Thursday, October 18, 2012

Child Support in Texas: So Many Questions!

Every week, it seems that several people ask me what they ought to be paying in child support, or how to change the amount of child support in their case. Child support is one of the most hotly contested matters in many Texas divorces, and often remains a bone of contention until the child is no longer eligible for child support.

In a series of topics in this blog, we’ll go over some of the most frequently asked questions about child support in Texas. The answers will be generic; you should always consult a family lawyer about the facts concerning your specific situation before making any decisions about setting, modifying or enforcing child support in your case.

Monday, October 1, 2012

School Days: How Does “School” Affect My Texas Possession Schedule?

Most Standard Possession Orders (SPO) in Texas make specific reference to weekends extended by student holidays and teacher in-service days, or set the beginning and end of periods of possession by a parent at the time that “school” begins or ends.  But which “school” calendar controls these matters?

Unless defined differently in the specific possession order or divorce decree, “school” in a Texas SPO means either:

  1. the primary or secondary school in which the child is enrolled, or  
  2. if the child is not enrolled in school, the public school district in which the child primarily resides.

So, for children who are too young to attend school, parents should refer to the calendar for the school district in which the child would attend public school based on his or her primary residence (as established by the parent with the exclusive right to designate the child’s primary residence). 

For children attending private school, or who go to a school outside their “regular” district, parents should follow the calendar of the school in which their child is actually enrolled.

However, when all else fails, parents should remember that they can agree upon a different definition of “school,” and they can always agree to alter the standard possession schedule so that it makes practical sense for themselves and their child. Such agreements should be documented in writing, and signed by both parents to avoid any future disagreements or confusion.

Monday, August 27, 2012

Can I Designate a Different Summer Vacation Schedule in Texas?

As noted in a separate blog entry, under the Texas Standard Possession Schedule, the parent with whom the child does not primarily reside (called a “possessory conservator”), can have the child for up to 30 days if the parents live less than 100 miles apart.  If the parents reside over 100 miles apart, the possessory conservator can possess the child for up to 42 days.

The Texas statutes set up a “default period” for summer possession.  However, Texas Standard Possession Schedule allows the possessory conservator to designate the specific days for summer possession, provided he or she does so in writing by April 1st of that calendar year.  These extended summer vacation visits must not be over more than two separate periods and must be at least seven days in length.

These extended periods of summer vacation should be discussed and coordinated with the other parent.  Under the Texas Standard Possession Schedule, the managing conservator (the parent with whom the child primarily resides) can designate one or two specific weekends to have possession of the child during the extended summer periods of possession designated by the possessory conservator (depending on how far apart the parents live).  This designation must be given in writing on or before April 15th of that calendar year, and cannot interfere with the father’s right to possession of a child on Father’s Day.

By:  Cynthia W. Veidt, attorney and Erin Zeiss.

Wednesday, August 1, 2012

What Do Texas Courts Consider When Determining “Primary Custody”?

As noted in a previous blog, the term “primary custody” is misleading in Texas.  The closest standard in our state is to determine which parent has the exclusive right to designate the child’s primary residence, since parents are presumed to have joint/equal parental rights and the standard possession order gives each parent an almost equal amount of possession/custodial time. 

When determining whether a parent will be appointed as a joint managing conservator (“JMC”), Texas courts look to see if there has been a history of family violence by one parent toward other members of the household.  If the court finds one parent has committed family violence, or has a history or pattern of child abuse/neglect, physical or sexual abuse, or sexual assault, that parent may not be appointed as a JMC, and the court may also limit or restrict that parent’s periods of possession/custodial time.  See Tex. Family Code § 153.004. 

Other factors include:

- The parent’s ability to give first priority to the child’s welfare;
- The parent’s ability to reach shared decisions in the child’s best interest;
- The parent’s ability to encourage and accept a positive relationship between the child and the other parent;
- The parent’s role/participation in the child’s rearing;
 - Whether appointment of the parent as JMC will benefit the child’s physical, psychological and emotional needs and development; and
- Where the parents live in relation to one another.
See Tex. Family Code § 153.134.

If one parent has clearly been uninvolved in caring for the child’s basic needs and upbringing, has not been active in the child’s daily activities and schooling, disparages the other parent or actively discourages the child from a relationship with the other parent, or abuses alcohol or other substances (legal or illegal), has frequent emotional outbursts or a demonstrated lack of self-control, or otherwise shows an inability to exercise good parental judgment, the court is less likely to appoint that parent as a JMC, and will instead consider granting “primary custody” to the other parent.

Article by Cynthia W. Veidt, Attorney

Tuesday, July 17, 2012

What is the Alternative to Joint Managing Conservatorship (JMCs) in Texas?

In Texas, when parents are not appointed as “joint managing conservators” or “JMCs” for their children, one parent is appointed as the “sole managing conservatory” or “SMC” – this is the parent who receives the exclusive rights to make decisions about medical care, mental health care, and educational decisions, as well as the exclusive right to determine the child’s primary residence.  See Tex. Family Code § 153.132.

The other parent is appointed as “possessory conservator” or “PC”.  This parent has a much more limited ability to make decisions about the child’s welfare and upbringing.  See Tex. Family Code § 153.192.

However, even in situations where one parent is an “SMC,” and the other parent is a “PC,” the court will enter a standard possession order under which each parent has very similar periods of possession/custodial time, unless the courts finds a compelling reason to limit the PC’s periods of possession in the child’s best interest.  Texas’ public policy (as enacted in our statutes) encourages frequent contact between a child and each parent in order to permit the child to develop a close and continuing relationship with that parent.  See Tex. Family Code § 153.251(b).

Article by Cynthia W. Veidt, Attorney

Thursday, July 5, 2012

Texas Primary Custody: What Does That Really Mean?

In Texas, courts typically appoint both parents as “joint managing conservators” or “JMCs” for their children.  What does this really mean though?

“Conservatorship” simply means the parent’s right to make certain decisions for the child, including decisions about medical care, mental health care, and educational decisions.  The presumption is that both parents should share these rights so that each has a say in important decisions concerning their child, in the absence of an emergency or other factors (which will be a topic of future blog entries here).  See Tex. Family Code § 153.131.

So, if the parents are joint managing conservators, how do we determine which parent has “primary custody?” 

Although that term is used by many parents to describe their status, it is not an actual legal term recognized in Texas.  The closest standard for determining which parent is “primary” relates to the court’s decision (or the parties’ agreement) to grant one parent the exclusive right to designate the child’s “primary residence.”  That parent is also generally the parent who has the exclusive right to receive child support. 

So, in Texas, the term “primary custody” is somewhat misleading.  Parents who are appointed as JMCs are usually under a Standard Possession Order or “SPO” where the child spends only a little more time with one parent than the other, once all the days and hours are added up.  It is even common for parents to agree to a possession order in which the children reside an equal amount of time with each parent.  In these circumstances, neither has “primary custody,” but one parent will still have the exclusive right to determine the child’s primary residence. 

Article by Austin Lawyer Cynthia W. Veidt 

Wednesday, June 27, 2012

How Does the Texas Standard Possession Schedule Handle Summer Vacations?

Under the Texas Standard Possession Schedule, distance affects the number of days of each parent’s possession during the child’s summer vacations. 

When the parents reside within 100 miles of each other, the possessory conservator (the one with whom the child does not primarily reside) has up to 30 days of possession during the summer months.  Under the default rule, the possessory conservator will have possession of the child beginning at 6:00 p.m. on July 1st until 6:00 p.m. on July 31st. 

If the parents live more than 100 miles apart, however, the possessory conservator is entitled to have possession for up to 42 days during the summer months.  Unless otherwise provided, the possessory conservator will have possession of the child beginning at 6:00 p.m. on June 14th until 6:00 p.m. on July 27th. 

By:  Cynthia W. Veidt and Erin Zeiss