Custody and Child Support

When do I need a custody order?

When you are separated and not divorcing, when you are divorcing or when a paternity or legitimation suit has been filed.  This type of order is called an order in suit affecting the parent child relationship.

In Texas, Conservatorship is the legal word to describe what most people refer to as “custody rights”
In Texas, Possession is the legal word to describe what most people refer to as “visitation rights”

What exactly does custody mean?


It means both legal rights and the time a child spends with each parent.

If there are minor children of the parties, all divorce decrees and settlements will contain orders governing the custody, possession and support of the children after the divorce.  A "child" is any minor who was born or adopted by the parties.  Once a child turns eighteen, the court's jurisdiction over the adult child ends (with several exceptions regarding child support, which are discussed below).

Forms of Conservatorship


The Texas Family Code speaks in terms of "conservatorship" of children, meaning the legal status between the children and their parents after the divorce as it relates to controlling the children's lives, having possession of and access to the children, and supporting the children.

The Code expressly sets out a non-exclusive list of the rights, privileges, duties and powers of parents.  In a nutshell, these rights and duties may be categorized into three areas: (1) the right to make major decisions regarding the children; (2) the right to have physical possession of the children; and (3) the duty to financially support the children.  Conservatorship orders divide these various rights and duties among the parents after the divorce.

Conservators

The Code refers to two types of conservators: (1) the managing conservator(s) and (2) the possessory conservator.  These terms are confusing, because the "managing" conservator is, generally speaking, the primary custodian of the children, while the "possessory" conservator is not the primary custodian of the children (the "possessory conservator" merely has some "possessory" rights to the children, e.g., visitation).

Managing Conservator(s)

A "managing conservator" is generally given all of the rights, privileges, duties and powers of a parent, to the exclusion of all others, including the other parent, except as otherwise ordered by the court.  In short, the managing conservator is the primary custodian of the children, and (1) has the right to make all of most of the major decisions governing the children's lives, (2) has the primary physical possession of the children (custody) and (3) has the right to receive child support on behalf of the children.  As discussed below, there are now two types of managing conservators, "sole managing conservatorship" and "joint managing conservatorship".

Possessory Conservator

A "possessory conservator" is generally given (1) only a handful of rights and duties to make decisions for the children which can be exercised only when the children are actually in the physical session of the possessory conservator, (2) the right to certain limited times of possession of the children (often referred to "visitation rights"), and (3) the duty to pay the managing conservator child support for the benefit of the children.


Types of Managing Conservatorship


A managing conservatorship can be either a "sole managing conservator" or a "joint managing conservatorship" [Unless very extreme circumstances exist, a parent will be appointed the managing conservator of the children.  A non-parental managing conservator(e.g., grandparent) can only be appointed if the appointment of a parent would create an extreme danger to the child, or unless the parents agree.]


Sole Managing Conservatorship


A "sole managing conservatorship" exists when one parent alone is appointed the managing conservator of the child and given virtually all of the rights, privileges, duties and powers of a parent to the exclusion of the other parent.  In such event, the other parent will be the "possessory conservator".


Joint Managing Conservatorship


There is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child. (eff. Sept. 1, 1995).   A court may order that both parties are to be "joint managing conservators" of the children.  This is true, whether or not the parties agree to the joint appointment.  Thus, both parents are, jointly, managing conservators, and neither is a possessory conservator.  Joint managing conservatorship is often agreed to by the parties.  While a court is not required to appoint joint managing conservatorship, even when the parties request it, courts usually do so if both parties request it.

It should be noted, however, that joint managing conservatorships vary.  A joint managing conservatorship order may be either a "pure" or "real" joint managing conservator, or a joint managing conservatorship in name only, or any combination thereof.  A "pure" (real) joint managing conservatorship authorizes both parents to equally exercise jointly all of the rights, privileges, duties and powers of a parent.  On the other hand, under a joint managing conservatorship which exists in name only, while both parents are given the title of joint managing conservator, one parent is in reality, by the detailed terms of the joint managing conservatorship order, given all of the rights and duties of a sole managing conservator, while the other "joint managing conservator" is in reality treated like a possessory conservator.  There are advantages and disadvantages to going either route, which will be discussed with you by your attorney.

The Court will usually appoint one parent as the sole parent to furnish the primary and hence primary possession or the child.  Joint Conservatorship does not mean that each parent will have equal or nearly equal periods of physical possession.

What is the difference between the two forms of custody?

Except in the extreme circumstances which must be discussed with an attorney, each party will have certain legal rights as a parent. The legal rights of each parent does not determine how much time that the parent will have with the child. Some legal rights belong to both parents at all times (such as the right to consult with the child's schools or doctors); some legal rights belong to both parents and apply when the child is with them (such as the right to discipline the child or provide routine medical care); and some legal rights will be given to only one parent (such as the right to say where the child will live or to consent to surgery that is not an emergency.)

In some cases the court may determine where the child will live (i.e., Denton, Dallas, or Contiguous Counties) or what school the child will attend.

Besides the legal rights, each parent will have specific time either agreed or set out by the court when the child will be with them.


Does joint custody (or Joint Managing Conservatorship) mean the child lives half of the time with each parent?

No. Joint Managing Conservatorship is about legal rights, duties, powers, privileges, and not about where the child lives. There is very little difference today in the legal rights given to the child's parents no matter what the custody title is. The specifics should be discussed with an attorney.

Will I probably get joint custody?

Yes. It is now the preference in Texas, absent certain condition in which a parent has been found to be violent, convicted of family violence, or received deferred adjudication probation for family violence. However there can also be orders naming a sole primary managing conservator (sole custody) and possessory conservator (visitation) instead of Joint Managing Conservators. The specifics are somewhat complex and should be discussed with an attorney.

Does custody mean where my child will live?

More than likely, your child will live the majority of the time with the parent who is given the legal right to determine where the child lives. That person is called the "primary" Joint Managing Conservator , or in some circumstances, the Sole Managing Conservator. The other parent is called the "non-primary" Joint Managing Conservator, or, in some circumstances, the Possessory Conservator.

Will the type of Custody affect the Child-Support?

Child-support will be discussed later on in this section, but generally answer is "no."

Will the type of custody affect the visitation?

Generally, "not". No matter what the custody arrangement is called, the court's goal is to keep the child in a stable environment while encouraging a relationship with both parents. There are guidelines for visitation between each parent and the child which make provisions for weekends, spring break, father's day, mother's day, summer, Thanksgiving, and Christmas. The times with the child are shared, especially during the holidays. There are guidelines for visitation if the parties live within 100 miles of each other and another set of guidelines if the parties live over 100 miles from each other. The second set of guidelines are sometimes called "long distance visitation" and give extra time at spring break and in the summer. There can also be provisions for other religious holidays such Hanukkah or Ramadan. These parties can always make their own agreement about visitation. The court will order specific times in case the parties in the case the parties cannot agree.

The court will make provisions for visitation if the parent visiting and the child live within 100 miles or outside 100 miles from one another. The basic difference is that, outside of 100 miles, the visiting parent gets every spring break and more time in the summer and special provisions are made for weekends. The specifics should be discussed with an attorney.

What if I have to move after the order is signed by the judge?

If the court has restricted the county where the child can live and you have to move outside that area, you must receive permission from the court first or you could be subject to some severe penalties, even losing custody.   This type of restriction is called a geographic restriction.   A final court order must either contain a restriction or specifically allow the primary parent to move with further court intervention or control.   Litigation related to imposing or lifting a geographic restriction is generically called relocation litigation

If the court has not restricted where the child can live, you may move after giving notice to the other parent. If you move more that 100 miles away, the "long distance" visitation will take effect.
If you are the "primary" parent and you move outside the county where you lived at the time of the order, you will be required to pick up the child at the end of each visitation period at the other parent's home. If it is too far to drive, you will be required to pay for the airline or bus ticket for the child. If the child is under five years of age, you will also be required to pay for the cost of the transportation of the adult who will have to accompany the child.

How much child support will I receive or will have to pay?

The non-custodial parent (e.g., possessory conservator), who has less physical possession of the children, is generally required to pay financial child support to the primary custodial parent for the benefit of the children.  Although this can take many forms, child support usually consists of periodic (e.g., monthly) payments to the custodial parent.

Child support is generally set out according to a formula. The specifics should be discussed with an attorney.

Under Texas law, child support is presumed to be proper if set at the following percentages:

20% of net resources for 1 child
25% of net resources for 2 children
30% of net resources for 3 children
35% of net resources for 4 children
40% of net resources for 5 children
Not less than 40% for 6 or more children

The legislature by statute has adopted Child Support Guidelines.  Basically, the amount of child support under the Guidelines will be based upon percentages (based on the number of children) of the support payer's "net resources" (as defined in the Guidelines).  For example, the guidelines require the payer to pay 20% of his "net resources" for one child, 25% for two children, etc, in addition to providing or paying for the health insurance for the children.  Most courts generally follow the guidelines in the usual case, absent unusual circumstances such as children who have special needs.  If a payer has more than one family, the child support for each child is reduced.  The child support guidelines currently cap out at $7,500.00 of net resources per month.  For obligors who earn more than $7,500.00 “net” per month, potential child support should be carefully discussed with the attorney.

Also, the Family Code requires that, all "earnings" shall be including in the computations for child support and whether withholding orders apply to persons or entities who owe the obligor money. 

Texas Family Section 101.011 provides that "Earnings" is defined as "any payment to or due an individual, regardless of source and how denominated.  The term includes a periodic or lump sum payment for:

    1. wages, salary, compensation received as an independent contractor, overtime pay, severance pay, commission, bonus, and interest income;
    2. payments made under a pension, an annuity, worker's compensation, and a disability or retirement program; and
    3. unemployment benefits.   Therefore, if the support payer is a salaried employee, or an independent contractor, the payer's child support (or a portion thereof) can be withheld from his wages by his employer or any other person or entity providing payments or income to the payer, and will be paid directly to the custodial parent.  Although the transmittal of the withholding order can be waived by your spouse, it rarely is by the court, and if the payer becomes over 30 days delinquent, then the wage withholding can become automatic upon request.

Child support is usually ordered to be paid through the Texas Child Support Disbursement Unit, located in San Antonio, Texas.  This agency is charged with recording child support payments, and transferring the payments to the parent entitled to receive them. The Disbursement unit then keeps a record of all payments received and forwards the payment to the child support recipient.  A major reason this is done is that, if the support obligor fails to pay support as ordered, the payment registry is presumed to be correct, and will either show timely and full payment of child support obligations, or will show delinquencies.

Other "child support" is also required in the form of a requirement to provide and pay for major medical health insurance for the children, orders requiring the payment of non-covered medical expenses, etc.   The Court can order that the employer deal directly with the parent with primary possession utilizing a court order entitled Qualified Medical Support Order.

Child support is due until the child turns eighteen or, thereafter, until the end of the school year in which the child graduates from high school or other qualified program.  IMPORTANT:  If a child is mentally or physically impaired to the extent of requiring continuous care, child support may be ordered to be paid indefinitely past the child's 18th birthday.  If this is the case with any of your children, be sure to inform your attorney

How will the child support be paid?

It will be ordered to be paid monthly usually in one or two payments. Unless the parties agree or the court finds a good reason not to, the child support will be deducted from the salary of the person paying support, and is so, the correct amount will be deducted either monthly, bi-monthly, bi-weekly, or weekly, depending on the pay cycle of the employee.  The child support is usually ordered to be paid through the Texas Child Support Disbursement Unit, located in San Antonio, Texas.  This agency is charged with recording child support payments, and transferring the payments to the parent entitled to receive them. The Disbursement unit then keeps a record of all payments received and forwards the payment to the child support recipient.

What if the support is not paid?

You can ask the court for help in enforcing the order. That will be discussed in another section of this FAQ section entitled Enforcement.

Get Started - Schedule an Appointment

Please call and schedule an appointment for a consultation.   An in-depth interview usually takes at least one to two hours to explore and understand the dynamics of a client's situation and explore practical options and resolutions to legal issues. The normal cost of an initial consultation is only $175.00. --Please contact us for an appointment.

 

 

 
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