Where Texas Stands Among National Child Support Policy
In 1989, Texas legislators codified the Texas child support guidelines to provide a standard formula that was to be used to calculate child support payment amounts when parents live apart. The results of this guideline formula are presumed to be in the “best interest of the child.”
The Texas child support guidelines formula codified in 1989 has remained largely unchanged over the past 30+ years, and Texas now stands nearly alone on several key policies detailed in this post.
Several bills filed in the 88th session (2023) aim to make improvements to our child support guidelines, and one requires a study to completely change our model in several years. To make child-centered decisions about Texas child support policies, it’s critical that legislators zoom out to a national policy level to understand where Texas policy fits into broader best practices regarding what’s in the best interest of children when their parents live apart and the history of our current guidelines.
In this post, we’ll share how the current Texas child support guidelines fit into a national policy context to help guide legislators in taking appropriate action in the 88th legislative session to support Texas children whose parents live apart.
Texas Stands Alone in Dollars Collected & Distributed from Non-Custodial Parents
To set the stage for a discussion about national child support policy best practices, it’s important to put Texas’s child support collections volume in context among its larger and smaller state peers.
Texas has the largest child support program by collections and distributions in the nation, though we do not have the largest population. In 2020, Texas distributed 76% more child support dollars than California, though we have 26% fewer residents, and we distributed 200% more such dollars than Florida, though they have 35% fewer residents.
As you review this chart, keep in mind that all states except Texas & Mississippi formulaically adjust child support orders based on parenting time and/or both parents’ incomes in specific family situations.
This means that child support orders are adjusted in a pre-determined manner to reflect how each family is raising their children in two homes, most often using the total financial resources available to the child as well as time parents spend with the children.
In Texas, a parent who has never met their child is ordered to pay the same amount of child support as a parent who spends every other week with their child. You might expect these situations to have different child support obligation amounts, but in the Texas guidelines, they do not.
Who is Paying Child Support in Texas?
While there is no statutory basis for Texas’s gender-based outcomes, more than 9 out of every 10 Texas child support cases sees the father as the obligor (often called the non-custodial parent or NCP), with the mother as the obligee (often called the custodial parent or CP) receiving child support. In 2021, there were 133,387 female non-custodial parents paying child support and 1,343,668 male non-custodial parents.
Texas obligors pay a flat percentage of their monthly net resources to the other parent, regardless of how much the other parent earns or how much time they spend with their child.
As the data below from the OAG shows, child support outcomes are nearly pre-determined in Texas. Despite the reality that every family situation is unique, the Texas child support guidelines seem to produce primarily one result.
Do Texas Parents in the Child Support Program Have Legal Support During Their Case?
Cases involving possession & access (custody) and child support in Texas are handled in two different court systems (data via the Texas Office of Court Administration):
In 2020, about 48% of cases were handled in Texas county and district courts, which are staffed by elected judges.
In 2020, about 52% of cases were handled in IV-D administrative courts, which are managed by the Texas Office of the Attorney General (OAG) and staffed with appointed associate judges.
Issues related to legal decision-making and parenting time (possession and access) are determined in both of these courts, and both issues must be resolved at the same time in Texas, which is unique in the national context.
Decisions made in these judicial and administrative courtrooms have lifelong implications for children and their families, with the power to create or assuage childhood trauma associated with separation, divorce, or loss of access to a loved one, which has scientifically proven lifetime consequences through the Adverse Childhood Experiences study.
Given that Texas law currently presumes it’s best for children to lose some or most access to one parent through a Standard Possession Order (Family Code, § 153.252 and 153.317)—which means the child ALSO loses the emotional and financial support of the minimized parent’s family, friends, and community as a result—it’s vital that parents have legal support to navigate their case and ensure the results are in the best interest of their children.
So how many parents have an attorney to help navigate that Texas law presumes children should lose some or most access to one parent and that the minimized parent should pay child support per decades-outdated guidelines?
Unfortunately, Texas does not track attorney representation of the parents in all cases, so the data is limited to the IV-D courts, where more than half of all such Texas cases are resolved.
The concerning reality is that nearly ALL parents in Texas IV-D courts, which resolve over 50% of cases involving child support and parenting time, do NOT have any legal representation, according to the OAG.
The IV-D employees present cannot give advice to parents. Attorneys that represent the State of Texas are present in every case, creating a significant imbalance of power that pro se parents may find impossible to overcome.
Any tailoring of the current child support guidelines to specific family situations, which may include parents sharing equal parenting time, parents with child care costs, parents with significant income imbalances, and more, are entirely up to what the judge decides to do, unlike most other states. When you add in that parents primarily do not have legal help present and do not necessarily know their rights, nor how a hearing should be run, or how to ensure their child is at the center of every decision, the best interest of Texas children is left up to a completely discretionary standard, with inconsistent outcomes across the state and NO tracking system to ensure we’re meeting the needs of Texas children.
How Have the Texas Child Support Guidelines Aged Without Meaningful Updates Since 1989?
Texas has the unique distinction of being one of only TWO remaining states with child support guidelines that lack formulaic adjustments for both parents’ incomes or time spent parenting their children in any family situation.
Judges in Texas can deviate from the current guidelines codified in 1989, but Texas does not define the goal of child support payments made from one parent to another—only that they should be “equitable” (Family Code, § 154.121)—providing no guidance to judges on how deviations should be made, nor guidance to families on what child support payments are meant to cover.
Further, federal law requires that deviations be “limited,” restricting Texas judges’ use of this option to customize child support amounts for each unique family situation.
The current Texas guideline formula only considers what the obligor, who is typically the minimized parent and almost always the father in Texas, earns. The current Texas guidelines do not formulaically consider the other parent’s financial resources OR how much time each parent spends with the child.
As the map below shows, Texas’s guidelines now stand almost alone with the lack of formulaic adjustments for parents’ total resources or time spent with children in any family situation.
What is Considered Best Practice Nationally for Formulaically Adjusting Child Support Orders?
The policy that child support amounts should consistently reflect the parents’ total resources and engagement of parents in raising the child is not novel at a national level.
In fact, Texas was given federal recommendations in 1987 that our first set of codified guidelines should include both of these elements. Texas legislators ignored this at the time and in the three decades since.
The US Department of Health and Human Services, Office of Child Support Enforcement published a 1987 report that included their recommendations to all US states from the National Advisory Panel on Child Support Guidelines. These recommendations were meant to support states in meeting the 1989 federal deadline to form presumptive guidelines that would be considered in the best interest of the child when applied as written.
Let’s review what Texas was told in 1987, what Texas implemented in 1989, and where Texas stands in 2023 after (all emphasis added):
Federal Policy Recommendation Regarding What Guideline Model to Use:
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“The Advisory Panel recommends that states use either the Income Shares model or Delaware Melson formula as the basis for their child support guidelines.”
“The Income Shares model incorporates a self-support reserve for the obligor. It can be age-adjusted, and has provision for shared custody and split custody adjustments.”
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Texas adopted % of Obligor Income in 1989, which was not federally recommended.
The key elements of recommended models have not been implemented over the last 30 years, either.
Texas still has NO recommended self-support reserve for obligors to this day.
Federal Policy Recommendations on Formulaically Considering Both Parents’ Incomes:
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“...both the Income Shares model and Melson formula encourage continued involvement of both parents in the child's upbringing by means of adjustments for joint or extensively shared physical custody.”
“In the Advisory Panel's view, income of the custodial parent as well as the non-custodial parent should be taken into account in setting the amount of the award.”
“In this way, children benefit from both parents' ability to pay.”
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To this day, Texas guidelines only consider the income of the non-custodial parent when setting the amount of the award.
Judges are allowed to “deviate” and consider both incomes but are federally required to keep these adjustments “limited.”
Unlike Texas, nearly every state today considers both parents’ incomes in some or all child support calculations.
Federal Policy Recommendations on Formulaically Adjusting Child Support Based on Parenting Time:
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“Both the Income Shares and Melson approaches follow through with the concept of joint parental responsibility by imputing income to either parent if that person is voluntarily under- or unemployed. This assures that child support is based on earnings capacity of both parents.”
“…[b]oth the Income Shares model and Melson formula encourage continued involvement of both parents in the child's upbringing by means of adjustments for joint or extensively shared physical custody.
These two formulas both provide for adjustments in the child support obligation when the second parent has physical custody for a substantial proportion of time (at least twenty percent for Melson, twenty-five percent for Income Shares).”
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Texas only calculates the non-custodial parent's financial contribution to their child’s upbringing in the guideline calculation.
It is presumed the custodial parent spends directly on the child, but Texas’s guidelines do not consider if the parents share equal parenting time or if one parent has never met the child in setting the dollar amount that will transfer between homes, despite the reasonable assumption that this element would have a significant impact on how parents incur child-related expenses directly on the child.
Only Texas and Mississippi still have child support guidelines that lack formulaic adjustments for both parents’ incomes or time spent parenting their children in any family situation.
Federal Policy Recommendations on Sharing Health Insurance Costs Between Parents:
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“Deducting the children's portion of the health insurance costs from the parent's income base is least accurate because it provides only partial offset for the medical insurance costs (a deduction instead of a credit). [note: this is the Texas method]
Deducting the dollar amount of the child's portion from the child support obligation is conceptually appropriate.”
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Texas only provides a partial credit of insurance costs, which was deemed “least accurate” and not “appropriate.”
Per the current guidelines, Texas obligors pay child support AND all health premiums in Texas.
This policy in Texas has never changed in over 30 years since this federal recommendation.
Not reducing child support obligations by the amount of child support paid can meaningfully increase the financial obligation of Texas obligors relative to the federally recommended approach, which has been adopted be nearly all other states.
Federal Recommendations for Sharing in Childcare Costs & Federal Tax Benefits:
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Childcare costs vary significantly and are not a permanent expense.
“If it would be otherwise beneficial for the custodial parent to work, the decision to participate in the labor force should not be unnecessarily deterred by the structure of a child support formula.”
“If the value of the [childcare tax] credit can be predictably calculated in individual situations, it may be appropriate to reduce allocated child care costs by that amount when determining the level of child support.”
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Texas’s child support guidelines do not consider childcare expenses incurred by either parent.
Consideration can be made with a manual deviation, but judges are federally required to keep the use of deviations “limited.”
No federal tax benefits received by the custodial parent are considered in the Texas guidelines.
In a 2006 Texas interim report, child support policy expert R. Mark Rogers stated that “In many cases the federal income tax advantages are of an amount double or even triple the amount of child support.”
The Texas child support guidelines have never formulaically considered childcare costs or child-related federal tax benefits that are income to the parent receiving child support.
In summary, Texas started off far behind in 1989 by ignoring federal policy recommendations designed to support states in creating standard child support guidelines and has fallen even further behind over the past 30+ years as nearly all states have incrementally modernized their guidelines to reflect child-centered policies that encourage the involvement of both parents in their child’s upbringing.
What do Texas Attorneys & Judges Think About Federally Recommended Formulaic Child Support Adjustments for Parenting Time?
In addition to managing the Texas child support program, the OAG is required to review and provide recommendations regarding the Texas child support guidelines every four years (Family Code, § 111.001 (a)).
In the most recent review cycle in 2021, the OAG polled Texas attorneys and judges regarding the need for a formula to adjust child support if parenting time differs from roughly 70/30 (every other weekend, one dinner per week, and half of vacations with the non-custodial parent—called the Standard Possession Order in Texas).
The results indicate that an overwhelming majority (70%) of Texas attorneys and judges agree that the Texas child support guidelines should contain a formula to adjust for parenting time.
Formulaic child support adjustments for parenting time were federally recommended to Texas in 1987, were adopted by most states then, or have been adopted since, and Texas judges and attorneys agree that the Texas guidelines should change to include such a policy.
What Do Texas Residents Think About Federally Recommended Parenting Time Adjustments & Considering Both Parents’ Incomes?
NPO Texas surveyed Texas residents about child support policy in July 2023 with the help of Researchscape International, an independent public polling firm.
The results indicate that nearly all Texas residents believe that our child support guidelines should automatically consider both parents’ incomes and parenting time.
What Does the Texas OAG Think About Federally Recommended Parenting Time Adjustments?
Per the 2021 Quadrennial Review of the Texas Child Support Guidelines (emphasis added):
“Texas’ adoption of a formulaic method for adjusting orders due to parenting time issues could result in fewer deviations.”
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“Deviations from the Texas child support guideline process could be further reduced if a formulaic approach was included in statute to address other common scenarios that occur when calculating child support, including parenting time adjustments and allocation of work-related childcare expenses. Adoption of formulaic methods to handle these common situations could make child support awards more consistent and predictable.”
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“Because the number of overnight visits under a standard possession order has expanded over time, it may become necessary to reexamine parenting time in Texas and how the increase in parenting time impacts the Texas child support guidelines [...] to ensure that child support in Texas is ordered in appropriate amounts […].”
If the OAG, Texas Judges, Texas Attorneys, and Texas Residents Agree with Some or All 1987 Federal Policy Recommendations, Why is Texas Still So Far Behind 30 Years Later?
Answering this requires we take a step back and review how our child support guidelines are updated, who is responsible for ensuring our policies stay up to date, and what challenges we face in ensuring that children are the only consideration when improving our child support guidelines.
We believe that there are several critical and addressable reasons why the Texas child support guidelines have not been substantially updated in over thirty years:
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The simple fact that Texas codified guidelines that seemingly ignored key federal policy recommendations in 1989 means that our gap to catch up to our peers was larger than it needed to be from the start, and the factors below have made iterative improvements over time very difficult.
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Texas lawmakers meet for 140 days every two years. This creates a small window of opportunity where lawmakers can consider changes to every law on the books, including our child support guidelines.
The at-bat window is small, but it gets even smaller when you consider that of 4,671 bills filed in the 87th session in 2021, only 587 passed (16.6%). Odds are low in any given session that a bill will be heard, considered, passed, and signed into law.
It’s fairly easy to see how these factors make iterative improvements to our child support guidelines challenging, and before long over three decades has passed without meaningful changes.
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To put this as simply as possible:
The Texas child support enforcement program currently makes up over 50% of the OAG’s annual budget and employs over 60% of its workforce.
From 2016-2020, the OAG collected $1,024,806,669 in Federal Funds Participation rebates related to the Texas child support program expenditures and $415,666,976 in federal incentive payments related to the Texas child support program, taking 15% of the entire national incentive pool (by contrast, among our peers, California took 7.5% and Florida took 6.2%).
In both of these federal financing schemes, the child support dollars ordered and distributed play a vital role in the amount collected by states.
If actively involved non-custodial parents in Texas had their child support formulaically adjusted in a standard way (like most other states) to reflect that they are directly incurring expenses on their child while in their care rather than pushing those expenses to the other parent, federal funding and incentive payments that fund 50% of the entire OAG budget could be affected.
Understandably, the OAG is worried about making changes. But by purposefully delegating the management AND review AND recommendations responsibilities to the organization that relies on the federal subsidies that are closely tied to the amount of child support ordered (the OAG), legislators have created strong—perhaps overwhelming—incentives to maintain the status quo over the last three decades.
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Family Code, § 201.107 states, “The presiding judges and the Title IV-D agency shall act and are authorized to take any action necessary to maximize the amount of federal funds available under the Title IV-D program.”
These IV-D federal funds are directly tied to the amount of child support ordered and collected, as clearly shown in publically available data from OCSE, making the federally recommended policy of right-sizing orders for active parents a logical financial threat to the OAG.
Unfortunately, there is no governmental body in Texas that’s ordered to maximize healthy relationships for children whose parents live apart in the same manner that judges and the OAG are required to maximize federal funding that all but requires that children have absent parents in order to keep federal revenue stable or growing.
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As the direct recipient of the “maximized” federal funds they are ordered to produce from the child support program size and scale, and as the body directed to review and “report the results of the review and any recommendations for any changes to the guidelines and their manner of application” (Family Code, § 111.001 (b)) to legislators, it’s reasonable to conclude that the OAG may need to put budget considerations ahead of best interest of the child considerations because changing the guidelines or their application could cause financial harm to their organization.
At what expense are we allowing the priority to be the OAG? Keeping our guidelines mostly on pause for over 30 years is incredibly harmful to Texas children and their families, especially when we ignored best practices from the start.
As further evidence of this conflict of interest concern, Texas is below or well below the 50th percentile nationally on three out of five federal performance measures and just above for the fourth, signaling a potential focus on program size over quality.
Today, nearly 7 in 10 (67%) child support obligors in Texas are in arrears of three or more months. (OAG, 2021) But why?
What is the arrears rate by obligation amount?
How does the amount of arrears relate to the order amount?
How old are the arrears as it relates to the order amount?
What are the incomes that were used to set the orders that are in arrears?
What does the payment leave the obligor to live on for housing, food, and other essentials and to spend on their child while in their care?
Does the obligee make more or less money than the obligor?
What possession schedule was requested by each parent, and what was put in place in the final order?
Is the obligor being allowed their court-ordered parenting time by the obligee?
Are they exercising their parenting time?
Most of these questions cannot be answered because the OAG fails to capture this data in digital case files, though the information is available at the time of the order or in the modification or enforcement case.
Given our low scores on most federal performance measures and the fact that most Texas obligors are behind on their child support payments, there are grounds for serious concerns about the quality of our child support guidelines and program management, but there are no questions about the success of the dollars ordered to be paid in support, especially when compared to our large state peers.
The fact that the OAG oversees the review and optimization of a program they manage and are significantly funded by via an administrative spending rebate scheme is an egregious conflict of interest that one can reasonably conclude has been a key element in keeping our child support guidelines “frozen” for decades while collections have skyrocketed at an unprecedented rate.
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Are the voices of families who have been significantly affected by Texas’s outdated guidelines being heard?
If not, the extent of the issues and damage to children may not be clear to legislators.
Let’s take a look at two key sets of facts:
Most parents do not have legal representation in our family courts when resolving custody and child support issues. >95% of litigants are pro se in IV-D courts, where more than half of cases are resolved, and up to 50% of cases are filed pro se in district and county courts. Lawyers who speak to legislators about their experiences do NOT represent the majority of what’s happening in our courts every day because they are NOT standing with these parents in those courtrooms. They speak on behalf of parents who can afford legal counsel for $350+ per hour. The OAG cannot reasonably speak on behalf of these families for the reasons detailed above. This means a massive portion of families affected by the outdated child support guidelines is not being heard and their outcomes are not being tracked anywhere.
Most child support obligors are of low financial means. Per the OAG, and to conform to federal requirements, most child support orders follow the guidelines as-is. As of March 2022, 47% of the ~1.5MM active child support orders in Texas are for obligations $300 per month or less, which equates to less than $11/hour, per the current guidelines. This obligor is also required to pay for all medical and dental insurance and 50% of out-of-pocket medical costs, in addition to expenses incurred while their child is in their care. Does someone in this position likely have the time and resources to ensure that legislators who have the power to update the guidelines understand how outdated child support guidelines are affecting their children?
No, there’s a very good chance that legislators do not understand the effect of our outdated child support guidelines for these two key reasons and more.
These are just a few of the factors that have made it difficult to iteratively improve the Texas child support guidelines. Lawmakers have the opportunity to address all of this by advancing key child-centered policy recommendations in the 88th session, but to get there it’s critical that we all acknowledge the special situation that Texas faces due to our history and child support program management and improvement processes.
Where Do We Go From Here in Texas?
There are several pending child support bills in the 88th session that aim to modernize parts of the Texas child support guidelines. Overall, we are energized to see several child support bills in the 88th session, but we have trouble supporting an expansion of 30-year-old guidelines before making key modernizations to include parenting time adjustments and the consideration of both parents’ incomes in the formula.
Here’s a summary of current bills, and this post will be updated as the session progresses.
HB 1842 (Cook) - Child Support Public Policy Statement
In HB 1842, Representative Cook proposes a public policy statement for the state of Texas with regard to child support. Today, Texas has no guiding statement of this nature in the Family Code.
HBs 604, 532, 1732 & SB 590 (Various) - Child Support from Conception
Several Representatives and Senator Hughes have introduced legislation that would order retroactive child support from the date of conception in certain situations.
Read HB 604 (Shaheen) here.
Read HB 532 (Patterson) here.
Read HB 1734 (Leach) here.
Read SB 590 (Hughes) here.
HB 2581 (Dutton) - Allocation of Child Care Expenses
In this bill, Representative Dutton has introduced language that would require the court to allocate childcare expenses incurred by a parent between both parents “according to the parties' circumstances” when that care is for the purpose of employment or education in anticipation of gainful employment.
HB 2582 (Dutton) - Requiring a Study of Income Shares
In this bill, Representative Dutton is proposing a requirement that the Texas Attorney General study the income shares child support model for Texas and propose legislation for the 89th session in 2025.
HB 2583 (Dutton) - Raising the Net Resources Cap
In this bill, Representative Dutton aims to raise the cap of the net resources that are used to calculate child support obligations in Texas to $30,000 per month.
