Case Update (25 August 2022): Cortez v. Garza & OAG of Texas; application of child support guidelines for a child overseas

In 2021, Mr. Cortez and Ms. Garza were litigating over the issue of jurisdiction for their custody matter. The parties are now back before the court on the issue of child support. Mr. Cortez sought a reduction in child support, which was granted and applied retroactively to January 1, 2018. Mr. Cortez appealed, unhappy with the date of retroactivity, and unhappy with the amount of the reduction, which was still higher than his proposed amount of $600 for his two children. On appeal, the Court of Appeals of Texas - Houston, affirmed the trial court's opinion. The children and Ms. Garza continue to live in Mexico, despite prior custody orders mandating their return to Texas where Mr. Cortez lives.

This case addressed a few issues that are of interest to the international family law attorney. First, Mexico has a much lower cost of living, and therefore, the children were receiving a windfall. Second, Mr. Cortez was bearing the burden of travel costs to exercise his visitation with the children. Third, the children are in Mexico because of Ms. Garza's retention of them there, and Mr. Cortez argued that giving Ms. Garza more money than is needed only encourages her further retention of the children in Mexico in that the children would not want to travel from a more luxurious home to his more humble abode.

The child support guidelines are presumptively in the children's best interests. A court has the discretion to "determine [if] the application of the guidelines would be unjust or inappropriate under the circumstances..." One of the factors that the court shall consider in making such a determination is the "needs of the child." It also shall consider the net resources of the parents. Given the budget of Ms. Garza's household in Mexico, Mr. Cortez argued that the children "would live a life of privilege in Mexico, and they would have to come and visit to a ... middle class family household [in Texas]. So that certainly would create an incentive for the children not to want to come and visit to - to the other parents' household." The Court of Appeals chose not to focus on Mr. Cortez's argument that encouraging the children's retention in Mexico was against Texas public policy and instead focused on the public policy of ensuring the amount of support was in the children's best interests. The trial court, in weighing its factors and choosing to deviate downward from the guidelines to an amount less than guidelines, but higher than Mr. Cortez's suggested amount, was not an abuse of discretion.