Child Custody
Experienced Counsel in Family Law Matters
Divorce is hard on everyone involved and can be particularly hard on children. Frequently the most hotly contested and emotionally charged issue in a divorce is who gets the kids and when. But custody and child support battles are not limited to the divorce context. Here are some basic questions and answers about issues involved in child custody and child support disputes. Remember, however, that these are just some of the fundamentals and are NOT substitutes for detailed discussions with your attorney and his or her staff. If you have any questions about your particular case, speak to your attorney.
1. Can I only fight for custody of my children as part of a divorce?
If you and your spouse have children together, then the child custody and support issues MUST be included as part of the divorce proceedings. However, you don't have to be married to your child's other parent to work out the legal issues of child custody and child support.
If you want to have legal Orders in place to determine who gets the kids and when, or who pays child support and how much, then you need to file what is called a "Suit Affecting the Parent-Child Relationship" (SAPCR).
2. How does the judge decide who gets the kids?
The standard the judge must base his/her decision on is the "best interests of the child". The court usually takes into consideration what each parent wants, what the child wants (if the child is old enough and/or mature enough), which parent has been the primary caretaker, the parenting abilities of each parent and whether there is a history of abuse.
3. Does Texas favor the children's mother over the father?
No. The Texas Family Code section 153.003 expressly forbids the court to discriminate based on gender in deciding which parent to appoint as managing conservator of the children. The court must decide based on what is in the best interest of the child.
4. What is a "Standard Possession Order"?
The Standard Possession Order (SPO) is the "default" schedule that the court will set for visitation with the child. Generally, both parents will be designated by the court as Joint Conservators. One parent will get the right to designate where the child lives. This parent is referred to as the "primary" conservator. The other parent will have a schedule for when he/she may have visits with the child. It is this parent who will have the Standard Possession Order for visitation.
Basically, under an SPO the parent has the right to have the children every 1st, 3rd and 5th weekend of each month and 1 night during the week each week. To view the Texas Standard Possession Schedule, click here.
5. What is the difference between "conservatorship" and "possession"?
Conservatorship is another way of saying legal custody. If you are appointed a conservator of your child, you will have some kind of decision-making responsibilities. For example, the right to make educational decisions for the child, or direct his or her religious upbringing. In Texas, the default for child custody is both parents being appointed Joint Managing Conservators. Possession refers to actual physical custody of a child. Access generally refers to visits with the child.
6. Our visitation schedule is not working. What can I do?
If your circumstances have changed since your Possession Order was entered, you may want to seek what is called a Modification. This means that you are asking the court to modify or change your existing order. You and your attorney will have to show the court why the change is necessary and why is it in the children's best interest.
You and the child's other parent may also decide together how you want to change your possession schedule. There is generally a provision in possession orders that allows the parents to decide on visitation schedules "by mutual agreement". However, if the only thing you can agree on is that it isn't working, you will likely have to go to court.
7. How do they calculate child support?
The legislature, by statute, has adopted Child Support Guidelines. Basically, child support under the Guidelines will be a percentage of the support payor's "net resources" as defined in the Guidelines, based on the number of children. For example, the guidelines require the payor to pay 20% of his "net resources" for one child, 25% for two children, etc. The maximum percentage any parent will pay is 40% and the maximum net resources that can be used to determine the actual child support amount is $7,500. Most courts generally follow the guidelines unless there are unusual circumstances.
Also, the Family Code requires that, if the support payor is an hourly or salaried employee, the payor's child support is to be withheld from his wages by his employer and paid directly to the custodial parent. Although this can be waived, it rarely is. At present, the child support from a wage withholding order are first being sent through the State Disbursement Unit in San Antonio and then forwarded to the person entitled to receive child support.
8. Does one parent have to pay child support to the other?
One of you almost definitely will. Generally speaking, the parent who gets the right to designate where the children live will also get to receive child support payments. The other parent, of course, will have to pay. If the Court makes the decision about child custody, then child support will be almost definitely be ordered. If you and your spouse are making an agreement about child custody, you may agree together that neither of you will pay child support to the other.
**Note: The Texas Family Code has recently been changed so that neither parent has to be given the right to designate the primary residence of the child. This will only apply to suits filed after September 2009. If your suit was or will be filed after that date, the Court may order (in appropriate circumstances) a true 50-50 split of possession time. In that instance, the Court may order that neither parent pays child support to the other, but both parents will have the duty to actually support the child while the child is in his or her care. "Actual support" means that the parent is financially providing for the child directly (buying him clothes, food, toys, etc.) rather than paying money via child support payments to the other parent who then, in turn, provides for the child.
9. Once an order for child support or custody has been entered, can you change it later?
If financial circumstances have changed for the person paying child support since your Child Support Order was entered, you may want to seek what is called a modification. This means that you are asking the court to modify or change your existing order. You and your attorney will have to show the court what has changed. If you are the payor – you will likely be trying to show that you make less money now than at the time the last order was entered. If you are the one receiving child support – you will likely be trying to show how much more money the payor is making now.
Note: if you are the payor and are now making less money than before, don't just reduce your payments or stop paying entirely. Get the COURT to adjust your child support payments or you could land yourself in a lot of trouble.
10. My spouse has not been paying child support like the court ordered. What can I do?
If you believe that your child's other parent is not following a court order, you may want to seek what is called Enforcement. This means you are asking the court to enforce its earlier order against your ex. Your ex may be found in contempt of court, and could be fined or, in the case of not paying child support, even jailed.
The Texas Family Code has recently been changed to make it much easier to recover attorney's fees in an Enforcement case. This applies to cases filed after September 2009. If you are considering filing an Enforcement action, talk to your attorney about how this provision works.
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