Child Support and the Court’s Discretion


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In the State of Texas, there are careful child support guidelines that determine who will pay child support and the amount of child support that he or she will pay. While these guidelines are quite exacting, the court itself has considerable discretion in the matter and can go off script if it finds that the situation warrants an independent approach. In other words, although child support is generally determined by plugging numbers into a calculation process, there is a lot more to it than that. If you have questions or concerns about child support, do not wait to reach out and consult with an experienced Killeen child support attorney.

Each Parent’s Role

There are some Texas child support basics that apply across the board in child support cases throughout the state. These include that the parent who pays child support is – in the eyes of the law – the obligor and that the parent who receives child support payments is the obligee. Child support is based on a wide range of factors, but the primary determinants are the number of overnights each parent has with the children and each parent’s earnings. If one of the parents is the primary custodial parent (with whom the children live the majority of the time), he or she will very likely be the obligee. Even, however, if both parents share their parenting time evenly, the higher earner is typically the obligor.


Child support is generally ordered until the child turns 18 or graduates from high school (whichever comes later). There is an important exception to this guideline, however. If a child is deemed physically and/or mentally disabled, the court can order child support indefinitely.

Child Support Guidelines

The basic rules and calculation methodologies that determine child support in Texas are set forth in the child support guidelines.

Child Support Minimums and Caps

Texas employs a child support calculation procedure that sets not only a basic minimum amount of child support but also an income cap, which is currently set at $9,200. This means that if a parent’s net monthly income exceeds this cap, his or her child support obligation will not exceed the maximum child support payment (based on the set financial cap) unless the obligee can demonstrate that the children’s needs warrant exceeding this limitation, and this is where the court’s vast discretion often comes into play. The court, however, will not award child support that exceeds the proven needs of the children involved. The court can ultimately take a vast array of factors into consideration in the determination of child support in any given case.

The Calculation Process

Taking the child support minimum payment into consideration – along with the income cap – child support is generally calculated according to the following percentages in Texas:

  • For one child, the obligor pays 20 percent of his or her net monthly income.

  • For two children, the obligor pays 25 percent of his or her net monthly income.

  • For three children, the obligor pays 30 percent of his or her net monthly income.

  • For four children, the obligor pays 35 percent of his or her net monthly income.

  • For five children, the obligor pays 40 percent of his or her net monthly income.

  • For six children, the obligor pays no less than 40 percent of his or her net monthly income.

When a parent earns more than the set monthly cap, the court can require him or her to pay outside the maximum payments set by the guidelines – if the situation warrants ordering child support outside these parameters.

Net Monthly Income

In order to determine a parent’s net monthly income, the following general steps are taken:

  • The parent’s total earnings and resources for the year are calculated, including all wages and salary, all income from self-employment, all interest earned, all dividends received, and any other income – such as from social security, disability, workers’ compensation, unemployment, and beyond.

  • This gross yearly income is divided by 12 to render a gross monthly income.

  • From these gross monthly earnings, standard monthly deductions – that include social security tax, federal income tax, state income tax, union dues, and health insurance payments for the children – are subtracted.

This leaves the state with the parent’s net monthly income, which is used to calculate his or her child support obligation. It is important to note here that if the parent in question is intentionally underemployed or unemployed in an effort to reduce his or her child support obligation, the court is not likely to tolerate the tactic. The court can impute earnings on the obligor – based on his or her earning potential – and can calculate child support based on this imputation. In other words, a parent who, in actuality, earns very little can be required to pay child support at the level of income that he or she would earn if he or she was fully employed (and earning in accordance with his or her potential).

Factors Taken into Consideration

The court can take a wide variety of factors into consideration when determining child support in any given case (which can lead it to vary the child support obligation up or down from the guidelines – depending upon the unique situation). These factors include:

  • The age of the children involved, the unique needs of the children, and any special expenses that apply

  • Each parent’s financial standing, income, assets, and overall resources

  • Overall childcare costs

  • The amount each parent covers for healthcare costs and medical insurance

  • The educational expenses each parent covers, including college costs

  • Any additional child support obligations either parent shoulders (for a child or children from a different relationship)

  • Any current alimony costs either parent shoulders

  • The employee benefits each parent receives

  • Each parent’s wage deductions

  • The travel costs each parent assumes related to child visitation

  • The home, car, and lease payments assumed by each parent

  • Each parent’s overall income and expenses as they relate to separate assets

It is important to note here that every child-related decision the court makes is predicated on that child’s (or those children’s) best interests.

A Recent Case Example

A case example from December of 2021 succinctly highlights the court’s discretion in the matter of child support. The findings, in this case, can go a long way toward helping parents who face child support concerns better understand the unique variables that can come into play in their own child support cases. While child support appears to be a cut-and-dry calculation process, this is not always the case.

Background Information

A divorcing husband and wife with three children who ranged in age from 9 to 17 entered an agreed divorce decree in December 2019. The father was ordered to pay the mother a specific amount in monthly child support and a specific amount in monthly spousal maintenance. The parents retained joint ownership of their family home, but the mother was allowed to continue living there with the children until they were no longer minors (although she took on the sole responsibility for all the relevant costs, including the mortgage, taxes, insurance, and more).

Petition to Modify

In early 2021, the mother filed a petition to modify with the court in an attempt to increase both the father’s child support obligation and his spousal maintenance payments retroactive to the initial divorce filing date, and the father filed a counter-petition. The following signifies the basic information represented in the mother’s filing:

  • The mother sought an overall increase in child support (exceeding the amount capped by state guidelines).

  • The mother declared that her monthly income significantly exceeded her monthly expenses.

  • The mother reported that she had taken on student loans in an attempt to gain a college education after taking a 17-year hiatus from the working world to raise the couple’s shared children.

  • The mother shared that she was currently a full-time student with an unpaid internship and that she intended to move to a four-year college with a tuition waiver from the Office of Deaf and Hard of Hearing after receiving her associate's degree (in May 2021).

  • The mother’s largest reported expense was the mortgage she paid to remain in the family home with the children.

  • The mother relayed that the children had experienced a lifestyle change due to the financial hardships she faced and that, despite her resourcefulness regarding this financial downturn, the children had to adapt to their decreased circumstances.

  • The mother reported that her only income is child support and spousal maintenance.

Meanwhile, the father’s income exceeded the maximum income included in the state guidelines, but his original child support obligation failed to reach the level of 30 percent (for three children) of the state’s income cap.

The Mother’s Response

The mother’s response to why she had not simply applied the money she received as her equitable distribution of marital property (in the divorce) to her current expenses was that she had not worked in 17 years, that she was about to turn 49, and that she was beginning all over again from a disadvantaged starting point. She pointed out that she had neither savings nor a retirement account and that her portion of the marital assets had to serve in that role.

The Appellate Court’s Conclusion

There are obviously a wide range of factors for the trial court to take into consideration in this case, and in the end, the father was required to pay additional child support, including a retroactive amount. The appellate court ultimately determined that the trial court could have deemed the mother’s income inadequate to the task of meeting the three children’s needs and that ordering child support that exceeds 30 percent of the state’s income cap was appropriate in this situation. The appellate court additionally found that the father could not demonstrate an abuse of the court’s discretion that entitled him to extraordinary relief. The appellate court, however, also found that the trial court exceeded the bounds of its discretion when it ordered retroactive child support that predated the father’s receipt of service regarding the mother’s petition to modify.

The State’s Stance

While the State of Texas has exacting guidelines regarding child support payments, these remain guidelines. If the court determines that there is a need to order child support outside of these parameters – related to the parents’ incomes and/or to the children’s needs, for example – it has the discretion to do so (as it chose to do in this instance).

Why the Retroactive Change Did Not Hold

Although the guidelines for child support in Texas are flexible in terms of mitigating circumstances, state law is firm regarding existing support obligations, which cannot be modified prior to a parent’s receipt of notice regarding a legal challenge – or prior to his or her court appearance regarding that challenge (whichever happens first). As such, the appellate court found that the father could not be required to pay additional child support (retroactive to a date prior to the mother’s filing). The court is bound to order child support that reflects the circumstances at hand, that supports the children’s best interests, that takes the state guidelines into careful consideration, and that addresses each parent’s financial need and ability to pay. Each child support case, in other words, must be taken on a case-by-case basis, and the financial means and needs of both parents must be carefully assessed – in relation to the lifestyle the children have traditionally enjoyed.

Turn to an Experienced Killeen Child Support Attorney for the Legal Help you Need

If you are facing a child support concern, the stakes are high. Brett Pritchard at The Law Office of Brett H. Pritchard – proudly serving Killeen, Texas – is a trusted child support attorney who dedicates his impressive practice to skillfully advocating for child support terms that support our client's legal rights and their children’s best interests. We are on your side, so please do not wait to contact us online or call us at 254-501-4040 for more information about how we can help you today.


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