uniform Interstate Family Support Act
• Chapter 202 - Friend of Court in Child Support collection
• Chapter 203 - Domestic Relations Office in Child Support collection
• Chapter 204 - Child Support Collection by Private Entity
• Chapter 231 - Title IV-D Services - What the AG can do
• Chapter 232 - Suspension of License
• Chapter 233 - AG Child Support Review Process to Establish or Enforce Obligations

2. How may a court enforce a child support order?
Either by the initiation of a private entity/attorney, Friend of the Court, Domestic Relations Office or the Attorney General’s Office, a court may enforce a child support order by contempt, by money judgment, by imposing a lien on the personal or real property of a person owing child support, or by an order that income be withheld from the disposable earning of the person owing child support.

3. What are the defenses to failure to pay child support as ordered by the court?
• the person with possession of the child voluntarily relinquished actual possession and control of the child to the person owing child support
• the person owing child support lacked the ability to provide support in the amount ordered
• the person owing child support lacked property that could be sold, mortgaged, or otherwise pledged to raise the funds needed
• the person owing child support attempted unsuccessfully to borrow the funds needed, and knew of no source from which the money could have been borrowed or legally obtained

4. What if a person ordered to pay child support refuses to do so?
• the person owing child support may be held in contempt and sent to jail until the support is paid
• A money judgment may be entered against the person owing child support
• A child support lien may be filed against real or personal property of the person owing child support
• Personal or professional licences of the person owing child support may be suspended

5. If a person’s parental rights are terminated do they still owe child support?
Yes, termination of parental rights terminates only future payment of child support, but does not eliminate any arrearage that accrued prior to the time of termination.

6. What is the standard of proof in a contempt proceeding?
The standard of proof in a contempt proceeding is “beyond a reasonable doubt” since the person owing the child support faces jail time.

The standard of proof in a compliance hearing or other matter ancillary to the contempt hearing is “preponderance of the evidence”, that is evidence which as a whole shows that the fact sought to be proved is more probable than not. More simply put, evidence which is more credible and convincing to the mind, or that degree of proof that is more probable than not and as a whole carries a greater weight.

7. Is a failure to pay child support a criminal offense?
Yes, it can be prosecuted as a Class B misdemeanor with a fine of up to $500 and jail time no longer than six months.

8. Is there a statute of limitations on a child support collection case?
Not on a collection suit based on an existing or prior court order.

If no court order exists, the case must be filed before the child reaches the age of 18 or the collection may be barred. If a father is not aware of the child’s existence prior to a paternity action, the retroactive child support may be limited to the four years prior to the filing of the suit.

9. Who pays the attorney’s fees in a child support collection case?
If the court finds that a person has failed to make child support payments (Obligor), the court shall order that person (Obligor) to pay the other’s (Obligee) reasonable attorney’s fees and all court costs.

10. What is UIFSA?
UIFSA stands for the Uniform Interstate Family Support Act. The definition of UIFSA can be found in Section 159 of the Texas Family Code at www.capitol.state.tx.us/statutes/fatoc.html. The UIFSA is the standard by which suits for child support and or modifications are governed interstate.

11. If a child support order is made by an out of state court, does that have any effect on whether can bring a child support collection case in a Texas court?
Yes.

12. Does interest accrue on unpaid child support?
Yes, interest accrues on the portion of delinquent child support that is greater than the amount of the monthly periodic support obligation at the rate of six percent simple interest per year from the date the support is delinquent until the date the support is paid or the arrearages are confirmed and reduced to money judgment.

13. Office of the Attorney General Involvement (OAG)/ Friend of Court/ Do I need an Attorney?
If you have been served by the Attorney General for collection of unpaid or past due child support you may want to employ an attorney. It’s true the Attorney General will work directly with you to resolve the matter and make payment arrangements for the amount due. However, if you feel you do not owe the amount due or any amount of child support, in order to protect your best interests you should employ an attorney.

OR

The Office of the Attorney General will initiate a suit to collect court ordered past due or unpaid child support. The Attorney General does NOT represent you (Obligee) or the child. The Attorney General represents the best interests of the State of Texas. The Attorney general is obligated to enforce court ordered child support to insure that children are not placed on welfare WHEN there are other means of assistance, such as court ordered child support, available.

14. Why is it a good idea to hire an attorney to defend me in a child support collection case?
Let’s be honest you would not hire a plumber to perform brain surgery, right? The business of law is best left to those who deal with it daily. It is your constitutional right to represent yourself, but do you know enough about the laws governing child support to protect your best interests? Without proper representation and a sound knowledge of the law you could end up paying too much, or worse, going to jail.

15. Do I need an attorney to collect past due, delinquent or unpaid child support?
No, the Office of the Attorney General will initiate a suit to collect court ordered past due or unpaid child support. The Attorney General does NOT represent you (Obligee) or the child. The Attorney General represents the best interests of the State of Texas. The Attorney general is obligated to enforce court ordered child support to insure that children are not placed on welfare WHEN there are other means of assistance, such as court ordered child support, available.

16. Child Support Collection: Attorney General vs. Private Attorney?
The Attorney General will enforce a child support order on behalf of the State of Texas. The Attorney General will also establish child support payments to the custodial parent.

17. I pay child support through the Office of the Attorney General (OAG), will the OAG assist me in enforcing my rights as a non-custodial parent?

No, the Office of the Attorney General (OAG) works for the State of Texas to enforce child support ordered by the Court. Since the OAG does not work for either the custodial or non-custodial parent, enforcement of access and possession would be up to a) the Friend of the Court or b) hiring a private attorney.