Can a parent sign over court-ordered child support to a collection company without going back to court?

Plain-English summary

A divorced parent in Anderson County tried to hand off her child support to a collection company. Under the divorce decree, the father paid $150 a month through the district clerk, who sent the money to the mother as the child's managing conservator. In 1992 she filed two notarized papers with the clerk: a limited power of attorney naming a company called Child Support Collections as her agent to receive the money, and a request that all future payments go to that company instead. The district attorney asked the Attorney General what the clerk was supposed to do with those papers.

The answer was that the papers changed nothing. A child support order can only be modified by the court that has continuing, exclusive jurisdiction over the case, and only through the proper process: someone files a motion, the court holds a hearing, and the court decides. A parent cannot rewrite the order by filing a power of attorney with the clerk. That includes the part of the order saying who receives the payments. So the clerk's job was to keep following the existing order, paying the person it named, until a court formally changed it.

There was a deeper reason too. Child support is not the parent's money to give away. The custodial parent receives it on behalf of the child, and the arrangement is built around the child's best interests. Ordinary contract rights can usually be assigned to someone else, but assigning away a child's right to support runs against public policy. So even setting aside the procedure, the mother could not unilaterally sign the support over to a third party; she would have to ask the court, which would weigh the child's interest before allowing any such change.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The child support provisions cited here were then in chapter 14 of the Family Code; that chapter was later recodified into Title 5 of the Family Code, so the section numbers have changed. Confirm current law before relying on anything described here.

Background and statutory framework

Family Code section 14.05(a) authorized a district court in a child custody proceeding to order one or both parents to make periodic support payments "in the manner and to or for the benefit of the persons" specified in the decree. As the court of appeals in White v. Adcock stressed, the court may order payments for the support of children "to the person" specified in the decree, and a prior Attorney General opinion (H-343 (1974)) had said section 14.05 "confers broad discretion upon the district court in determining to whom child support payments will be made."

Generally, a court ordering periodic support had to order income withheld from the obligor's earnings and direct that a court registry, a child support collection office, or the attorney general initially receive the payment (Fam. Code §§ 14.05(e), 14.43(c)), with that initial receiver then promptly distributing the payment, presumably to the person designated in the order. From these provisions the AG concluded that no person or entity other than the district court is authorized to determine, in the original order, who receives the payments.

Section 14.08 supplied the exclusive procedure for modifying a child support order or the support portion of a divorce decree: only the court with continuing, exclusive jurisdiction over the suit affecting the parent-child relationship may modify it, after a motion is filed and a hearing held (§ 14.08(a)). The AG read that exclusive modification power to include the power to change who ultimately receives the payments, which therefore could not be changed by any other means.

A footnote noted that the 71st Legislature enacted two versions of section 14.05(a) (Acts 1989, 71st Leg., ch. 617, § 5, and Acts 1989, 71st Leg., 1st C.S., ch. 25, § 13), and that the later-enacted first-called-session version controlled over the earlier conflicting one.

Citations

• Family Code § 14.05(a) (court orders support paid to or for the benefit of persons specified in the decree), § 14.05(e) (income withholding; initial receiver of payments)
• Family Code § 14.43(c) (court registry, collection office, or attorney general initially receives and distributes payments)
• Family Code § 14.08, § 14.08(a) (exclusive procedure to modify a support order; court with continuing, exclusive jurisdiction, after motion and hearing), § 14.08(h) (referenced exception)
• Acts 1989, 71st Leg., ch. 617, § 5 and Acts 1989, 71st Leg., 1st C.S., ch. 25, § 13 (two enacted versions of § 14.05(a); later version controls)
• White v. Adcock, 666 S.W.2d 222, 225 (Tex. App.-Houston [14th Dist.] 1984, no writ)
• Hill v. Hill, 819 S.W.2d 570, 572 (Tex. App.-Dallas 1991, writ denied) (managing conservator accepts child support for the benefit of the child)
• Attorney General Opinions H-343 (1974) and M-497 (1969)

Common questions

Can a parent sign child support over to a collection company?
No. The Attorney General concluded that a managing conservator cannot unilaterally assign the child's right to support to a third party. Doing so by power of attorney does not modify the order, and assigning that right is contrary to public policy because the support belongs to the child.

What was the district clerk supposed to do with the power of attorney?
Keep following the existing order. The opinion concluded that, unless section 14.08(h) of the Family Code applied, the clerk had to continue paying the person designated in the order despite the filed power of attorney and the request to reroute the payments.

Who can actually change who receives child support?
Only the court with continuing, exclusive jurisdiction over the case, and only through section 14.08: after a motion is filed and a hearing held. That court's power to modify the order includes changing who is to receive the payments.

Why is child support treated differently from an ordinary debt that can be assigned?
Because it is not the parent's own money. The custodial parent receives child support on behalf of the child, and the arrangement is structured around the child's best interests. The opinion concluded that assigning away the child's right to support is contrary to public policy, so the usual rule favoring assignment of contract rights does not apply.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0222
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0222.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

May 13, 1993

Honorable Jeffrey D. Herrington
Criminal District Attorney
Anderson County Courthouse
500 North Church Street
Palestine, Texas 75801

Opinion No. DM-222

Re: Whether a child support obligee may modify a child support order by filing with a district clerk a limited power of attorney authorizing a corporation to receive child support payments paid through the district clerk's office along with a request that the clerk send the child support payments to that corporation (RQ-478)

Dear Mr. Herrington:

You have asked us to determine the responsibility of a district clerk when a child support obligee files with the clerk a limited power of attorney assigning to a corporation the right to receive child support paid through the clerk's office along with a request that the clerk send child support payments it receives to the corporation named in the limited power of attorney. As a threshold issue, we must determine whether the child support obligee may modify the child support order simply by filing these documents. We determine that a child support obligee may not modify the child support order; only the court with continuing, exclusive jurisdiction in the case may modify the child support order. Hence, in such a situation, the district clerk's responsibility is to comply with the terms of the existing child support order unless and until the proper court modifies the order.[1]

As background, you state the following:

In 1990, Mr. and Mrs. M. were divorced in Anderson County. Mrs. M. was named the managing conservator of Baby M. The Final Decree of Divorce provided that Mr. M. shall pay [child support] to Mrs. M. . . in the amount of $150.00 a month. The Final Decree further provides that all child support payments be made through the office of the District Clerk who shall remit those payments to Mrs. M., for the support of Baby M.

In 1992, the District Clerk received two instruments from the child support obligee, Mrs. M. The first instrument is entitled "Limited Power of Attorney and Authorization to Release Information" and appears to make Child Support Collections dba In the Interest of Children, Inc. the agent of Mrs. M., with the authority to collect and receive the child support payments due Mrs. M. The second instrument is a request that all future child support payments made through the District Clerk's Office be sent to Child Support Collections. Both are notarized.

Section 14.05(a) of the Family Code authorizes a district court, in a child custody proceeding, to order either or both parents to, among other things, make periodic payments for the support of the child "in the manner and to or for the benefit of the persons" that the court has specified in the decree.[2] See also White v. Adcock, 666 S.W.2d 222, 225 (Tex. App.-Houston [14th Dist.] 1984, no writ) (emphasizing that court may order payments for support of children "to the person" specified in decree). This office previously has stated that section 14.05 of the Family Code "confers broad discretion upon the district court in determining to whom child support payments will be made." Attorney General Opinion H-343 (1974) at 1. Generally, in a proceeding in which a court orders periodic child support payments, the court must order that income be withheld from the obligor's earnings and that a court registry, a child support collection office, or the attorney general initially receive the payment. Fam. Code §§ 14.05(e), 14.43(c). The initial receiver of the payment is promptly to distribute the payment, presumably to a person designated in the court order. See id. §§ 14.05(a), 14.43(c); White, 666 S.W.2d at 225. Based on the language of sections 14.05(a) and 14.43(c) of the Family Code, the court of appeals' construction in White, and the statements this office made in Attorney General Opinion H-343, we believe that no person or entity other than the district court is authorized to determine in the original order to whom child support payments will be made or distributed.

Section 14.08 of the Family Code provides the procedure by which a child support order or that portion of a divorce decree pertaining to child support may be modified. Significantly, only the court having continuing exclusive jurisdiction over the suit affecting the parent-child relationship may, after a motion has been filed and a hearing conducted, modify the order or portion of a divorce decree that provides for child support. Fam. Code § 14.08(a). In our opinion, the court's exclusive power to modify the child support order encompasses the power to modify that part of the order designating the person or persons who is ultimately to receive the child support payments. The court's exclusive power therefore generally precludes modification of that portion of the order designating the person who is to receive the child support payments by any other means.

Generally, of course, the law favors the assignment of contractual rights. See 7 TEX. JUR. 3d Assignments §§ 2, 4, at 175-76, 178. However, if an assignment would be contrary to public policy, the right to assign a contractual provision should not be presumed. See id. § 4, at 178-79. In our opinion, the assignment of the right to receive child support payments is contrary to public policy.

In a case such as the one you raise, a managing conservator accepts the child support payments for the benefit of the child, not for him- or herself. See Hill v. Hill, 819 S.W.2d 570, 572 (Tex. App.-Dallas 1991, writ denied). Child support agreements are, therefore, structured to provide for the best interests of the child. Id. Consequently, a managing conservator may not unilaterally assign to a third party the child's right to child support payments. Instead, the managing conservator must seek the approval of the court with continuing, exclusive jurisdiction over the child, which will consider and protect the child's interest in the child support payments.

SUMMARY

Unless section 14.08(h) of the Family Code applies, a district clerk must pay child support payments to the person designated in the existing child support order or in that portion of a divorce decree providing for child support. Thus, a district clerk must continue to pay the obligee designated in the court order even though the obligee has filed with the clerk a limited power of attorney authorizing a corporation to receive the child support payments and a request that the clerk send the child support payments to that corporation.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General

[1] We determine in this opinion only whether a child support obligee may authorize payment of child support payments to an entity other than that provided in the court order. We understand that a court order generally does not attempt to fix the address of an obligee. Accordingly, we do not determine in this opinion whether a child support obligee may change his or her address for purposes of transmitting the child support payments.

[2] We note that the 71st Legislature enacted two versions of section 14.05(a). Compare Acts 1989, 71st Leg., ch. 617, § 5 with Acts 1989, 71st Leg., 1st C.S., ch. 25, § 13. While the two versions are similar, to the extent that the language of the two versions conflicts, we look to the version enacted later, during the legislature's first called session. See Attorney General Opinion M-497 (1969) at 14 (latest expression of legislature controls over prior conflicting legislation).