The Texas Legislature has made it clear that “the court shall consider the qualifications of the parties without regard to…the sex of the party” when determining matters related to conservatorship and possession of the child. Tex. Fam. Code §153.003. In Texas, fathers should be equally considered when determining which parent shall determine the primary residence of the child/ren.
Frequently, the parties will enter into an agreement for the mother to be the “primary parent” i.e. the parent with the exclusive right to establish the primary residence of the child. This is because in many homes, the mother is still the parent that traditionally provides for the day to day care of the children. However, parental roles are shifting in today’s society and many parents are taking a more equal role in raising the children. Today, more often than in the past, we are seeing fathers who wish to pursue equal parenting time with the children and in some cases wish to be appointed the primary conservator of the children. Ultimately, the court’s determination of which parent should be appointed the primary parent will come down to the best interest of the children, taking into consideration such factors as the needs of the child, the parental abilities, plans for the child, and the stability of the home. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).
The Texas Family Code creates a presumption that 1) the parents should be appointed Joint Managing Conservators of the child; 2) one parent should be given the exclusive right to designate the primary residence of the child and receive child support; and 3) the other parent should have possession of and access to the child per the Texas Standard Possession Order. Barring good cause to deviate from the guidelines set forth in the Family Code, a judge will be more inclined to stay within statutory guidelines outlined above. However, when parties are able to work out an agreement in mediation, they have more freedom to get creative with the terms of their custody and child support arrangements – one that is more tailored to the needs of that particular family. Mediated Settlement Agreements (MSAs) are binding and irrevocable and a judge is required to uphold and accept the terms of the agreement. Many families are moving toward 50/50 possession schedules and child support calculations that provide offsets for near equal time. This may be done by calculating each parent’s child support obligation as if he or she were the parent to pay child support, and then reducing the higher earner’s child support obligation by the amount that would be paid by the lower earner.
If spouses are unable to reach an agreement concerning the terms of child support and conservatorship of the children, the Texas Family Code sets forth guidelines that the parties can generally rely on unless a court finds good cause to deviate from those guidelines.
- Child support – The amount of child support to be paid is based on the payor’s net monthly income. Typically, if there is a disagreement regarding the amount of child support to be paid, it’s what exactly is the payor’s “net monthly income.” Income is usually based on tax returns or W-2s. First, annual income should be calculated and then recalculated to determine average monthly income, on which child support percentages are based. After deducting for monthly health insurance premiums for the children, child support is calculated as follows: 20% for one child; 25% for two children, 30% for three children and so forth. If the obligor has other children that he or she is legally obligated to support, the percentages will be slightly lower and will depend on how many other children are entitled to support. Monthly child support payments are capped at a net monthly income of $8,550.00. If a child support obligor earns more than $8,550.00, he or she will pay child support as if s/he makes only $8,550.00.
- Possession and Access – There is a presumption that the Texas Standard Possession Order (SPO) is in the best interest of the child and the non-primary conservator can expect to have possession of the children for a minimum required time. The SPO provides that a conservator will have the children on the first, third and fifth Friday of each month at the time school lets out and until school resumes the following Monday; each Thursday during the school year from the time school lets out until school resumes the following Friday; spring break in even-numbered years; Thanksgiving in odd-numbered years; from the day school is dismissed for Christmas vacation until noon on December 28 in even-numbered years; from noon on December 28 until school resumes in odd-numbered years; and for a month during the summer. The full SPO can be found in §§153.3101 through 153.317 of the Texas Family Code.
There is a lot of confusion surrounding the term “custody” (which isn’t a legal term in Texas) and a lot of fear and anxiety can result when a parent feels like their kids will be “taken away from them.” The statutory guidelines for child support and possession and access cuts out a lot of the uncertainty that might accompany the divorce process and assists in managing one’s expectations. Fathers can rest assured that the public policy in the state of Texas ensures the children will have frequent contact with both parents and encourages both parents to take an active role in raising the children.