The custody of the children will come to the decision regarding conservatorship. Again, this decision will be based on what is considered to be in the best interest of the children. This decision can be made by either the court or by a jury if requested by either parent. The parents may also choose to enter into their own agreement however the court must find that the agreement is in the best interest of the children.
There are three types of conservatorship: joint managing conservator, sole managing conservator, and possessory conservator.
Joint Managing Conservatorship
The law presumes that the parents being appointed as joint managing conservators are in the best interest of the children unless this would “significantly impair the child’s physical health or emotional development”. An example is if there is a history of family violence. With joint managing conservatorship comes rights and duties. These however can be limited by the court if in the best interest of the child. It is important to note that joint managing conservatorship does not mean equal time with the child or that one parent will not be required to pay child support.
Rights of parents at all times:
- to receive information from any other conservator of the child concerning the health, education, and welfare of the child;
- to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;
- of access to medical, dental, psychological, and educational records of the child;
- to consult with a physician, dentist, or psychologist of the child;
- to consult with school officials concerning the child’s welfare and educational status, including school activities;
- to attend school activities;
- to be designated on the child’s records as a person to be notified in case of an emergency;
- to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and
- to manage the estate of the child to the extent the estate has been created by the parent or the parent’s family.
Rights and duties during periods of possession:
- the duty of care, control, protection, and reasonable discipline of the child;
- the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;
- the right to consent for the child to medical and dental care not involving an invasive procedure; and
- the right to direct the moral and religious training of the child.
Duty to Provide Information
Each conservator of a child has a duty to inform the other conservator of the child in a timely manner of significant information concerning the health, education, and welfare of the child.
Sole managing conservator
If it is determeind that joint management is not in the best interest of the child then it is presumed that one parent should be appointed as sole managing conservator.
Rights and duties of sole managing conservator parent:
- Right to designate the primary residence of the child
- Right to consent to medical treatment and make decisions re: education
- Right to receive support for child
- Right to consent to marriage, enlistment
- Right to child’s services and earnings
- Right to represent child in legal action/act as guardian of child’s estate
If a parent is not appointed as a managing conservator, then it is presumed in the best interst of the child that the parent be named a possessory conservator. However, the court may find this would not be in child’s best interest.
Primary Residence of the Children
When the parents have been appointed as joint managing conservators hopefully the parents can agree on the primary residence of the child. The court will support this agreement if it is in the best interest of the child. If the parents cannot agree then the decision of the primary residence will be based on the best interest of the child. The child may express their opinion if they have one if they are 12 or older however their opinion is only a consideration and not determinate. If one parent is appointed a the sole managing conservator then it is that parent’s sole decision as to where the child will reside. It is presumed in the best interest of the child that the parent who is the non-resident joint managing conservator or is a possessory conservator receive a standard possession order unless the parents can agree otherwise.
Standard Possessor Order (“SPO”)
The court will first deteremine whether the parents have agreed to the terms of possession. If the parents cannot agree then the law provides that the standard possessor order is in the best interest of the child. The Texas Family Code goes into extreme detail regarding the SPO. Generally, the parent is entitled to a child on the first, third and fifth weekends of each month, alternate major holidays, an equal amount of time at Christmas and at least 30 days during the summer. If the parents live more than 100 miles apart, the summer visitation is extended to 42 days, and each spring school vacation is awarded to the non-resident parent. If a child is less than three years old, the court can consider the standard schedule or less time if appropriate. [/su_spoiler]
[su_spoiler title=”How is child support determined in a divorce?”] Parties may enter into an agreement regarding child support. If there is not such agreement, child support may ordered when it is determined to be in the best interest of the child. Customarily, the non-custodial parent, whether or not named as a possessory conservator, is ordered to pay child support to the custodial parent. A joint managing conservator not having the primary custody of a child (not given the power to designate the residence of the child) can be required to pay child support. One thing to note is that child support is not conditioned on access to the child or visitation.
Child support cannot be ordered beyond the child’s age of 18 or when the child graduates high school, whichever is later. However, child support can be ordered indefinitely if the child is disabled and requires
Amount of Child Support
The Texas Family Code sets out guidelines regarding the amount of child support that will be paid. These guidelines are presumed to be in the best interest of the child. The court may order additional child support if the court finds the guidelines to be “unjust or inappropriate” based on income and the proven needs of the children. The guidelines set child support at a percent of the net monthly resources of the obligor. The percent is based on the number of children. See the Texas Attorney General’s Child Support Calculator for a better understanding of how the guidelines apply.
Generally, the parent obligated to pay child support will be be ordered to furnish health insurance coverage for the child, if available through employment, and payment for this coverage shall be in addition to child support calculated using the guidelines. A parent ordered to provide health insurance who fails to do so is responsible for all necessary medical expenses of the child. The parent providing the insurance is required to furnish to the other parent policy information including claim forms. The court will allocate between the parents, based on their circumstances, the health care expenses not covered by health insurance.
Modification of the Child Support Order
A child support order may be modified if circumstances have materially and substantially changed; or 3 years have passed since child support was ordered and the current calculation differs by either 20% or $100. However, a change in lifestyle is not the bases for an increase in child support nor is the obligor’s voluntary payment of additional child that exceeds the order.