Articles Posted in Custody

You may be just beginning your divorce case or you may be in the middle.  Regardless of your current position, there are certain tips that will make this painful process much smoother in the grand scheme of things.  In fact, if you would follow these ten easy tips, you would be worlds ahead of other people going through divorces.

  1. Stress management.  There are a couple of ways our clients are able to work through the stress that occurs with a divorce; here are a couple of my recommendations: Research and find a counselor with whom you are comfortable.  I know, I know—most people hate the word “counseling” and feel as though it would not help them. But, so many of our clients attend counseling and I am amazed at the way they are able to process as we go through the divorce.  It does not matter if it is a pastor, licensed counselor, psychologist, psychiatrist, or a free clinic; you just need to talk to someone.  The emotional toll of the divorce can be so taxing and many people need help with coping; this includes you.  OR if you are not ready to take the counseling step, get out and exercise.  Or even better, you can do both.  Go for a walk with a friend, join a gym, or attend a fitness class that interests you.  Start a fitness routine and it will give you something to look forward to.  And remember what Elle Woods says, “Exercise gives you endorphins.  Endorphins make you happy.  Happy people just don’t shoot their husbands, they just don’t.”
  2. Keep off of social media.  I cannot stress enough—do not post anything on any social media account about your soon to be ex, their paramour, the children, the case, etc.   While it may feel good at the time, it will only hurt you in the long run.  All judges frown upon it and it will make the case harder than it already is.

In Texas family law cases, there are two separate types of protective documents that parties can seek. Restraining orders are not to be confused with protective orders. Most often, parties seek a restraining order in a divorce or suit affecting the parent-child relationship to take exclusive possession of property or the children. If a restraining order is needed, it is important to seek the restraining order from the very beginning of the case or at or near the time the need is realized.

For instance, in cases involving children and concerns for their safety, the requesting party requests the court to order that the children be removed from the other party’s custody and placed into the requesting party’s custody solely until the court hearing. This means that once removed, the other party will not have any access to the children until the hearing. To qualify for a temporary restraining order of this nature, one must present an affidavit that on its face alleges that if the court did not grant the restraining order, then the child’s physical health and/or emotional development would be significantly impaired. In many cases, this arises when it is discovered that other parent’s actions, decisions, or behaviors are dangerous for the children. Examples include drugs, criminal activity, neglect, absence of the other parent due to hospitalization, jail, etc.

Restraining orders are typically sought when initial pleadings are filed and they are presented to the judge ex parte (without the other party present). Your sworn affidavit will be attached to the pleadings for the restraining order and will contain all of the information for the judge as to why he/she should grant the restraining order. The hearing will be set the same day the judge signs the order and it must occur within 14 days. Therefore, the court holds a quick hearing to allow the other party time to present their own case. It also gives you a chance to put on evidence and bolster your case as to why the judge made the right decision to grant the restraining order in the first place. At this hearing, you can request that the court continue the restraining order. Thought, often times, the court will not completely deny access to the children but rather grant supervised visitation by an appropriate supervisor; this is, of course, if supervised access is warranted and proven necessary. With that said, there are some cases when the need for a a restraining order to remove children arises while the case is pending.  You will still need to submit an affidavit and a request for a restraining order.  However, some counties require that you also send notice to the other party/attorney so that they may be present when you present the restraining order to the court initially.  The hearing will still be held 14 days from the date the judge signed the order.

You are a parent who has primary possession of the children and you need financial assistance from the other parent but they are not willing to help out by agreement alone. You realize you are going to have to take additional measures to get anything out of them; more specifically, you visit with an attorney and understand that it is going to take a court order.

Regardless of whether your case is a divorce or suit affecting the parent-child relationship, you will need to include a request for child support within your pleadings. This ensures that you have noticed the other parent that you are seeking this in court and it ensures that you can bring this issue up at the hearing. If your case is just beginning, this issue would be addressed at a temporary orders hearing. You and your attorney will put on evidence of the monthly net resources of the other party. How do you do that if you do not know what the other party is making? Your attorney at Guest & Gray will ensure that the party is noticed and ordered to appear with their financial records so that the judge and/or your attorney can calculate the correct amount of child support. However, if the other party ignores the court order and does not bring their financial records, typically the judge will be agitated with this and start asking the party questions on the stand about their financial information.

Once the monthly net is determined, child support is calculated based upon a percentage amount determined by the number of children involved in the suit as well as other factors. For instance, if you have one child child support would be 20% of the obligor parent’s monthly net resources. If the obligor parent has one other child that they are responsible for (remarries or has another child with another person) lowers the percentage down to 17.5% and then gets lower depending upon the number of additional children outside of your case.

Are you involved in a divorce or child custody suit and you are concerned that your ex constantly leaves your child with strangers or a relative? Then the right of first refusal might be the answer to your concern. The questions then arise as to how it works and would it be best for your child.

If you or your ex are in possession of your child and you are going to be absent for a certain period of time, then you must first call the other parent before you can leave your child with another relative, babysitter, etc. This provision is a mutual agreement between the parties that if you or your ex are not going to be present after a certain number of hours (can range from 2, 4, 5, etc.) then you agree that the other parent can have possession of the child during your absence. As you can imagine, this provision has both negative and positive aspects.

For instance, you know that if your ex is going to be absent during their scheduled period of possession more than 3 hours then you have the first opportunity to take possession of the child during their absence. This allows for additional time with a parent who may have only a standard possession schedule which reinforces Texas’ public policy of frequent and continuing contact between both parents. After all, who would want a babysitter to watch their child if you know the other parent is available? Would you not want your child to have some extra time with the other parent? Maybe, maybe not. You definitely need to discuss the pros and cons with your attorney.

You get your children back from your ex’s house after their visitation and they are openly telling you all about the divorce case, what your ex has called you and where you should go, etc.  You are appalled and upset that your children know anything about your case.  You call your ex and tell them that this is inappropriate to discuss with the children and they completely dismiss you.  You know that the judge clearly said that neither you nor your ex could discuss anything about the case with your children.

While the damage has already been done with your children with what they have overheard or discussed so far with your ex, there are some helpful requests that you could make to deter this type of behavior.  For starters, as long as your orders do not contain anything requiring an agreement before enrolling the children in counseling then you should do so.  Having a professional who can meet with the children, give them an outlet for their emotions as to the divorce, and help them process the effects of the divorce is such a positive movement forward when this type of situation arises.  If the professional meets with you and discusses any concerns with respect to what they are reporting about your ex, then their testimony can be used in a court hearing.

Additionally, if you do decide to pursue a contempt hearing against your ex for violating a court order (discussing the case with the children and making disparaging remarks about you), then you will need proof of such.  If your children are 10 or older most judges will talk with them and the children can tell the judge themselves what they have overheard or what they have been told.  If your children are too young or are too afraid to be put in the middle, then this would be where a professional’s testimony would be helpful.

You have final orders in your custody case and you have the exclusive right to designate the primary residence of the child.  The problem is that this right is subject to a geographical restriction (ex. Dallas County and contiguous counties, Kaufman County and contiguous counties, etc.) and therefore it puts a restriction on you and where you can live.  You currently had a meeting with your boss and they want to relocate you or you have found better employment opportunities out of state.  You know that this would be really good for your family, but you feel as though your hands are tied because of this geographic restriction.

However, you may have the opportunity to seek a modification to lift the geographical restriction.  It truly depends upon your situation, the factors that the court will consider, and even the presiding judge.  In fact, this is a difficult decision for courts.  On one hand, you have the public policy of frequent and continuing contact under Texas Family Code Section 153.001(a)(1) which states that “children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child”.  On the other hand, you have the primary parents who really need this move to better their family.  Therefore, Texas courts struggle with this decision in modifications.  The Texas Supreme Court Lenz v. Lenz does offer guidance with respect to factors that would support relocation.  For instance, the Court and courts after it have examined: the other parent’s lack of interest in the child; prior connections to the new location (do you have family there, have you ever lived there, etc.); and reasons for the move.

Therefore, if you have an opportunity for a job in another state that pays considerably more money, you have familial ties in the state and the job is located near that family, you originally lived in that state, you only moved to Texas for your ex-spouse, your ex-spouse is not exercising their visitation, and you do not have anyone additional in this state to support you then that is definite grounds to discuss a modification.  Additionally, it is helpful if you have a roadmap already planned out that can be explained to the judge.  For example, where you are going to live, where you are going to work, where the child will attend school, and any extracurricular activities for the child.  If you are the parent moving, most likely the court will make you pay all travel expenses for the child to have visitation with the other parent.  Many courts use this order as compensation to the parent who remains in Texas.  Like with many family law issues, this is a decision the courts must take on a case-by-case basis.  As you can see, there are several issues to discuss with your attorney.

Many people come in and ask our office this question because they have legitimate concerns regarding the other party.  Most importantly, these cases often involve allegations of family violence or there is a pending protective order already in place.  If you are afraid of your ex in any way, you need to notify the proper authorities and your attorney.

Your right to privacy in a suit affecting the parent-child relationship is located within Texas Family Code Section 153.012 which states that the Court has discretionary authority to order your residence information to be deleted from a court order before the order is released to the other parent.  It does not give specific guidelines as to when the Court can order this and it is, as we stated, discretionary in that it states “the court may.”  Therefore, it is important to discuss all reasons why you feel this information should be withheld from the other party.

If you are seeking or have a protective order in place, then Texas Family Code Section 85.007 guides with respect to confidentiality of certain information.  If you have a protective order then you, anyone in your family or household can request that the Court exclude the address and telephone number from the order of: (a) a person protected by the order (it would only state the county where you reside); (b) the employment or business of a person protected by the order; or (c) child-care facility (daycare) or school of child protected by the order.  Once you have made this request, the Court will strike the information and it will be kept for court purposes only.

You have a final family order, whether it is an order in suit affecting the parent-child relationship, final decree of divorce, etc., and you would like it modified.  You are either the parent receiving child support and you want the amount increased or you are the parent paying child support and you want it decreased.  Or, there has been a change that would require the conservatorship or visitation modified.  It is not an uncommon question and the Texas Family Code does specify particular deadlines and requirements with respect to filing a modification.

For child support, Texas Family Code Section 156.401 states that final orders can be modified if either (a) there has been a material and substantial change in circumstances for a party or the child after the order was entered; or (b) it has been three years since the order was last entered or modified AND the monthly amount either differs by 20% or $100 from the amount that it should be under the child support guidelines.  So, it has been less than three years but something has happened that would require a change in child support then you can seek a modification.  For instance, did the parent paying child support get a new job after your orders were rendered and they are now making more money?  Or, did the obligor lose their job and they are no longer making any money?  Additional instances of material and substantial change in circumstances would also be (a) the obligor parent had another child that they are financially responsible for; (b) health insurance has changed (lost or new premiums); or (c) the children are now living with the obligor parent or another person.

That brings us to modifying orders as to conservatorship and/or possession or access.   If you are seeking to modify the parent who has the exclusive right to designate the primary residence of the child in less than one year from the orders being rendered, Texas Family Code Section 156.102 governs.  If you do so, you must attach an affidavit to your pleadings and the affidavit must allege specific facts that the child’s present environment may endanger the child’s physical health or significantly impair their emotional development.  Not only must these allegations be made, but you also have to prove this.  If you do not have this, you will have to wait more than one year to change who has the exclusive right to designate the child’s primary residence.  If you are modifying in more than a year, your burden is a material and substantial change in circumstances of a party or the child AND it must be in the best interest of the child.  In fact, best interest of the child is the ultimate burden in every family law case.

You have been divorced for a few years and your child comes home after a visit with their dad and reports “daddy has a new girlfriend.”  You start asking questions like the person’s name, what they look like, what they did, etc.  You find out the new girlfriend spent the entire visitation weekend there, including overnights.  You contact your ex to find out who this person is and if there is anything you should be concerned about.  However, your ex refuses to tell you and instead tells you to stay out of their life and that it is none of your business.

Whether or not you can modify your final orders to keep away the new paramour will depend upon a few factors.  For starters, a modification carries a burden of “material and significant change” in circumstances, the parties or child AND the modification must be in the best interest of the child.  In most cases, the judge will not keep the new paramour away from your child because they are not viewed as a danger to your child.  The key is going to be exactly why you are concerned with the new paramour.  If your case is one in which the new paramour absolutely should not be around your child then you will want a stay away order.  For instance, if the new paramour is a registered sex offender, introduced your ex to controlled substances, has an extensive criminal history some of which involves crimes against a child, or your child does not want to be around this person because they make them uncomfortable (there will need to be elaboration on this) or anything of that nature then you would want to consult with an attorney and seek a modification.

The important thing to know is that this paramour is not a party to your suit—therefore, in not being a party, they cannot be ordered to do anything and if they are it will not be enforceable.  Rather, if you are going to get orders having the paramour not be present, it is important to request an injunction from your ex allowing this person to be present or near your child.

You are a father who wants to be a good dad and support his child without breaking the bank and not being able to support yourself.  You do need financial resources in order to do this and you will probably pay guideline support. Our firm can help you.

How Much Will I Pay in Child Support?

          Some fathers fall into the trap of paying above-guideline child support.  That is, they agree to pay more than they are required either in amount of child support or they pay support and in addition to that pay for extracurricular, daycare, etc.  Texas Family Code 154.125 provides the chart on child support guidelines and it is as follows:

CHILD SUPPORT GUIDELINES

BASED ON THE MONTHLY NET RESOURCES OF THE OBLIGOR

1 child           20% of Obligor’s Net Resources

2 children        25% of Obligor’s Net Resources

3 children            30% of Obligor’s Net Resources

4 children            35% of Obligor’s Net Resources

5 children            40% of Obligor’s Net Resources

6+ children           Not less than the amount for 5 children

If you have additional children besides the one involved in the suit, that is important because the percentages go down as shown below:

1

2

3

4

5

6

7

Number of

0

20.00

25.00

30.00

35.00

40.00

40.00

40.00

other

1

17.50

22.50

27.38

32.20

37.33

37.71

38.00

children for

2

16.00

20.63

25.20

30.33

35.43

36.00

36.44

whom the

3

14.75

19.00

24.00

29.00

34.00

34.67

35.20

obligor

4

13.60

18.33

23.14

28.00

32.89

33.60

34.18

has a

5

13.33

17.86

22.50

27.22

32.00

32.73

33.33

duty of

6

13.14

17.50

22.00

26.60

31.27

32.00

32.62

support

7

13.00

17.22

21.60

26.09

30.67

31.38

32.00

The cap for child support was recently increased on September 1, 2013 from $7500 to $8550.  This is the new child support cap for application of the percentages to monthly net resources.  Therefore, this is not an increase completely; it only applies to those who have a gross monthly income of approximately between $10,000 and $11,000.00.

Presumably, the application of the child support guidelines to one’s monthly net income is considered to be in the best interest of the child.  However, Texas Family Code Section 154.123 states that “the court may order periodic child support payments in the amount other than that established by the guidelines if the evidence rebuts the presumption that application of the guidelines is in the best interest of the child and justifies a variance from the guidelines.”  The problem is, most often this section is used to try and prove that a father should pay above-guideline child support.  But, it could still be used to decrease your child support below-guideline child support if, for instance, you are the parent paying all of the travel expenses for possession of or access to the child, if you are paying the child care expenses, etc.  Either way, if the court deviates from the child support guidelines, the judge must issue findings of fact and conclusions of law that supports the court’s decision.

It is important that you discuss all payments for the child that are you make monthly, that the other parent makes monthly, and you need to be able to prove that at least your payments are made.  For example, carbon copies of checks, bank statements, etc.  Too often we have clients who have made cash payments to the other parent and the other parent will not acknowledge those cash payments and there is no way to prove that in court.

How Long Will I Pay Child Support?

          Texas Family Code Section 154.001 provides the requirements of how long one must pay child support.  Generally, most fathers pay child support until the child emancipates which means they turn 18 or graduate high school, whichever occurs later.  Therefore, if your child is 18 but still enrolled in high school, then you can be ordered to continue paying support until graduation month.  However, if you have a child who is disabled, you could potentially pay support for as long as that disability persists.

What about Retroactive Child Support?

          It is not uncommon that we see cases where the parent seeking support is also asking for retroactive child support.  This means that you are not only going to pay child support but you are also going to have an additional lump sum amount that you will be paying on.  Retroactive child support is awarded when you have a case where the child is a little bit older and paternity has never been established.  It can also apply if you have final orders, marry or remarry the mother of the child, and then subsequently separate. The same guidelines apply as when calculating regular support so they would take 20% of your monthly net and calculate that back as far as 4 years.  Sometimes, considering factors within the Texas Family Code, the court can order you to pay back to birth.  With an older child, you can understand how problematic and expensive that can become.

What is Cash Medical Support?

          If private health insurance is not available to either parent for the child, then the obligor parent shall be required to pay cash medical support.  Reason being, the child will be enrolled on a government assistance medical program such as Medicaid.  Therefore, the Texas Attorney General’s office then develops an interest in your case because it then becomes an issue of money owed to the government for the assistance the child is receiving.  Texas Family Code Section 154.182 provides guidance as to amount and states that in addition to the guideline child support, this amount “is not to exceed” 9% of your annual resources.  The orders will state that you are paying this amount “as additional child support” but that amount will be withheld by the Attorney General’s office when you pay your monthly child support.

The orders will also state that you can cease paying cash medical support if you do a series of options, including if you obtain private health insurance for the child.  A word of caution: if you do obtain private health insurance after final orders have been rendered ordering your cash medical support, it is highly suggested that you do not cease paying the cash medical.  Rather, you need to notify the Attorney General’s office of the private health insurance and request a review meeting.

If private health insurance is available to the parent not ordered to pay child support, most likely you will be ordered to pay child support in addition to cash medical support which will be the amount of the health insurance premium on the child.

It is important that if you have private health insurance available through your employment that you provide said insurance for the child.  Many fathers are concerned that their employer will wait until open enrollment to allow coverage for your child.  However, if you obtain a court order and that order is sent to your employer, your employer must enroll the child by the date that you were ordered to provide the health insurance.  Therefore, you could avoid payment of any cash medical payment altogether.  Also, another added bonus, in calculating your monthly child support obligation, payment of a health insurance premium is taken into consideration.

What Should You Do?

I have helped many clients with this issue and I can help you as well.  Whether you are dealing with a case in which your child support is being established for the first time (with a young or older child) or a modification in which your child support is being increased, we are here to guide you throughout the process.  Guest & Gray has the family law experience that you need.  We have offices in Forney, Rockwall, and Kaufman.  Call us today to schedule your appointment.