what happens to arrears when custodial parent changed

[amyjrn]

What is the name of your state (only U.S. law)?

Texas.

I'll try to make this short and clear.

My ex owes me a little over $2000 in back child support. On June 4th he was awarded temporary custody as he his suing me for custody and I stupidly went to the hearing without a lawyer (that's for another post). Tomorrow we have a hearing for child support only (not about child support...not custody). I understand that I will be ordered to pay him child support as he has custody at this time. However....how does the past due arrears play into this scenario. Do I get a credit? Does he still pay me and I turn around and pay him? Thank you all in advance for your input.

 

[single317dad]

Generally, Dad's failure to support the child in the past will not affect your responsibility to pay current support when/if ordered. The child needs things, and you'll be ordered to help pay for them, starting right away.

That said, judges can and will do as they please, and may order the arrears be covered by current support temporarily if you ask for it.

 

[amyjrn]

I forgot to mention. At the hearing where he was awarded temporary custody, he was ordered at that time to stop paying child support. I WAS NOT ordered to pay him anything at that time. However, his wages are still being garnished due to arrears. I fully expect to pay child support as I should if he has temp. custody. I was just curious if anyone knew what would happen to the arrears. Obviously I am planning to adjust by budget to pay child support....so I was curious if I would still be receiving his garnished wages until the arrears are paid.

Guess I'll find out tomorrow.

 

[CJane]

I forgot to mention. At the hearing where he was awarded temporary custody, he was ordered at that time to stop paying child support. I WAS NOT ordered to pay him anything at that time. However, his wages are still being garnished due to arrears. I fully expect to pay child support as I should if he has temp. custody. I was just curious if anyone knew what would happen to the arrears. Obviously I am planning to adjust by budget to pay child support....so I was curious if I would still be receiving his garnished wages until the arrears are paid.

Guess I'll find out tomorrow.

No one can really answer that for you, for sure. We can all tell you what we THINK might happen, or what happened in our case, or whatever. But ultimately, it's up to the judge how it's handled in each individual case. I suspect that he will be ordered to continue paying towards the arrears, and you will be ordered to pay current support. But that's just conjecture on my part.

 

[latigo]

What is the name of your state (only U.S. law)?

Texas.

I'll try to make this short and clear.

My ex owes me a little over $2000 in back child support. On June 4th he was awarded temporary custody as he his suing me for custody and I stupidly went to the hearing without a lawyer (that's for another post). Tomorrow we have a hearing for child support only (not about child support...not custody). I understand that I will be ordered to pay him child support as he has custody at this time. However....how does the past due arrears play into this scenario. Do I get a credit? Does he still pay me and I turn around and pay him? Thank you all in advance for your input.

Wow!

Had you been properly represented in preparation for the June 4th hearing, you could of had the father's motion dismissed on grounds that he was in contempt of the support order. A litigant seeking relief from the court must enter with clean hands.

In other words a parent seeing to modify a court order will not be heard while he is in contempt of that order or any other orders of the court.

The court could very well entertain such a motion now.

Also you should have filed a motion for an order directing the father to show cause why he should not be held in contempt for failure to abide by the support order. Plus requesting that the court grant you a money judgment against him for the arrearages.

Which you would be within your rights to off set your judgment against your obligation to pay the father temporary support, if so ordered.

And it is not to late to do any of the above, except that another hearing would need to be scheduled.

Another also is do you realize what proof is required in order to modify an existing custody order. If not, I’ll tell you.

The movant must produce convincing and irrefutable evidence that there has been a material and permanent change in the circumstances of the parents and child that warrants the modification.

AND that granting the motion will be in the best interests of the child.

Also only those circumstances that have developed subsequent to the entry of the last custody order. That is, the movant cannot bring up matters that were reviewed prior or matters that could have been submitted prior.

So would you care to tell us what factual circumstances the father has alleged in his affidavit to support his motion?

And are you certain that the hearing as soon scheduled is not to determine the permanency of the temporary order?

 

[latigo]

No one can really answer that for you, for sure. We can all tell you what we THINK might happen, or what happened in our case, or whatever. But ultimately, it's up to the judge how it's handled in each individual case. I suspect that he will be ordered to continue paying towards the arrears, and you will be ordered to pay current support. But that's just conjecture on my part.

Well, wasn't it gracious of you to share that bit of nothing. Geez!

 

[CJane]

Wow!

Had you been properly represented in preparation for the June 4th hearing, you could of had the father's motion dismissed on grounds that he was in contempt of the support order. A litigant seeking relief from the court must enter with clean hands.

In other words a parent seeing to modify a court order will not be heard while he is in contempt of that order or any other orders of the court.

Could *have.

Can you please link to the statute that specifically addresses that being in arrears will prevent modification of custody? OP didn't mention that the court had ever found her ex in contempt, only that he's carrying arrears.

 

[single317dad]

Unclean hands is quite a stretch, and I was unable to find a single instance where it was applied this way in Texas. OP retaining custody of the child is not an equitable remedy for the ex's failure to support.

Guy builds a deck on your house. You don't pay. He sues you. You use unclean hands as a defense because he lied about the type of wood used. That's equitable.

Not to mention that many people (myself included) actually have completely separate orders for custody and child support.

 

[LdiJ]

What is the name of your state (only U.S. law)?

Texas.

I'll try to make this short and clear.

My ex owes me a little over $2000 in back child support. On June 4th he was awarded temporary custody as he his suing me for custody and I stupidly went to the hearing without a lawyer (that's for another post). Tomorrow we have a hearing for child support only (not about child support...not custody). I understand that I will be ordered to pay him child support as he has custody at this time. However....how does the past due arrears play into this scenario. Do I get a credit? Does he still pay me and I turn around and pay him? Thank you all in advance for your input.

Bottom line:

The arrears he owes you do not go away. How the court will choose to handle that is unknown. You should certainly argue that any child support that you need to pay him should be deducted from his arrears to you until those arrears are used up. Whether or not the court will agree is unknown.

 

[latigo]

Could *have.

Can you please link to the statute that specifically addresses that being in arrears will prevent modification of custody? OP didn't mention that the court had ever found her ex in contempt, only that he's carrying arrears.

Link this!

To begin this isn’t a law school.

But had you attend one you might know that the “clean hands doctrine” * is a rule of equity established at common law and not likely to be codified.

Secondly, I didn’t intend to represent to the OP that the father’s arrearages in child support - i. e. his being in contempt of court - would arbitrarily preclude having his application for change of custody heard. The dominant consideration in ordering custody placement is to best serve the welfare of the child. And a conscientious judge would not apply the doctrine were it to compromise that paramount issue.

However, here we are not apprised of the grounds for the father’s motion. It could be genuine or just a ploy to avoid paying future support. Nor are we able to judge which parent is most fit.

But if the OP does not direct the court’s attention to the fact that the father has failed to abide by the same orders from which he now seeks relief, it is not likely that the court will give it consideration.

Like John Candy as “Spike” in Brewster’s Millions told the police judge:

“If you don’t make calls, you don’t make sales.”

________________________________


[*] The doctrine of unclean hands precludes a plaintiff from recovering in equity if he acted unfairly in a matter that is the subject of the litigation to the prejudice of the defendant He who comes into equity must come with clean hands. It is far more than a mere banality. It is a self-imposed ordinance that closes the door of the court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief." Quoting: Straight v. Goss, 383 S.C. 180,678 S.E.2d 443, 457-58 (Ct. App. 2009)

"A rule of law that a person coming to court with a lawsuit or petition for a court order must be free from unfair conduct (have "clean hands" or not have done anything wrong) in regard to the subject matter of his/her claim."

 

[Zigner]

Pssttt - Lat - custody and child support are separate matters. Your attempted invocation of the clean hands doctrine is inappropriate and misleading.

 

[CJane]

Pssttt - Lat - custody and child support are separate matters. Your attempted invocation of the clean hands doctrine is inappropriate and misleading.

Inappropriate, misleading, false and irresponsible. And grammatically incorrect, which I think might be the bigger issue here. For me, anyway.

There USED TO BE a statute in my state, barring a parent from seeking any modifications to custody if that parent were more than $2000 in arrears on CS. However, that statute was found to be unconstitutional fairly recently and has been repealed. And while Texas is like a whole other country, I believe that any parent saying "NO he's in arrears, he can't have custody!!!" would be laughed out of the courtroom, represented by counsel or no.