Rivers-McNamara

Custody Cases

Many parents worry that a divorce will result in one parent having “custody” of the children to the exclusion of the other parent, or that “custody” is necessary in order to receive child support. These fears can sometimes negatively affect parents’ reasonable concerns about how a divorce will affect their children. But in most cases, the final Parenting Plan governing parents’ post-divorce relationship with their minor children will include provisions for both parents to have significant and appropriate involvement in raising their children. That important goal is accomplished by setting out specific orders governing conservatorship, possession and support of the children.

Conservatorship pertains to the decisionmaking rights and duties of parents. Texas law presumes that it is in the best interest of a child for the parents to be joint managing conservators. In a Joint Managing Conservatorship, the court order sets out procedures for the parents to make decisions affecting their children, including decisions about the children’s education, invasive medical treatments, and mental health treatment. The conservatorship arrangement may provide that the parents must jointly agree upon such a decision, or that one parent will make the decision after consulting with the other parent. Many parents work out a conservatorship arrangement that sets out procedures for decisionmaking if in the future they cannot agree on a major issue, such as what school a child will be enrolled in or whether a child should receive a particular medical treatment.

Often a major dispute regarding conservatorship revolves around where the parents expect to live after their divorce. One parent may be awarded the exclusive right to determine the children’s primary residence, either within a specified geographic area such as the county of residence and surrounding counties, or without regard to a geographic restriction. The parties may also by agreement omit the allocation of this exclusive right to one parent, essentially providing that they each will establish a residence for their children within a specified area.

This is an example of a Joint Managing Conservatorship order. While this order is not appropriate for all parents, it suggests ways that parents may approach the issue of how they will make decisions for their children after divorce.

Possession orders set out the terms and schedule for when the children are with each parent. The Family Code sets out a Standard Possession Order specifying a schedule for the parent who does not have primary custody of the children. Under a Standard Possession Order, the parent has possession of the children at the following times:

1st, 3rd & 5th weekends from Friday after school or at 6 pm to Sunday at 6 pm or Monday
Thursdays during the school year from 6–8 p.m., or from after school to Friday morning
Alternating Thanksgiving and spring breaks
Alternating first and second part of the Christmas/winter holiday
The child’s birthday from 6 – 8 pm
Mother’s Day or Father’s Day weekend
30 days in the summer

The possession order will ordinarily also include general terms and provisions governing the parents’ dealings with one another about the children, including the place for pick up and return of the children at the beginning and end of each period of possession by the parents, for the parents’ communications with one another about the children, for travel arrangements. This example of a Standard Possession Order shows how some of the possession issues might be addressed.

Support encompasses the financial provisions for meeting the children’s needs, including their living needs and health care. The Family Code provides guidelines to determine the amount of child support to be paid by an obligor, that is, the person who will pay child support. The guidelines generally apply to an obligor’s monthly net resources of $7,500 or less. A percentage is applied to the net resources, depending on the number of children involved in the case:

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 40%

If an obligor has a child from another relationship for which he or she is responsible to support, the percentage may be reduced. If an obligor’s net resources are above $7,500 per month, the court may order additional amounts of support if the child has proven needs higher than the guideline amount, taking into account the obligor’s net resources above $7,500 per month and the obligee’s net resources. Generally child support continues until the child reaches age 18 or graduates from high school, whichever is later. If the child is disabled before turning 18, child support may continue beyond the child’s 18th birthday.

Parents are also responsible for providing medical support for their children, including payment of health insurance premiums for the children as well as deductibles and uninsured medical expenses. Generally, the parent responsible for paying child support will also pay the health insurance premium. Deductibles and uninsured medical expenses can be divided between the parents or all paid by one parent.

Many parents work out support arrangements by agreement that provide for a periodic payment, usually monthly, to the lesser income earning parent, and also for payment of the children’s enrichment needs, such as school and extracurricular activities. When tailored to the particular circumstances of the parties and their children, these agreements can help parents avoid future litigation over support issues. Parents may also wish to work out arrangements for their children’s college and other post-minority support needs; but these issues must be handled by agreement.

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