In a child custody case, there are several areas where custodial and non-custodial parents may end up disagreeing significantly. If you and your co-parent agreed on every issue, you wouldn’t find yourselves in a child custody case, so this outcome shouldn’t come as a surprise. Disagreements on certain subjects may necessitate filing a family case, but that doesn’t guarantee your case will go to court. That is probably one of the most significant misnomers that people in your shoes have about child custody cases.
Child Custody: Court Not Mandatory
Many people in your position assume that they will tell their story to a judge in a child custody case, who then decides the outcome. It’s a common belief that filing for divorce or a child custody case results in an immediate court appearance and a judge’s decision. However, this is not true. Going through court to complete your case is the exception rather than the norm.
Rather than going through the courtroom, most people like you who undergo any type of family law case end up settling with their co-parent. This typically occurs in one of two ways. Firstly, you and your co-parent might settle your case informally, even without needing an attorney. By working through your issues, you can reach an informal settlement agreement, whether orally or in writing. You can then use this agreement to draft final orders to operate under in the future.
Next, you could put yourself in a situation where you and your co-parent can settle your case through informal settlement negotiations. For most people, this means hiring attorneys and attending mediation. Mediation is a setup where you and your co-parent mutually agree to name an independent, third-party lawyer to help the two of you settle your case. Rather than have the judge intercede and make decisions for you the mediator would intercede and help the two of you work on the issues together. This works well because the mediator can help you understand what a judge is likely to say on any given issue so that you can anticipate what could happen if you do not settle your case and instead go to trial.
Negotiating hard and being hardheaded don’t have to be the same thing
I have worked with clients who have been great, tough negotiators. These folks would not back down from a fight and would stick to their principles through thick and thin. Even when their spouse or co-parent would kick and screen on any number of issues these people would not back down and did what they thought was right. I admire folks like this because it is very hard to stand up for what you believe especially when your time, money, and children are on the line. Doing what you think is best for your children is an incredibly admirable quality to possess, especially when that quality can cause you to face massive resistance from your co-parent or spouse.
Here is where being a tough, hard-nosed negotiator can take a hard left turn and become something where you are on the verge of acting hardheaded. In every case, there comes a point where everyone confronts an issue that cannot be negotiated. This is your “hill to die on”, so to speak. Your issue is that you cannot have it any other way than how you want it. You believe so strongly in this issue that nothing your co-parent could say, do or offer makes a bit of difference. Rather, what you try to figure out is how to accomplish that goal. Maybe you need to give up some ground on another issue?
Negotiations vs. Court
At a certain point, you’ll realize that being unable to compromise on a particular subject leads to a dead-end in negotiations. I am a huge fan of negotiations, mediation, and everything that can help you to avoid going to court. However, once you and your co-parent go around the merry-go-round of negotiations enough times it becomes clear that you cannot negotiate your way out of every subject in your case. This means that if you all reach an issue that you cannot negotiate your way through the only way out of the case is to present that issue to a judge.
If you understand this, have done what you can to avoid it, and feel comfortable moving forward then there isn’t much left to discuss. Attend your hearing or trial and attempt to win on this issue is what you are setting yourself up for. Nothing wrong with that. However, what I would recommend against is doing so when you do not have a great chance of winning in front of a judge. You and your attorney may have overestimated the evidence that you have available to you. Your circumstances may not be conducive to you winning in court. Sometimes you may need to hear that from someone other than your attorney to understand what the stakes are and whether it is worth your while to risk a courtroom venture.
Choosing Wisely: Mediation Over Court
When you hear from a mediator, someone who is completely independent, that you are attempting to win an unwinnable war it should give you some pause when it comes to the proceeding. That doesn’t mean that you should abandon your principles or give up. You can disagree in good faith with a mediator and decide to move forward to a trial on any issue in your child custody or divorce case. However, to do so without seriously considering the impressions and positions of your mediator would be a mistake. Mediation is your last and best chance to avoid the uncertainty of a family law trial.
This is all to say that you must consider the full range of circumstances and potential outcomes before signing up for a trip to court. You can actively engage in your case and support your child without rushing into a courtroom battle that may have little chance of success. You’re not obligated to defend an unwinnable position in court. Instead, consider accepting a settlement offer in mediation and moving forward. Rejecting the settlement offer could lead to a less favorable decision from a judge. Essentially, you would have paid money to get a worse result. Talk about adding insult to injury.
Distinguish Hardheadedness from Effective Negotiation
The bottom line here is that you need to be able to distinguish between what makes you hardheaded and what makes you a hard negotiator. Being a person of principles and values does not mean that you must stick by arguments and positions that are unfavorable in the courtroom. Many people believe that they are giving up on their children or not doing what is best for them by settling out of court rather than taking an issue to trial. However, some issues just cannot be won based on circumstances beyond your control.
A mediator can help you to see this. He or she will not be there to give you specific advice on your case, but they can provide you with context and information based on their experiences. The mediator may be him or herself a former judge and therefore they may be capable of providing you with first-hand experience of what they did in court insert similar circumstances to what you are facing. Do not disregard information even if it is not favorable to you or if it means backing down from an important position. Rather, you can take their positions and consideration and work with your attorney to determine what steps to take.
Mixing Mediation and Trial: Strategies
Another important piece of this puzzle is that you can settle your case-specific issues and proceed to a trial or hearing on others. A mediated settlement agreement can settle the entirety of your case, or it can settle only a few portions here and there. It is not out of the ordinary for a family to settle most issues and they only take their case to hear your trial on the few that they could not negotiate their way through. What I am not saying is to ignore the reality of your case and be hardheaded when it comes to issues. Accepting that there are circumstances that you cannot necessarily control is not giving up or selling your children short.
For some, it means recognizing that despite negotiating as vigorously as possible, there’s a distinction between being a tough negotiator and merely being stubborn. You may be better off accepting a temporary defeat on a certain issue and then biding your time until later. Think about it in terms of a strategic retreat at this moment to fight a battle you can win in the future. You will have the ability to come back and modify any orders agreed to at this moment use down the line. This is when the circumstances in your life may be more favorable Q accomplishing whatever you wanted to in the initial child custody or divorce case.
Prioritizing Children: Texas Family Law
As with anything in the world of Texas family law, this is an incredibly fact-specific circumstance. I’m trying my best to give you a general overview when it comes to subjects like these periods of course I don’t know anything about your specific scenario or the circumstances involving you and your kids.
With that said, it is wise to take as much advice as you can, understand what is best for your children and decide from there. Sometimes if he removes what you want in your ego from the circumstances you can see that what is best for your children may not be exactly what you want or what makes you feel good at the moment. This can be a hard lesson to learn but in the world of Texas family law, it is one that you and your children will benefit from immensely.
Can you be ordered to pay child support as the primary conservator?
Your child’s best interest is the primary consideration in determining who pays child support to what extent. In Texas, a court can order a joint managing conservator to pay child support to a Co-parent. There is nothing that bars a judge from ordering that a primary conservator pays the possessory conservator child support.
Many people believe that if they secure the exclusive right to decide their child’s primary residence, they will not need to pay child support. However, under certain conditions, a family court judge may require you to pay child support, even if you hold primary custody of your child. Let’s explore a hypothetical scenario mirroring our situation to show how you could be ordered to pay child support following your divorce or child custody case.
Custody Arrangements: Common Family Law
Let’s assume that you worked a job where you had to work weekends. Your weeks were wide open, and you were able to care for your child during these times period your husband cared for your child on the weekends. During your marriage, both you and your husband actively participated in your child’s life. After a trial, the judge determined that you were better suited to have the exclusive right to determine your child’s primary residence. Conversely, the judge awarded your spouse possession of your child on the first, 3rd, and 5th weekends of each month with two weeks in the summer and alternating holidays with you. Your Co-parent was awarded a standard possession order. This is a typical scenario that plays out in family law cases all the time.
However, let’s also acknowledge that the court ordered you to pay $1000 per month in child support to your ex-husband and cover your child’s health insurance. During the divorce proceedings, the court decided to sell the family house, using the proceeds to pay off your credit card debt and splitting the remainder between you and your ex-husband. He would receive 60% of the remaining proceeds from the sale, while you would receive 40%. Despite having the right to determine your children’s primary residence, how could you still be ordered to pay child support?
Income Disparity: Child Support Considerations
If you have earned consistently more income than your husband throughout your marriage, then this would be the first factor I would look to. An additional factor that is of great importance would be if you’re Co-parent could submit evidence to a judge showing that their income was less than their monthly expenses. If your spouse is trying to better themselves through going to school to earn more money that could show a great deal of industriousness on their part. You may need to pay child support if the judge aims to maintain a similar lifestyle for your child with both you and your co-parent.
What should this tell you as you begin your divorce or child custody case? Firstly, you must consider the entirety of the circumstances in your case. You cannot assume that being named primary conservator means you won’t have to pay child support. If your circumstances look like the hypothetical situation, I just laid out to you then your chances of being able to retain primary custody of every child but also having to pay child support may be greater than you think. As with anything else, having the experience of a fair law attorney by your side to help you through these issues is of great importance both for you and your child.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. During these consultations, you can learn more about Texas family law and how filing for divorce or a child custody case may affect your family circumstances.
Child Support Ebook
If you want to know more about what you can do, CLICK the button below to get your FREE E-book: “Child Support E-Book”
Other Articles you may be interested in:
- Tips on giving in-court testimony in your divorce or child custody case
- Tips on giving in-court testimony in your divorce or child custody case, Part Three
- Getting Ready for a Hearing On Temporary Custody Orders
- Child Custody Geographic Restrictions in Texas
- Geographic Restrictions in Child Visitation Orders in Texas
- The Dirty Trick of Moving Out of State with the Kids
- Can a Parent remove My Child from the state of Texas or from the County or Country where I am living?
- Children’s Passports and International Travel after Texas Divorce
- Child Custody Basics for Texas Parents Revisited
- Child Custody Basics in Texas
- Can Parents Agree to No Child Support in Texas?
- Can you sign your rights away and not pay child support?
- Can a 13-year-old choose which parent to live with?
- Can cannabis use affect your parenting and custody rights?
- What happens to child support if a parent dies?
Frequently Asked Questions
What is an initial consultation consist of?
Is the custodial parent always the mother?
What does custodial mother mean?
Who is the custodial parent in Texas?
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.
