Failure to Pay Child Support in Texas: Contempt, Criminal Nonsupport and Your Defenses

Falling behind on child support can lead to two different kinds of cases. In the family court, the parent who is owed support can ask for a money judgment, interest, attorney’s fees and, in some cases, a contempt finding that carries jail time. In a criminal court, the State can charge intentional nonsupport as a state jail felony under Penal Code Section 25.05. The two cases run on different rules, and a parent can face both at once. A San Antonio child support lawyer can tell you which one you face and what to do before a hearing date or a charging decision.

This guide explains how the criminal offense works, what the inability-to-pay defense requires, how the civil contempt track differs, when federal law applies, and what a parent who is owed support can and cannot ask a prosecutor to do.

Two Different Cases: Civil Enforcement and Criminal Nonsupport

• Civil enforcement. The parent owed support, or the Attorney General’s child support division in a case it handles, asks the family court to enforce the order. The relief is a judgment for the unpaid amount with interest, attorney’s fees and costs, and, if the court finds contempt, confinement until the respondent complies.
• Criminal nonsupport. The State prosecutes the case. The punishment is for the offense itself, not a way to compel payment.

A pending criminal case does not stop the family court from entering a support order (Penal Code Section 25.05). Our page on child support enforcement in Texas covers the family court tools in more detail.

Criminal Nonsupport Under Penal Code Section 25.05

A person commits the offense by intentionally or knowingly failing to provide support for his or her child who is younger than 18, or for a child who is the subject of a court order requiring the person to support the child. “Child” includes a child born outside marriage whose paternity the person acknowledged or that was established in a civil suit under the Family Code or the law of another state.

Four points about the statute matter in practice:

• No dollar threshold. Section 25.05 does not set a minimum amount owed or a minimum length of nonpayment. What the State must prove is a failure to provide support that was intentional or knowing.
• Punishment. The offense is a state jail felony. The punishment range is confinement in a state jail for 180 days to two years and a fine of up to $10,000 (Penal Code Section 12.35).
• Testimony. A conviction may rest on the uncorroborated testimony of a party to the offense. Payment records help both sides, but the statute does not require them.
• A felony record. A felony conviction can affect work, housing and licensing. A San Antonio felony attorney can explain the charge, the punishment range and how a case like this proceeds.

The Defense of Inability to Provide Support

It is an affirmative defense to prosecution under Section 25.05 that the person could not provide support for his or her child. An affirmative defense is one the defendant must prove: the court instructs the jury that the defendant must prove it by a preponderance of the evidence, and the issue goes to the jury only if evidence supporting it is admitted (Penal Code Section 2.04). That makes records the center of the case. Evidence that supports the defense can include:

• Termination notices, unemployment records and proof of a job search.
• Medical records and disability determinations.
• Business records showing income that fell, for a self-employed parent.
• Tax returns and bank statements showing the decline.
• Proof of incarceration, hospitalization or other circumstances that kept the parent from working.
• A record of every payment made, however small, and messages with the other parent or the child support office.

Timing matters. A parent whose income drops should ask the court to change the order. A change reaches back only to the earlier of the date the other parent is served or appears, so the support due before then keeps accruing at the old amount (Family Code Section 156.401). A parent who stopped paying and never filed has a harder time showing a good-faith effort. Our page on modifying child support in Texas explains the grounds and the dates.

Partial payments. Paying part of what is owed does not erase the missed part. It is evidence on whether the failure was intentional or knowing, and on what the parent was able to pay.

Bankruptcy. A bankruptcy discharge does not wipe out a debt for a domestic support obligation (11 U.S.C. Section 523(a)(5)), so a bankruptcy filing is not a substitute for a modification.

Civil Contempt and the Family Court Track

In a motion to enforce, the movant can attach a payment record, and if it is attached it can be admitted to prove the payment dates and amounts, the interest and the cumulative arrearage. The respondent can offer evidence to contest it (Family Code Section 157.162). A payment that is not timely made is a final judgment for the amount due, and interest accrues at 6 percent a year (Sections 157.261 and 157.265). Even if the court does not find contempt, it can award attorney’s fees and costs and order other enforcement, such as a money judgment or income withholding (Section 157.162).

Jail for contempt. The general contempt statute sets the punishment at a fine of up to $500 or confinement in county jail for up to six months, or both, and provides that child support contempt follows Family Code Chapter 157 and Article 42.033 of the Code of Criminal Procedure (Government Code Section 21.002). An order that confines a respondent for civil contempt must state the specific conditions on which he or she may be released (Section 157.166). The court may also place the respondent on community supervision and suspend the commitment. The conditions can include paying current and past-due support and meeting with a supervision officer (Section 157.211), and a motion to revoke that supervision is filed under Section 157.214. That is a different process from a criminal probation, which a San Antonio motion to revoke probation attorney handles under the Code of Criminal Procedure.

The civil defense. To a contempt allegation, an obligor may plead as an affirmative defense that he or she lacked the ability to provide support in the amount ordered, lacked property that could be sold, mortgaged or otherwise pledged to raise the money, tried unsuccessfully to borrow it and knew of no source from which it could have been borrowed or legally obtained (Section 157.008). All four must be shown. The criminal defense in Section 25.05 is worded differently, so the evidence is not always the same.

Other consequences. A court or the Attorney General’s child support office may suspend a license if an obligor owes overdue support equal to three months or more of support and fails to follow a repayment schedule that was offered (Section 232.003). Federal law also bars a passport for a parent whose past-due support the state certifies as more than $2,500 (42 U.S.C. Section 652(k)).

Federal Charges for Unpaid Support Across State Lines

Federal law makes it a crime to willfully fail to pay a support obligation for a child who lives in another state if the support has been unpaid for more than one year or is more than $5,000. A higher tier applies when it has been unpaid for more than two years or exceeds $10,000. A first offense at the lower tier carries up to six months in prison, the higher tier up to two years, and restitution of the unpaid support is mandatory on conviction (18 U.S.C. Section 228). A support obligation that was in effect during the charged period creates a rebuttable presumption that the person could pay. If the parent or child lives in another state, our page on interstate child support under UIFSA explains how the order is enforced across state lines.

If You Are the Parent Owed Support

The family court case is the one you control. It produces a judgment for what is owed, interest and fees, and it can lead to contempt. A criminal case is brought by the State, and the decision to charge belongs to the prosecutor, not to the parent who is owed support. A report to law enforcement does not take the place of a motion to enforce, and a criminal case does not replace the family court case. Whichever route you choose, start with documents:

• The support order and any modification.
• A payment record, from the Attorney General’s records or your bank.
• Proof of the other parent’s work and income, if you have it.
• Messages in which the other parent discusses the order or the missed payments.

What This Means for Your Bexar County Case

1. Find out which case you face: a motion to enforce in the family court, a criminal complaint or both.
2. Do not speak with law enforcement or a prosecutor about the missed payments before you speak with a lawyer.
3. Pull the support order, the payment record and your income records for the period you missed.
4. If you can pay something, pay it, and keep proof of every payment.
5. If your income has changed, file to modify now, because a change reaches back only to service or appearance.
6. Keep every notice and hearing date, and do not ignore a summons, a capias or a warrant.
7. If you are owed support, collect the order and payment record and choose the route with a lawyer before filing.

More About Child Support and Related Cases

These guides cover questions that often come up when support goes unpaid.

• Enforcing a child support order: the steps for the parent who is owed.
• Enforcement of family court orders: when any order is not followed.
• Military child support: collection from military pay.
• QDROs for child support: collecting from a retirement plan.
• Child support termination: arrears after support ends.
• Fathers’ rights and child support: the issues a paying father faces.

Why San Antonio Clients Choose Barton & Associates for Unpaid Support Cases

Barton & Associates has tried Texas cases since 2001, and the family law team includes Duane Graeff, our managing attorney with more than 26 years in Texas state and federal courts, and trial attorney Desirée Flye. Our firm handles both family law and criminal defense, so a parent facing a motion to enforce and a criminal complaint does not have to explain the same facts to two offices. We read the order, the payment record and the income records first, tell you which case carries the greater risk and tell you plainly what each choice costs. We represent parents who owe support and parents who are owed it.

We cannot promise a result. What we can do is tell you what the statutes require, what we recommend and what each choice risks. The first consultation is free and confidential. Our San Antonio office is at 115 Camaron Street, San Antonio, Texas 78205. You can get directions to our office before your visit. For the first meeting, bring what you can of the following, and call even if you cannot find everything.

• The child support order, any modification and the cause number
• Any motion, summons, notice of hearing, complaint, capias or warrant you received, with the date you received it
• The payment record and your own proof of payments
• Pay stubs, tax returns and business records for the period you missed
• Termination, medical or other records that explain why you could not pay
• Messages with the other parent or the child support office about the missed payments
• Any paternity acknowledgment or parentage order
• A calendar of your key dates and deadlines

Frequently Asked Questions

Can you go to jail for not paying child support in Texas?

Yes, in two ways. In the family court, contempt can bring confinement in county jail for up to six months under the general contempt statute (Government Code Section 21.002). In a criminal case, intentional nonsupport is a state jail felony with a range of 180 days to two years (Penal Code Sections 25.05 and 12.35).

Is not paying child support a felony in Texas?

It can be. A person commits criminal nonsupport by intentionally or knowingly failing to provide support for a child younger than 18, or for a child under a court order requiring support, and the offense is a state jail felony (Penal Code Section 25.05). Not every missed payment is charged.

How much back child support is a felony in Texas?

Section 25.05 sets no dollar amount and no minimum period of nonpayment. The State must prove that the failure to provide support was intentional or knowing. Federal law does use amounts: for a child living in another state, support unpaid for more than one year or over $5,000 is the lower tier, and more than two years or over $10,000 is the higher tier (18 U.S.C. Section 228).

What is the difference between contempt and criminal nonsupport?

Contempt is part of the family court case and is used to enforce the order. A civil contempt order must state the conditions for release (Family Code Section 157.166). Criminal nonsupport is a separate prosecution by the State for the offense itself. A parent can face both, and the burdens and defenses are worded differently.

I lost my job. Can I still be prosecuted?

Yes, but inability to provide support is an affirmative defense that you must prove by a preponderance of the evidence (Penal Code Sections 25.05 and 2.04). Termination records, medical records, bank statements and a job search all help. File to modify the order right away, because a change reaches back only to the earlier of service or the other parent’s appearance (Family Code Section 156.401).

I am owed support. Can I have the other parent prosecuted?

You can report the nonpayment, but the decision to charge belongs to the prosecutor, not to you. The family court case is the one you control, and it can produce a judgment, interest, attorney’s fees and a contempt finding (Family Code Sections 157.162, 157.261 and 157.265). A lawyer can help you choose the route and gather the records.

Can someone be convicted on the other parent’s word alone?

The statute allows it. A conviction under Section 25.05 may be had on the uncorroborated testimony of a party to the offense. A payment record and the defense evidence still matter, because the jury weighs all of it.

Does a criminal case stop the family court case?

No. A pending prosecution under Section 25.05 does not affect the family court’s power to enter an order for child support under the Family Code. The two cases can go forward at the same time.

Can I stop paying support if the other parent denies my visitation?

No. Support and possession are enforced separately, and a denied visit does not suspend the support order. The remedy for denied time is a motion to enforce the possession order. The Family Code does give an obligor a defense to an enforcement motion when the other parent voluntarily gave the obligor actual possession and control of the child for longer than the court-ordered periods and the obligor supplied actual support (Section 157.008). The defense written into Section 25.05 is inability to provide support, not denied visitation.

Does bankruptcy erase unpaid child support?

No. A bankruptcy discharge does not discharge a debt for a domestic support obligation (11 U.S.C. Section 523(a)(5)). If your income has changed, the way to lower the ongoing amount is a modification.

Can my license or passport be affected?

Yes. A license may be suspended if an obligor owes overdue support equal to at least three months of support and fails to follow a repayment schedule that was offered (Family Code Section 232.003). Federal law also bars a passport when the state certifies past-due support of more than $2,500 (42 U.S.C. Section 652(k)).

How long can unpaid child support be enforced?

The Family Code gives a movant until the 10th anniversary of the date the child becomes an adult or the support obligation ends to confirm arrears, and until the 2nd anniversary of that date to seek contempt (Section 157.005). The dates depend on the order, so ask a lawyer before you assume time has run.

What should I bring to the first meeting about unpaid child support?

Bring the support order, the payment record, any motion, notice, complaint or warrant you received, records of your income for the missed period and any records that explain why you could not pay. Call even if some records are missing.

Talk With a San Antonio Child Support Attorney

The sooner a lawyer sees the order and the payment record, the more choices you have. Speak with a San Antonio child support attorney at Barton & Associates before you talk to law enforcement, miss a hearing or make a payment plan with the other parent.

Call our San Antonio office at 210-500-0000 or complete the online Free Consultation form to schedule a confidential meeting with a family law attorney in San Antonio. The office is at 115 Camaron Street, San Antonio, Texas 78205.

Main Category: Family Law
Practice Area Category: Child Support
Barton & Associates, Attorneys at Law
115 Camaron St, San Antonio, TX 78205
Office: 210-500-0000