Depending on each parent’s income and the cost of childcare, child support is periodic financial support paid from one parent to the other. Depending on the state, the exact amount of child support will be determined by considering things like:
- The number of children in court
- The number of children for whom the debtor owes support who are not in court
- Statutory guidelines
- Health, education and childcare costs
- The income of each parent
- Expenses for extraordinary and specialized care
Failure to pay child support may result in enforcement proceedings. If a contempt proceeding is successful, the party pursuing the case may be awarded legal costs and penalties. If the lack of maintenance of the child has been of sufficient duration, the non-payment of maintenance may constitute a reason for forfeiture of parental rights. On the Texas Attorney General’s website, the following appears:
Children do best when they receive emotional and financial support from both parents. When children do not receive constant support, it can affect their quality of life. When child support is not paid, the Attorney General’s Office can take many steps to enforce the court order. These can include legal action, license suspension, credit report, passport denial and more.
Can non-payment of child support be interpreted as a form of child neglect? Child neglect can take several forms (See Fam. Code § 261.001):
1) Basic needs. It is the inability to provide a child with basic needs such as food, clothing and shelter.
2) Medical. It is the failure to provide necessary medical or dental care to the child.
3) Educational. It is the failure to ensure that a child is enrolled, does not skip school and that their special educational needs are catered for.
Section 161.001(b)(1)(F) of the Texas Family Code provides the following:
(b) The court may order the termination of the parent-child relationship if it finds by clear and convincing evidence:
(1) the parent has:
(F) has failed to support the child in accordance with the parent’s ability for a period of one year ending within six months of the date the petition is filed. . .
Why consider revoking parental rights? To preserve and protect the best interests of a child, if and when:
- The risk to the child outweighs the preservation of the relationship, over the assurance that the child will have the benefit of being emotionally and financially supported by both parents.
- The other parent has been away and there is still a need to manage the child’s needs (often when child protective services have been involved, removed the child from one parent’s care and, through an agreement or court order, the child is placed in foster care).
- Termination of parental rights is a first step towards adoption, when another person hopes to adopt the child and assume the duty and responsibility to support the child.
The Texas Supreme Court held in In re CW that:
Section 161.001(b) of the Texas Family Code permits the involuntary termination of parental rights if there is clear and compelling evidence that a parent has engaged in one or more of the 21 listed grounds for termination and the termination is in the best interests of the child. TEXAS. FAM. CODE § 161.001(b).
In New York State, termination of parental rights may be based on a number of grounds, as listed at https://www.nycourts.gov:
A termination of parental rights occurs when a city agency (such as the New York City Children’s Services Administration) or foster care agency files a petition in family court asking a judge to terminate a parent’s parental rights. The petition must give a reason (legal reason) for the termination. There are five legal grounds for terminating parental rights: abandonment, permanent neglect, mental illness, mental retardation, and serious and repeated abuse. . .
Because the parent-child relationship is considered so important, if someone is facing a termination case and the respondent cannot afford an attorney, the court will appoint an attorney to represent that person. , to ensure that the respondent to the termination case has sufficient, zealous representation and enjoys due process. Many years ago, in Lassiter v. Department of Social Services, the U.S. Supreme Court noted in dictated that:
The parent’s interest in the correctness and fairness of the decision to terminate parental status is extremely important … the state shares with the parent an interest in the decision being correct, has a relatively small pecuniary interest in avoiding the expense of a court-appointed lawyer and the cost of prolonging the procedure that his presence may cause… the complexity of the procedure and the incapacity of the unadvised parent could be, but would not always be, sufficient important in making the risk of wrongful deprivation of the parent’s rights unbearably high. . .due process would require the appointment of counsel.
However, in Lassiter, the Court held that:
the trial judge did not deny the petitioner due process of law when he failed to appoint a lawyer for her. The record shows, among others, that the motion to terminate the petitioner’s parental rights did not contain any allegation of neglect or abuse on which criminal charges could be based; no expert witness testified; the case did not present any particularly troublesome points of law; the presence of a lawyer could not have made a decisive difference for the applicant; she had expressly refused to appear at the 1975 child custody hearing; and the trial court found that his failure to make an effort to challenge the dismissal proceedings was without cause.
If a person’s parental rights are terminated, that person can appeal the decision. In New York State, such a party has 30 days from the date the termination order was issued to appeal a family court order. Failure to pay maintenance on time for six months or more may be grounds for termination of parental rights.
Whether or not concealing income results in formal charges of child neglect, parents must support their children with financial support, or face the consequences.
Elisa Reiter is a senior attorney at Underwood Perkins, PC. She is dual certified in family law and child protection law by TBLS. Contact: [email protected].
Daniel Pollack, MSW, JD is a professor in the School of Social Work at Yeshiva University in New York. Contact: [email protected].