For many divorcing spouses, the most difficult issues are not property division or the state of the marriage, but children. Decision-making, visitation, financial support… any of these issues can derail a negotiation and lead to costly battles.
In this guide we’ll share the basics of child custody in Texas, as well as the red flags to watch out for. With this information you’ll be able to make better decisions, protect your children, and avoid explosive legal fees.
Before we get into the particulars of divorce-related custody issues we’ll cover some basic principles that apply in these cases.
First, know that a divorce is actually three lawsuits in one: the court will dissolve the marriage and split up different types of property (which we cover here). The last element is the kids, or what we broadly call “custody.”
(Note that “custody” is somewhat of a misnomer. In Texas we don’t actually use the word, preferring the term “conservatorship.” But to make it easier for you, in this guide we will go ahead and use the term “custody.”)
In a custody case, as with any family law case, Texas courts apply certain “presumptions.” The presumptions are rules that will apply every time to every case, unless you can prove some special circumstance. In the case of child custody we have a guiding presumption that we should maintain the status quo, or what the child is used to.
To combine the presumption and status quo means that the court will continue with what the child is used to, unless someone in a divorce proves that the status quo is harmful to the child.
This brings us to the biggest presumption of all: the “best interests of the child.” It’s presumed that every decision made within a divorce with children has to operate in the best interest of the child. Courts will not allow parents to agree to terms that aren’t best for the children.
To give you a practical application of this rule, look at prenuptial agreements. In a prenup, you can make some decisions before you get married to prepare for the case of a future divorce. You can draw lines about property, income, and spousal support. What you can’t get ahead of is anything that involves a best interest finding. Meaning, you can’t say, “We’ll agree in advance that if we ever get divorced child support is going to be X,”or, “We’ll agree in advance that if we ever get divorced then the visitation schedule is going to look like Y.” A prenup is a contract between adults and the contracting parties can’t know what’s best for the kids by the time they get divorced.
Every time you have a case involving children you’ll need the court to make these best interest findings. The court will have to define what works best for the child in your particular circumstance. That does not mean that divorcing parents can’t reach certain agreements, but the court will always review those agreements to make sure the child’s best interests are protected.
We will cover several presumptions in this guide, but be aware of the “best interest” standard. It hovers above everything.
The first question we are often asked in these situations is “How do I become the primary parent?” Usually what parents mean is that they want to be the person with maximum control. They want to be the parent that decides everything related to the child. They might think that one parent typically has that kind of power while the other parent doesn’t.
That’s not how we generally do things in Texas, though. Courts in Texas have a strong prejudice towards applying what’s called “Joint Managing Conservatorship.” That means that courts presume that parents should have equal control of and access to the children after a divorce. Of course, as with any presumption, you can prove why that standard is not in a child’s best interest, but that is the default. And for good reason.
The National Institute of Mental Health recently gathered nearly fifty studies on joint physical custody. They found that, if the kids spend at least 35 percent of their time with each of the parents, they have better relationships, they’re better academically, socially, and psychologically. They are less likely to smoke, less likely to get drunk, use drugs, and less susceptible to anxiety, depression, and stress-related illness. There are so many reasons that courts in Texas will make sure that both parents stay engaged.
To restate, then, there is no such thing as a “primary parent” in Texas. If you intend to cut out the other parent, know that there is an incredibly high burden. If the other parent is abusive to the child, for example, courts will make provisions for protecting the child. But even in those cases courts will rarely terminate the rights of the other parent, preferring to protect the child through other means and help the abusive parent change. By design, it is incredibly difficult to permanently shut out a parent.
In every Texas custody case, one of the parents will be designated as the “parent with the right to determine primary residence.” (Occasionally both parents will be given this right, but it’s rare and we wouldn’t recommend it.) This parent typically has possession of the child during the majority of the school week and manages most of what we might refer to as the “administrative tasks” in a child’s life.
Often, when people ask us about becoming the primary parent, they really mean that they want to be named the parent with the right to determine primary residence. In truth, the only right that is automatically granted to that parent is deciding where the child lives during the week. This decision impacts things like school registration and other geographically-limited choices, but it otherwise grants no particular powers unless specifically granted elsewhere in a custody order.
For simplicity’s sake, it might be better to refer to this person as the “weekday parent.” That is because, as we’ll cover later in this guide, the parent with the right to determine primary residence usually has possession of the child during the school week. Again, this parent usually deals with administrative things like school schedules and extracurricular activities, but not because they have special rights. The weekday parent becomes the administrative parent by virtue of the time of possession under the Standard Possession order.
If you believe that you are better qualified to handle these administrative duties for your child, you should seek to be named the parent with the right to determine primary residence.
Whatever your eventual possession schedule, whether the Standard Possession Order or something custom, most custody orders in divorce will include an order than possession will be by the agreement of the parties. Above any schedule the order will say that the parents have the ability to exchange possession as they see fit. Only when they can’t agree does the possession order apply, and it forms the backdrop of your agreements.
In fact, courts often impose a geographic restriction on the child’s residence. That means that the parent who determines residence might have to stay close to the other parent in order to facilitate frequent contact. There are ways around these restrictions, but generally the court will try to keep everyone close together.
Again, based on the social science brought to the legislature, Texas law assumes that it’s in the best interest of the child to be constantly involved with both parents. This includes certain downsides. It can be very difficult to move children back and forth between houses, but that is a cost courts recognize. They will still encourage stability for the child, and that means seeing both parents regularly.
Some decision-making power is automatically granted to joint managing conservators, or parents that the court expects will work together. Both parents, for example, are individually responsible for the moral upbringing of the child. That means each parent can raise the child the way they see fit when the child is in their home.
This can cause serious turmoil for parents, particularly if they come from different religious traditions. But that’s the norm. Courts allow each household to raise the child with their own values. That decision-making power is granted to both parents.
Similarly, both parents can seek emergency care for the child. One parent does not have to call the other parent in order to take the child to an emergency room. Each parent is empowered and expected to immediately take care of the child.
Both parents are also empowered to stay involved with the child’s daily life. That includes items like medical appointments, schoolwork, and extracurriculars. Generally speaking, going to school activities, watching a child perform in a school play, day-to-day engagement, etc. is both expected and encouraged.
There are other decision-making rights that are specifically delineated in an order, so let’s cover those.
Beyond the broad grants of rights mentioned above, courts will assign certain decision-making rights to the parents. The most important (and contentious) rights are health and education.
Education decisions can involve a number of issues. As mentioned earlier, the child’s residence usually determines the school he or she will attend, but that’s not always true. If a parent wants to homeschool, or put the child in a private school and asks that the other parent helps with expenses, or hold a child back or apply for a particular program, you’ll see arguments. A custody order should make clear who makes these educational decisions.
Similarly, the medical and psychological health of a child can create conflict. Emergency care is pretty easy to sort out but invasive, elective, or mental health care is not. We’ve seen countless cases where parents have tried to use a child’s therapist as some kind of wedge in a case. With a presumption that parents will split medical costs 50/50, you can imagine how loaded these decisions become. You’ll want to be sure that medical and psychological decisions are well-defined.
Generally speaking, courts will assign decision-making rights in one of three ways: exclusive, joint, or independent.
An exclusive right implies that only one parent has the power to make the decisions within a given category. Almost every decree will grant one parent the exclusive right to determine the residence of the child and, relatedly, receive child support. Beyond that, most decisions are not made exclusively by joint managing conservators. Only when a parent is assigned as sole managing conservator – the kind that is not expected to work with the other parent directly – will you see these exclusive rights.
(As a reminder, this does not negate the rights that always apply that we mentioned above. It would be very unusual for either parent to not have access to medical records and the ability to attend a school play, for example.)
The second way a court may divide rights is by having parents decide jointly. That implies that both parents work together directly to make decisions. Although joint decision-making sounds good, and can be great when it’s working, it can be really terrible when it’s not. If you plan to set up this kind of decision-making, we would suggest having tie-breakers for the most contentious categories. For example, you might name the school counselor as the person to resolve conflicts related to education, or the child’s primary care provider for healthcare issues. That helps deal with the inevitable indecision that happens when parents are expected to decide jointly.
The last category of how we might have them make decisions is to do it independently. That means, generally, when the child is in your possession, you get to make the decisions. For example, if you have the child and you want to get him or her an invasive but optional surgery, you go ahead. But when the child’s with the other parent they get to make that decision. Or if you want to take the child to a certain extracurricular activities that might overlap with education decisions, you’ll have that ability, and the other parent will have that same ability. Independent decision-making can be a good option for parents who expect to largely stay out of each other’s hair.
In general, make sure you divide decision-making rights in a way that facilitates cooperation and avoids drama. There is no reason to expect you’ll make decisions jointly after divorce if you haven’t done it well in marriage. Pick the option that works best for your personalities and relationship.
After decades of research and debate, the Texas legislature has decided that there is a presumed standard possession order that’s best for kids. As with other presumptions the courts are not totally bound to follow the Standard Possession Order, but it is presumed to be in the best interest of the child. Getting around it means proving that your situation is somehow special, and that your solution is better adapted to the child.
Most of us are familiar with the standard schedule, and the Office of the Attorney General has great resources that map it out. Generally the “non-weekday” or “non-administrative parent” has the child on the first, third, and fifth weekends of the month. That time starts on the Friday before the weekend and continues until the following Sunday night. The child is also with that parent one night a week, generally on Thursday. There are other, larger blocks of time. The parents, for example, will alternate spring vacations, alternate Thanksgiving and Christmas holiday periods, etc.
Facilitating this schedule is very doable for parents that are less than 100 miles apart. If parents are over 100 miles apart, the rules change a bit. Generally, the 100+ mile standard gives the distant parent more and longer holiday access, as well as the ability to manage monthly visits. The distant parent will be able to pick each month whether to see the child on the first, third, and fifth weekend, or to choose any one weekend. Meaning, either a predictable schedule two to three times a month or a flexible schedule once a month.
The legislature has added extra possession time for the “weekend parent” to avoid parents running into each other during the week for exchanges. Rather than increase the chances of conflict, the Expanded Standard Possession Order uses the school as a base for making exchanges.
Under the Expanded Standard Possession Order, the “weekend parent” enjoys an extra weeknight overnight, as well as an extra overnight at the end of weekend visits. Exchanges can happen at the school for pick up and drop off, at the discretion of the “weekend parent.”
Instrestingly, this schedule gets the weekend parent’s visitation time into the 45 percent range. Sometimes it could actually be a little more depending on some specific details. Meaning, the Expanded Standard actually gets close to a true 50/50 split of time for the parents.
Obviously it’s nearly impossible to make this schedule work if the parents live far from each other. This is why the legislature has added expanded holiday time like every Spring Break and extended summer periods.
In short, yes. The Standard Possession Order includes time for both parents on the child’s birthday, for dad on Father’s Day and for mom on Mother’s Day.
Additionally, you can agree to add certain holiday provisions that matter for your family. That might include Passover, Eid, or other religious holidays, or patriotic or family holidays. The difficulty comes when a child needs to be removed from school to facilitate such an exchange of visitation, but parties can agree to those changes as long as it does not interfere with the child’s best interests or the policy interest of the state.
This is a hairy situation that is very fact-specific. Typically parents share the costs of travel, often because they have a system of “If you want the child, come get him.” Each parent pays for a leg of the trip because they’re making the pick up from the other parent.
When parents live far away from each other, however, it gets a little more complicated. Often the way that costs are divided depends on the timing of the distance and who created it. Meaning, if the parents are close together to start with and there’s a geographic restriction, then the weekend parent moves away, the weekend parent will be responsible for the costs. The parent who creates the distance will be made to bear the burden.
If parents are distant at the time of the divorce, however, costs are usually split somehow. Parents might meet each other in between their two homes, or split the costs of airfare. These situations are incredibly fact-specific and there aren’t many generally applicable rules.
It’d be hard to imagine a custody issue more complicated but treated as mathematically as child support. Courts tend to think very uncritically about child support, applying a formula from the Family Code without factoring in the surrounding context.
To return to our talk about visitation, the court will assume that the Standard Possession Order is in the child’s best interests. That standard includes, as we discussed earlier, an almost 50/50 time split. Meaning, child support is apparently not meant to even bear the costs of having the child. This isn’t a way to balance things out because they are already balanced.
So why do we have child support? Why do courts presume that the parent with the right to determine primary residence (the “weekday parent”) will receive child support, starting at 20% of the paying parent’s net income?
Again, the legislature has determined that this setup is in the best interest of the child, that the child needs the full and secure support of one household.
Both parents need to provide a suitable home for the child in order to exercise visitation, but the court will start by making sure one of those houses has the ability to care for every need of the child in case something happens with the other house. The visitation and child support obligations are not tied together.
To put it another way, we talked earlier about how the weekday parent might also be called the “administrative parent.” That is, the weekday parent has that chunk of school week time specifically because she/he previously did most of the administrative work. That parent took the child to scouts, church, soccer, brushed teeth, helped with homework, etc. Maybe both parents helped with that, but the factors that determine who should be the weekday parent are all rooted in that administrative role. In order to preserve the status quo, the court will empower that administrative parent to continue in that role.
So, if we try to make sense of the child support presumption in a visitation split that is presumed to be nearly 50/50, we’d have to conclude that it has nothing to do with time spent together. It has more to do with securing one fully functioning spot to handle the weekly life of a child.
Perhaps it also comes from the cultural tendency to have a breadwinner and a stay-at-home parent, and child support is an attempt to normalize the available funds of those parents, but that doesn’t apply as often now as it did generations ago. Whatever the reason for child support presumptions, it’s important to know what they are and when they do not apply.
Let’s act like a judge and do some simple math. Courts prefer formulas because they’re easy to follow and rarely get appealed. There are ways around the simple math, but again, know that the presumption strongly favors the formula, as do most judges.
Courts start with the presumption that the non-custodial parent, or the “weekend parent,” will pay 20 percent of net available wages to the other parent for one child. Add five percent to that for each child, generally.
Within that very simple math are a few formulaic deviations. The court will change that to account for the weekend parent’s insurance costs, for the number of other kids the paying parent cares for, and complicated offsets like self-employment income.
Take a look at the Attorney General’s child support page here for a helpful calculator. Know that the result you get front hat calculator has the strong influence of presumption, but some things can change the basics, as we mentioned before.
Thinking back to how the presumptions work, remember that these rules apply every time unless someone can prove that their situation is special. In this case, knowing that “best interest of the child” dominates, whether you’re special or not will largely depend on the child’s needs.
So, the child support amount can be raised if the child has special healthcare needs. The amount of time that the paying parent will pay child support can also extend past the child’s 18th birthday in the case of such special needs.
Maybe a parent could make an argument that more money is needed to maintain what a child is used to. For example, if the child has historically complete in Olympic horsing events, if riding is part of her identity, the court might mandate that the paying parent continue to pay for the riding experience.
It’s very rare for a court to order less than the standard child support amount. That’s because the paying parent paying less usually only helps the paying parent. It really does little for the child, and it’s the child’s interests that prevail.
So, if you are a paying parent, plan to pay at minimum the standard amount; if you are the parent receiving parent, plan to receive at maximum the standard amount. There are exceptions to that rule, but again, set your expectations correctly.
This is where it gets hairy, largely because courts and the legislature haven’t been very helpful.
If our interpretation is correct, that the legislature wants to have an “administrative parent” who manages the weekly affairs of the child, then that parent should pay for the extracurricular expenses. If that parent’s function is to manage the child’s daily life, and that justifies a transfer of money, then managing should include funding.
If, instead, the reason for child support is to normalize income earnings between split parents (doubtful, since we’ve seen courts make a mom earning $30,000 a year send child support to a weekday parent dad earning ten times as much), then it gets complicated. In that case, the paying parent theoretically has much more money. Maybe then the parent should pay for more, in addition to the chunk of money that goes toward helping with household expenses.
If, even more confusingly, child support it meant to fulfill a generic requirement to look out for a child’s best interest, then each parent should pay whatever he or she can to support a child’s best interest. Meaning, whether ordered by a court or not, support the child’s interest.
This is difficult. Our advice, whatever the justification, is to be clear about this in an order. Unless you’ve worked together well on issues like this for some time, get ahead of the conflict. Imagine that the child is going to prom in 10 years and needs a tuxedo. Figure out now who will pay for that kind of thing. It could avoid a stressful fight later.
Healthcare costs are another place where the mathematical formulas used to make a lot more sense. With changes to healthcare, it’s hard to know where this will go.
When the legislature wrote the rules for healthcare, employers provided the bulk of health benefits. Maintinaing those benefits cost employed payors very little. And typically the child support payor and the provider of health insurance were the same people. Meaning, if you had the nice job, you probably had nice insurance so let’s just keep that going.
Now, however, more and more workers are shifting to self-employment, meaning insurance is no longer tied to employment for many. At the same time, costs for healthcare have skyrocketed.
Generally, the parent who pays child support also covers the monthly premium. Generally that’s capped at 9% of the paying parent’s gross monthly income. The insurance has to cover “basic care” which the legislature constantly redefines. Assume that you need the equivalent coverage of basic Medicaid.
But costs don’t stop at a monthly premium. You also have co-pays, deductibles, and uncovered procedures. Generally the rules is that the parents will split those remaining costs 50/50. If you take your child to the doctor and pay a $20 co-pay, you have 30 days to send the receipt to the other parent, who then has 30 days to repay you the 50%. It can be very tedious to track all of those dates and receipts, but you need to if you want to enforce the court order.
We suspect that the courts will clarify this issue soon. Premiums are high, uncovered costs are high, and benefits are often not tied to employment. For now, though, expect that the formulas we mentioned will apply in your case.
Seriously, please make these decisions yourselves. Please don’t let a court apply these awkward formulas, especially since many of them are in flux.
So how do you do that? Mediation, negotiation, and settlement conferences.
The Texas Family Code allows several procedures with different layers of protection for you. It’s not necessary that you go “have your day in court” so some judge who doesn’t know you can rubber stamp a solution. You have much more control than that.
In these situations, an attorney can be an invaluable resource. Taking these complicated issues into your own hands can mean going in pretty blind. And the consequences of signing something you don’t understand can be permanent.
Our advice is simple: hire an attorney, file a case, and prepare for mediation. Your attorney will guide you through the process and help you make sound decisions.
For your own good, and for the good of your child, we suggest that you read our guide here on hiring an attorney.
If you’re ready to see how we can help you, sign up here for a Divorce Strategy Session. For $395 you’ll get a packet of instructional documents and forms, a half hour meeting with one of our experienced divorce attorneys, and a customized map forward for your particular situation.
We schedule these meetings fairly far out in advance. If you are seriously considering hiring us to help with your situation, know that our availability is limited. We are very committed to our current clients, as we would be to you, so please be patient. We’ll give you that same attention when you commit to letting us help you.
Attorney Robert Von Dohlen helps Houston families make an important transition. Learn how his unique approach, focused on client education and independence-focused decisions, can help you.