The short answer is no, you may not revoke the other parent’s custody rights with the child if do not pay child support in Texas.
I’ll explain in more detail below but note first that this issue is not limited to divorce cases in Texas.
For example, child support and custody may be determined through the Attorney General’s office without filing for divorce or those issues may be determined among unmarried parents.
In divorce cases, this issue may arise during the divorce proceeding when the parties are operating under temporary orders or after the court issues a final decree of divorce.
In any of these situations, the answer remains the same: one parent cannot prohibit the other parent from custody of a child because the other parent failed to make child support payments.
Texas’s Public Policy On Custody
Texas public policy for child custody, whether related to a divorce or independent of a divorce, is as follows:
- to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;
- to provide a safe, stable, and nonviolent environment for the child; and
- to encourage parents to share in the rights and responsibilities of raising their children after the parents have separated or dissolved their marriage.
These public policies are independent from and in addition to a parent’s rights and duties under Texas law.
A Parent’s Duty and Rights Under Texas Law
I wrote previously discussing all of a parent’s rights and duties under Texas law.
In answering the question posed above, there are two particularly relevant rights and duties:
(1) the right to have physical possession, to direct the moral and religious training, and to designate the residence of the child;Texas Family Code section 151.001(a)
(3) the duty to support the child, including providing the child with clothing, food, shelter, medical and dental care, and education;
As you can see, the duty to support his or her child and the right to possession and access of that child are separate under the law.
Texas Law Prohibits Conditioning Visitation On Payment Of Child Support
Texas law specifically provides as follows:
A court may not render an order that conditions the right of a conservator to possession of or access to a child on the payment of child support.Texas Family Code Section 153.001(b)
The rights of visitation and child support belong to the child and are independent rights.
This means that an order in a divorce or child custody case cannot condition a parent’s visitation rights on whether or not that parent pays child support.
This also prohibits conditioning the payment of child support on the child’s consent to visitation with the other parent.
It also prohibits an order conditioning child support on whether the primary custodial parent allows visitation with the other parent.
What This All Means
In summary, a parent’s duty to provide child support as ordered by a court is a separate legal issue from that parent’s right to possession and access of the child.
This means that even if a parent is violating their duty to provide child support, that parent still has an independent right to visitation with the child that cannot be revoked or limited by the failure to pay support. The parent’s visitation right may not be limited by court order or by the other parent.
This also means that if a parent tries to revoke or limit the other parent’s visitation rights as ordered by the court, then that parent will find his or herself in violation of the court order as well.
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