ENFORCEMENT OF CHILD SUPPORT
A court order for the payment of child support is enforced by filing a motion for enforcement in the court having continuing jurisdiction of the lawsuit and setting a hearing on the motion. The motion must state the amount of child support owed, the amount paid, and the amount in arrears. If contempt is sought, the motion must also state the amount owed and the amount paid for each date of a violation.
The person seeking to enforce the past due child support must set a hearing on the motion, and a copy of the motion and the notice of the hearing must be personally served on the alleged violator at least 10 days before the date of the hearing.
Enforcement of Child Support by Contempt
An order for the payment of child support is enforceable by contempt, i.e., by incarceration in jail. Because imprisonment is possible, the person who owes the child support has a Constitutional right to be represented by an attorney. If the person is indigent, the court must appoint an attorney. At a first hearing for enforcement of child support (as contrasted to a first hearing to enforce visitation), a court often will find the violator in contempt of court, and may order him or her to serve up to six months in jail. On a first finding of contempt of court for failure to pay child support, the court often will suspend the commitment to jail upon compliance with certain conditions (essentially the same as probation in the criminal courts). The conditions of a suspended jail sentence for failure to pay child support are often that the violator will (i) pay the amount in arrears (e.g. owed child support) within a specified time frame or a specified payment schedule and (ii) remain current on future child support obligations.
Inability to Pay is Not a Defense to Contempt for Failure to Pay Child Support
A person’s inability to pay the amount of child support ordered is not generally a defense to being held in contempt and committed to jail for failure to pay past due child support. If a person is unable to pay the current amount of child support, he or she should seek a modification to lower the amount.
Denied Visitation or Access to Child(ren) is Not a Justifiable Defense for Failure to Pay Child Support
The Texas Family Code requires all obligors (party ordered to pay child support) to make their timely child support payments, as ordered by the court, regardless of restricted access to the child(ren) by the obligee. If visitation or access is restricted beyond what is ordered by the court, filing a motion for enforcement would be the appropriate remedy.