I sometimes get asked by a divorced mom whether she is required to let her ex-husband have his visitation with the children if he is not currently paying his child support. The reasoning behind the question is that if he is not following the court order, then why should I?
Two Separate Issues Under the Texas Family Code
The answer is that yes, you must follow the court order and allow the father to exercise his visitation regardless of whether he is in arrears on his child support. The court will view those issues are entirely separate and either party will be at risk of being held in contempt of court if they fail to follow the court’s order.
Let Him See the Children and File an Enforcement Action
The appropriate action for the mother to take in that situation is to hire an attorney to pursue an child support enforcement action against the father. The Texas Family Code has very strong enforcement remedies for failure to pay child support on time, including the very real possibility of jail time.
Since mom’s who are not receiving their child support are typically already strapped for cash, the idea of having to pay an upfront retainer to pursue dad in the enforcement action is usually not an attractive one. Fortunately the Texas Attorney General’s office has a child support division that handles enforcement cases for free. While the service may not be the same that you would get from a private law firm (as they are fond of saying “I don’t represent the party, I represent the State of Texas”), you can’t beat the price.
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