How Custody is Determined in Texas Divorce

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Copyright 2013 by David W. Todd. All rights reserved. No part of his book may be used or reproduced in any manner whatsoever without written permission of the author. Printed in United States of America.

Legal disclaimer: I am not allowed to give legal advice in this book. The suggestions and the warnings I provide in this book are not a substitute for consulting with or hiring an attorney. Please remember that I cannot give you legal advice unless and until you hire me and I have agreed in writing to accept your case.

Dear Friend,

Thank you for reading Part II of this Special Report. The fact that you are taking the time to educate yourself about how child custody is determined in Texas divorce shows that you are serious about getting a good result in your case. I hope this information helps you get the best possible outcome for your case so you can protect your children with a good custody arrangement and move on with your life!

(Note:  If you are interested in learning how to protect your assets in Texas divorce, please visit our website davidtoddlaw.com to download my Texas Divorce Special Report, Part I: How Assets are Divided.)

Why did I write this guide?

Over the years, I have seen the types of pressure and scare tactics that are used on divorcing Texans by the opposing spouse and by some attorneys.  A spouse may sometimes encourage their husband or wife not to hire an attorney. The unsuspecting spouse may later learn they could have gotten a much more favorable outcome if they had known more about Texas family law and how the courts work. The information in this book should help you to avoid some of the most common pitfalls in getting divorced in Texas.

Unfortunately, the goal of your spouse may be, quite simply, to settle the divorce while granting you the least favorable deal regarding your children.  Therefore, you should be suspicious of any settlement offer made to your by your spouse or their attorney unless you have it reviewed by your own attorney first.  Even if the offer turns out to be fair and reasonable, you should have it reviewed by your own attorney before you agree to it.

Most attorneys require you to set up an initial consultation to obtain information that I provide for you in this book.  I believe it is to your benefit to obtain this information by reading this book, at your own pace and without any pressure, and before you talk to an attorney or agree to any divorce settlement offered by your spouse.  At the very least, if you do end up speaking with an attorney regarding your case, you will be much better informed about the divorce process in Texas.

I believe that as more Texans become educated about how divorce works and about their legal rights, the less susceptible they will be to intimidation by their spouse or their spouse's attorney.  By being better informed, I believe you will make better decisions regarding your case, suffer less stress and save time and money as you work through your divorce. Ready? Let's dive into how custody is determined in Texas divorce.

Kids “R” Us:  Child Issues

If  you have children with your current spouse that are 18 years old, then they are adults under the Texas Family Code that are not dealt with in divorce, unless they are still enrolled in high school in which case support obligations may continue until they graduate.

If your child is an adult with a disability that will require continuing support, the support obligation may continue beyond age 18.

Any child you have had with someone other than your spouse is not part of the current divorce proceedings.  An court-ordered obligation to support that other child, however, may affect your support amount in your current divorce case.

If you or your spouse have adopted a child, they are part of the current divorce proceeding.

If the wife in a divorce is pregnant, the court will not finalize the divorce until the child is born alive or has miscarried.  The reason for this is to avoid the birth of a child after the divorce for which no support and custody have been arranged.  The exception to this is where the husband and wife agree that the unborn child is not the child of the husband.  If you two do not agree regarding this issue, you may have to wait until the child is born and the child and husband will have to submit to DNA paternity testing.

There are only two things involved in any divorce – the “stuff” (property), and the kids.  If you have children, you probably will agree that what happens with them is more important, and can lead to bigger arguments, than what happens with the stuff.

In most cases it is preferable that you and your spouse come to an agreement regarding what to do with your children.  If you don’t, you will end up going to trial, which will be stressful, very expensive, and can sour your post-divorce relationship with your spouse.  And the trial process is almost always harmful to the children.  And in most cases, after all the drama and stress of a trial, the court is going to order some type of joint custody for you both and order you to work together regarding kid issues anyway.  So, why not avoid all that pain and jump ahead to the same result by agreement?  The two of you will have to communicate and work together to some extent regarding the children until they all reach age 18 and graduate from high school anyway, so the sooner you can start working together for their benefit, the better.

In some cases, of course, the parties simply cannot agree on what is best for the children and they must have a judge or jury make that decision for them.

Obviously, if communication between you and your spouse was smooth and you were in agreement regarding child-rearing issues, you might not be getting divorced at all.  Since kid issues can be very emotional, a good counselor can often help you both learn how to work together for the children’s benefit, even though the marriage is ending.  It is best to use a counselor that has not been counseling either of you individually so that your spouse feels comfortable that the counselor is “neutral” in their loyalties.  Explain to the counselor that you are not there to “fix” the marriage, but rather to learn how to work together regarding the children, even after the divorce.

If You Can’t Say Anything Nice:  Protecting the Children

During your divorce, it is essential that you not “bad mouth” your spouse in any situation where your children might hear it.  Who is the “good guy” or “bad guy” in the divorce is irrelevant if you want to get divorced with the minimum trauma to your children.  Remember that you chose your spouse, but your children did not choose their parents.  Regardless of who is the “better” parent, or who is to blame for the divorce, your children need to feel free and encouraged to love and respect both parents during and after the divorce.  And if you trash the other parent to a child, you put them in a position to choose sides, which is harmful to the child (and remember, they might not choose you!).

Any problems your spouse has will become apparent to your child when they are old enough, without you telling them or trying to influence them.  Also, courts really dislike it when you put your kids in the middle of your divorce, and your case will suffer if the court catches you doing it.

Also, if you drag your kids into the middle of the divorce, you guarantee that you will have an expensive, lengthy and ugly custody fight, in which you and your kids will both suffer.

Remember, keep it civil, and keep the kids out of it to save yourself time, money and aggravation.

Leave ‘Em Out of This:  Taking Care of the Kids

During your divorce, it is very important to not place your children in the middle of the process.  An important way to do this is to avoid using your kids to deliver messages to your spouse.

Even if your child delivers the message correctly (doubtful in many cases) it places the child between you and your spouse, a very uncomfortable place for a child during a divorce.

Most courts will hold it against you if you use your kids to relay messages.  Some courts even have standing orders that prohibit divorcing parties from doing this.  Many courts will order the parties to attend divorce parenting classes which address this issue as well as many other issues divorcing couples face regarding their children.  Even if not ordered by the court, I recommend that you and your spouse attend one of these courses as they are cheap, convenient and usually very helpful.

Always communicate directly with your spouse, or if necessary communicate through the attorneys.  Leave the children out of it.  Your divorce will go much more smoothly and your kids will be much happier.

What’s It All Mean?  Custody vs. Possession vs. Conservatorship

Many people confuse these terms.  While many people use the term "custody" loosely to describe the arrangement between former spouses and their kids, the Texas Family Code and family lawyers and judges do not use this term.

"Possession" simply means the right to have the child with you.  "Conservatorship" means all of the rights and duties of both parents regarding a child, such as determining where the child lives, receiving or paying child support, making decisions or giving consent for the child regarding marriage, joining the military, medical issues and educational issues.

Out With the Old, In With the New:  Conservatorship

You may have heard the terms "sole managing conservator" and "possessory conservator". These are the old terms that used to be used in Texas family law.  Back then, the sole managing conservator (often the mother) had the right to make all the real decisions regarding the child, the child lived with them, and they collected child support from the possessory conservator (usually the father), who had the right to have possession of the child at certain times.  The rights possessed by the parties were specifically laid out depending on whether they were the sole managing conservator or the possessory conservator.

The Texas legislature changed the Texas Family Code and, for the most part, did away with the terms sole managing conservator and possessory conservator.  The legislature set up a new arrangement called "joint managing conservatorship", which, unless you present convincing evidence otherwise (or the parties agree to use the old arrangement instead), is presumed to be in the best interest of the child (meaning joint managing conservatorship that is what the court will order in your case).  Joint managing conservatorship is much more flexible than the old system, because the parties can agree on how to divide up, or share, the various rights regarding the child, and it can be made to be as restrictive as the old sole possessory conservatorship if the evidence at trial warrants it (or if the parties agree to do that).

Most divorce cases result in a joint managing conservatorship of the children.  All the rights regarding your child will be laid out, and you and your spouse will have to agree on how to divide up or share each of these rights.

Many of the rights can be shared, such as the right to take the child for medical treatment when they are injured or ill while in your possession, or the right to attend school and extracurricular activities.  Other rights have various options, such as the right to consent to your child joining the military when they turn 17 years old.  In this example, you could agree that either party can consent, or you can require the both parties must consent in order for it to happen.

The right that cannot be shared is the right to designate the primary residence of the child.  This will be the address the child gives to his school and also determines their school district.  As verbal shorthand, courts will sometimes refer to this party as the “primary” conservator. If there is a fight regarding children in a Texas divorce, it is often regarding whom should be the primary conservator with this residency right.

Note that the Texas Family Code does not favor the mother over the father, or vice-versa, as to who should be the “primary” conservator.  However, all things being equal (both mom and dad are good parents with no serious substance abuse, child neglect or psychological issues) Texas courts seem to name the mother as the primary more often than the father, especially if the child is very young.  This is unfortunate for the dad.  If he really wants to go to court to try and get the child ordered to live with him (over the mother’s objection) he can, but it is usually an uphill battle.

The party with this right also has the right to receive child support, regardless of whatever possession schedule you come up with (even equal time with the child).  Remember that child support and possession are completely separate issues, both at the time of the divorce and for the remainder of the time your child is a minor.  You cannot stop paying your court-ordered child support simply because the other party denies you your court-ordered possession time, and you cannot deny possession time due to failure to pay child support.  If either of these problems arises down the road, the remedy is to ask the court to enforce the orders.  You can, of course, agree to no child support being paid by either party if you wish, and spell that out in your agreed order.

If the right to designate residency is a “hot button” issue in your case, you can agree that neither party has that right, but that the residence of one of the spouses (agreed to between you and the other party) determines the residence of the child.  This may sound like silly “hair splitting” but it can sometimes be a solution that prevents one party from “losing face” by not being named the primary joint managing conservator (since neither party is named primary).  Remember, the goal is to get the divorce done, so if using this type of language helps resolve the divorce, use it.

Your Time’s Comin’:  Possession

"Possession" refers to the rights of the "non-primary" conservator (remember that the "primary" conservator is the one who determines the child’s legal residence) to have the child with them at certain times.  The first thing to remember is that the parties are always free to deviate, by agreement, from the possession order in the divorce decree.  The best post-divorce relationships use this informal approach quite often, with both sides being flexible for the benefit of the children.  The possession order is there as a "safety net" in case you don’t agree regarding a particular weekend, for example.  The possession order gives everyone notice regarding who has the child and when.

In most cases it is easiest and best to follow the Texas Standard Possession Order in the Texas Family Code for several reasons.  First, courts like it, are familiar with it and will often make you use it if you don’t agree to something different.

Second, child development experts think that this type of possession schedule is better for the kids than any kind of “week on, week off” schedule.  This is another reason courts like to order standard possession.

Third, standard possession is well laid-out, battle-tested in thousands of divorces and provides predictability to the parents and the children.

You can agree to something different, but setting up your own, strange possession arrangement often leads to different interpretations and can buy you a trip back to court to fight about those terms in the future.

The Texas Standard Possession Schedule is lengthy and detailed, but the main points are as follows.

1. The primary conservator is the default, meaning the child is with them at all times not reserved for the other party in the Standard Possession Order;

2. The non-primary conservator has the child the 1st, 3rd and 5th weekend of every month, starting on Friday at 6 p.m. (this can be changed to the time when school lets out) and ending on Sunday at 6 p.m. (this can be extended by agreement to when school begins on Monday morning);

3. Thursday evenings during the school year (this can be changed to start when school ends on Thursday to end when school resumes on Friday);

4. 30 days in the summer;

5. Christmas from when school lets out for the holiday until December 28 at noon (then with the other party until school resumes).  The next year, the Christmas schedule reverses.

6. Thanksgiving alternates between the parties each year.

For children under 3 years old, many courts use a “stair step” possession schedule that gradually increases time the child spends with the non-primary conservator until arriving at Standard Possession at age 3.

When the child reaches age 12 they can let the court know (in a proceeding to modify the possession order) if they want to go live with the other parent.  The court does not have to follow the child’s wishes, but will take those wishes into account in any court proceeding where the non-primary conservator wants to have the child come live with them.

When a child reaches age 15, and especially if they have a car and a license, it is difficult to make them follow the Standard Possession Order.  In light of this, some parents place a provision in the decree that once the child reaches age 15, the child can spend any time with the non-primary conservator that is agreed to by the non-primary conservator and the child.

If either party wants it, a court will usually include a "morality clause" which is language prohibiting either party from having an unrelated adult of the opposite sex in the house between (for example) 10 p.m. and 8 a.m. when that parent is in possession of the child.  This also applies to vacation time with the children, regardless the fact that you are away from the "house".

Live Wherever You Want, as Long as It’s Here:  Domicile Restriction

Domicile restriction was born out of the concern by the "non-primary" joint managing conservator (the one who has a visitation schedule with the child and pays child support) that the other party will move so far away with the child that visitation will be difficult or impossible.

Some courts impose these restrictions routinely.  Other courts will usually impose one if requested.  The restrictions are usually to a certain county, or a certain county and contiguous counties (meaning all the counties whose borders "touch" the main county).  You can make the restriction more narrow (a particular school district, for example) or more broad (the entire state of Texas).

Although some couples agree not to require a domicile restriction, this is usually a bad idea.  If the party with the child decides to move far away with the child after the divorce (perhaps years later) the other party will regret not getting a domicile restriction up-front in the decree.  You should always try to get this restriction, especially since the court would usually order it anyway if you went to court.  If you agree to go without one, and later you decide you really don’t want your ex-spouse moving a long way away with your child in order to take that new job or to get married, you may be out of luck in court.

If you use a domicile restriction, you should always use a political boundary that can be seen on a map.  Usually the restriction is to the county of the divorce and surrounding (contiguous) counties.  If a party wants to move farther away at some point in the future, they will have to file a motion with the court asking for permission, which the court will most likely deny.  The party can move away, but they may have to leave the child with the party who is staying in the county.  Any changes to domicile restriction that the parties want to make after the divorce can be made by an agreed modification order signed by both parties.

Cut the Kid a Break:  Federal Tax Exemption for the Children

Unless the parties agree otherwise, the person who has the right to designate the primary residence of the child also has the right to claim the federal income tax exemption for the child.  Consult your tax professional to see what arrangement makes sense for you.

Sometimes it makes sense for the person paying child support to get the exemption if they are making more money and therefore paying more taxes.  You can also agree to split up the exemption by trading it back and for each year, or giving each party the exemption related to a certain child if you have multiple children.

You Gotta Pitch In:  Child Support

Financial responsibilities regarding the child are divided between the parents at divorce.  The non-primary conservator (usually the dad) is responsible to feed, clothe and house the child only when they have possession of the child.  The primary conservator (usually the mom) has primary responsibility to feed, clothe and house the child at all other times.  If the child has financial needs beyond those, they usually will be the responsibility of the primary conservator to pay for them (costs for extracurricular activities, school books, etc.).

The financial obligations of the non-primary conservator are:

1. House, clothe feed the child when in their possession;

2. Pay one-half the uninsured healthcare expenses for the child;

3. Pay for health insurance for the child; and

4. Pay child support.

That’s it.

The parents can agree in the decree that no one has to pay child support.  However, keep in mind that many judges will question this arrangement and ask you why you think this is in the best interest of the child (for example, where the primary conservator makes a lot more money than the non-primary conservator).  The court may order child support anyway, even if the parties don’t think it is necessary.  If you are the primary (the child lives with you by default) you may wish you had that extra money in the future in order to help your child.

Also remember that child support can be adjusted a number of times after the divorce, even if initially the parties agreed to no child support.  The primary conservator can come back to the judge and explain why they need to start child support now, and the court may order it.  Also, child support can be increased (or decreased) by the court (upon request by one of the parties) based on changes in the income of the person paying the support.

Also note that the person paying child support has absolutely no control over how the other parent uses that money and the Texas courts have ruled that the paying spouse has no right to find out how it is used, either.  By the same token, the parent receiving child support can use the money however they see fit and they do not have to explain how it was used to the other parent.

Calculating the amount of child support is easy thanks to the support guidelines set up by the Texas legislature in the Texas Family Code.  Judges use these guidelines because they are easy to apply and give predictable outcomes.  Although these are called guidelines, it is pretty much automatic that the court will follow them exactly.

The first step is to determine how much the person who will pay support earns per month.  If the person’s income varies due to commissions and bonuses, the court may use past earnings as a guide.  The court may also determine how much the person should be earning if they are currently intentionally unemployed or intentionally underemployed.  The court will, at a minimum, assume you could get a full-time job at minimum wage and calculate and order child support based on that even if you are currently unemployed (meaning you will have to go out and find a job and start paying support).

From the gross monthly earnings, you subtract what you pay for income taxes and social security (or what the Texas Attorney General says you should be paying for those items), which leaves you with net income.  Note that the legislature has set a cap on net income of $7,500.00, so if the net income is more than that, you reduce it to $7,500.00.

Next you multiply the net income by the guideline percentage depending on how many children there are.  The percentage is 20% for 1 child, 25% for 2, 30% for 3, etc.  (The percentages are different if you have other children by another relationship that you are financially responsible to support through a court order.)  The number you are left with is your monthly child support obligation.

One for You, One for Junior:  Child Support Withholding

Since sometimes people ordered to pay child support don’t pay, most courts will require that a withholding order be submitted along with the divorce decree, which will order the employer of the person paying support to withhold it directly from their pay.  This is convenient if you are a salaried employee.  However, if you are self-employed it doesn’t really make sense.

Also, some divorcing couples do a withholding order, but put language in the decree that the order will not be submitted to the paying party’s employer unless that person gets behind in his child support payments.

Texas Lends a Hand:  The State Disbursement Unit

All child support in Texas now goes through the State Disbursement Unit of the Texas Attorney General Child Support Division, which happens to be in San Antonio.  The check you pay in child support goes to this unit, which then issues another check to the recipient.

This system protects both parties because it generates a record of whether or not, and how much, child support was paid each month.  It also insures that the other party received the money. If there is ever a dispute about these amounts, you can obtain a complete record of the payment history from the State Disbursement Unit.

An Apple a Day:  Health Insurance

If left up to the court, the judge will always order that the person paying child support also pay for health insurance for the child.  You can cover them under your own policy or, if your spouse’s policy is better or cheaper, you can cover the child with that and reimburse the other party for that portion of the premium that covers the child.  You can also agree to have the person receiving support responsible for paying the premium.

Note that these provisions do not provide health insurance for the parents.  If you are covered under your spouse’s health insurance plan, that will end after  your divorce is final.  You should ask the insurer about COBRA coverage, which allows you to remain covered for a certain period of time after the divorce, but at your own expense.

Just In Case:  Life Insurance

It is a good idea for both parents to have life insurance for the benefit of the children.  Otherwise, if the person paying support dies the child support will not get paid and the remaining parent is in a financial hole.  Similarly, if the person receiving child support dies, the remaining person suddenly has the child full-time, with all the increased expenses associated with this change, while still earning the same income.  Even though the parents got divorced (and probably do not like each other very much), they usually agree that they should have insurance set up like this to protect the child.

Note that if you already have your spouse named as the beneficiary of a life insurance policy (or of items in a will, or of a retirement account), once you get divorced those designations are automatically void.  This can create a real problem if there is no backup beneficiary, since the court will hold the money until the child reaches 18.  In the meantime, unless the remaining parent hires a lawyer, goes to court and gets permission to use the money to benefit the child, they will have no access to the money.  Even worse, when the child reached 18, they receive the money directly (and how many 18 year olds do you think will use that money wisely?).

Even if you make the beneficiary of the insurance money a trustee for the benefit of the child, it makes it difficult for the remaining parent, who has to get permission from someone else every time they want to use the money to benefit the child.

The way to avoid these problems is to rename the ex-spouse as the beneficiary of the insurance AFTER the divorce is finalized.  Your attorney can help you put language in the decree requiring that each spouse do this within a certain amount of time after the divorce is final.

How much insurance should you get?  The answer is: at least enough to replace the child support that would otherwise have been paid.  Talk to your financial advisor about how much insurance you should get to cover child support and other items like college for the child or paying off a mortgage.  Once the divorce is final, it is also a good idea for each parent to revise their will to set up a trust for the children and also to change the beneficiary designation on any retirement accounts to insure the money goes into the trust for the benefit of the child.

Summing Up:

Determining child custody in Texas divorce can be complicated. For more information call us at (512) 472-7799 or visit our website davidtoddlaw.com. I wish you the best of luck in resolving your family law matter!

Sincerely,

David

PS: You may also learn how Texas courts determine who gets what marital property by going to my website davidtoddlaw.com and downloading my special report: How Assets are Divided in Texas Divorce.

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