By Tony Mallers, Claire James, and Gracen Daniel
At some point in time, a person may find themselves in the family court system. This article will discuss the various topics that come up in family law cases involving children.
If the parties are married, child-related issues (for example, conservatorship, possession, and child support) are determined in a divorce proceeding. If the parties are unmarried, the issues are determined in what is called a Suit Affecting Parent-Child Relationship, or “SAPCR” for short.
The court will appoint conservators and determine the types of conservators of the child. This determination is made primarily based on the best interest of the child. For families with multiple children, courts usually presume that keeping siblings together (especially children under three years of age) is in the children’s best interest and will appoint the same type conservatorship for all children.
There is a statutory presumption that joint managing conservators are in the child’s best interest. Joint managing conservators both have the right to possession of the child and certain rights and duties that are shared between the parties. One parent is usually appointed what is referred to as the “primary” joint managing conservator. The “primary” conservator has the exclusive right to designate the child’s primary residence. Other non-exhaustive rights include the right to direct moral and religious training, to consent to medical treatments, to make educational decisions, to act as the child’s legal representative, and to receive child support. The court will also impose duties on each conservator, such as the duty to provide information to the other parent about the child and the duty to support the child by providing clothing, food, shelter, and medical care.
Sole managing conservatorship differs from joint managing conservatorship. In order to be appointed sole managing conservator, a parent must present evidence that appointing the parties as joint managing conservators is not in the child’s best interest. In some instances, the court can presume this. For example, a history or pattern of past or present child neglect, or a history of physical or sexual abuse against the other parent, spouse, or child will rebut the presumption of joint managing conservatorship. In a sole managing conservatorship, one parent is sole managing conservator, and the other parent is possessory conservator, unless the court further finds that a possessory conservatorship would not be in the best interest and would endanger the child’s physical or emotional welfare.
The idea that possession is synonymous with conservatorship is a misconception. Conservatorship deals with the appointment of parental rights and duties. Possession deals with the schedule and conditions for whoever takes physical possession of the child. Possession also differs from access. Access allows a parent to communicate with and visit the child.
For example, FaceTime, Zoom, telephone calls, or school events, are avenues for a parent to have “access” to a child. During COVID-19, access has become an increasing issue as possession is sometimes affected by quarantine periods of either household or the child. Nevertheless, possession schedules allow for the physical possession of the child. In most cases, the court will issue a Standard Possession Order, which is promulgated by the Texas Legislature. The court can deviate from the Standard Possession Order based on the best interest of the child, or it can impose conditions to possession such as ordering supervised visitation, periodic drug testing, or travel restrictions.
Child support is ordered for the general cost of rearing a child and a court will determine child support obligations and amounts. Types of support the court can order a parent to pay include child support, medical support, dental support, and retroactive child support. Medical and dental support are payments made to cover the child’s insurance and medical or dental needs. Retroactive child support is payment for past childcare expenses. The court must determine the net resources of the person who will pay child support (otherwise known as the “obligor”) and multiply that amount by the child support guidelines found in the Texas Family Code. Courts can deviate from the guidelines for a variety of factors, such as the age and needs of the child or extraordinary educational or healthcare expenses.
The determination of conservatorship, possession schedules, and child support has a lasting impact on a family. Child-related issues, whether related to a divorce or a SAPCR, can be difficult to navigate without the assistance of legal counsel. Mediation and collaborative law models are also available to resolve disputes outside of the courtroom before preparing final orders for the judge’s final approval.