The issues of: 1) time with your child, 2) who decisions for your child, and 3) who pays child support are some of the most personal and contentious issues in a family law case. I understand the importance of these issues and have the experience to help you and your family. Here’s some information to help educate you on how Courts view these issues.
What is Custody?
First, you might find it helpful to understand that the term “custody” is not really used in Texas Family Law. We use the terms “Conservatorship” and “Possession”. Conservatorship is the term used to describe which parent is allowed to make decisions for the child or how parents make decision for the child together, while Possession is the term used to detail the specific days and times each parent has physical possession of the child.
Sole & Joint Managing Conservator
As explained above, Conservatorship is the term that describes each parent’s rights and duties regarding the child. These decisions might include issues dealing with health and welfare, education, and physiological issues. A parent who is named Sole Managing Conservator will have the exclusive right (regardless of the other parent’s approval) to make decisions for the child in various no-emergency situations. In Texas, there is a presumption that parents be named Joint Managing Conservators. Tex. Fam. Code § 153.131(a)-(b). This presumption can be challenged if it’s shown to be in the best interest of the child. When parents are named Joint Managing Conservators, (which is what the vast majority of divorced parents are named) parents have a variety of joint rights regarding the children. This requires that the parents co-parent with each other to make decisions that are in the best interest of their child. Despite what TV shows you’ve seen or rumors you’ve heard, a parent’s right to make decisions is not connected to their possession schedule or any amount of child support (see diagram to left).
Possession & Access to the Child
As explained, Possession is the term to describe the actual time a parent physically has possession of the child. You might have heard people use the term “visitation” but this is not accurate. Parents are not “visiting” their children— they are parenting them! A parent has certain rights and duties (separate and apart from rights of conservatorship) when they are in possession of the child. Whether it’s in Temporary Orders or a Final Decree of Divorce, a parent is not allowed to interfere with another parent’s possession time—and the parent in possession of the child is allowed to parent the child as they see fit. The challenge for parents is finding a productive way to co-parent during these separate possession times.
Standard Possession Schedule
In Texas, there is a presumption that it is in the best interest of the child for one parent to be named a “Custodial Parent” (that is the parent with who the child resides for the majority of time. The other parent, is named a “Non-Custodial Parent”. Tex. Fam. Code § 153.191.
You have likely heard of this schedule referred to as “every other weekend.” In truth, under the Standard Possession Schedule, (Tex. Fam. Code § 153.310-153.317) a Non-Custodial Parent has possession of their child on Thursday evening (or overnight if they elect) and the first, third, and fifth weekends from Friday to Monday (if they elect). Holidays alternate and special provisions apply for the summer to allow for extended time.
However, there are many different possession schedules that parents can agree to. Many people refer to “50/50” plans or “2-2-5-5” plans as alternatives to the Standard Possession Schedule. While these are widely used plans, you will not find them in the Family Code. Which makes finding the right divorce attorney to help you and your family negotiate the appropriate possession schedule important.
Child’s Preference Where to Live
It is also widely assumed by many people that once a child reaches the age of 12 he/she gets to “decide” which parent they live with. This is simply not true. Courts do not simply allow the child to decide a legal and “adult-natured” issue. However, there is a provision in the code that allows for a child 12 years or older to confer with the judge in chambers. Tex. Fam. Code § 153.009(a)-(f). Knowing if and when to bring such a motion can be tricky – and all the more reason to have an experienced divorce attorney to help advise you.
Child Support
This is almost always a hot-topic issue in divorce cases. In most cases the Non-Custodial Parent will be ordered to pay child support. In addition, the Non-Custodial Parent will also be ordered to pay for, or reimburse the cost of the child’s health insurance. It’s also possible (and likely in some Courts) that a parent with a “50/50” possession schedule could be ordered to pay child support. Child Support, Conservatorship, and Possession are all separate legal issues for the Court to work out. (See diagram on this page.) Tex. Fam. Code § 154.001-154.016.
You can get an estimation of what a child support might be at the Attorney General’s website: https://www.texasattorneygeneral.gov/cs/calculator/
Courts are more likely than not to follow the child support guidelines. Once you have the total amount of monthly income, you are allowed to deduct money paid for social security taxes, state and federal income taxes, union dues, and any amount used to cover the child’s health insurance (the specific amount allocated for covering the child, not the total amount paid). The difference is the net income. Tex. Fam. Code § 154.061-154.064
Take the net monthly income and apply it to the guidelines, which look like this:
1 child = 20% of Net Resources
2 children = 25% of Net Resources
3 children = 30% of Net Resources
4 children = 35% of Net Resources
5 children = 40% of Net Resources
6+ children = not less than the amount for 5 children
Child support isn’t just another expense. It has a significant impact on both the payer and the receiver (as well as the children, of course). The information below is provided to help both parents better understand how child support works and how child support orders can be modified when they are no longer reasonable for one or both parties. It’s important to remember that although a great deal of objective math goes into the calculation of child support orders, there are subjective forces that can impact these orders. As a result, it is important to speak with a child support lawyer Round Rock, TX residents trust if you have questions about your child support situation. The experienced team at Law Office of Jason Wright, PLLC can provide you with valuable professional guidance, no matter what specific circumstances you’re facing right now.
Income and Expense Considerations
As the parent being ordered to pay child support, you’ll likely want to know what the calculation of your order will be based on. The first consideration is your net income. This is your total income after deducting these costs:
Once this financial income baseline has been established, it will then be factored into the Texas formula noted above, along with other considerations like the number of children requiring support. With that said, there are reasons that a court may approve a deviation from this calculation. As a result, it is important to speak with a Round Rock, TX child support lawyer before making assumptions based on relatively straightforward calculations if your situation is, for whatever reason, not straightforward.
Enforcing a Child Support Order on Your Own
If you are the parent entitled to receive child support and your co-parent isn’t fulfilling his or her financial obligations, there are a number of ways to resolve the issue and get help enforcing the order. You could file a complaint with the state’s Office of the Attorney General (OAG), but wait times are often long due to a very large caseload.
The other option is to bring a private enforcement action with the help of your Round Rock, TX child support lawyer. This allows you to petition a court to enforce the child support order through punishments like driver’s license suspension of financial actions like wage garnishment or levies against the other parent’s assets.
Bringing a private enforcement action will likely resolve the matter more quickly than going through to OAG. Additionally, a private action also allows you to address the ways in which your co-parent is violating any other court orders at the same time (the OAG can only address child support violations).
Modifying a Child Support Order
Circumstances and needs change, which is why child support orders can and should be revisited over time when warranted. Either parent can petition the court to change the order if he or she can demonstrate a change of circumstances that is both substantial and material.
Once a court has issued its initial child support order, it is difficult (but not impossible) to change it for the first three years. After that, the threshold for changing the order is lowered. Our Round Rock, TX child support lawyer team can help you understand whether a modification is likely to be approved for your family at this time.
Work with an Attorney Who Understands the System
Whether you are likely to be the parent paying or receiving child support, it is important for the court to issue a ruling that is fair, accurate and sustainable. Therefore, you’ll need to work with a Round Rock, TX child support lawyer to ensure that the court has a complete financial picture of your needs or abilities to pay. If there have been omissions or information the court has failed to consider, these mistakes need to be caught and corrected before the judge issues the order. Please contact our firm to learn more about how we can help you navigate your child support challenges today and into the future. We look forward to speaking with you.
