Let me start out by saying that I in no way shape or form advocate for not paying your court ordered child support. If you have been ordered to pay monthly child support for the benefit of your children, you need to pay it. But, there are situations where legally you may be required to pay but requiring you to do so would not be equitable. An example of one of these situations is when the other parent engages in voluntary relinquishment.

Voluntary relinquishment is when the other parent has been awarded primary possession of the child as well as the right to receive child support, but leaves the children with the non-primary parent to raise and care for them. Under the Texas Family Code, the parent required to pay child support has an affirmative defense to a child support enforcement when the primary parent has voluntarily relinquished actual possession and control of the child for more time that is court ordered. It is also important to note that in order to raise this affirmative defense, the possessory parent must actually care for and support the children while they are in their care.

Recently I had a case where our client had an enforcement action filed against him for not paying child support going all the way back to 2016. As you can imagine the amount owed in arrears was large. However, from the time the order was entered in 2016 the children had been living with him, despite the fact that their mother was awarded primary possession. She willingly let the children live with him and made no effort to take possession or control of them. So, instead of paying her child support he used that money to provide for the children while they were in his care. We were able to show evidence of this to opposing counsel by way of school records, bank statements, medical records, and texts from the mother acknowledging that the children lived with our client. Once they saw the evidence to prove our affirmative defense, the enforcement was promptly non-suited.

Granted, a better course of action for our client would have been to file a modification instead of simply withholding the child support, but that is for a different article. What’s important here is that even though he had a legal obligation to pay child support every month, the law provided him an equitable defense to not fulfilling that legal obligation.