When parents separate, they can be understandably anxious about where the children will live, how they will share financial responsibilities, who will make decisions for the children, and how often each parent will see the children. To clarify these responsibilities and rights, every court case in Texas involving a minor child will conclude with a written order, or “Parenting Plan.” At NMSB, we invest the time and attention needed to help craft a parenting plan that is unique for the needs of each family.
A CHILD’S BEST INTEREST IS THE PRIMARY CONCERN
Under Texas law, the court must always put the child’s interest ahead of the interests of the parents. This usually means crafting parenting plans that encourage co-parenting, sharing time with the children, and allowing frequent contact with each parent, unless there is a risk to the child. As a policy matter, Texas has determined that these types of plans are best for the children. Each plan includes three components: conservatorship (decision-making), possession, and support.
At NMSB, we encourage our clients to place the child’s best interest first when discussing issues relating to the children. This includes protecting the child’s positive relationship with the other parent. We also encourage our clients to reach agreements on parenting plans without resorting to contested litigation and court-ordered determinations. Custody battles almost always negatively affect the child, the parents’ ability to work together for the sake of their children after the divorce, and extended family relationships.
CONSERVATORSHIP IN TEXAS
Under Texas law, a court must determine how parents will share custody of their children. Texas gives the title “Conservator” to each person who has rights to the child. Parents can be named joint managing conservators or one parent can named a sole managing conservator and the other parent the possessory conservator. In addition to being given this title, every parenting plan in Texas will include provisions for how parents make decisions for their children. These important decisions and rights include:
- the right to determine where the child will primarily live;
- the right to receive child support;
- the right to determine where the child will go to school and how educational decisions will be made;
- the right to make serious medical decisions involving invasive procedures; and
- to right to make decisions about psychological or psychiatric treatment of the children.
Generally, a sole managing conservator will have the exclusive right to make these important decisions alone. Joint managing conservators will usually have the duty to confer with one another and make decisions by agreement. The law favors joint managing conservatorship, but a court has wide discretion to award these rights to parents. In making these decisions, a court may consider whether there is excessive conflict between the parents on child-related issues, whether there was domestic violence, and how involved each parent has been in making these decisions in the past.
POSSESSION OF THE CHILDREN
Except in the rarest of cases, each parent will spend a substantial amount of time with the children after the divorce. Divorcing parents are encouraged to reach agreements for a possession schedule that best meets the needs of their family. If they cannot reach an agreement, a court will make an order for possession time.
The appointment of parents as joint managing conservators does not necessarily mean that the parents will have equal time with the children. The court will normally award one parent the right to determine the child’s primary residence. It is presumed that the other parent will have possession according to a “Standard Possession Order.” This possession schedule is presumed to be best for a child. Under this schedule, the primary parent has possession for most of the time during the school year. A Standard Possession schedule includes:
- Every first, third, and fifth weekend;
- Thursdays during the school year;
- Alternating holidays and Spring Break; and
- 30 days in the summer.
Here at NMSB, we frequently receive questions about a “50/50” possession schedule, wherein both parents have equal time with the children. Although this is not the law in Texas, many families decide that this schedule is best for their children. Also, since judges have a lot of discretion to make possession schedules, some judges will order equal possession time with the children. There are many factors that go into this type of schedule, including where each parent lives, the ages of the children, and how well the parents can co-parent their children.
CHILD SUPPORT AND MEDICAL SUPPORT
Every parenting plan in Texas must include provisions for support of the children. This includes provisions for financial support paid by one parent to the other parent and provisions for health insurance and medical support for the children.
Normally, the parent who determines the primary residence of the child will receive monthly child support from the other parent. Texas law has child support guidelines to calculate an amount that is presumed to be best for the child. Except for high income earners, the starting point for child support is 20% of a parent’s “net resources” for one child, 25% for two children, 30% for three children and so on. Net resources refers to the amount the paying parent would have available after payment of a certain amount of withholding, union dues and medical insurance for the children. The amount of withholding that can be deducted to create “net resources” is supplied by law. A parent cannot over-withhold (and get a big tax refund) in order to reduce the amount of child support owed. However, there is also “cap” on the net resources to which the court will apply these percentages. Currently, that cap is net resources of $8550 per month, which means that, absent some proven need of the child, a parent with one child would pay no more than $1710 per month (and $2137.50 for two children, etc.). The legislature has raised the net resources cap to $9200, effective September 1, 2019, as it does every six years based on the Texas Attorney General’s calculation of the CPI (consumer price index). Accordingly, after September 1, 2019, the new “maximum” for one child will be $1840 per month, $2300 per month for two children, $2760 for three children, etc. As with all decisions relating to children, the court has wide discretion to consider other factors. For example, if one parent does not exercise possession, it may be in the child’s best interest to order more child support to the other parent. Other factors might raise the amount of child support as well, such as special medical or educational needs of a child.
The court will also make orders for health insurance and dental insurance for the children. One parent will be ordered to provide health insurance and dental insurance, and the court will also make orders for which parent is financially responsible for the cost of health insurance. This will include orders for payment of expenses that are not paid by insurance, such as co-pays and prescriptions. Typically, medical and dental expenses of the child not covered by insurance will be split 50-50 between the parents, regardless of who pays for the health and dental insurance.
