Child Custody – Knowing the Basics in Texas

Texas Child Custody Basics

One main subject that many families have when coming into our law office is usually along the subject of how they can maximize the amount of time that they are able to spend with their child.

This is completely understandable and this mindset does not necessarily mean that this person is attempting to increase the opportunity for the other parent to be with the child. Simply,  it just means that at a time where their ability to see their child whenever they choose is not guaranteed – the questions naturally turn to secure as much time with the child as possible.

This can be done in a variety of ways, depending on the situation. The following is an overview of the process of petitioning for and receiving a child custody Order from a Texas Court.

What is Child Custody in Texas?

In Texas, what is commonly referred to as “child custody” is known in the laws of our State as “conservatorship”. When there is a court order, your relationship with a child is described as conservatorship.

Conservatorship is concerned with a child’s rights and duties rather than possession and access to the child.

Rights and Duties of the Child

These basic rights include the decisions regarding the child’s wellbeing:

1. Educational
2. Psychological
3. Medical
4. Support and safety of the child

Even if you are the custodial parent of the child, all parents have certain rights and duties to their child.

In many divorce or child custody cases, the rights and duties of the parents are agreed upon in a agreement.

However, there are times when one parent wishes to prevent the other from obtaining or limit a certain right. If this becomes a contentious issue, the Court becomes involved and plays a significant role in determining the outcome of the situation.

What is a Conservator?

A “conservator” is someone who has court-ordered custody of a child.

Conservators are classified into three types:

• Joint Managing Conservator
• Sole Managing Conservator
• Possessory Conservator

Joint Managing Conservatorship

Joint Managing Conservatorships are the most common cases for custody to take on whether it stems from a divorce or from a custody case.

A joint managing conservatorship order means that the parents in charge of the child’s well-being make most decisions together. However, this does not imply that the child’s time is equally divided between the parents.

This is the default setting for two parents in Texas courts. The state’s public policy encouraging parents to collaborate and share child-rearing responsibilities.

The differences between the parents’ rights under a joint managing conservatorship are that one parent can receive child support (and the other can pay child support) and one parent can determine the child’s primary residence while the other cannot.

Most rights and responsibilities are shared by both parents, with neither having the ability to play a trump card when it comes to their child’s life and decisions that will affect the child’s future.

Sole Managing Conservatorship

When there is valid reasoning, one parent (or sometimes a non-parent) can be named Sole Managing Conservator. This individual has the exclusive right to make most decisions about the child.

Here are some reasons a judge might name a parent (or nonparent) Sole Managing Conservator:

• violence by the other parent
• abuse or neglect by the other parent
• alcohol/drug abuse by the other parent
• absence of the other parent in the child’s life for an extended period

Possessory Conservatorship

If one parent is designated as the Sole Managing Conservator, the other is typically designated as the Possessory Conservator. If a nonparent is designated as the Sole Managing Conservator, both parents are typically designated as Possessory Conservators. A Possessory Conservator retains parental rights but does not have the final say on most decisions.

Possession and Access

In terms of possession and access to the child, the Court will enforce almost any agreement reached by the parties.

This is especially true if the parties have previously met for mediation. Otherwise, a trial on the merits can be used to obtain a Standard Possession Order (SPO).

The Texas Family Code contains a detailed breakdown of a SPO. An expanded SPO is a variation on the SPO in which the non-custodial parent (the parent with whom the child does not reside primarily) is entitled to an extension of the time allowed under the Texas Family Code’s SPO.

While there is no explicit provision for “split” custody (unless the parties agree to a schedule outside of Court), an expanded SPO brings parents very close to that type of arrangement in terms of time allocation with the child.

Suit Affecting Parent-Child Relationship

If the child’s parents were never married and one parent wishes to have Court orders implemented in regards for a child, then that person would file a Suit Affecting Parent Child Relationship (SAPCR) in either:

• The county where the other parent lives
• Where  the child resides

Who Can File a SAPCR for the Child?

Under Texas Family Code (Section 102.003), a suit affecting the parent-child relationship can usually be filed by:

1. a parent of the child
2. the child with a representative authorized by the court
3. a custodian or person having the right of visitation with or access to the child
4. a guardian of the child;
5. a governmental entity
6. the Department of Family and Protective Services
7. a licensed child-placing agency
8. a person who has had actual care, control, and possession of the child for at least six months ending not more than 90 days
9. a person which the child and the child’s guardian, managing conservator, or parent have resided with for at least 6 months ending not more than 90 days if the child’s guardian, managing conservator, or parent is deceased at the time of filing the SAPCR

What is a SAPCR?

A SAPCR case is similar to a divorce:

1. conservatorship
2. visitation
3. possession and access
4. child support

The following will all be determined either by the parties in an agreement or by a Court. The major difference is that no issues of property will be dealt with.

Establishing Parental Rights

In situations where parents were never married to the mother of their child, a SAPCR case can go a long way in establishing parental rights and duties that many have not already been in place. This can result in many changes and making sure that the placement of the child is put in the best interest.

In many cases, fathers in this situation were never listed on the child’s birth certificate, and no other acknowledgement of paternity was signed or consented to.

This means that, unlike married fathers, they have no legal rights or obligations to their children that can be enforced by a court. A positive aspect of these types of cases is the formal establishment of paternity and the assignment of rights and duties.

Child custody cases involve far more than who gets to see the child and when that time begins and ends. What a person agrees to (or does not agree to) can shape a child’s and parent’s lives for years to come. Having an attorney to help with those decisions and advocate for their client when necessary is critical to a successful child custody case.

If you have any questions about the topic that we have just covered, please check us out at Houston Texas Divorce Lawyers. Divorce attorneys offer consultations that are free-of-charge at our office or over-the-phone. A consultation provides you with an excellent opportunity to ask questions and receive feedback about your situation. We hope to hear from you if you have any questions.

Child Support in Texas

Child support is a huge financial commitment that you either have the right to receive or to pay. This is why it is crucial to know the fundamentals of child support. It can make a huge difference in the well being of your family.

How does a court determine the amount of child support that a person must pay?

Your divorce or child custody case is unlikely to go before a judge to resolve the issues in your case. This is because mediation is required prior to trial and possibly even temporary orders in a case. This is done to try to settle your case before it goes to court.

When you appear in court, your attorney and the opposing party’s attorney will most likely calculate your child support obligation based on your income.

A family law court in Texas is charged with prioritizing the best interests of your child when determining the amount of child support to order.

The judge will primarily be concerned with what happens with your child until they turn 18 or upon graduation from high school. All personal concerns, as well as the opposing party’s concerns, are put aside since it’s the well being and best interests of the child that are the main focus.

What are net resources?

Net resources are the total of all the income you acquire each month. Child support in Texas is decided based on this. Described below is how a court would likely calculate your net resources.

First, all wages and salaries from places of employment and self-employment income are calculated. Then, extra income such as retirement income, rental income, capital gains, and income from other sources are added together. This will be used by the court so they can determine your net monthly income.

Usually, your wages and salaries are what will go into the calculation. This is because the latter sources are not relevant for most parents with young children.

How will your responsibility for child support be determined if you’re unemployed?

You will still have the responsibility of paying child support even if you are not currently employed.

In the event that you are not able to settle your case and proceed to a trial, a judge would presume that you earn a salary that is equal to a forty-hour workweek and you are paid minimum wage.

Other Questions:

I was never married to the child’s father. Do the Child Support Guidelines apply to both of us?

Yes, the Child Support Guidelines apply to all cases where child support is ordered and necessary.

Does the Court have to follow the Child Support Guidelines?

Yes, the court must generally adhere to the Guidelines. However, if the court determines that following the Guidelines would be “unjust,” the court may order a different amount of child support. The court must explain in writing why it did not follow the Guidelines.

Here are 2 examples of when a court might order a different amount of child support:

1. If the non-custodial parent routinely buys school clothes and pays for the children’s extra activities.
2. If the non-custodial parent has to pay expenses for visitation (such as travel fees or long-distance phone bills).

What if one of the parents does not work?

If the court believes the parent has the ability to work but chooses not to, the court can “impute” income to that parent. This means that the court will pretend the parent is working for the purposes of the child support worksheet and will enter income for that parent on the worksheet.