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Jail for Overpaying Child Support?

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Jail for Overpaying Child Support?

In this post I will explain why a Houston man really went to jail for failing to obey possession and child support orders and what it means to you.

News stories are often a source of misinformation. Misinformation from news sources can feed our perceptions of unfairness. Our perceptions of unfairness can get us into trouble. It is not that journalists want to deceive you, but sometimes we all hear the story we want to hear and get stuck in a cycle of confirmation bias. Confirmation bias is the tendency to disregard evidence that contradicts truths we firmly believe or want to believe.

Watch the video below from Fox News Houston. It purports to tell the tale of a father sent to jail for the crimes of paying too much child support and visiting his son too much.

Confirmation bias is the tendency to disregard evidence that contradicts truths we firmly believe or want to believe.

 

No, You Won’t Be Thrown in Jail for Paying Too Much Child Support.

It is an error for you to be jailed for overpaying child support. Fox News Houston left out that the father owed $2,743.09 in back child support arrears when the mother filed her enforcement. While the case was reset at least once and the father did make his child support current, that was not enough to correct the contempt.

As of June 14, 2013 you can no longer avoid jail simply by showing your child support is up to date at the enforcement hearing.1 The original hearing was set for June 10, 2013, before the repeal went into effect; however, it was reset by agreement to give the father time to pay. Unfortunately, the father had erroneously believed he was up to date before the June 10 hearing and needed time to make one more payment. By the time of the new hearing, the repealed law could no longer help him escape jail.

As of June 14, 2013 you can no longer avoid jail simply by showing your child support is up to date at the enforcement hearing.

 

The father also tried to argue that the missing child support was the fault of his employer. He claimed that an employee incorrectly entered the withholding amounts from his paycheck. The problem with that argument is that you, not your employer, are responsible for ensuring child support is paid correctly. Your order probably even says this. You do not get to enjoy the benefits of your employer’s mistakes at the expense of your children.

In fairness to Fox News Houston, Snopes also got this story wrong. The Houston Court of Appeals did overturn one violation where the trial court found the father guilty of paying too much child support.2 Unfortunately for the father, the appeals court was able to overturn only this part of the order and leave the remaining violations and the father’s sentence intact.

Yes, You Can be Jailed for Visiting Your Children Too Much.

Visiting your child too much is probably a violation of your order. It is another way of saying you have your child when the other parent has the right of possession. A court ordered parenting plan is written to give children fair access to both parents. Either parent deciding that he should have more time with the children without the other’s permission is deciding that the Court was wrong. Judge’s don’t like that. They also don’t like it if you disrespect the Court by disobeying the Court’s order. If one parent can prove beyond a reasonable doubt the other is visiting his children against orders without permission, a Judge can and often will put him in jail.

How Stories Like this Hurt You.

In my previous post, “When Cultures Clash”, I explain a little bit about cognitive dissonance and confirmation bias in the context of mixed-culture divorce and remarriage. Briefly, our cultures largely define our belief systems. When someone acts outside of our belief system we often see that as bad. Once we define a person as bad, we start to discount everything positive we hear about them and emphasize the negative. Because of this confirmation bias feedback loop, the bad person keeps looking worse and worse in our minds until he becomes the worst thing since Prince Humperdinck.

DILBERT © 2017 Scott Adams. Used By permission of ANDREWS MCMEEL SYNDICATION. All rights reserved.

There is already a perception that fathers do not get a fair shake in courts overall. The thing to remember is that no matter how true this might be, it says absolutely nothing about your individual case. At least in Texas, the law is that mothers and fathers are treated equally. There is a standard parenting plan. There are guidelines for child support. There is a presumption against spousal support. Texas’ public policy is to maximize the time children spend with both parents, and judges generally follow the law.

A bad attitude feedback loop can adversely affect how the Court rules for you, but it probably won’t!

 

If you go to court believing stories like this, and believing you are not going to get a fair hearing, you won’t–at least not in your mind. You will already be emotional because of whatever brought you into court. Because of confirmation bias, every ruling against you is going to feel unfair. The Judge will see your attitude and probably won’t like it. The judge’s attitude might show through, further feeding into your confirmation bias. A bad attitude feedback loop can adversely affect how the Court rules for you, but it probably won’t! Once you ratchet up that attitude, though, it is going to be harder to follow the final orders.

What Should I do?

Always go into Court in professional attire with a professional attitude. Maintain that professional attitude no matter what. Pre-trial, you are auditioning for the trial court. In trial, you are auditioning for the appeals court. Expect the Judge to be fair. A judge can be fair but wrong. Sometimes the judge is wrong because of a mistake that can be appealed, but most of the time it is because your evidence did not support the “correct” ruling. However, because of cognitive dissonance, the losing parent often rationalizes the judge’s decision by believing he is corrupt or has a bias against one sex. This is usually counter-productive.

A judge can be fair but wrong. Sometimes the judge is wrong because of a mistake that can be appealed, but most of the time it is because your evidence did not support the “correct” ruling.

If you are ordered to appear for an enforcement, get an attorney. The judge should give you the option to reset so you can find one at the first hearing but don’t count on it. Get an attorney even if you think you can work out an agreement with the other side. Once you are in front of a judge and facing large fines and a jail sentence, the other side has a huge amount of leverage to get a very unfavorable settlement from you.

Recommended reading:

  1. Richard Ades Warshak. (2010). Divorce poison : how to protect your family from bad-mouthing and brainwashing. Harper.
  2. Eddy, W. A., Burns, A., & Chafin, K. (2020). BIFF for coparent communication : your guide to difficult texts, emails and social media posts. Unhooked Books, An Imprint Of High Conflict Institute Press.
  3. Kiyosaki, R. T. (2017). Rich Dad Poor Dad : With Updates For Today’s World–And 9 New Study Session Sections. Plata Publishing.
Divorce Poison Cover

Divorce Poison by Dr. Richard A. Warshak
BIFF Cover

BIFF by Bill Eddy, Annette Burns, et al.
Rich Dad Poor Dad cover

Rich Dad Poor Dad by Robert T. Kiyosaki

1See Act of May 23,2007, 80th Leg., R.S., ch. 1189, § 1, 2007 Tex. Gen. Laws 4054, 4054, repealed by Act of May 22, 2013, 83d Leg., R.S., ch. 649, § 2, 2013 Tex. Sess. Law Serv. 1735, 1735 (West) (effective date June 14, 2013)

2In re Hall, 433 S.W.3d 203, 208, 2014 Tex. App. LEXIS 5704, *8, 2014 WL 2420972

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Child Custody Enforcement Mistakes

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The Five Biggest Mistakes in Visitation Rights and Child Custody Order Enforcement:

Before thinking about enforcement, you need to read up on what to do when you show up to pick up your child and you do not get your visitation. 

On September 1, 2015, hundreds of changes to the family code went into effect. To enforce most provisions of a custody order by contempt, you must follow the enforcement process precisely, starting on the day the orders are signed. This article is not a comprehensive guide, but what I believe are the five biggest mistakes that can stop attempts to enforce an order by contempt. For information on filing a motion, see How to File a Motion to Enforce Possession or Access by Contempt.

Mistake One: Focusing on the other parent’s behavior and forgetting your own responsibilities

Do not count on enforcing an order solely based on what the other parent does or does not do. You must do your part before filing a Motion to Enforce. If your order says “Sue Mother is ORDERED to surrender Lilly Child to Frank Father at the end of each period of possession at 1600 Pennsylvania Ave,” then you must go to 1600 Pennsylvania Ave to pick up your child, even if you receive a call from Sue Mother saying she is in Brazil and will not be at 1600 Pennsylvania Ave. You must pick Lilly Child up at the exact time and location and wait long enough to determine that she will not be there. “Knowing” that she will not be there will not hold up in court.

Examples

Good. “I arrived at 1600 Pennsylvania Ave., Arlen, TX on Thursday, October 1, 2015 at 6:00 PM – a date and time of my ordered visitation, knocked on the door, and waited 20 minutes.”

Not good. “I arrived at 1600 Pennsylvania Ave., Arlen, TX on Thursday, October 1, 2015 at 6:05 PM – the time of my ordered visitation – and waited 20 seconds.”

Not good. “Sue Mother called me and said she would not be bringing Lilly Child to see me so I could not go pick her up.”

Mistake Two: Failing to provide proper notice of the child custody order

The violating parent cannot be held in contempt unless you clearly state in your Motion to Enforce the part of the order that he failed to obey. You must include, word for word, every portion of the order that he violated. This is important but tricky, so spend the time necessary to make it correct. Parenting plans usually have two provisions and both need to be in your motion:

  • Date and time of possession and
  • Location and means by which the child is supposed to be surrendered.

Examples

Good. “On December 31, 2014, this Court signed an order titled Order in Suit Affecting the Parent-Child Relationship which states in relevant part on page 9 as follows: ‘Frank Father shall have possession of the children beginning at 6:00 P.M. on the second and fourth Friday of each month and ending at 6:00 P.M. on the following Sunday,’ and on page 14, ‘Sue Mother is ORDERED to surrender Lilly Child to Frank Father at the end of each period of possession at 1600 Pennsylvania Ave., Arlen, Texas.’”

Good. “On December 31, 2014, this Court signed an order titled Order in Suit Affecting the Parent-Child Relationship which states in relevant part on page 18 as follows: ‘The party who is carrying the health insurance policy covering the child is ORDERED to submit all forms required by the insurance company for payment or reimbursement of healthcare expenses incurred by either party on behalf of the child to the insurance carrier within fifteen days of that party’s receiving any form, receipt, bill, or statement reflecting the expenses.’”

Not good. “We have a standard possession order and I am supposed to have Lilly Child on the first, third, and fifth Fridays at 6:00 PM.”

Not good. “Sue Mother was supposed to submit forms to the insurance company but she didn’t.”

Mistake Three: Failing to provide proper notice of the child custody order violation

In addition to including the order he was supposed to obey, you must also explain exactly how he failed to obey it in your Motion to Enforce. Start by copying the part of the order violated, and then replace the relevant text with the facts you intend to prove.

Example 1

Order: “Frank Father shall have possession of the children beginning at 6:00 P.M. on the second and fourth Friday of each month and ending at 6:00 P.M. on the following Sunday,” and “Sue Mother is ORDERED to surrender Lilly Child to Frank Father at the end of each period of possession at 1600 Pennsylvania Ave., Arlen, Texas”

Count 1: At 6:00 PM on Friday, October 9, 2015, a day of Court ordered possession, Sue Mother failed to surrender Lilly Child to Frank Father at 1600 Pennsylvania Ave., Arlen, Texas.

Example 2

Order: “The party who is carrying the health insurance policy covering the child is ORDERED to submit all forms required by the insurance company for payment or reimbursement of healthcare expenses incurred by either party on behalf of the child to the insurance carrier within fifteen days of that party’s receiving any form, receipt, bill, or statement reflecting the expenses.”

Count 2: On October 2, 2015, Frank Father received a statement reflecting $400.00 of healthcare expenses incurred by Sue Mother. Frank Father failed to submit the statement and claim form, forms required by the insurance company for payment or reimbursement of healthcare expenses, to the insurance carrier by October 17, 2015, fifteen days after receipt of the statement.

Mistake four: Failing to present adequate proof of a child custody order violation in court

    • The standard of proof for a finding of contempt is “beyond a reasonable doubt.” You must prove:
    • There was an order,
    • Who violated the order,
    • The defendant had notice of the order, and
  • How the order was violated.

The first two are fairly easy, but remember to identify the defendant as the person who violated the order and ask the judge to take judicial notice of the order. The last two are trickier because the defendant does not have to testify. You are on your own. If the defendant signed the order, you can testify that you are familiar with his signature, and it is his signature on the order to prove notice.

Additionally, have witnesses when you pick up your child. Buy coffee near the pickup location and save the receipt as evidence that you were there. Keep a diary of your visitations. If the part of the order violated requires documentation to prove, then have documents that are admissible as evidence in court.

Mistake five: Having a child custody order not specific enough to be enforceable

Even if you do everything right, the judge may decide that the order is not specific enough to be enforced by contempt. In that case, you will need to ask the court to clarify the order, and you should always make the request in the Motion to Enforce as well as at the hearing.

Conclusion

Even if you do everything right, the judge may decide that the order is not specific enough to be enforced by contempt. In that case, you will need to ask the court to clarify the order, and you should always make the request in the Motion to Enforce as well as at the hearing.

Call an attorney for assistance, or see TexasLawHelp.org for self-help materials and help in locating free legal services.

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Child Custody Laws in Texas

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Child Custody Rights in Texas:

2017 Updates

2017 has been another big year for updates to the Texas Family Code. The vast majority of the updates involve child welfare and CPS. The 2017 updates provide protections to parents who homeschool and for poor parents and parents with convictions for certain nonviolent offences. The updates also provide protections for parents who administer low-THC cannabis to their children according to a prescription, and there is a brand new chapter for Temporary Authorization for Care of a Minor Child. Now that parents and non-parent caregivers of children have new rights and protections, be sure to talk to a Family Law Attorney who can tell you how the law applies to you. Some of these laws may not be in effect yet.

There are a few dozen rights and duties of conservators of children specified in the family code. A conservatorship (child custody) order can allocate these rights any number of ways. This article will focus on five rights of parent conservators: Child support; possession and access; consent to treatment; making important decisions; and being informed about the child’s health and welfare. It is important to remember that no right or duty depends on any other. For example, if you are denied possession you still have to pay child support, and if you did not receive child support, you still cannot deny possession.

Summary

If you are a parent, you generally have a right to:

  • Have your children at certain times,
  • Receive information about how your children are doing,
  • Consult with the other parent about how to raise your children, and
  • Make decisions about how your children are raised; and
  • Depending on the orders you may have a right or duty to pay or receive child support.

The other parent cannot deny you any of these rights without a court order. If you feel like your custody rights are being denied by the other parent, call an attorney for a consultation. Your kids only grow up once.

Child Support

Child support is a major source of conflict when parents are separated. If you pay child support, think of it as paying taxes. When you pay taxes, the government takes money from you, you have no say in how it is spent, and it will be spent stupidly if for no other reason than to annoy you – just like child support. If you value your sanity, you will not look into any detail on how your tax dollars are spent, neither should you you pay attention to how your child support money is spent. Cover your ears, close your eyes, and sing a happy song to yourself if you have to, without a change in conservatorship, there is not much you can do about how that money is spent.

What if I can’t pay your child support? First of all, not paying your child support can cause you a lot of problems, but seeing your kids is not one of them. Make sure you do what you need to do to enforce your visitation above all. If your ex says you cannot see your kids until you pay up, go to pick them up anyway; but document, don’t argue. You can come back later to try and get the time you missed through an enforcement.

Second, don’t just skip payments. If your circumstances have materially and substantially changed — you have had other children, you have gone on active duty, you were injured, etc., then your support order can be modified. If you have lost your job, it is going to be harder to get a reduction but it may be worth a try. The important thing is to do everything you can to support your child and to be able to show that you have been doing everything you can to support your child.

Child Support CYA Checklist

_ Open a rainy day account and deposit 25% of your child support payment amount every month for the first year, 15% the second, and 10% after that until you have a year’s worth of payments saved up.

_Be polite to your Ex. It’s good for your kids, and your blood pressure.

_ Save your performance reviews.

_Review and update your résumé every six months.

_If you lose your job, get a haircut and start mailing your résumé that day. Keep a diary of everything you are doing to find another job. Imagine what someone could criticize you for not doing enough in your search. Immediately seek a child support reduction.

 

What if I am not getting my child support, or it is consistently late? In that case you have a couple of options: the Attorney General’s Office or a private attorney. A private attorney is going to represent you, while the Attorney General’s Office represents the State of Texas. If your ex has money and you can come up with an initial retainer, then a private attorney is probably your best bet. A private attorney can move fairly quickly according to your direction and should be able to collect attorney fees from your ex. Attorney fees earned to collect child support can usually be enforced with jail just like child support.

If you have an ex that habitually and intentionally avoids paying child support and goes into hiding every time he gets out of jail, then you will probably be better off letting the Attorney General enforce it; otherwise, you might end up out the attorney fees as well as the child support owed.

Possession and Access

You have a right to possession of your kids if it is in the order. You have a right to see them on the dates and times indicated in your order. So why does it get complicated? Sometimes it is innocent – the kids have some activities they want to do; sometimes it is not – the other parent schedules the kids for something during your time. Sometimes a parent has the child call to ask the other parent for permission to attend an activity instead of visitation. These are tricky situations to deal with and you should discuss them with an attorney or family counselor to get specific advice, but, generally, schedule makeup time in writing or go to court and enforce the order. Judges have seen the games parents play in these situations so try to be calm and smart and do all of the right things.

Making Important Decisions

These decisions could be allocated differently in your order so it is best to check or seek legal advice. In general, both possessory and managing conservators can usually make their own decisions concerning moral and religious training, non-invasive or emergency medical treatment, decisions about education health and welfare, and how to discipline the child. Often there are strong disagreements about how the other parent makes these decisions, but unless it is having a significant impact on the child’s health and welfare, you may need to learn to live with it.

Information About Your Child’s Health and Welfare

If the other parent is not keeping you informed about your children’s health and welfare, go to their doctor’s office and get a copy of their complete medical records. If the other parent won’t tell you who the children’s doctor is, then file an enforcement if you are entitled to medical information in your order. Hiding information about children’s health is a big red flag. Maybe it is being done out of spite, but often information is withheld because someone has something to hide. Parents can see things that absolutely shock them when they look at a full set of medical records for the first time.

Many schools have student records online and you should certainly look at those, but it doesn’t hurt to get first-hand information from students and counselors. Being the possessory conservator does not make you a second-class parent. Even if communication with your ex is good, a different set of ears listening to school officials can be helpful, and your order should say that you have a right to consult with school officials.

Conclusion

Parents don’t lose the right to participate in raising their children when they break up or get a divorce. These rights can be enforced. If you feel like your custody rights are being denied by the other parent, call an attorney for a consultation. Your kids only grow up once, and they have a right to your support and guidance.