Texas courts base child support orders on a non-custodial parent’s income and other “net resources.” But what happens when a parent is in jail and has no income? Does that eliminate an existing support obligation? And can an inmate lose his or her parental rights because she is unable to make support payments?
If there is an existing child support order in effect against you, the fact that you are incarcerated does not automatically absolve you of responsibility. Even though you are legally unable to work or earn income in prison, you still need to ask a judge to change the terms of a support order. However, if you are incarcerated for more than 90 days, that is considered a “substantial change in circumstances” and a court can consider this in modifying an earlier support order. In addition, if you are sentenced to prison for at least 90 days when a support obligation is initially established, the judge must look at your “actual income earned,” which in many cases will lead to a zero-support order.
Incarceration and the Potential Loss of Parental Rights
It is important to seek judicial modification of child support upon incarceration or any other change in circumstances that affect your ability to pay. Simply not paying could lead the custodial parent to petition the court for termination of your parental rights to the child. Under Section 161 of the Texas Family Code, a judge can terminate parental rights if the parent “failed to support the child in accordance with the parent’s ability during a period of one year ending within six months of the date of the filing of the petition.”
In such cases, the burden is on the custodial parent to prove by “clear and convincing evidence” that the non-custodial parent failed to provide support. This is a higher burden than “preponderance of the evidence,” which is the normal standard in civil trials. Courts take this burden of proof seriously. For instance, a Texas appeals court recently reversed an order terminating parental rights due to the custodial parent’s failure to meet her burden.
The father in this case is incarcerated for drug-related offenses. He was initially ordered to pay child support in 2013. But payments stopped in June 2016. In December 2016, the mother filed a petition to terminate parental rights. At the time of the court’s hearing on the petition in April 2017, the father was in jail and did not attend the hearing.
While the trial court granted the mother’s petition, the appeals court said the evidence was “factually insufficient.” As noted above, the Family Code only permits termination of rights when a parent is unable to pay child support in accordance with his or her ability. Here, the mother knew the father had lost his job and was in jail. She presented no evidence that he had any means or ability to continue paying support while in prison. Therefore it was inappropriate for the trial court to terminate the father’s parental rights.
Do You Need Help With a Texas Child Support Matter?
Even if a parent is not in jail, there are many scenarios where change in circumstances may be ground for altering a child support obligation. A qualified Galveston child support attorney can assist you with seeking modifications of an existing order. Call the Law Offices of Tad Nelson & Associates at (281) 843-9776 today to schedule a consultation with our office.