How Can I Enforce A Child Support Order?

Walters Gilbreath, PLLC

A child support order can be enforced by an individual or by the Texas Attorney General. Enforcement by the Texas Attorney General is free of cost while doing it on your own (you will need a lawyer for this) is not. Therefore, most people allow Texas Attorney General’s Office file suit. What happens is that the AG will sue the obligor for the past due child support amount.

Note: The process may take longer if you have not hired independent legal counsel.

Imagine this:

Julie and Zhan Pagiuo married twenty years ago. They are both working professionals. Zhan is the (CEO) of a major oil and gas corporation, and Julie is a second-grade teacher. During their twelfth year of marriage, they had triplets. The triplets consisted of two boys and one girl. They were overjoyed about the birth of their children. Since their birth, the children have attended private schools and participated in various extracurricular activities that include baseball, piano, and violin lessons.

The Pagiuo’s begin to have marital problems. Mr. Pagiuo gradually grew bored with the marriage while Mrs. Pagiuo grew increasingly unhappy in the marriage. They both worried about the effects that a divorce would have on their children’s lives as well as their individual live, so they stayed unhappily married. Three years ago, they finally decided to get a divorce. At that time, their divorce decree stipulated that Zhan should pay Julie child support. The child support order included provisions requiring Zhan to pay support for the children’s extra-curricular activities. Zhan paid child support regularly for two years. However, last year he and Julie got into a verbal argument about a previous debt that they accrued during their marriage. After the argument, Zhan opted not to pay child support to Julie for the better part of last year. Julie now wishes to enforce the child support order. How can Julie, and perhaps you, go about enforcing a child support order that was issued in Texas?

Duty to Support the Child

An order of child support is presumed to be in the best interest of the child. When an obligor parent (the parent responsible for paying child support) does not pay child support, the obligee parent (the parent receiving child support) may be able to force the obligor parent to pay the initial court-ordered child support payments. In fact, Texas courts have noted the following about child support and enforcing child support orders, “But court-ordered child support reflects a parent’s duty to his child, not a debt to his former spouse. Except as provided by statute, the other parent’s conduct cannot eliminate that duty of paying child support. Estoppel is not a defense to a child support enforcement proceeding.” [1] Usually, to enforce a child support order, the party seeking enforcement must file a motion for enforcement. In other words, you’d be suing the obligor for the child support owed (and possibly for any court costs or attorney’s fees).
Again, the Texas Attorney General’s Office may be able to assist Julie in enforcing her child support order, but she may also do it on her own by retaining a licensed family law attorney.

What Does A Motion For Enforcement Look Like?

A motion for enforcement is a request to the court asking the court to force the obligor parent to make the previously ordered child support payments. According to the Texas Family Code Section 157.002 (a) motion for enforcement must, in ordinary and concise language:

  • Identify the provision of the order allegedly violated and sought to be enforced; or
  • State the manner of the obligor parent’s alleged noncompliance;
  • State the relief requested by the movant; and
  • Contain the signature of the movant or the movant’s attorney.

Specifically, according to the Texas Family Code Section 157.002(b), a motion for enforcement of child support:

  • Must include the amount owed as provided in the order, the amount paid, and some arrearages; and
  • If contempt is requested, must include the portion of the order allegedly violated and, for each date of alleged contempt, the amount due and the amount paid, if any;
  • May include as an attachment a copy of a record of child support payments maintained by the Title IV-D registry or a local registry; and
  • If the obligor owes arrearages for a child receiving assistance under Part A of Title IV of the federal Social Security Act (42 U.S.C. Section 601 et seq.), may include a request that the obligor pays the arrearage.

When Can A Motion For Enforcement Be Filed?

A motion for enforcement may be filed to enforce any temporary order of child support or any final order in any suit. Moreover, under the Texas Family Code Section 157.001 (b) the court may enforce by contempt any provision of a temporary or final order. So what does the term, “temporary orders,” mean? The term, “temporary orders,” mean any order rendered by a court. This can include but is not limited to a temporary restraining order ( commonly referred to as a “TRO”), or a standing order, or an injunction.[2]
Let’s see how this applies to our couple- Julie and Zhan’s situation. In our scenario, Julie and Zhan received a final child support order that stipulated that Zhan was to pay child support. Because Julie had not received any court-ordered child support payments from Zhan last year, Julie can file a motion for enforcement.

Where Should A Motion For Enforcement Be Filed?

The Texas Family Code states that a motion for enforcement shall be filed in the court of continuing exclusive jurisdiction. So what exactly does the phrase, “a court of continuing exclusive jurisdiction,” mean? A court of continuing exclusive jurisdiction means that the same court that issued the original child support order is the same court that a motion for enforcement should be filed in.

In our scenario above, Julie should file her motion for enforcement in the same court that rendered the initial child support order.

Can A Texas Judge Enforce a Child Support Order Against Someone Living Outside of Texas?

The general answer is yes. A Texas judge may enforce an order of child support against an obligor parent living outside of Texas when Texas exercises what is called “personal jurisdiction,” over the obligor parent living outside of Texas. So what does “personal jurisdiction” mean? It means that the obligor parent has some relationship with the State of Texas that allows a Texas Judge to oversee the enforcement of a child support matter. The first step to enforcing a child support order against an obligor parent living out of Texas is to ensure that the State of Texas has personal jurisdiction over the obligor parent. Let’s discuss this important step more in detail.

Personal Jurisdiction For A Motion For Enforcement Of Child Support

So how does a Texas Court acquire personal jurisdiction over an obligor parent living out of state? According to the Texas Family Code, Section 159.201, (Uniform Interstate Family Support Act), a Texas Court may exercise personal jurisdiction over a nonresident individual or the individual’s guardian or conservator if:

  • The individual is personally served with citation in Texas; or
  • The individual submits to the jurisdiction of Texas by consent in a record, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction; or
  • The individual resided with the child in Texas; or
  • The individual resided in Texas and provided prenatal expenses or support for the child; or
  • The child resides in this state as a result of the acts or directives of the individual; or
  • The individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse; or
  • The individual asserted parentage of a child in the paternity registry maintained in this state by the vital statistics unit; or
  • There is any another basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction.

Personally Served With Citation In Texas

What does it mean to be personally served with citation in Texas? Personal service with a citation in Texas means that a person that is being sued in Texas receives a copy of the petition and citation. This places the person that is being sued on notice that they have been sued. What is a petition? A petition is a copy of the lawsuit that is filed against a person being sued. What is a citation? A citation is similar to a receipt. It gives a person that is being sued notice of the where the lawsuit was filed and where they need to appear to defend themselves.
So what does all this mean in our context? In short, this typically means that if an obligor parent lives outside of Texas and receives a copy of the petition and citation in Texas, then a Texas Court has personal jurisdiction over the obligor parent. Texas Courts have noted that “The focus in determining whether personal jurisdiction exists is on the contacts created by the actions of the party sued rather than contacts created by the person bringing suit.” [3] You should consult with a lawyer to determine whether or not a Texas Court will have jurisdiction over an obligor parent living out of state.

Individual Submits To Jurisdiction In Texas

How can an individual submit to jurisdiction in Texas? This usually occurs when someone immediately responds to a lawsuit that has been filed against him or her. For example, in our context, this usually means that once a non-obligor parent files suit to enforce a child support order in Texas, and the obligor parent immediately responds to the suit, then the obligor parent, by responding to suit submits to the jurisdiction of a Texas Court. Once an obligor parent that lives out of state submits to jurisdiction in Texas, a Texas Court can enforce a child support order against them. You should consult with a lawyer to determine whether or not a non-obligor parent living out of state has submitted to jurisdiction in Texas.
Individual Resided With The Child In Texas

What does it mean to reside with a child in Texas? This requirement is pretty much self -explanatory. It means that if a parent lives with their child in Texas, a Texas Court has jurisdiction over a child support enforcement Suit. As it relates to our context, this requirement of personal jurisdiction does not extend to out of state parents visiting their children under a visitation agreement. An obligor parent that lives out of state and visits their child or children in Texas will not be bound by a Texas Courts jurisdiction. [4] You should consult with an attorney to decide whether or not an obligor parents visits to Texas constitute personal jurisdiction.

Individual Resided In Texas And Provided Prenatal Expenses Or Support For The Child

What are prenatal expenses? And what does it mean to reside in Texas? According to
Did the obligor parent pay for prenatal expenses or provide support for the child before the child was born? Prenatal expenses are determinate upon an individual’s circumstance. For example, during pregnancy, one mother may need more care than another mother due to having an abnormal pregnancy. So with that being said, there is no exact methodology of determining what amount of prenatal care constitutes prenatal expenses. Prenatal expenses include but are not limited to doctor visits and any prescribed medication that the mother receives during her pregnancy.
Residency in Texas is a simple concept. Simply put, an individual resides in Texas when the individual lives in Texas. As it relates to our context, if an obligor parent that currently lives out of state, at one time resided in Texas and provided prenatal expenses or support for the child, then a Texas Court will have personal jurisdiction over that out of state obligor parent. [5] You should speak with a licensed attorney to determine whether or not a Texas Court would have personal jurisdiction over an out of state obligor parent.

The Child Resides In Texas As A Result Of The Act Or Directives Of The Individual

What is an act or directive? An act or directive occurs when a person affirmatively does something. Moreover, Texas case law tells us that an act or directive does not occur simply by remaining silent. See Bergdoll v. Whitley 598 S.W.2d 932, 934 (Tex. Civ. App. 1980) [where a father attending his scheduled visitation did not amount to him performing an act.] [6]
For example, in our context, let’s say that when Zhan moved out of state, his visitation schedule with the twins remained the same. His scheduled visitations take place in Texas. Zhan visiting with the children in Texas does not amount to act by Zhan. If Julie wanted to modify the amount of child support against Zhan who is now an out of state resident, she would have to make sure that a Texas Court has jurisdiction based on another requirement or factor that creates jurisdiction. Julie, and perhaps you, if you are in a similar situation should consult with an attorney to determine whether or not a Texas Court has jurisdiction over an obligor parent living out of state.

Individual Engaged In Sexual Intercourse In Texas And The Child May Have Been Conceived In Texas

This is straightforward. If an obligor parent had sexual intercourse in the state of Texas and the child could have been conceived during sexual intercourse, then the State of Texas will have long arm jurisdiction over the obligor parent that lives out of state. What is long arm jurisdiction? It is a legal term that describes how any court can issue a binding decision over a person in another state.
See In Zeisler v. Zeisler, 553 S.W.2d 927, 930-31 (Tex. Civ. App.-Dallas 1977, writ dism’d) [where a Texas Court found sufficient minimum contacts to justify the exercise of personal jurisdiction where the parties married in Texas, the child was conceived and born in Texas and Texas was the last marital domicile of the parents.] The Court noted that the father’s relationship with the mother constituted purposeful activity in Texas and the father’s obligation to support the child arose out of that relationship with the mother.
For that reason, the Court concluded requiring the father to respond in Texas to a suit to increase the amount of his child support payments did not offend traditional notions of fair play and substantial justice. The Court further explained that “Denial of jurisdiction would encourage the obligor parent to avoid obligations for support of children by moving to a different state where the non- obligor parent might encounter practical difficulties in pursuing remedies to require adequate support.” Id. In re Gunn, No. 05-14-01620-CV, 2015 Tex. App. LEXIS 131, at *6-7 (App. Jan. 8, 2015)
The Individual Asserted Parentage Of A Child In The Paternity Registry Maintained In This State By The Vital Statistics Unit

For argument sake, let’s say that an obligor parent moved out of Texas but signed the child’s birth certificate in Texas. Does signing the child’s birth certificate permit a Texas Court to have jurisdiction over a child support enforcement issue?
The short answer is generally yes. A Texas Court has jurisdiction over an out of state obligor parent to enforce a child support order when an obligor parent signs a birth certificate or any other record recognizing parentage. How may an individual assert parentage in Texas?

According to the Texas Family Code:
Section 160.302(a) An acknowledgment of paternity must

  • be in a record;
  • be signed, or otherwise authenticated, under penalty of perjury by the mother and the man seeking to establish paternity;
  • state that the child whose paternity is being acknowledged:
  • does not have a presumed father or has a presumed father whose full name is stated; and
  • does not have another acknowledged or adjudicated father;
  • state whether there has been genetic testing and, if so, that the acknowledging man’s claim of paternity is consistent with the results of the testing; and
  • state that the signatories understand that the acknowledgment is the equivalent of a judicial adjudication of the paternity of the child and that a challenge to the acknowledgment is permitted only under limited circumstances.
  • An acknowledgment of paternity is void if it:
    • states that another man is a presumed father of the child unless a denial of paternity signed or otherwise authenticated by the presumed father is filed with the vital statistics unit;
    • states that another man is an acknowledged or adjudicated father of the child; or
    • falsely denies the existence of a presumed, acknowledged or adjudicated father of the child.
  • A presumed father may sign or otherwise authenticate an acknowledgment of paternity.
  • An acknowledgment of paternity constitutes an affidavit under Section 666(a)(5)(C), Social Security Act (42 U.S.C. Section 666(a)(5)(C)).

Is there Any Other Basis Consistent With The Constitutions Of Texas And The United States For The Exercise Of Personal Jurisdiction?

Would it be “fair” to haul the obligor parent back in front of a Texas Court to enforce a child support order? What does it mean to be “fair” in our context? It means that if an obligor parent could have anticipated being hauled into a Texas Court to defend themselves in a child support enforcement action, then a Texas Court will have jurisdiction over the obligor parent.
In our example above, Julie should consult with an attorney to decide whether or not a Texas Court will have jurisdiction over Zhan in a child support enforcement action.

Key Points

There are several ways to enforce a child support order. The most common are to request that the Texas Attorney General do so. They will do it for free but are often pretty slow. You can hire an attorney to do it for you, but there is a cost. You may be able to recover that cost from the person who is violating the order.
Citations


[1] Office of the AG v. Scholer, 403 S.W.3d 859, 860 (Tex. 2013) Husband (obligor parent) was ordered to pay child support. After the child support order had been issued, the husband agreed to terminate his parental rights to forego duty of paying child support. The termination order was never filed terminating the husband’s parental rights. The husband was ordered to pay back child support.
[2] See Texas Family Code Section 157.001(e)
[3] In the Interest of E.H.G., No. 05-15-00439-CV, 2016 Tex. App. LEXIS 9197, at *6 (App. Aug. 23, 2016)
[4] See In Interest of S.A.V., 837 S.W.2d 80 (Tex. 1992) Where a Texas Trial Court had jurisdiction over respondent to modify the child support, custody, and visitation provisions of an out-of-state divorce decree because of respondent’s repeated visits to Texas and his search for work in Texas.
[5] See In re Gunn, No. 05-14-01620-CV, 2015 Tex. App. LEXIS 131 (App. Jan. 8, 2015) Father subjected himself to suit in Texas under Tex. Fam. Code Ann. § 102.011 (2014) for purposes of establishing his child support obligation because his child was conceived in Texas, the father and the mother lived together in Texas before the child was born, and the father worked in Texas to help support the family while the mother was pregnant.
[6] The word “approval,’ as used in the second clause of Subdivision (2), also means some affirmative manifestation of consent to, or ratification of, the children’s change of residence. Failure to object to the change of the children’s residence, when such a change is made by a person who has legal custody, does not constitute “approval,” as required by the statute. Bergdoll v. Whitley, 598 S.W.2d 932, 934 (Tex. Civ. App. 1980).

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