Contents of this Page
Regarding ChildrenConservatorship and Possession (custody and visitation)
Geographical Restriction on the Residence of the Child (Domicile Restriction)
Support
Child Support Disbursement Unit
Tax Exemption for the Child
Children's Interest Seminars
Mutual Injunction: No unrelated overnight guests of the opposite sex while in possession of a child
Regarding Children
Conservatorship and Possession (custody and visitation)I'd rather not use the term "custody" because it's not what's used in Texas law. And it confuses folks because it is thought to cover two different areas that really are covered by Texas law: conservatorship and possession.
Conservatorship refers to which rights and responsibilities each parent has. These can be remarkably equal. In all of my divorces, we'll be doing a Joint Managing Conservatorship, and it'll be up to you to decide which rights and which responsibilities are allocated to each parent. However, only one parent can have the right to establish the primary legal residence of the child, and this just cannot be shared. When the child goes to school and the teacher asks what his or her home address is, the child cannot give two addresses.
If you had to go to trial, the judge's decision as to who will be the "Primary" (right to establish the residence of the child) is one of the toughest decisions any judge can be asked to make. A custody fight is usually rough on everybody concerned, especially the children. The judge may hear any evidence that he or she thinks is relevant in helping him/her decide which parent would make a better managing conservator.
Possession refers to when each parent may have the child with him or her. Divorcing spouses may agree to nearly any possession schedule that makes sense to them -- but deviation from the standard schedule can be very confusing, cause additional attorney's fees writing it up, and often results in language in the decree that isn't proven and may or may not be enforceable. It is unusual for a judge to overturn an agreement of the parents. If the parents do not agree to any specific visitation schedule, the judge will set a schedule that is in the best interests of the children. The starting point for the judge is usually the Standard Possessory Order provided by law.
Some parents want to try a 50-50 arrangement, such as a week with father and then a week with mother. Most child development experts recommend strongly against this. They say that a child needs to have one place that's home, and needs to have frequent contact (several times per week) with the other parent.
Geographical Restriction on Residence of the Child (Domicile Restriction)
Let's assume an example: the children live with their mother, and the father has certain rights to be with the children. Mother has the right to determine the residence of the children. Father is concerned that Mother will move to Butte, Montana (or Alpine, Texas) and the time, expense, and inconvenience of exercising possession of the children will be so great that he will only be able to see the children during summer possession and Christmas. The courts share this concern.
Some courts, especially in Dallas, will automatically impose a domicile restriction if there is not one stated in the proposed divorce decree. At least one court has a rubber stamp specifically for this purpose. The courts in Collin County are not routinely imposing domicile restrictions when neither party has asked for it, but when one side has asked, they tend to be sympathetic.
The two most common domicile restrictions are (1) to the county of the divorce, and (2) to the county of divorce and any county contiguous to (touching) the county of divorce. For example, for a divorce granted in Collin County, the domicile may be restricted either to Collin County, or a provision restricting residence to Collin, Dallas, Denton, Grayson, Fannin, Hunt, or Rockwall Counties. Note: Collin and Tarrant Counties are not contiguous (do not touch each other).
A divorcing couple can usually agree to have any domicile restriction they want, or to have no domicile restriction. I have done one divorce where the domicile of the child was restricted to the State of Texas. I have had several with the domicile restricted to Plano Independent School District. I have had one divorce where the parties agreed that the domicile would be restricted within the Plano Independent School District to the attendance zone for XXX elementary school until the child started 6th grade, when it would be restricted to the attendance zone for YYY middle school, and so on.
Support
There are two ways of getting to the amount of child support. The first is by agreement. If both parents agree on the amount of child support, the judge will seldom intervene. But there's an exception. Sometimes the parents will agree that neither parent will pay the other one child support. Although this is supported by the Texas Family Code, it's still up to the judge to agree with it or not. Some judges have a policy that it's simply not in the best interest of the child for neither parent to pay child support. If the parties agree on no child support, they're taking their chances that the judge may not approve the decree and the parties will have to negotiate something else.
The second way of getting to the amount of child support is to have a trial and have the judge order it. One parent will be ordered to pay support based on the judge's decision as to what is in the best interest of the child. The judge may consider a number of factors, but the Texas Family Code provides a formula that calculates a support figure that is presumed to be in the best interest of the child. Some judges require overwhelming evidence to deviate from the statutory guidelines.
The basic formula is fairly simple, and it works in most situations. It needs adjustment, perhaps significant adjustment, if a child has special needs, if the person paying child support also has children by another relationship, or if the person paying child support has resources other than employment (such as a trust account, or other income). Generally, the earning potential of the person receiving child support is irrelevant, as is the income of the new spouse of the person paying child support.
Assuming none of the special circumstances above apply, one takes the monthly gross income of the person paying child support, deducts the required deductions for income tax and social security, and winds up with a net number. The Texas Attorney General produces tables annually to assist in this calculation. Click here for the AG's charts. Note that there are separate charts for employed persons and for self-employed persons. If the net figure is more than $6,000, one normally would reduce the net figure to $6,000. [note: for divorces filed after September 1, 2007, the cap will be raised to $7,500 from $6,000. And, every 6 years thereafter, the Texas Attorney General will adjust the cap by the Consumer Price Index]
Again, assuming no special conditions apply, one takes 20% of the net for supporting one child, or 25% for two children, 30% for three children, 35% for four children, etc.
I've found a support calculator on the internet, and it appears to be fairly accurate. We'll run more precise numbers when you come to see me, but for a really good estimate try this one. Child support calculator: click here.
If the person paying child support is unemployed, or temporarily underemployed, the situation becomes more complex. If you were to go to trial, the judge would almost certainly award some support now, even if the person is unemployed, as the court would assume he/she could go get a job flipping burgers this afternoon and be earning the minimum wage, 40 hours a week, and would base support on at least that much. Or, support might temporarily be based upon unemployment compensation received, or upon other assets available to the payor, such as a retirement fund that could be invaded. If the court believes that the person to pay child support is intentionally underemployed or unemployed, the court would order child support based upon what the payor is CAPABLE of earning. But, if you can agree on a number, it doesn't matter what the court would order.
Calculation of support becomes more complicated when a person owes support to two or more different ex-spouses. However, the maximum child support a person can be required to pay is 50% of net resources.
Child Support Disbursement Unit Background
When the person receiving child support says that she/he has not been receiving the child support ordered by the Court, there are a couple of problems: proving that the payments have not been made, and getting the court to coerce the person who's supposed to pay support to actually resume doing so.
In the "old days" (until about 2002), in most counties in Texas the parties could agree in their divorce decree to one of 3 different plans for payment of child support.
- Direct payment. One parent would simply mail or deliver a check to the other parent. While there was no administrative cost for this, and often the person receiving the check got the money quickly, it was difficult to prove when payments were made (or weren't made).
- District Clerk's Child Support Office. For a fee of around $5 per month, the obligor would mail the check to the District Clerk, who would record the payment on their computer and then forward the same check on to the obligee. This slowed down each payment by a couple of business days, and it cost more than direct payment, but either party could get a certified copy of the District Clerk's office and use it as evidence that payments were or were not made as ordered.
- Third party programs. In Collin and Dallas counties, there's the Guardian Ad Litem program, and in other counties there are similar programs, sometimes called Friend of the Court. The monthly fee was usually higher, often $10 per month. The child support check would be received by the agency, deposited by the agency, and the agency would cut a new check to the obligee. For the same delay as the district clerk, and twice the fee, the agency would know if the child support check bounced. Also, the agency would automatically begin enforcement proceedings if the obligor got behind by certain amount. The $10 monthly fee doesn't actually cover the cost of an attorney beginning contempt proceedings against the payor, so the agency gets the court to order the payor to not only pay back the delinquent child support, but fees to the agency.
President Clinton signed an act that made it federal law that each state must establish a child support disbursement unit, and as soon as that unit was operational in that state, most child support payments in that state must go through the disbursement unit. Texas' unit became operational in 2002. It is theoretically possible to do a divorce decree where child support is paid directly, and not through the state disbursement unit, but there are problems with trying that. The first is that it's a really bad idea most of the time: there's no proof that payments were or were not made, and after the first payment is processed, there shouldn't be any delays associated with using the disbursement unit. The second problem is that judges think it's a really bad idea to circumvent the state disbursement unit, and most simply will not sign a divorce decree that provides for direct payment of child support.
There are a few judges that choose to do things differently. There is one judge in Dallas that requires decrees to be set up to pay the Disbursement Unit, which then pays the Guardian Ad Litem, which sends the money to the recipient. There's another Dallas judge that requires the money to go to the Disbursement Unit, and then to the District Clerk Child Support Office, and then to the recipient. You can't control which judge you get, so just go with the flow if things have to be done a little differently in your case.
Practical ApplicationChild support should normally be paid through the State Disbursement Unit ("SDU") in San Antonio. It's run by the Texas Attorney General. The fee is $36 per year to the payor, and I think something like $10/year to the recipient. They provide government records of what payments were received and when, but they do not provide any enforcement. They record when checks are received and then send them on to the recipient.
WHILE THE DIVORCE IS PENDING, child support payments must be made directly to the recipient, because the SDU doesn't set up an account until the divorce is final (the judge has signed the decree).
WHEN THE DIVORCE IS OVER, the clerk is supposed to send information to the SDU to set up the account. But, being a state agency that's perpetually underfunded, the SDU usually doesn't do anything to set up the account until they've received a check and they don't know what to do with it. There's usually a two or three week delay while they set up an account, record the check, and then send it on to the recipient. I don't know of anything that can be done to speed up this initial delay. The only thing the person paying support can do to make things go more smoothly is to put the full name of the person receiving child support and the case number of the divorce in the memo section of their check. The address for the State Disbursement Unit will be in the divorce decree.
Persons receiving child support can get set up for direct deposit, so once the funds are received at the SDU, they'll usually go to the recipient's bank account overnight. Click here for more info on direct deposit.
Tax Exemption for the Child
The person who has the right to determine the legal residence of the child is the person who has the right to claim the child as an exemption on the income tax return, unless the parties agree otherwise, and it's in the divorce decree. For the other parent to claim the child as a tax exemption, the custodial parent must sign IRS Form 8332. Try www.IRS.gov.
The tax exemption has a monetary benefit, but it's nothing to attach emotion to. I've had clients who were very emotionally involved with whether or not they got the tax exemption. I advise my clients to see it as a bargaining chip, which might be worth giving up if it's of more value to the other parent, and especially if you get something valuable in return for it.
Children's Interest Seminars
Most (but not all) courts in the Dallas area (including all the courts in Collin County except one) will require that the you and your spouse attend a Children's Interest Seminar seminar if your divorce petition indicates you have children. These seminars are designed to help divorced parents deal with each other over parenting issues without getting the children hurt. The court may or may not send an order to your attorney, and may simply say at the proveup that the divorce will not be granted until the parents complete the seminar. The law is that the judge may not delay the divorce for failure to attend a seminar, but it's usually far easier, cheaper, and quicker to attend the seminar than to fight the judge over this issue. Especially when the judge CAN enforce the order in other ways, such as contempt of court, fines, jail time, etc.
Although the judge may order you to a particular course, I've never known the judge to make a fuss if the parties take a different course, including an online course. That's not to say the judge won't, but it would be unusual.
The parents do not have to go to the same session. The seminar takes just one evening, is offered several times per month, and does not cost much. The classes do fill up, however, so early registration is important.
More info on Children's Interest Seminars:For Kids Sake (favorite of many Collin County courts) [click here for more info] 469-752-6182
Children in the Middle - [click here for more info] Class is in two separate sessions. 972-988-9100
Healthy Transitions - [click here for more info], a service of Child and Family Guidance Center. Classes on Saturdays 9 a.m. to 1 p.m., in NW Dallas (Harry Hines) or in Mesquite. 214-351-3490
There is also web-based training available. The live course is generally preferable, but the online version will work, especially when there are extenuating circumstances which make taking the live seminar impractical. Also, you can take the online course over the weekend if you flat forgot to get the live course done in time, or if all the classes were full. One on-line class is Putting Kids First - [click here for more info]. Another is Parents Forever - [click here for more info].
Mutual Injunction: No unrelated overnight guests of the opposite sex while in possession of a child
Commonly referred to as the “no shack-up” clause, this provision would order each parent not to have a boyfriend/girlfriend in the residence overnight while a child is present. This clause is not in the standard forms published by the Family Section of the State Bar. However, every time I’ve seen a parent ask the judge to insert this clause, I’ve seen the judge order it. It can be phrased any number of ways, but one I like is, “Each parent is ORDERED to not allow unrelated adults of the opposite sex to be in the residence between the hours of 11:00 p.m. and 6:00 a.m. while in possession of a child.” Judges feel that parents shouldn’t model immoral behavior while in possession of the child. Judges are not amused by claims that the person of the opposite sex is a roommate. Nor are judges amused by the claim that the hotel room near Disney World wasn’t a residence.
