When my spouse and I get divorced, how is child custody determined?
Child custody is one of the most complex and stressful parts of any divorce involving children. There are several reasons for this. First, emotions run their highest in any situation in which a person's children are involved. Second, child custody aspects of a divorce are frequently difficult to settle and involve complicated language which many people don't fully understand.
Courts in Texas base their legal rulings involving children on what is in the "best interests of the child". This is a very fluid and arguably vague standard, giving courts significant discretion to determine how to deal with child custody matters. The court will consider various factors, such as the child's needs, each parent's skills at caring for a child, the proximity of each parent to other family members, each parent's past conduct, and in some cases, the child's preferences.
What are the differences between "possessory conservatorship" and "managing conservatorship"?
The terms, "possessory conservatorship" and "managing conservatorship" refer to the rights and duties that parents (and in some cases, non-parents) may have in regard to raising a child under a court order.
A managing conservator possesses the vast majority of rights that parents tend to possess in regard to their children, such as the right to direct religious training, medical treatment, consent to joining the armed forces, and act as the child's legal representative.
A possessory conservator has fewer rights than a managing conservator, and those rights usually depend on whether the conservator has the child in his or her possession at the time.
Generally, most parents who have divorced tend to be named Joint Managing Conservators. In fact, Texas law creates a rebuttable presumption that biological parents should be named Joint Managing Conservators, unless one of the parents can show that it would not be in the best interests of the child for the other parent to be named a managing conservator.
What is a "standard possession order"?
The standard possession order is an order developed by the Texas Legislature which is legally presumed to be in the child's best interests unless proven otherwise. The entire standard possession order can be found in the Texas Family Code § 153.311 et al.
Many people may already be familiar with the standard possession order when they hear people say, "I have my son every 1st, 3rd and 5th weekend" or when someone may say, "My daughter is spending spring break with me this year".
The standard possession order, however, merely contains the provisions that apply when parents cannot agree on possession of the child. Parents can always decide to deviate from the standard possession order at anytime they mutually agree to do so.
I've heard that courts immediately presume that the child's mother should get "primary custody" of children. Is that true?
This is absolutely false. This concept comes from an old legal doctrine known as the "tender years doctrine." This outdated concept assumed that it would be best for children to spend their formative years with their mother. Over the years, however, we have discovered that gender is not a factor that should be considered when determining which parent shall determine the residence of the child.
Instead, courts will turn to the "best interests of the child" and look toward other facts (see above).
Will I have to pay child support? If so, how much will I pay?
Once the court has determined which parent will be the "primary managing conservator" -- that is, the parent with whom the child will live with most of the time -- then the court will award child support to assist the primary managing conservator in paying the expenses normally associated with raising a child. Therefore, if you are a possessory conservator or a managing conservator without the right to determine the residence of the child, you will almost certainly be required to pay child support.
The amount of child support paid is determined by a chart mandated by Texas Family Code § 154.125. A certain percentage of your "net resources" will be calculated. In most cases, these are the percentages:
1 child: 20% of Obligor's Net Resources
2 children: 25% of Obligor's Net Resources
3 children: 30% of Obligor's Net Resources
4 children: 35% of Obligor's Net Resources
5 children: 40% of Obligor's Net Resources
6+ children: Not less than the amount for 5 children
These percentages only apply to the first $7,500 of your monthly net resources. Any additional net resources available from a child support obligor may be considered by the court, along with the child's proven needs, in awarding additional support.
What, exactly, is considered to be my "net resources"?
Net resources include various forms of income, including wages/salary, severance pay, retirement, social security benefits, unemployment, gifts, prizes, etc. This list, of course, is not exclusive. You may find a more comprehensive definition in Section 154.062 of the Texas Family Code.
Some forms of income don't count as net resources, such as the return of capital or principle from an investment, accounts receivable, and certain welfare benefits.
In addition, certain expenses are subtracted from the calculation of net resources, including federal and state income taxes paid, social security taxes, union dues, and expenses for a child's health insurance.
I'm very dissatisfied with the current child custody situation. When can I change it?
As a general rule, a conservator seeking to modify an order regarding conservatorship must show one of the following:
The circumstances of the child have substantially changed since the signing of the order or the mediated settlement agreement leading to the order;
The child is at least 12 years of age and expresses a desire to live with the other parent; or
The conservator with the exclusive right to designate the residence of the child has voluntarily relinquished care and custody of the child to another person for at least six (6) months.
If the health and safety of the child are at issue, a different set of rules will usually apply. In either case, you should contact our office at 713-579-9700 to discuss those circumstances in detail to determine if you may be able to seek a modification of the conservatorship order.
How much will my child custody case cost?
This is an extraordinarily difficult question to answer. Because of the emotions involved, child custody lawsuits can be very lengthy, and therefore rather expensive. It can be reasonable to expect to spend a minimum of $2,500, with the possibility of spending $4,000 to $6,000 or more, depending on the situation.
The good news is that by utilizing mediation early in the process, keeping an open mind, and putting aside hard feelings for one another, parents often find that they can significantly reduce the expense associated with challenging or defending a child custody order.
I still have questions. Who should I contact?
The lawyers at Patel & Warren, PLLC will be more than happy to answer your questions. Please call our office at 713-579-9700 to discuss your particular case in detail.
