Legal Question in Family Law in Texas

I have requested a child support modification after six years being divorced. My son is autistic and has special needs. Does this make a difference in the modification? Ex: My ex husband does do the every other weekend visitation, but when my son is sick he has never taken off work to stay with him. I have almost lost my job because of this. He has never been to his school, doesn't know who his pediatrician is or what day care he goes to. I feel this should make a difference because there have been many times I do not get paid if I miss a day of work if my son is sick. He is supposed to have him the month of July, but only keeps him every weekend in July - I have to pay day care expenses for that month which is a lot for me. I only want what is fair and what is best for my son.

The Attorney General's office has calculated an extra 150/month. I am not sure if I should agree or not. I am not sure what to do or if I should get an attorney involved. I of course cannot afford an attorney.

Asked on 8/26/13, 7:12 pm

1 Answer from Attorneys

Adam Kielich The Kielich Law Firm

There's a few issues here:

1. You cannot force the father to be more involved than what the court has ordered, which is child support. There's nothing that will obligate him to be involved or be more involved than what the court has ordered for visitation. It's unfortunate that he doesn't choose to be more involved but that is his choice.

2. It is highly unlikely that the court will award you any additional support because you do not get paid for time you have to take off for the care of your child. That is a common occurrence for many parents and it is a risk you assumed by accepting (or requesting) primary conservatorship over your child.

3. If the father does not know who the pediatrician is then you may be violating the decree. Often possession orders (which in your case is likely bound with your divorce decree) require the primary conservator to keep the other parent informed of what medical professionals are treating the child and what care the child is undergoing. Check your decree.

4. You may be able to get extra support going forward for the summer possession if he is not taking the child for the full thirty day period but there is no guarantee that you can get that. You may have to look at changing the visitation to remove the standard thirty day summer possession.

5. I don't know if $150 is enough to cover what your child needs. If you are requesting additional sums then you have to prove there is a medical need that is not already covered by the medical support order (if that is in your decree) or some other need for the child that is not being covered by the existing order. It isn't enough to just say your child has special needs or that you do not make enough money. There are specific factors a judge must and may review to determine if the increase is permitted under the law. You don't give much information that indicates that would be the case so I can't say one way or the other. It's probably a good idea to sit down with a local family lawyer and review the situation. You can contact the state bar for a referral and the lawyers on the referral list have agreed to accept a short consultation for $20. That is probably a very good use of $20.

6. If you really lack the means to hire an attorney you may qualify for financial aid. Contact your local legal aid office to see if you qualify.

7. Sometimes you can qualify for payment of your attorney fees for a support modification, so your spouse may have to pay your fees. To determine if that is a possibility (and it is never a guarantee) contact the referral service and/or legal aid and ask about that.

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Answered on 8/26/13, 8:29 pm

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