Wednesday, November 15, 2017

No More Unhappy Holidays? Child Custody Basics

By Claire James

In movies, the holiday season is full of good cheer for all, but for some, the holidays are a time of conflict or sadness as marriages fall apart and parents attempt to put on a happy face for their children. If the holidays leave you considering divorce, you’re not alone. For parents considering divorce, how it will impact the children is often of paramount importance. The purpose of this article is to provide a brief overview of Texas child custody law.

1.  "Custody" in Texas.  In Texas, what most people call "custody" is made up of two sets of rights:  conservatorship and possession/access. Conservatorship is the bundle of legal rights and duties of parents, such as the right to make legal decisions, educational decisions, and medical decisions on behalf of a child. Possession and access refers to the times at which each parent has a right to physical custody of the child.


2. Conservatorship:  Divvying up rights and duties.

Joint Managing Conservators
In most divorce cases involving children, parents will be appointed joint managing conservators, which means both parents have certain rights and duties. The most notable rights, and those most frequently fought over, are the right to determine the child’s primary residence and the right to receive child support. These rights are given to one parent, who is sometimes referred to as the “primary” parent. Frequently, the right to determine the child’s residence is subject to a geographical restriction such that the "primary" parent can’t move the child away from his or her other parent.

The other rights and duties include the right to make medical decisions for the child, the right to make educational decisions for the child, and the right to represent the child in legal action. These rights are awarded to both parents jointly (both parents have to agree), to each parent independently (either parent can exert the right without the other parent’s consent), to one parent exclusively, or sometimes to one parent “after consultation with the other parent” (one parent makes the ultimate decision, but must discuss it with the other parent).

Sole Managing Conservator & Possessory Conservator
While joint managing conservatorship is presumed to be in the child’s best interest, one parent can be appointed the sole managing conservator and the other possessory conservator if the evidence shows that appointing the parents as joint managing conservators would not be in the child’s best interest. Some reasons a judge might not appoint parents joint managing conservators include family violence by one parent, child abuse or neglect, or alcohol or drug abuse.

3. "Split Custody,” “50/50," "Standard Possession," oh my!  If you ask ten different divorced couples what their visitation schedule is, you might get eight different answers. Divorcing couples come to many different agreements regarding parenting schedules based on their desires and the needs of their children. When parents don’t reach an agreement, the Standard Possession Order is the default for children over the age of 3 and will often be ordered by a judge.

Generally, the Standard Possession Order provides that one parent has the right to determine the child’s primary residence and the other parent has possession on the first, third, and fifth weekend of each month, and for a couple of hours on Thursday evenings. The Standard Possession Order also provides for alternating holiday possession and extended summer possession by each parent.

4. Child Support. When calculating child support, courts in some states consider the amount of time each parent spends with the child and the income of each parent. However, in most Texas cases, the amount of child support that will be ordered is a simple percentage of the net resources of the parent who does not have the exclusive right to determine the primary residence of the child. That percentage is applied to the first $8,550.00 of monthly net resources only, so if your monthly net income is more than $8,550.00, the percentage is not automatically applied to any income above that “cap.” The percentages are as follows:

  • One Child 20% of net resources

  • Two Children 25% of net resources

  • Three Children 30% of net resources

  • Four Children 35% of net resources

  • Five Children 40% of net resources

  • Six Children Not less than 40% of net resources

Parents can agree to a child support amount that differs from the “standard.” Similarly, parents can agree on a variety of unique possession arrangements depending upon what works for their family. In fact, courts encourage divorcing parents to negotiate agreements regarding children when possible. A well-crafted child custody order can pave the way to happier holidays in the future.


Claire James is an Associate in Cowles & Thompson’s Plano office. Her experience in family law, commercial litigation, and appellate practice allow her to help clients through divorce with a blend of business acumen and compassion.

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