The Texas Family Code is very clear that the Court is not to discriminate based on gender or marital status when determining issues of conservatorship (custody) or possession and access. Section 153.003 states:
Sec. 153.003. NO DISCRIMINATION BASED ON SEX OR MARITAL STATUS. The court shall consider the qualifications of the parties without regard to their marital status or to the sex of the party or the child in determining: (1) which party to appoint as sole managing conservator; (2) whether to appoint a party as joint managing conservator; and (3) the terms and conditions of conservatorship and possession of and access to the child.
Since Texas law has made it clear that it does not merely decide issues of conservatorship (custody) or possession and access solely based on the gender of any party, it makes sense that the law does not discriminate when it comes to ordering a party to pay child support.
Many fathers, however still wonder, “can a dad get child support?”
Determination of the Right to Receive Child Support
The simple answer is “yes.”
As shown above in the Texas Family Code, the Court is not to discriminate based on gender or marital status in determining conservatorship. One of the conservatorship rights is the right to receive child support. If you are granted the right to receive child support and the other party is ordered to pay it, the law is designed so that the support is designated for the benefit of the child. The Court will typically order the non-custodial parent (the party without the exclusive right to designate the residence of the child) to support the child.
The idea is that since the “primary” parent supports the child by providing a roof over their head for example, the other parent needs to also support the child. What better way to do so than helping to support the child financially?
Section 153.132 of the Texas Family Code outlines the conservatorship rights that can be awarded to a parent:
Sec. 153.132. RIGHTS AND DUTIES OF PARENT APPOINTED SOLE MANAGING CONSERVATOR. Unless limited by court order, a parent appointed as sole managing conservator of a child has the rights and duties provided by Subchapter B and the following exclusive rights: (1) the right to designate the primary residence of the child; (2) the right to consent to medical, dental, and surgical treatment involving invasive procedures; (3) the right to consent to psychiatric and psychological treatment; (4) the right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child; (5) the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child; (6) the right to consent to marriage and to enlistment in the armed forces of the United States; (7) the right to make decisions concerning the child's education; (8) the right to the services and earnings of the child; (9) except when a guardian of the child's estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child's estate if the child's action is required by a state, the United States, or a foreign government; and (10) the right to: (A) apply for a passport for the child; (B) renew the child's passport; and (C) maintain possession of the child's passport.
In instances when the Court orders joint managing conservatorship, the Court allocates the rights of conservatorship (decision-making abilities), including allocation of support of the child.
Section 153.134 of the Texas Family Code states:
Sec. 153.134. COURT-ORDERED JOINT CONSERVATORSHIP. (a) If a written agreed parenting plan is not filed with the court, the court may render an order appointing the parents joint managing conservators only if the appointment is in the best interest of the child, considering the following factors: (1) whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators; (2) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child's best interest; (3) whether each parent can encourage and accept a positive relationship between the child and the other parent; (4) whether both parents participated in child rearing before the filing of the suit; (5) the geographical proximity of the parents' residences; (6) if the child is 12 years of age or older, the child's preference, if any, regarding the person to have the exclusive right to designate the primary residence of the child; and (7) any other relevant factor. (b) In rendering an order appointing joint managing conservators, the court shall: (1) designate the conservator who has the exclusive right to determine the primary residence of the child and: (A) establish, until modified by further order, a geographic area within which the conservator shall maintain the child's primary residence; or (B) specify that the conservator may determine the child's primary residence without regard to geographic location; (2) specify the rights and duties of each parent regarding the child's physical care, support, and education; (3) include provisions to minimize disruption of the child's education, daily routine, and association with friends; (4) allocate between the parents, independently, jointly, or exclusively, all of the remaining rights and duties of a parent as provided by Chapter 151; and (5) if feasible, recommend that the parties use an alternative dispute resolution method before requesting enforcement or modification of the terms and conditions of the joint conservatorship through litigation, except in an emergency.
What Does this Mean?
To break this down, entitlement to receive child support has nothing to do with the gender of the parties. In all issues concerning the best interest of the child, the Court shall consider without discrimination the Father’s rights just as the Court must consider the Mother’s rights.
The primary consideration of a judge or jury must be the best interest of the child. That is the Texas standard. A judge shall not discriminate based on gender. If you ever have a jury trial, the jury too will be instructed to not discriminate on the basis of gender – even regarding child support.
With this in mind, Fathers, just like Mothers, must focus their case on the best interest of the child and have a strong presentation to the judge or jury why his or her proposal regarding child-related issues are in that child’s best interests because gender won’t be considered when the Court decides. In order to ensure you have a strong presentation, speak with an experienced family law attorney, who will be able to provide you a range of outcomes.