The OAG may modify a child support order based on a change in physical possession of a child.
When a caregiver contacts the OAG and requests a modification because the child(ren) on the case is no longer living with the original custodial parent, an application is sent to the person with physical possession of the child in order to create a new case. The parties would normally file a motion to modify under these circumstances.
Depending on whether the new caretaker is a parent or a non-parent, there may be a need to open a new case with each of the parties in their new roles. Once an application for services is received and a case is opened with the parties in their new roles, the change of status process may be initiated.
A Notice of Change of Status may be filed when the:
- Custodial parent voluntarily relinquishes the primary care of the child; or
- Person with physical possession of the child has applied for or been referred to the OAG for child support services and the change of possession is permanent; and
- OAG has verified the change in physical possession.
The person with physical possession of the child is not required to have had possession for six months prior to filing legal action. Interstate cases fall under different rules. The OAG uses the following documentation to verify the change in possession:
- A judicial finding of possession
- The child’s school or day care records
- An affidavit from the person in possession
- An uncontested affidavit of possession signed by the NCP, provided staff attempt to confirm that CP’s relinquishment of possession was voluntary
- A possession affidavit completed by the CP
- Other appropriate documentation of possession, including records from the Health and Human Services Commission (HHSC)
Motion to Redirect Child Support
If a custodial parent
- voluntarily relinquishes the primary care and possession of the child for at least six months;
- is incarcerated or has been sentenced to be incarcerated for at least 90 days;
- or relinquishes the primary care and possession of the child to the Texas Juvenile Justice Department, to foster care or in a proceeding under the Juvenile Justice Code
then the OAG may file a motion to redirect child support.
The order to redirect does not give the person with possession of the child all of the rights and powers of a sole managing conservator. Instead, the custodial parent retains all of the rights and powers concerning the health, education, and welfare of the child, including the right to determine the primary residence of the child. The order does give the right to receive payments or disburse money for the benefit of the child.
A redirection of support based upon a custodial parent’s incarceration must allow the custodial parent’s current child support payments to resume. To accomplish this, the former custodial parent may file an affidavit with the court, stating each of the following:
- The custodial has been released from incarceration
- No modification of the conservatorship of the child occurred during the incarceration
- The former custodial parent now has physical possession of the child [TFC §156.409(a-3)]
Note: In cases where the child support order was modified in some other way, such as a change of status or a modification of conservatorship, the former custodial parent may not receive current support again unless the order is modified to make the former CP the obligee.