In a recent post I discussed why parents sometimes want to terminate parental rights of another parent after a Texas divorce or child custody case. In that post I discussed why that is often not a financially advantageous decision. Today’s post takes the other side: whether a parent can terminate his or her own rights to avoid child support. I’ll tell you up front that the answer is almost always no. Like 99.99999999999999999999999999% of the time no.
Under the Texas Family Code and the public policy of the State of Texas the law favors parents providing financial support for children. Child support is not a two way street–parents do not pay for access or relationships with their children. The duty to support a child is generally not related to whether the parent chooses to maintain a healthy relationship with the children. Child custody lawyers across Texas have all seen their fair share of parents attempting to terminate rights to avoid paying child support. Those same lawyers have seen how rarely it succeeds.
Are you a parent contemplating terminating your own rights to avoid child support in Texas? Or you are the parent receiving child support and the other parent is threatening to terminate his or her rights? Then you should keep reading to understand why and what you can do in your situation. This is an issue often discussed but suffers a lot of confusion and misconceptions. This post will attempt to clarify the law and dissolve those misconceptions.
Why would a parent want to terminate their rights to stop paying child support?
Texas parents have many reasons why they may want to terminate their rights to their children to stop paying child support. Often this becomes an issue after a family court ordered child support in a divorce or child custody case. These reasons range in purpose and motivation. Some include:
- Parents want to walk away from the child support obligation entirely to absolve themselves of the financial and personal responsibility to provide for their children;
- The parent threatens to terminate rights and cut off child support as a way of leveraging pressure on the other parent to do what he or she wants;
- The parent who receives child support refuses to let the other parent see the children and the parent who wants to terminate rights feels like they lost their relationship with the children;
- A parent who pays child support cannot afford to pay child support and feels it is the only options;
- The parent wants to move to another state and feels if the parent doesn’t get visitation he or she shouldn’t have to pay support;
- A parent has a poor relationship with the child and feels like the relationship can’t improve so he or she should give up;
- CPS removed the child or halted parental access so the parent wants to terminate his or her rights.
This is not an exhaustive list but these are among the more common reasons child custody lawyers in Texas see parents try to terminate their rights to stop paying child support.
When a parent can voluntarily terminate his or her rights in Texas
- The parent loses the legal right to visitation or possession of the children;
- That parent loses the legal right to make or participate in decisions about the children;
- The parent loses the legal right to contest decisions made by parents or guardians with conservatorship over the children;
- That parent loses the legal right to access confidential records such as school and medical records;
- The parent loses legal rights to the child’s property or estate in the event of the child’s death;
- That parent loses the legal right to represent the child in legal proceedings like a personal injury claim;
- The parent stops owing a legal duty of support to the child.
If a court terminates a parent’s rights that parent loses all legal connection to the child. Effectively the parent is a stranger for all legal purposes. It will be up to the other parent or guardian to decide what relationship that parent may have with the child at least until the child becomes an adult (or receives emancipation). The Texas Family Code does not permit a court to reestablish the relationship so once a court terminates a parent’s rights that is permanent.
When Texas courts will terminate a parent’s right and end the child support obligation
Under the Texas Family Code a court may terminate a parent’s right under a voluntary or involuntary termination proceeding. In a voluntary termination the parent losing the relationship agrees to end the relationship. In an involuntary termination another party asks the court to terminate the relationship regardless of the parent’s desires. Involuntary terminations typically involve CPS proceedings where the parent is a danger to the child. In these cases removing the parent from the child is more important than the support the parent might provide (but probably isn’t).
Voluntary terminations of parental rights in Texas are rare because Texas law strongly favors maintaining a parent’s duty to financially support the children. Judges rarely permit an obligor parent to terminate rights voluntarily unless the parent’s support is no longer necessary. Voluntary terminations are common for adoptions in which the adoptive parent agrees to provide for the child and takes on the relationship the terminating parent will no longer enjoy. Beyond adoptions courts rarely grant voluntary terminations.
In either case the family court judge must consider one important question: what is in the child’s best interests?
Before a judge can grant either a voluntary or involuntary termination of the parent-child relationship the judge must consider the best interests of the child. Chapter 161 of the Texas Family Code presents rules and reasons for both forms of termination; however, the ultimate decision to terminate the relationship must be in the child’s best interests. For voluntary terminations this virtually always excludes parents terminating the relationship to avoid child support or to go off and start a new life. That parent may not want to have a relationship but it is still in the child’s interests to receive support in almost every case.
Even if both parents agree to terminate one parent’s rights that is not enough for a court to terminate rights. Terminating a parent’s rights requires meeting the statutory requirements of Chapter 161 and proving it is in the child’s best interests. The court will certainly want to know how the child will receive adequate financial support even if the parents agree to terminate one parent’s rights. The judge can still say no to an agreed termination.
(There are other reasons why a voluntary termination may be appropriate and a longer list of why involuntary terminations can be granted by a family court in Texas but these issues are beyond the subject of today’s post. Additionally, there are other limitations on a father’s rights to voluntarily terminate his rights discussed in the Texas Family Code.)
Myth of the voluntary relinquishment in Texas
Some parents think they can individually sign away their rights and that ends child support. That may even be what brought you to this post. This is not true in Texas. Chapter 161 of the Texas Family Code has a provision for a parent to relinquish rights but that relinquishment is not the only step in the process to terminate the relationship and stop paying child support.
The affidavit of voluntary relinquishment in section 161.103 of the Texas Family Code is one way to initiate the proceeding to terminate a parents rights and, if granted, stop the child support obligation. This affidavit is a statement by the relinquishing parent that he or she wants to surrender the relationship to the child and grants the Department of Family and Protective Services (aka CPS) to take on conservatorship of the child. The other parent and/or DFPS will then initiate proceedings to terminate the parent-child relationship and if necessary place the child in another person’s care. A family court must still consider all of the requirements under Chapter 161 and what is in the child’s best interests. A judge could consider the petition to terminate the parent-child relationship and say no. The judge might consider the evidence and restrict the parent from most of the conservatorship and access rights a parent otherwise enjoys but maintain the child support obligation.
Terminating the parent-child relationship and unpaid child support in Texas
Another huge misconception is that terminating the parent’s rights also extinguishes all child support obligations. This is incorrect. If a Texas court terminates a parent’s rights then it only terminates the future obligation to pay child support. If the parent owes unpaid past child support (a child support arrearage) the unpaid past due child support does not go away. The judge may order the parent to continue to pay the unpaid past child support after termination through wage withholding or even require the parent to pay all the unpaid support before granting termination.
When terminating the parent’s rights the parent owed child support (the obligee parent) may agree to waive unpaid child support but has no duty to agree. If the parent agrees there is a specific process to eliminate the past due support from the child support registry. If the parent does not agree there is no legal process to otherwise erase the past due child support obligation.
Parents seeking to terminate their rights to stop paying child support need to be careful about pursuing termination if there is unpaid support. The obligee parent or the Attorney General of Texas may institute a child support enforcement proceeding in response to force you to settle your debt at the same time. A child support enforcement carries the risk of stiff penalties (including jail).
What can a parent do if a court will not terminate rights to stop child support?
Sometimes parents want to terminate their rights because they cannot afford child support at the amount ordered in a divorce or custody case. Those parents may feel like there is no way to make enough money to stay out of trouble but also pay their living expenses. Sometimes these parents mean well but feel they have no other option.
In these situations terminating rights and severing a relationship with your children may not be the best approach. Under the Texas Family Code an obligor parent can seek modification of a child support order. The parent can ask the court to reduce the child support obligation to match what the parent makes now rather than in the past. In difficult economic times where parents lose jobs or suffer a pay cut the parent may suddenly find themselves underwater and unable to pay child support. If the parent makes a good faith effort to remain employed at the same income but simply cannot then the judge is likely to consider reducing child support. Modification does not eliminate past due amounts but will help avoid making a bad situation worse.
It is a good idea to hire an experienced family law attorney to assist you with modifying a child support order as the other parent may oppose modification. A local family law agency or even the Attorney General may assist you with modifying a child support order if you cannot afford an attorney.
What you should know if the obligor parent threatens to terminate his or her rights in Texas
You should know that these threats occur because the obligor parent has a serious interest in not paying child support and/or to coerce you into doing something you otherwise would not, such as agreeing to a reduced child support amount or eliminating a spousal support order. This is definitely a “knowledge is power” situation. You should not allow the obligor to steer you into a bad situation out of fear of an unlikely outcome. Before agreeing to any change in the possession or child support orders you need to talk to a lawyer. You may otherwise agree to something harmful to you or the children that a judge would not grant.
Although the obligor may not get far with voluntarily termination of parental rights, the obligor’s intentions are concerning. A parent willing to dissolve any connection to his or her child says a lot about the importance they place on the child and child support obligation. That parent may be looking at a variety of underhanded and possibly unlawful ways to avoid paying child support. This might include tactics such as trying to disappear, refuse employment or paid under the table. It is a good idea to talk to an experienced child custody lawyer about this situation and get advice on what to do to protect yourself and your children.
Can I terminate the rights of the other parent under the Texas Family Code?
As a parent you may want to terminate the other parent’s rights and accept that it will also terminate the child support obligation. This is not an easy feat under the Texas Family Code. Asking a family court to terminate a parent’s rights comes along with all of the same issues as a parent who wants to terminate his or her own rights. The other parent may or may not voluntarily agree to terminate rights. If the parent does not voluntarily agree then you and your attorney must meet the requirements for an involuntary termination under Chapter 161 of the Texas Family Code. The bar is high to involuntarily terminate a parent’s rights in Texas.
Even if you can prove one of the reasons in section 161.001 of the family code you must also prove the termination is in your child’s best interests. One issue the judge will likely consider is whether it would be better to maintain a financial support obligation but severely restrict that parent’s access to the child. Remember, terminating a parent’s rights is a severe and permanent court order.
If you believe you should terminate your rights to stop paying child support you should talk to an experienced child custody attorney in Texas
If you believe there is a good reason to terminate your rights to stop paying child support then you should talk to a child custody attorney. Your attorney can explore your situation and whether there is a legal basis to terminate your rights. As discussed above the Texas Family Code limits the reasons why a judge can terminate your rights and terminate your child support obligation. Your attorney is best equipped to consider the facts of your case under the law and the likelihood that family courts in your area are likely to terminate your rights. If terminating your rights to stop paying child support is not a viable option then your attorney can talk to you about other options like modifying the child support obligation.