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Tony R. Bertolino

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Putting Your Children First in Texas Divorce Cases
by Tony R. Bertolino   
Rated "G" by the Author.
Last edited: Monday, April 11, 2011
Posted: Monday, April 11, 2011

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The issues surrounding child custody understandably become one of the most important areas to resolve when finalizing divorce details. With knowledge of the state laws guiding your decisions and a willingness to put aside differences to the extent that is possible and work with your spouse, you can make this life transition as smooth as possible for your kids.

Whenever a husband and wife decide that the dissolution of their marriage is the only course of action remaining in a relationship that is no longer working, the heartache is usually felt by both parties as they work through the legal and emotional processes.  The pain is multiplied exponentially when children are involved because you realize that your adult problems have affected some innocent and precious people who did not have much of a voice in your decision to give them two separate homes.  In such situations, the issues surrounding child custody understandably become one of the most important areas to resolve when finalizing the divorce details.  With knowledge of the state laws guiding your decisions and a willingness to put aside differences to the extent that is possible and work with your spouse, you can make this life transition as smooth as possible for your kids.

The state of Texas encourages divorcing parents to enter into a joint managing conservatorship whenever the circumstances allow.[1]  This means that the same parental duties and rights will continue for both mom and dad, but that they will be shared or allocated based on the separate lives they are now living.   If this determination can be made at the beginning of the process, subsequent decisions regarding the children likely will be more amicable.  Of course, in instances in which there is domestic violence, substance abuse, or instability in the home on the part of one parent, the joint conservatorship will not be advised or endorsed by Texas courts.

The Court will want one parent to establish primary residence for the children, with reasonable visitation set in place for the non-custodial parent.  For example, a standard visitation may involve every other weekend and one evening during the week with the non-custodial parent.  In Texas, a child who is at least twelve years of age can state a preference concerning which parent he or she would like to live with, although this request will not necessarily be approved.[2]  And, the Court can interview a child who is at least ten years old to gain more insight into the best home situation for the children involved.  While not clearly defined in the law, Texas also considers the desire of grandparents on both sides to see their grandchildren and visitation rights can be written into the parenting agreement.[3]

After deciding where the children will live and how often the other parent will be able to visit, the other primary issue of concern is the child support obligation of the non-custodial parent.  The Texas Family Code establishes specific computations for payors’ whose monthly income is $6000 or less, and is based on the number of children involved—20% of income for one child, 25% for two children, etc. [4] If the payors’ monthly net resources are higher than $6000, the Court may order additional amounts of support.  The payor also is responsible to maintain the health insurance policy for his or her children.  This financial support continues until the child reaches the age of eighteen or until high school graduation if the child reaches his or her eighteenth birthday before finishing school.  Texas does not require the non-custodial parent to assume any obligation regarding the costs associated with college.[5]

Thanks to a state law passed in 2005, all of these decisions regarding the best interest and needs of the children can be made with the assistance of parenting coordinator, whose services are paid for by both parties, if this extra input is needed.[6]  This person acts much like a mediator, serving as an impartial third-party who can help work through difficult points of negotiation.  All of the issues related to parenting responsibilities and other child custody details are written into a comprehensive parenting plan that becomes part of the official legal documentation submitted to the Court.

Either party that enters into the child custody agreement may request modifications at any time.  In order for the Court to grant changes to custody or visitation, it must have evidence that the changes are in the best interest of the child or the circumstances of one of the parties involved has changed materially and substantially.  If fewer than twelve months have passed since the original order was approved, the Court will need to see that the child is in physical or emotional danger or that the person claiming the child’s primary residence is voluntarily agreeing to a change in the plan.[7]  Regarding a possible change in child support payments, the amount ordered can be increased or decreased if there has been a substantial change in income for one or both parents or if at least three years have passed since the original order and the amount paid would change by at least 20% or $100 a month.[8]

Making decisions regarding the best interest of your children can be a difficult challenge to face when you are struggling with the pain and other emotions of a divorce.  A plan to which you may agree during a difficult moment may not seem as wise or appropriate several months later.  If you want someone will be an advocate for you and your children, an experienced family law attorney can guide you through these issues with compassion and patience.

[1] “Texas Child Custody Issues,” Law Offices of Raggio & Raggio,, 2008.

[2] Safrath, Bernadette A., “Child Custody Rights for a 13-Year-Old in Texas,”,, September 3, 2010.

[3] “Grandparents’ Rights,” Conner & Lindamood, P.C.,, 2011.

[4] “Texas Child Support Issues,”,, 2011.

[5] “Texas Child Support Laws,” Child Support Laws State by State,, 2010.

[6] “Texas Child Custody Issues,” 2008.

[7] “Modification of Court Orders,”, Office of the Attorney General of Texas,, 2011.

[8] Carol, Christopher, “How to Modify Child Support in Texas,”,, December 1, 2010.

Web Site: Bertolino LLP

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