Child Custody & Support

Child Custody & Support

If children are involved in your divorce, you will need to work out custody, visitation and support issues with your ex. Texas courts prefer parents to work out the details of raising their children together after a divorce. If a court needs to get involved, usually because the parents can’t agree, the court will always look to the best interests of the child or children in deciding issues of custody, visitation and support.

Texas Child Custody

Texas courts try to do everything possible to decrease the emotional impact on children whose parents are divorcing. The courts will encourage the parents to work out a plan. If the parents cannot agree on a custody plan, the court will use its own discretion to establish a custody order that will always be based on the best interest of the child or children.

In Texas, courts divide child custody issues into two different categories: conservatorship and possession and access.

Conservatorship is basically the rights and duties of the parents (i.e. to make decisions for the child regarding schooling, medical decisions, and psychiatric decisions, among many other things). Conservatorship can be done in different ways, including allowing one parent to make all the decisions (Sole Managing Conservatorship) or allowing both parents to jointly make the decisions (Joint Managing Conservatorship).

When determining the rights and duties of the parent(s), the court will decide what is in the “best interest” of the child, which takes into account a large number of factors.

Possession and access refers to when the parents have physical custody of the children or when they can visit with the children. Texas has two statutory possession and access schedules: standard and extended standard. These schedules dictate the time each parent spends with the child.

However, the parties can agree on different possession and access schedules based on their needs or the court can order a different possession and access schedule based on the best interest of the child.

Whether or not a parent has to pay child support depends on what the court determines to be in the best interests of the child.

In determining the best interests of the child, the court will consider evidence relating to a wide array of factors including: physical and emotional needs; physical and emotional danger; stability of home; plans for child; cooperation between parents; parenting skills; who was the child’s primary caregiver; geographic proximity of the children; keeping siblings together; false reports of child abuse; and fitness of each parent (including abuse, physical force and family violence).

Typically the parent who is awarded the right to designate the primary residence and/or has possession and access to the child a majority of the time is the recipient of child support.

 

Texas Child Support

In Texas, it’s the physical custody – meaning, the amount of time a parent spends with a child – that determines who will make child support payments. Although a court could order either or both parents to support a child, in most cases the non-custodial parent, the parent with the least amount of time with the child (or children), pays child support.

The amount of the payments is based on a percentage of the non-custodial parent’s income. You can estimate how much your child support payments will be by using the state’s child support guidelines, which are simply a fee schedule. While parents are free to pay more than the guideline amount, they can’t agree between themselves to pay less. In any event, a court must approve the payments. Also, there are circumstances where the result given by the guidelines would be unfair to a parent or the child. In those cases, a court will review a set of factors and may adjust the amount of support either up or down.

Just because one parent tends to pay child support, that doesn’t mean that the other parent is off the hook for the costs of raising a child. Instead, the law assumes that the custodial parent spends the money directly on the child. In other words, the custodial parent automatically pays child support through the daily cost of raising the child.

Calculating the amount of child support from the guidelines is a straightforward process, once you know the non-custodial parent’s net monthly income. To determine net monthly income, you first take all available income and then make specific deductions, explained below.

For child support purposes, income includes all wages, salary, commissions, tips, overtime, and bonuses. Even if unemployed, the paying parent probably still has income in the form of severance, retirement or unemployment benefits, and from social security or workers’ compensation awards. Income also includes gifts, prizes, and alimony, among other things. If this parent collects rent from a property, then add in the net rental income as well.

Additionally, a court may assign an income value to assets that do not currently produce income, like a second house or car, if it’s appropriate to do so. For example, a parent may not have a job but could have received property in an inheritance. In cases like this, if the asset – say a vacation home bequeathed from grandma’s will – can be liquidated (sold), then a court will consider its market value as part of income.

Likewise, in situations where a parent is purposefully unemployed or underemployed to avoid making support payments, then a court can impute (attribute) income to that parent based on what he or she should be earning.

You can exclude certain assets like capital – for instance, you own a business and had to raise a certain amount of money (capital) to run it. That specific amount, along with return of principal and any accounts receivable, would not be subject to child support payments. You can also leave public assistance, payments for foster care of a child, and some non-discretionary retirement plan contributions out of your income calculations.

Finally, for parents who already pay child support for another child or children, they can take a credit for those payments, which would be subtracted from net income before applying the guidelines.

Once you have the total amount of income, you subtract money paid for social security taxes, state and federal income taxes, union dues, and the amount used to cover the child’s health insurance. The difference is the net income. Divide it by 12 to get the net monthly income.

Take the net monthly income and apply it to the guidelines, which look like this:

  • 1 child = 20% of Obligor’s Net Resources
  • 2 children = 25% of Obligor’s Net Resources
  • 3 children = 30% of Obligor’s Net Resources
  • 4 children = 35% of Obligor’s Net Resources
  • 5 children = 40% of Obligor’s Net Resources
  • 6+ children = not less than the amount for 5 children

Obligor is the legal term for the parent who is obligated to pay child support. Once again, this is usually the non-custodial parent.

In addition to the support amount determined by the guidelines, the parents will have to cover the child’s health insurance, too. While there is a presumption that the non-custodial parent will provide this benefit, that responsibility can easily shift to the other parent if it makes more sense. For example, the custodial parent may provide the child’s insurance if this parent’s employer provides health insurance while the non-custodial parent lacks coverage.

Incidentally, the percentages above are used for net monthly income up to $8,550 a month. For income above $8,550, a court may increase the amount of support depending on the income of both parents and the child’s needs. The law does not have a minimum amount of child support that must be paid, but families receiving Temporary Assistance for Needy Families (TANF) or certain other federal benefits like Medicaid should automatically receive child support services from Texas’s Attorney General’s Office.

If you have a child custody or child support issue, please call The Gregg Law Firm today to get started!