Expert's Guide to Child Custody
CHILD CUSTODY LAWYER EXPLAINS CONSERVATORSHIP LAWS IN TEXAS
All kids’ issues originate from these core questions:
- Who will be named as conservators of the child?
- Which conservator has the right to designate the primary residence of the child?
- Will the domicile of the child be restricted to a certain geographic area?
- How will time with the child be allocated between those persons named as conservators? And,
- How will the child be supported?
A case concerning a child is called a “Suit Affecting the Parent-Child Relationship.” Such a suit is defined as, “a suit in which the appointment of a managing conservator, or a possessory conservator, access to or support of a child, or establishment or termination of the parent-child relationship is requested.”
In a Suit Affecting the Parent-Child Relationship the Court may appoint a sole managing conservator or may appoint joint managing conservators. If the parents of the child are separated, for instance in a divorce, the court shall appoint at least one managing conservator of the child.
While the Suit Affecting the Parent-Child Relationship typically involves only the parents of the child, it is important to know that other people in the child’s life may have the legal right, called “standing”, to file such a suit. For instance, a person who has had actual care, custody and control of a child for at least six months has standing. Likewise, if both of the child’s parents are deceased, a relative of the child within the third degree of consanguinity has standing. As a final example, a CPS foster parent who has had possession of the child for one year has standing. You should talk to a family law lawyer to learn about other examples of standing.
If the parents of a child are divorcing, the law requires that the Suit Affecting the Parent-Child Relationship be included in the divorce. In other words, the divorce court will enter orders regarding the conservatorship and support of your child at the same time it enters orders for the division of your marital assets and debts.
In a Suit Affecting the Parent-Child Relationship, the court is guided by the following principles:
Children should have frequent and continuing contact with parents who have shown an ability to act in the best interest of the child;
Children should grow in a safe, stable and nonviolent environment;
Parents should be encouraged to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.
Also, and most importantly, the Family Code states, “The best interests of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”
While the Family Code does not specifically define the word “conservator”, it is easiest to think of a conservator as someone who has one or more “rights, duties, or powers” to a child by virtue of a court order. The Family Code does elaborate on the concepts of “Sole Managing Conservatorship”, “Joint Managing Conservatorship”, and “Possessory Conservatorship”.
Unless the court finds that appointment of a parent as a managing conservator would significantly impair the child’s physical health or emotional development, a parent of the child shall be appointed as a sole managing conservator or both parents shall be appointed as joint managing conservators of the child. In other words, at least one of the child’s parents is going to be “raising” the child unless the court finds that neither parent is able to meet the child’s physical and emotional needs.
Texas courts presume that the child’s parents will be appointed as joint managing conservators. This means the parents will share the rights and duties of a parent. Note, however, that certain rights and duties may be awarded exclusively to one parent.
A court may decline to appoint joint managing conservators and instead name one parent sole managing conservator if the court finds there has been a history or pattern of family violence involving the parents or the child.
Additionally, the court will consider whether the joint managing conservatorship is in the child’s best interest considering the following factors:
Any joint managing conservatorship, whether entered into by agreement of the parents or ordered by the court, must contain provisions that:
If feasible, recommends that the parties use an alternative dispute resolution method before requesting enforcement or modification of the court’s order through further litigation.
Assuming that the parents are going to be appointed joint managing conservators, most disputes center upon the following issues:
As noted above, depending upon terms of the court order, these decision making powers may be allocated to one parent exclusively, require the joint agreement of both parents, or be exercisable by each parent individually when the parent has possession of the child.
As a final point on joint managing conservatorship, it should be noted that a joint conservatorship does not imply that each parent will have actual possession of the child fifty-percent of the time. Possession issues are addressed below.
If the court declines to appoint the parents joint managing conservators, one parent will be appointed a sole managing conservator of the child will have the exclusive power to make critical decisions for the child. In short, the sole managing conservator is “raising” the child while the parent named a possessory conservator typically will have the right to obtain information from the other parent, schools or doctors regarding the welfare of the child, but will not have authority to participate in decision making. A possessory conservator can consent to emergency medical care and is obligated to provide for the child during times of possession.
Which conservator has the right to designate the primary residence of the child?
While the Family Code emphasizes a preference for “co-parenting” even when the child’s parents are divorced or separated, the determination of the child’s primary residence continues to be a difficult and emotionally charged issue for many parents. While the Family Code gives no specific definition of “primary residence”, the term is best described as the residence that will be the child’s “home base” and be used for the child’s school enrollment.
The parent with the “primary” designation will have possession of the child at least half the time and will be entitled to receive child support from the parent who does not establish the primary residence. Additionally, unless there is a specific agreement to the contrary, the “primary” parent will have the right to claim the dependency exemption for the child on his or her federal income tax return.
In cases where there is disagreement as to which parent should be permitted to designate the child’s primary residence, many courts will appoint a qualified investigator to perform a social study into the circumstances of both parents and the child. The investigator is usually a trained social worker, psychologist or other similar person known to the court. The investigator will interview both parents and their references. Also, the investigator will usually observe each parent interact with the child, and if the child is of sufficient maturity, have a direct conversation with the child about his or her desires. At the conclusion of the investigation, the investigator will furnish a detailed written report to the court with specific recommendations regarding conservatorship and primary residence of the child.
A child 12 years of age or older may indicate to the court in writing the name of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child, subject to the approval of the court.
Will the domicile of the child be restricted to a certain geographic area?
Consistent with the public policy that both parents have continuing and frequent access to the child, the Family Code requires that, in a joint managing conservatorship, the issue of “domicile restriction” of the child be addressed. The court order must specify either that there is, or is not, such a restriction on where the “primary” parent may establish the child’s residence.
Assuming that both parents have been meaningfully involved in the child’s life, most courts in North Texas are inclined to impose the restriction providing that, so long as the non-primary parent continues to reside in “X county” or a contiguous county, the primary parent shall be required to establish the residence of the child within that same area until further order of the court.
Note, however, that the restriction may be more narrow, for instance limited to a school district, or more broad, for instance one or more States, depending on the particular circumstances of the parents and the child.
Such restrictions pose a difficulty when, for instance, the “primary” parent must relocate to another location for business or other purposes. Whether the court allows the primary parent to relocate outside the domicile area with the child depends on a number of factors such as the nature of the relationship between the child and the non-primary parent, the reason for the relocation, the age of the child, and the availability of air transportation between the new location and the original county of residence.
How will time with the child be allocated between those persons named as conservators?
The Standard Possession Order is to be used by the courts as a guide in ordering the terms and conditions for possession of a child by a parent named as a possessory conservator or as the minimum possession for a joint managing conservator.
Again, in real-life, courts are inclined to give non-primary parents “standard possession” unless there is specific evidence that such possession would be inappropriate. A history of family violence, alcohol or drug abuse, unstable living conditions, irresponsible sexual practices, or even excessive interrogation of the child during times of possession are all factors that could lead a court to impose restrictions on a parent’s times of possession.
Possession in excess of “standard” usually occurs in situations where the parents live in close proximity to one another and can alternate times of possession with out disrupting the child’s school and other activities. Obviously, both parents have to be appropriate caretakers and be able to tolerate a high level of interaction with one another.
The Standard Possession Order does not apply to children under three years of age. In such situations the specific possession schedule entered will depend on the particular circumstances of the parents. As a general rule, it is believed that younger children should have more frequent, but less lengthy, contact with the non-primary parent.
For instance, two hours access each Tuesday, Thursday, Saturday may be appropriate for a child up to six months of age. The possession schedule would “stair-step” as the child grows older. For instance, the above schedule may be increased to 6 hours each Saturday until age one and then progress to one over-night visit at age one.
At the other end of the age spectrum, the Standard Possession Order becomes increasingly problematic as the child reaches the teen-age years. School, sports and friends occupy most of the child’s time. Most non-primary parents work with their children to informally “adjust” the possession schedule depending on the child’s needs and activities. To avoid being left out of the picture, the non-primary parent should consider taking an active interest, or participate, in their child’s extra-curricular activities.
How will the child be supported?
The Family Code provides that the non-primary parent, either a non-primary joint managing conservator or a possessory conservator, make periodic payments to the primary parent for the support of the child. Additionally, the person ordered to pay child support, the “Obligor”, will be ordered to provide medical support (health insurance) for the child.
While the Family Code lists a number of factors to be considered by the court in setting child support, most often the amount of child support is calculated by applying the child support guidelines to the net resources of the Obligor. To summarize, “net resources” includes all income of every nature, such as wage and salary income, interest income, bonuses, fringe benefits, rental and royalty income, stock dividends less social security taxes, federal income tax, union dues and expenses for health insurance coverage for the child.
Once net resources is calculated then child support is calculated based upon the following percentages:
The child guidelines apply to the first $6,000.00 of the Obligor’s net resources. In other words, the cap for one child is $1,200.00 and $1,500.00 for two children. Additional child support may be paid based upon the proven needs of the child in excess of the cap amount.
Note that if the Obligor is supporting other children in another home, the above percentages will be slightly decreased.
Health insurance premiums paid by the Obligor are in addition to the child support amount to be paid as computed above.
In all cases where child support is ordered, the court will enter a wage withholding order. This order is served on the Obligor’s employer and orders the employer to withhold the child support due from the Obligor’s pay and to remit the child support directly to the child support collection agency.
Child support will be payable until the child graduates from high school or turns 18, whichever occurs later, or the child dies, marries, or the child’s parents marry or remarry. Parties should always specify that the child support obligation will survive the death of the Obligor and it is wise to include a provision in the court order that the Obligor maintain life insurance to secure the child support obligation.
All payments of child support now pass through the State Disbursement Unit in San Antonio, Texas. This centralized process is to improve upon the monitoring and collection of child support payments by the Office of the Texas Attorney General.
To conclude, while there is no debtor’s prison in Texas, an Obligor who fails to pay child support as order faces a fine, jail, or even the loss of his or her driver’s or professional license.
- Whether the physical, psychological or emotional needs and development of the child will benefit from the appointment of joint managing conservators;
- The ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child ‘s best interests;
- Whether each parent can encourage and accept a positive relationship between the child and the other parent;
- Whether both parents participated in child rearing before the filing of the suit;
- The geographical proximity of the parents’ residences;
- If the child is 12 years of age or older, the child’s preference, if any, regarding the appointment of joint managing conservators; and,
- Any other relevant factors.Designate the conservator who has the exclusive right to determine the primary residence of the child;
- Specifies the geographic area within which the conservator shall maintain the child’s primary residence or specifies that the conservator may determine the child’s geographic residence without regard to geographic location;
- Specifies the rights and duties of each parent regarding the child’s physical care, support, and education;
- Includes provisions to minimize disruption of the child’s education, daily routine, and association with friends;
- Allocate between the parents independently, jointly, or exclusively all the remaining rights or duties of a parent;
- Which parent has the power to designate the child’s primary residence?
- Will the primary residence be restricted to a particular area?
- How will decisions be made regarding the child’s education?
- How will decisions be made regarding significant medical issues?
- How will decisions be made regarding the child’s religious training?
- For one child, 20% of the Obligor’s net resources
- For two children, 25% of the obligor’s net resources
- For three children, 30% of the obligor’s net resources
- For four children, 35% of the obligor’s net resources
- For three children, 30% of the obligor’s net resources
- For two children, 25% of the obligor’s net resources
- For one child, 20% of the Obligor’s net resources