Interstate Child Support Modifcation

As a family law attorney in San Antonio, Texas, I've been seeing a lot of issues coming up lately regarding the modification of child support when the parents live in different states.  It is amazing to me how confusing this area of the law is to judges and clients, and worse yet, to lawyers.

This post is a short primer on how child support modification works when one parent lives in a state other than the state in which the the child and/or the other parent live(s).  There are several different scenarios, but let's start with the most common, and work our way up:

Scenario "A":   Two people who live in Texas have a child together (it doesn't matter if they're married or not), and a child custody and support order is later issued in Texas (whether it's a divorce, paternity action, or otherwise just doesn't matter). Mom gets primary custody and Dad has to pay child support.  Later, the father moves to another state when he gets a higher paying job, and mom wants to increase the child support due to dad making more money.   Mom and child stay in Texas.

Scenario "B":  Same scenario as above, except the two people live and have their child in another state.  Later on, Dad moves to Texas for a better paying job.  Mom and child stay in the original state. 

"Scenario "C":  Same scenario as above--support order issued in another state, mom and child then move to Texas and Dad moves to some other state, so that no one lives in the original state any longer (Mom and child are in Texas, Dad is somewhere else other than the original state).

There are obviously some variations to these scenarios, but these are the 3 basic scenarios that will determine what laws apply, and how they are applied. Obviously, the same rules would apply regardless of which parent had primary custody of the child.

The body of law that controls interstate child support matters (as opposed to child custody and visitation matters is called the Uniform Interstate Family Support Act (UIFSA).  A version of that law has been passed in every state, and it is for the most part the same in every state.  Interstate child custody and visitation disputes are governed by another interstate law called the Uniform Child Custody Jurisdiction and Enforcement Act,  (UCCJEA) which I have discussed in other blog posts. 

Quite simply, the UCCJEA governs child custody cases when interstate elements are present.  UIFSA governs child support  cases where interstate elements are present.  This is the first source of confusion to clients, lawyers and judges.  I've seen lawyers--even ones who are board-certified in family law-- file child support modification pleadings based on the jurisdictional requirements of the UCCJEA instead of UIFSA, and I've even seen judges agree with them at first, until they were educated on the law!    

How does UIFSA apply to each of the scenarios I set out above?  Let's take a look:

Scenario A (support order issued in Texas, mom and child stay in Texas, dad moves to different state): 

    This is an easy one.  As long as one party (or the child) remains in Texas, Texas retains continuing, exclusive jurisdiction to modify the child support order.  No other state can get involved as long as someone is still in the original state, unless the parties agree otherwise.

Scenario B (support order issued in another state, mom and child stay in that state, Dad moves to Texas)
    This is really just a variation of Scenario A.  The same concept applies:  as long as one of the parties and/or the child remains in the original state, the support order cannot be modified in any other state (unless the parties agree otherwise).

Scenario C (everybody leaves the original state, mom and child move to Texas, Dad moves to some other state);

[ By the way--UIFSA has some detailed rules about properly registering a support order or custody order in one state when the order was issued in another state, but we'll leave that issue alone for now.  Assume that in our scenarios, the original order was properly registered as a "foreign support order" in a state other than the original, issuing state.]

    Scenario C is the most confusing (and least understood) scenario.  This shouldn't be confusing to attorneys, especially family law attorneys, because the statute is very clear:  Whoever wants to modify the original child support order must file his or her modification suit in the state where the OTHER party lives (unless the parties file an agreement to the contrary in the original state that issued the order--but what do you think the odds are of that?).  That means, in our scenario, that if Mom (who lives in Texas) wants to increase the child support being paid by dad, she MUST file her modification suit in the state where Dad lives.  Conversely, if Dad wants to decrease his child support, he'll have to file his modification suit in Texas.

I recently dealt with this issue in two separate cases.  In both cases, each of the lawyers representing the obligee (person who receives child support) were board-certified family law attorneys.  In both cases, each of those lawyers was completely unaware of how UIFSA applies to Texas modification of a child support order issued in another state when both parties and the child have left the original state.  The facts of the 2 cases were identical to Scenario C, above--the original order was issued in State A, mom and child then moved to Texas, Dad later moved to State B.  In each case, the mother and child had moved to Texas, registered the out-of-state support order here in Texas, filed a motion to modify the support order here in Texas, and had the father served with process in the state where the father lived.

[It's worth pointing out that there could be a "personal jurisdiction" issue here, as well--if the father in this scenario has no significant contacts with Texas, it would do no good to have him served in his state of residence--you'd have to get him served in Texas for Texas to exercise personal jurisdiction.  As you'll see, however, personal jurisdiction is meaningless in this scenario.]

Had either of these attorneys bothered to research and read the applicable provision of the UIFSA, they would have discovered that §159.611(a)(1) of the Texas Family Code (UIFSA) prohibits Texas from modifying an out-of-state custody order unless the person seeking modification is NOT a resident of Texas.  It is worth noting that §159.611(a)(2) provides an exception to that rule, and states that the parties can file a consent in the original state for another state (in this case, Texas) to modify the original order and to assume exclusive continuing jurisdiction.  In one of the cases I just mentioned, the other attorney is trying to claim that my client's agreement to postpone a hearing date on the motion to modify constituted his consent to let Texas modify the order and assume exclusive continuing jurisidiction.  He then filed the agreement in the orginal issuing Court in another state and is asking the Court to find that doing so constitutes a properly filed "consent" under §159.611(a)(2).  I'll have to let you know later how that turned out--the judge hasn't ruled yet.

Anyway, getting back to the issue at hand:  Since this involves a "subject matter jurisdiction" issue (the statutory authority of the Court to hear a particular type of case), the prohibition is absolute--it cannot be waived (except pursuant to §159.611(a)(2), and can be brought up at any time during the proceedings.  Any order entered without requisite jurisdiction is void if the jurisdictional failings are apparent on the face of the record.

I don't know how much money these attorneys charged their clients to file a motion that was completely prohibited by law, but I'm sure their clients are going to want to have a long talk with them about it. In both cases, obviously, the client would not have hired the attorney in the first place if she had been properly informed of the law.  In both of these cases, the suit to modify was filed nearly 2 years ago (we had some other issues going on as well, including a custody dispute).  In most states, modification of child support is usually made retroactive to the date the Respondent was served with process in the modification case.  In this case, that means the mother will now have to hire an attorney in the state where my client lives and re-file her motion to modify in that state, and may therefore lose 2 years of retroactive increases, which could have amounted to at least $7,200, and could have reached $72,000 or more, due to some enormous expenses for an alleged "special needs child" [can you spell "M-A-L-P-R-A-C-T-I-C-E?] .

Well, this blog turned out to be longer than expected, but it addresses a very important issue.  ANYONE dealing with interstate custody or child support matters should make sure any Texas attorney he or she hires is well versed in both the UCCJEA and the UIFSA.

J. Michael Clay is licensed to practice all types of law in all state courts in the State of Texas, and in federal courts in the the Western District of Texas.  His practice focuses almost exclusively on family law issues such as child support, child support modification, child support enforcement, divorce, child custody, child custody enforcement, child custody modification, and adoption issues.

Not certified by the Texas Board of Legal Specialization

Comments

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