by Casey Alexander

Although the custody (conservatorship) and visitation (possession and access) laws in Texas are considered progressive when compared to those of other states, the child support laws remain archaic to say the least.

There are child support guidelines set within the Texas Family Code. The problem is that most judges treat these "guidelines" as rules set in stone and rarely deviate from them. Whether a parent has no court ordered visitation at all or the parent has possession of the child 49% of the time by court order, the parent will probably be ordered to pay "guideline" child support.

Another problem is that under these "guidelines" there is only ONE factor used when determining child support: the obligor's salary. Under the current child support "guidelines" the following factors are RARELY considered by a judge when he or she sets a child support amount:

• The amount of time each parent has physical custody of the child.
• The financial circumstances of the parent receiving child support.

What type of other support the obligor is actually providing to the child such as day care, excessive medical expenses, etc.

A new set of child support laws is needed. The child support guidelines should become less of a mathmatical formula with only two variables (number of children and obligor's income) and more a flexible formula that allows the factoring in of blatantly relevant factors listed above.

When these "guidelines" were written, most primary managing conservators had physical possession of their children for all but four overnights most every months of the year. However, because of recent laws such as TFC 153.317 and the recent willingness of judges to order non-standard possession orders, the amount of overnight possession for the possessory conservator is increasing dramatically. Now that the standard possession schedule has increased and the number of non-standard possession orders are on the rise, it is time for the frequency of non-guideline child support orders to increase proportionately but they are not.

Even more tragic is that there are no laws in the Texas Family Code requiring that the person receiving child support actually spend the money supporting the child. There are only laws mandating that a judge must presume that the money is indeed being spent on the child!

In summary, the child support guidelines were written many years ago at a time when the possessory conservator was merely a "weekend dad". Now that the possessory conservators actual time with the child has increased it is time for the child support laws to either change. Also, a new formula is needed for calculating such as the one used in California. How much time each parent is spending with the child is factored in California as is daycare expenses and both parent's income. These factors are relevant to the dimmest of people......why can't our legislatures see it that way?

Note: Although Texas Family Code 154.123 offers an array of reasons for why a judge can deviate from the child support guidelines the problem is that they rarely do it. Requiring a mandatory statutory presumption (TFC 154.122) on the judges part that the child support guidelines are in the best interest of the child creates a hurdle for the obligor to clear. In theory, the judges can factor in the amount of time a child spends with the obligor and financial circumstances of the obligee.