Can My Spouse Force A Child To Change Residence by Bribery to Lower Child Support Owed?
06/25/2009 - Category:Divorce - Child Custody - State: TX #17183
After 11 years of collecting $260.00 a month in child support I recently requested a review to increase. We met at the A.G. office and found out that he will be paying over $900.00 a month. He refused to sign the papers and hired an attorney. He has our 14 year old daughter with him and is planning to take her to the attorney's office today to sign a document stating that she wants to live with him. She spent the whole night texting me to please help her because she does not want to live with him. He told her that if she doesn't he would rather quit his job and go to jail than pay me and she would never see him again. I can barely make ends meet and mostly make it by getting payday loans. I cannot afford an attorney. He had me thinking that he was broke, then I found out that he is making $78,000 a year. What are my chances of winning against him? I'm afraid that he is going to manipulate my daughter into signing the papers today. She said he was bribing her and telling her that she can still live at my house, she just needed to say that she lives with him. He promised to take her shopping and buy her expensive clothes any time she wanted. I'm completely broke and in the middle of a bankruptcy. Do I even have a chance without an attorney which I cannot afford?
It may also be possible for the non-custodial parent to seek modification of a custody order based on a significant change of circumstances. A 14 year-old may submit a preference for residence to the court. If that occurs, you have the right to petition to have the child interviewed in court. The answer will depend in part on whether this is pursued and what the child testifies to. The court still has ultimate authority in determining what it considers in the child's best interest, based on all the facts and circumstances involved. Evidence that the child has been pressured to change residency in an attempt to lower support and possibly lie to the court about her residency in an attempt to assert a fraudulent residency may be a factor considered by the court. However, it is the court who determines who has the right to custody in modifying a custody decree, not the child.
The court must use the Child Support Guidelines adopted by the state in setting the amount of child support, unless the court specifically finds that following the guidelines would be unjust and inappropriate. The court combines the income of the divorcing parents, determines from the guidelines the applicable amount of child support for the number of children of the marriage based upon that income, adjusts this amount for work-related child care expenses and health insurance premiums, and then assigns a portion of that support amount to the non-custodial parent based on his/her percentage share of the combined income.
The following are TX statutes:
§ 153.002 FAM. Best Interest of Child
The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.
§ 153.008 FAM. Child's Preference of Person to Designate Residence
A child 12 years of age or older may file with the court in writing the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child, subject to the approval of the court.
§ 153.009 FAM. Interview of Child in Chambers
(a) In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child, the court shall interview in chambers a child 12 years of age or older and may interview in chambers a child under 12 years of age to determine the child's wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child's primary residence. The court may also interview a child in chambers on the court's own motion for a purpose specified by this subsection.
(b) In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child or on the court's own motion, the court may interview the child in chambers to determine the child's wishes as to possession, access, or any other issue in the suit affecting the parent-child relationship.
(c) Interviewing a child does not diminish the discretion of the court in determining the best interests of the child.
(d) In a jury trial, the court may not interview the child in chambers regarding an issue on which a party is entitled to a jury verdict.
(e) In any trial or hearing, the court may permit the attorney for a party, the amicus attorney, the guardian ad litem for the child, or the attorney ad litem for the child to be present at the interview.
(f) On the motion of a party, the amicus attorney, or the attorney ad litem for the child, or on the court's own motion, the court shall cause a record of the interview to be made when the child is 12 years of age or older. A record of the interview shall be part of the record in the case.
§ 154.123 FAM. Additional Factors for Court to Consider
(a) The court may order periodic child support payments in an amount other than that established by the guidelines if the evidence rebuts the presumption that application of the guidelines is in the best interest of the child and justifies a variance from the guidelines.
(b) In determining whether application of the guidelines would be unjust or inappropriate under the circumstances, the court shall consider evidence of all relevant factors, including:
(1) the age and needs of the child;
(2) the ability of the parents to contribute to the support of the child;
(3) any financial resources available for the support of the child;
(4) the amount of time of possession of and access to a child;
(5) the amount of the obligee's net resources, including the earning potential of the obligee if the actual income of the obligee is significantly less than what the obligee could earn because the obligee is intentionally unemployed or underemployed and including an increase or decrease in the income of the obligee or income that may be attributed to the property and assets of the obligee;
(6) child care expenses incurred by either party in order to maintain gainful employment;
(7) whether either party has the managing conservatorship or actual physical custody of another child;
(8) the amount of alimony or spousal maintenance actually and currently being paid or received by a party;
(9) the expenses for a son or daughter for education beyond secondary school;
(10) whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity;
(11) the amount of other deductions from the wage or salary income and from other compensation for personal services of the parties;
(12) provision for health care insurance and payment of uninsured medical expenses;
(13) special or extraordinary educational, health care, or other expenses of the parties or of the child;
(14) the cost of travel in order to exercise possession of and access to a child;
(15) positive or negative cash flow from any real and personal property and assets, including a business and investments;
(16) debts or debt service assumed by either party; and
(17) any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents.
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06/25/2009 - Category: Child Custody - State: TX #17183
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