Written by attorney Shari Goldsberry

The payment or not of child support does not affect possession to children under an order

May a divorce decree or order on a Suit Affecting the Parent-Child Relationship condition a parent’s visitation on the payment of child support? Or may a child support obligor condition his payment of child support on the obligee parent providing access to the child? No, such conditions are against the public policy of Texas and forbidden by sections of the Family Code. Texas’s policy is to “assure that children will have frequent and continuing contact with parents" and to “encourage parents to share in the rights and duties of raising their child." Tex. Fam. Code § 153.001(a). To further these goals, the legislature enacted § 153.001(b)—forbidding a court from conditioning access to a child on the payment of child support—and § 154.011—forbidding a court from conditioning the payment of child support on the obligee parent providing access to the child.

Appellate courts have interpreted these statutes broadly. Recently in In the Interest of B.F.K., the minor daughter decided she no longer wanted to see her father. No. 11-10-00217-CV (Tex. App.—Eastland June 30, 2011, no pet.) (mem. op.). The mother filed a petition to modify, requesting that the court order visitation and specific dates, times, and places or that the father’s periods of visitation be supervised. Id. The trial court honored the daughter’s wishes not to see her father and held that the father would not have to pay child support or his daughter’s tuition to a private school, reasoning that the father’s payments were based on a negotiated settlement agreement, and “that agreement and settlement was based upon a fair exchange of the child week on and week off." Id. The daughter’s desire to no longer see her father destroyed the basis for that agreement. Id.

The Court of Appeals interpreted the trial court’s judgment as “implicitly condition[ing] the payment of child support, or rather the nonpayment, on the fact that [the father] would have no possession or access to B.F.K." Id. “In effect…the court’s order conditioned [the father’s] support of B.F.K. upon his ability to exercise visitation and possession rights." Id. The appellate court looked at § 154.011 and determined that the trial court’s order violated public policy even though it was the daughter herself that was preventing her father from exercising his visitation and not the obligee parent as specifically discussed in § 154.011.

Like the facts in In the Interest of B.F.K., in In re A.N.H., the daughter no longer wanted to see her father, and the trial court’s order denied the father visitation “until such time as [the daughter] initiates contact with [her father] and/or expresses the desire to exercise visitation with [him]." 70 S.W.3d 918, 919 (Tex. App.—Amarillo 2002, no pet.). The trial court further relieved the father of having to pay child support “until such time as visitation resumes between" him and his daughter. Id.

The Court of Appeals characterized the provision as allowing him to evade his legal and moral obligation to support his daughter and stated the provision was “tantamount to rendering his duty of support contingent upon his enjoyment of visitation." Id. at 920. The appellate court analyzed the provision under § 153.001(b)—forbidding courts from conditioning the right of access to payment of child support—but recognized this statute did “not expressly address the situation at bar." Id. The appellate court determined that public policy was a more important consideration and struck the trial court’s order. Id. The appellate court further turned to old case law to support its decision, citing Thurman v. Fatherree, which held “a contract between parents which attempts to make the child's right to support, and the father's duty to support his child, contingent upon visiting privileges is unenforceable as against public policy." 325 S.W.2d 183, 186 (Tex. Civ. App.—San Antonio 1959, writ dism’d.)

The Dallas Court of Appeals had a broader interpretation of the statute and struck down a trial court’s order that conditioned the removal of a residency restriction on the non-payment of child support. Seidel v. Seidel, 10 S.W.3d 365 (Tex. App.—Dallas 1999, no pet.). There, divorce decree prevented the mother from “removing the children from Dallas County, Texas or Collin County, Texas, for the purpose of changing the domicile." Id. at 366. The decree also ordered the father to pay the mother $38,000 for attorney’s fees and costs incurred in connection with the suit. Id. The appellate court characterized this judgment as child support, as the trial court noted the judgment was necessary “to support and care for the minor children." Id. at 370. When the father failed to make payments on the judgment, the mother petitioned for a modification for financial reasons, considering a move to California, where she had family who would help take care of her children and find her employment. Id. at 366. The trial court granted her petition to modify, ordering that the “domicile restrictions shall not apply and shall be released during any period that there is a deficiency in the $38,000.00 in money judgments awarded to [the mother] pursuant to the terms of the Final Decree of Divorce." Id. If she were to decide to move at a time when the father was behind on payments, the residency restriction would be “forever lifted." Id.

The appellate court reversed the trial court’s judgment, finding that the condition violated § 154.011 though only the children’s residence was at issue. Id. at 369. The court determined the father’s rights “would obviously differ substantially from the domicile restrictions previously agreed to in the divorce decree." Id. Conditioning even the change of the right to access on child support payment was impermissible. Id. “An order which makes one parent's visitation rights with the child contingent upon their timely payment of child support is coercive and operatively null and void." Id. (internal quotations omitted.)

Though appellate courts may have relied on § 154.011 when § 153.001(b) may have been more proper or the reverse, the underlying issue in any matter regarding child support and possession is the best interest of the child and public policy. See Tex. Fam. Code § 153.002. Thus similar conditions will likely be struck down on appeal no matter which provision the court relied on, even if the situation does not fit the wording of the statute.

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