In yesterday’s blog post from the Law Office of Bryan Fagan, we introduced the topic of issues related to Texas family law cases that are at the core of most every child custody or divorce case and why you need to be aware of them. The real problem for people as they begin a case is that most of them are not aware of the basics that will impact their case. What people do know tends to be based on what he or she has heard from other people. Those other people may not be completely accurate in their knowledge of family law, either.
What I want to help you avoid is being in a position where you head into your own family law case with mistaken ideas about what to expect, what the law is and how these factors will impact your case and your life. We left off yesterday discussing child support and we will pick up there today.
Child Support Calculations: Where do the numbers come from?
For the purposes of calculating child support, the first $8,550 of your ex-spouse’s net monthly resources are considered. Once their monthly net resources have been established, we would need to pinpoint a percentage of their income that would go towards the support of your children. Beginning at 20% for one child and topping out at 40% for five or more children, the guideline percentages for child support can be found in the Texas Family Code.
Keep in mind that if you are negotiating for child support directly with your spouse or go to see a judge to have that amount established, that a greater or lesser amount of support can be justified based on your specific circumstances. If your soon to be ex-spouse earns significantly more than $8,550 per month and you can show that a higher than guidelines amount of child support is in your child’s best interests, then that can be ordered as well.
What about parents who are not working? Do they not have to pay child support?
An interesting question that many parents have in situations like this involve the parent who is most likely to pay child support not having a job/income. Without an income to base child support on will that parent not have to pay child support?
The answer to that question is: no. If you are the noncustodial parent of a child in Texas, then you will have to pay child support in most every situation. So, if you are a parent who for some reason is not employed and has no plans on searching for employment in order to avoid paying child support, I have news that will disappoint you. What a judge will do is presume a minimum wage net monthly resources and then calculate child support based on how many children you are responsible for.
How does health insurance factor into the discussion on child support?
Another piece of information that I want you to be aware of in advance of your child custody or divorce case is that for most cases, health insurance for your kids will be provided by the parent who also pays child support. Health insurance can mean insurance provided by that parent’s employer, a private plan purchased in the health insurance marketplace or the reimbursement of the state for providing Medicaid. Costs associated with medical care that are not paid for by health insurance are generally split between parents.
What about providing proof of how the child support is being spent?
Child support, on many levels, is a weird set up. You are being asked to pay money for the benefit of your kids, but you are having to trust that their other parent (who you may not be on good terms with) is using the money wisely to benefit the kids. We have all heard stories of mothers and fathers using child support income to make purchases that are unrelated to kids and are better categorized as “lifestyle” purchases. Is there any way for you to get an accounting or a monthly run-down of how that money is being spent?
Well intentioned parents have asked me this question more times than you could imagine. The answer is, either fortunately or unfortunately, no. It’s unfortunate if you are the type of person who likes to exert a little control over your circumstances. It is fortunate if you are the parent who receives the child support and doesn’t think it’s any of the other parent’s business how the money is spent. All in all, the costs associated with raising a child on a full time basis are likely much, much higher than any amount of money that you pay monthly in child support.
What does joint custody mean?
Many clients (mostly fathers) will come into our office and tell me that their goal is to win joint custody of their kids. Most of these dads don’t know exactly what joint custody means, but they do have a foggy idea that it roughly means splitting time with their child’s mother. For a well intentioned father this is, in their mind, the reasonable solution to the custody issue. Most dads assume that they will not be able to win primary custody of their child (for some reason), so splitting custody is probably the best they can do, right?
It may surprise you to learn that the term “joint custody” does not appear anywhere in the Texas Family Code. It is not a legal term, therefore. It has gained traction inside and outside of the legal community because we all know what custody refers to and “joint custody” has the connotation of sharing time with your child.
Joint custody is often compared with sole custody as different ends of the parenting spectrum. Sole custody to most people means that one parent gets the child 99% of the time (if not more so) and also makes all of the educational, medical and other important decisions in that child’s life.
The problem with both of these concepts is that your attorney does not know what you mean when you say sole custody or when you say joint custody. Being nonspecific about what your intentions and goals are is not a good way to start your family law case. I’d like to spend some time going through what each term would actually translate to inside of a courtroom and how that can impact you, your child and the other parent involved in your case.
Keep in mind that the judge in your case, if he or she has to get involved to make decisions, will make any decision related to your child based on the best interests of your child. There are a number of factors that inform this best interests determination that I don’t want to spend a lot of time discussing in this particular blog. You can search on the Law Office of Bryan Fagan’s website for blog posts that cover this specific sub-topic.
For our purposes today, however, let’s assume that what is in the best interests of your child is whatever will benefit his emotional, physical and mental development the most. The correct term when discussing the issue of raising a child after a divorce or child custody case is conservator. A conservator is charged with the responsibility of making decisions and holding rights associated with that child. Conservatorship does not specifically have anything to do with splitting time/possession of your child.
For the most part, parents in Texas are named as joint managing conservators of a child. This means that you and your child’s other parent will share in the rights and duties associated with raising your child. This is regardless of how much possession time you are awarded in relation to your child.
These rights include the right to receive information about your child from doctors and teachers, the right to access your child’s medical and school records, the right to speak to doctors and teachers about your child’s health and educational statuses, the right to attend school functions, the right to be an emergency contact for your child and the right to consent to emergency medical treatment for your child.
Duties associated with your child include the duty to care for, control and protect your child. Reasonable efforts to discipline your child fall under this heading. The duty to provide the basics of life are also included here: clothing, food, shelter and medical/dental care.
Beyond these rights and duties that you would likely share with your child’s other parent, one parent will be awarded the right to determine the primary residence of your child. This means that you have the right to choose where your child lives primarily. Another right that one parent has to the exclusion of the other parent would be the right to receive child support. The counter-right to this would be the right to pay child support to the other parent.
Possession of your child is separate from conservatorship
When it comes to your ability to spend time with your child after the conclusion of the family law case, we are talking about possession. Possession is its own separate topic. The state of Texas has a goal to promote continued contact between parents and children. It is presumed that it is in the best interests of your child that he or she have the opportunity to build a relationship with both of their parents.
Where the rubber hits the road in relation to this subject and your family law case is that all of these issues are being sorted out in between you and the other parent not getting along very well. There are usually feelings of anger, betrayal, jealousy and bitterness simmering at the top of a family law case. Yours may be no different. It is not easy to look past these emotions and get down to what is in your child’s best interests. Your attorney, if he or she is doing their job, will work to advise you on these issues to help you look past your fleeting emotions and instead focus on what is best for your child.
What happens when one parent breaks the rules associated with possession of your child?
In the event that your child’s other parent decides to break the orders associated with possession of your child, then what can happen depends on the circumstances of your case. For example, if your child’s father does not pick your child up for weekend visitation then you cannot force him to do so. He is not obligated to see your child for a weekend if he chooses to not be there.
On the other hand, if your child’s father decides to consistently bring your child home later than he is supposed to under the court order then you do have the ability to enforce the terms of the order that he is in violation of. This is called an enforcement lawsuit and involves you bringing the number and kind of violations to the court’s attention. It would be your responsibility, then, to provide evidence to the judge regarding those violations.
One other piece of information on possession of your kids before we conclude today’s blog post that I wanted to share is that if your ex-spouse is not paying your child support, you are not legally able to withhold possession of your child. Likewise, if your ex-spouse is not allowing you time with your child you cannot then withhold child support as a response. One bad act does not justify another. You both would be committing violations of the court order.
More basics of family law will be covered in tomorrow’s blog post
If you have any questions about the material that we covered 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 where we can answer your questions and provide you with direct feedback about your specific circumstances.