Being a parent in a family law case means doing what you need to do more often than what you want to do. Sometimes it is going to feel like you can’t parent the way that you want to. Other times it will feel like your co-parent gets in the way of your goals or ambitions. However, parents in your shoes must figure out how to handle shared parenting responsibilities. This is no small task given that you and your co-parent live in different households. Communication becomes extremely critical. The more seriously you take these responsibilities the better off your child is.
Unfortunately, there may come a time in your child’s life when you or your co-parent do not act in a way that is especially “parent-like.” We all are impacted from time to time by that feeling of pushing forward and doing what we want. It does not matter the consequences. In that moment, it can feel like nothing matters more than our feelings. The consequences of our actions are somewhere far down the priorities list. As such, we can take an already difficult situation and make it even more challenging.
In today’s blog post from the Law Office of Bryan Fagan, we are discussing the legal ramifications of withholding a child. This is a situation that is among the most harmful for your family. Withholding a child is a serious situation that you need to be prepared for. Stick around and read today’s blog post to find out how the Law Office of Bryan Fagan can help.
Consider this situation- what would you do?
You and your wife divorced three years ago. The two of you have two daughters who are both in elementary school. The children live with their mother, but you have joint custody with her. This means that you both share time with the children on an even basis. The kids tend to see their ex-wife more during the school year. However, you split holidays right down the middle and have a month of uninterrupted visitation in the summer. In short, both of you have been able to build meaningful relationships with your children in the years since your divorce.
That does not mean, however, that your situation has not come without its fair share of challenges. One of those recent challenges has to do with the failure to pay child support. Since you and your ex-wife share custody on a nearly 50/50 basis you do not pay much child support. That said, you still do have that responsibility to be attended to. In recent months you have lost your job and are having trouble finding a replacement. You’ve been working contract jobs and task-oriented jobs in the meantime just to put food on the table.
What that means is that your child support obligation has taken a backseat to more immediate bills like rent, utilities, and your car payment. This is not an ideal situation to find yourself in. How can you best proceed in a way that is respectful of your ex-wife and child? What can you do if your ex-wife does something in response to your missed child support that is harmful to your rights? The Law Office of Bryan Fagan will paint that picture for you now.
Proceeding in difficult circumstances involving child custody
Approaching a situation like this with care is essential for the success of your family. Remember that you want to treat the situation in a way that respects your co-parent. The last thing that you want to do is to act in a way that is not courteous and civil. When it becomes apparent to you that you will not be able to pay child support to your co-parent as ordered you need to act. First, you need to seek out your co-parent to discuss the situation directly with her. This may not seem all that appealing but it is necessary. Your co-parent deserves to know what is going on. Remember that your ex-wife uses child support to help her pay for essential items related to your child.
If possible, seek out an opportunity to talk to your co-parent in person about what is ongoing with your employment search. You can give as much detail as you would like. However, providing her with a basic amount of information is critical. What you want to avoid is a situation where your co-parent has ongoing questions about your circumstances. Help her to understand why there is an interruption in your income. From there, describe what you are doing to mitigate the issue. You may even be able to talk about a payment plan to get back on the right track when it comes to child support. The more information you can provide at this time the better. Answering the questions of your co-parent will go a long way to helping you both.
Do not wait to have this conversation. It isn’t as if she won’t notice that you have not paid your child support. Rest assured that she will look for the child support payments in her account at the beginning of the month. When she sees a missing or only a partial amount it is only natural for her to ask questions. This is where you can come in to provide straightforward answers with whatever information you have available. From there, listen to the concerns of your co-parent. Just because you have come forward and provided information to your ex-spouse does not mean that she won the security take the news with a smiling face.
How to proceed when an interruption in income becomes a longer ordeal
Many times, we assume that an interruption in income will not be permanent. For example, you may have a job that has seasons or slow times in the year. This means that you will have times when you are paid handsomely for the work performed but other times when income is hard to find. If you are in a situation like this then hopefully you will have been able to plan for those consistent interruptions in your income. However, you may also find yourself in a position where the income disruption you experienced is anything but routine. In a situation like this, you need to assess whether the interruption is likely to be extended or relatively short.
If the interruption in income will be short-term, then you can communicate this to your co-parent. Talk with her about options as far as getting back on track with child support. For example, you may be able to work out a payment plan with her. A payment plan allows you to pay a reduced amount of child support temporarily while your income is low. From there, you would be able to begin paying the full amount of child support once your income is back to where it normally is. This plan allows you to serve your child and show respect towards your co-parent.
Unfortunately, you may find that the interruption you experience in your income is more extended than you were hoping for. You may have assumed you would be able to line up suitable replacement income. When it becomes apparent that this will not be the case you can also act accordingly. Talking with your co-parent is still a good idea. Providing information during a time like this will help both of you stay on the same page. However, talking to your co-parent is not all that you should do. Rather, there are steps to take when it becomes obvious that your former income is not coming back anytime soon.
Modifying child support due to a decrease in income
When you find yourself in a situation where your income has taken a permanent or extended decrease then it is time to consider modifying child support. A modification of child support involves you formally asking a court to consider revising the amount of child support you pay. A substantial decrease in your income renders you unable to pay the former amount of child support. In a situation like this, it would be in your child’s best interest for you to pay an amount of child support that is commensurate with your income. Paying much more child support than you can afford serves no one in the long term.
Filing a modification case does not force you and your ex-spouse to go to court. In a child support case, there is typically ample grounds to settle or negotiate on your own. This allows you and your ex-spouse to negotiate on the subjects that are most important to your case bearing in mind what matters most to your child. When we spoke earlier about maintaining an open and civil relationship with your ex-spouse This is why we want to do this. It allows you to maintain a level of respect even in difficult circumstances with your co-parent.
If you are not able to negotiate a reduction in child support, then your other option would be to go to court. There, you would present evidence as to why the modification is needed. Modifications in Texas are only appropriate when a material and substantial change in circumstances has occurred. Additionally, a court would need to find that the modification you requested is in the best interests of your child. For cases like this with many moving pieces, you should hire an experienced family law attorney. The advice and perspective of an attorney in a situation like yours can prove to be the difference between a favorable outcome and a bad result for you and your child.
What to do if your co-parent withholds visitation from you
Even if you decide to go about communicating to your co-parent all the necessary details of your failure to pay child support that does not mean that he or she will not act in a way that is inappropriate or at least difficult. One of the ways that parents can act when child support is not paid is to withhold visitation. The idea here is that by withholding visitation your ex-wife will motivate you to pay child support. However, visitation with your child is not a ”pay to play” circumstance. Just because you do not pay your child support does not necessarily mean that your ex-wife can withhold visitation time from you. This violates your court order.
So, when you drive to your ex-wife’s house on a Friday to pick up the children then you are told that the children are not coming out then you have some choices to make. Your first instinct may be to bang on her door and demand to see the children. However, this route may be intimidating for your spouse and scary for your children. It is also unlikely to result in your children being handed over for visitation. What, then, can you do to help position yourself as best as possible to be able to see your kids now and in the future?
We have already discussed how step one of this arrangement would be to communicate with your ex-wife. Nobody is saying that this is a pleasant experience or something that you want to do. However, being able to talk to your ex-wife in a time like this means keeping her up to date with everything going on in your household. You cannot expect her to know everything that is happening in your life. Rather, you need to be able to share with her these experiences. If she still decides to withhold visitation from you then there are some steps that you can take to protect yourself.
Following through on visitation
Even if you have been told that your children will not be made available for visitation that does not mean that you can stay at home. You still need to present yourself at the location and time stated in your court orders. If you typically pick up the children on a Friday from their mother’s home at 6:00 PM then that is where you need to be this week. It does not matter if you have been told that the children are not going to step foot outside of that house. You may feel like you are being taken advantage of, but you and your vehicle need to be at the correct time and location for pickup.
We have already addressed a situation where you may have an instinct to act out of frustration towards your ex-wife. You should resist this temptation and instead act in a forward-thinking way. As in thinking about your situation not only now but in the future. Do your best to document the withholding incident. Write on a calendar or in your journal about the withheld visitation. One way to document the withholding is to fill up your gas tank or make a small purchase at a store near the home of your ex-spouse. This way there is proof that you were in the area and that you were available for pick up.
Along with the modification case filed with the family court he may also need to file an enforcement case. An enforcement case brings to the court’s attention specific incidents where a child custody order was violated. Remember that the court is not following you around during this time. The only way for a court to learn about violations of the court order would be to speak with you directly. By filing an enforcement case you are bringing to the court’s attention the disruptions to your normal visitation schedule.
Final thoughts on the withholding of visitation
It can seriously feel like you are being taken advantage of when you are denied visitation. It is a betrayal of your trust when you are not able to see or interact with your child on schedule as guaranteed by your court order. However, you need to consider the circumstances surrounding the denial and act appropriately. Communication is always important when it comes to your ex-spouse or co-parent. Being angry at him or her is appropriate. However, acting in a way that is irresponsible or harmful is not a good idea. Instead of acting in this way, it is better to have a plan when it comes to proceeding efficiently.
Being aware of your legal options, including enforcement and modification cases is critical to your success now and in the future. Remember that your child suffers when he or she is not able to spend time with you. To that end, being able to act decisively can be the difference between a strong relationship with your child and one that is weaker than it needs to be. Thank you for joining us today on the blog for the Law Office of Bryan Fagan.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
The attorneys with the Law Office of Bryan Fagan offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law. Before signing a document or negotiating on a subject you do not know well, contact our office. We look forward to the opportunity of serving you during an important part of your life. The Law Office of Bryan Fagan is on your side.
Evan Hochschild was raised in Houston, TX and graduated from Cypress Creek High School. He went on to graduate from Southwestern University in Georgetown, TX with an undergraduate degree in Political Science. While in college, Evan was a four-year letterman on the Cross Country team.
Following in the footsteps of his grandfather and uncle before him, Evan attended law school after he completed in his undergraduate studies. He graduated from St. Mary’s University School of Law and has practiced in a variety of areas in the law- including family law.
Mr. Hochschild is guided by principles which place the interests of clients first. Additionally, Evan seeks to provide information and support for his clients with the heart of a teacher.
Evan and his wife have four small children together. He enjoys afternoons out and about with his family, teaching Sunday school at his church and exercising. A veteran attorney of fourteen years, Mr. Hochschild excels in communicating complex ideas in family law simply and directly.
