The Most Important Questions to Ask Your Divorce Attorney about Child Custody

Custody

If you are facing a divorce that involves shared children, you have questions and concerns about child custody, but you may not know where to begin. When your kids are involved, emotions can cloud your thinking, and the legalities of child custody are decidedly complex. If this is the challenging situation you find yourself in, working closely with an experienced Killeen divorce attorney is well-advised. And when you know which questions to ask, it can help you proceed with greater purpose and focus.

What are child custody laws in Texas?

To begin, you need to know the basics about child custody in the State of Texas, and your dedicated attorney will help you not only understand the laws in Texas but also how they are likely to apply in your case. In Texas, child custody is addressed in terms of both legal and physical custody.

Legal Custody

Legal custody determines who will be making the primary parenting decisions after your divorce, and the options include:

  • Both of you sharing legal custody and making these important decisions together

  • Both of you sharing legal custody, but one of you having tie-breaking power for those instances when your good-faith efforts fail to reach a mutually agreeable solution

  • Both of you dividing this decision-making power according to the kind of decision that is being made

  • One of you having sole legal custody and making these important decisions on your own

The primary parenting decisions addressed by legal custody relate to the following:

  • Your children’s education

  • Your children’s healthcare

  • Your children’s extracurricular activities and travel

  • Your children’s religious training

An important note to make here is that in emergency situations, whichever parent is available makes the necessary decisions. And those day-to-day decisions that parents encounter around the clock remain the responsibility of the parent who has the kids at the time.

Physical Custody

Physical custody refers to how you and your divorcing spouse will divide your time with the children post-divorce. If you can find common ground with your divorcing spouse, you can devise whatever schedule works for your family’s unique needs. If you do, however, need the court’s intervention, you are very likely to receive a standardized parenting time schedule. Ultimately, you will divide your time with your kids in one of two basic ways, including:

  • One of you will live with your children the majority of the time, becoming their primary custodial parent

  • You and your ex will divide your time with the kids more evenly

What factors does the court take into consideration?

When it comes to making decisions about child custody, Texas courts always focus on the best interests of the children involved. Toward this end, they take a wide range of factors into careful consideration, including:

  • Each child’s emotional and physical needs

  • Any special needs any of the children have

  • Each parent’s overall stability (including moral fitness) and ability to provide a stable living environment

  • Each parent’s ability to provide for the children

  • Each parent’s overall physical and mental health

  • Each parent’s ability and inclination to continue supporting a healthy, thriving relationship between the kids and their other parent

  • Any dangers or risks presented by either parent (including any history of addiction, child abuse or neglect, or domestic violence)

  • The amount of involvement each parent has had with the children up to this point

  • The amount of support each child receives from family and community (when with each parent)

  • Each child’s level of adjustment to his or her current living situation, school, and community

  • Each child’s preference (if he or she is considered old enough and mature enough to weigh in on the matter)

  • Each parent’s preference regarding the child custody arrangements

  • The permanence of the family home

  • Any other factors that the court determines are relevant to the case at hand

No two child custody cases are ever exactly alike, and yours will be determined after careful consideration by the court, which has the discretion to focus on whatever factors it considers most relevant.

What does a standard visitation schedule look like?

if the court provides you and your divorcing spouse with a standard possession order, the parent who is not the primary custodial parent (but who lives within 100 miles of him or her) will have visitation according to the following visitation schedule:

  • The first, third, and fifth weekend of each month

  • Thursday evening each week

  • Alternating holidays, which means – for example – having the children for Thanksgiving on the even-numbered years

  • An extended visitation of 30 days with the children during the summer

If you and your ex live more than 100 miles apart, the noncustodial parent will receive the following visitation schedule:

  • One weekend per month (if the distance is too great to keep up, the first, third, and fifth-weekend schedule)

  • No mid-week visitation

  • The same alternating holiday schedule

  • Spring break and a longer visitation of 42 days during the summer

These standard possession orders may be modified if the court believes it is in the best interests of the children to do so. For example, if the child involved is not yet three – or if the noncustodial parent has had very little prior contact with the child – the court may begin with a schedule that allows only shorter visits, but that builds to the standard possession order.

What about modifications to our visitation schedule?

If you are looking ahead to a day when the child custody arrangement you and your soon-to-be ex are hammering out now will no longer make any sense, you are ahead of the game. The fact is that when your children are small, they depend upon you for everything, but as they age, they become much more independent, and this can render your visitation schedule completely obsolete. All the following can play a role:

  • Your children become more involved in extracurricular activities, which absorb much of their free time

  • Your children obtain part-time jobs of their own

  • Your children obtain driver’s licenses of their own

Each of these factors – and many more besides – can affect your visitation schedule. The courts recognize this fact and regularly address the issue of child custody modifications as a result.

It is important to note here that, even if you and your ex are in agreement about the modifications in question, it is important to get them approved by the court. Until you do, your prior orders remain in effect, and failure to stick to them can land you in contempt of court (if your ex suddenly decides that he or she no longer agrees with the modifications you made between yourselves). If you and your children’s other parent are able reach an agreement, however- the court is almost certain to accommodate you with a modification.

How Does Child Support Work?

The State of Texas naturally requires both parents to continue supporting their children financially post-divorce, and child support is the tool used to help ensure that this support is balanced between both of you. Child support is determined in accordance with a careful state calculation methodology, but the primary factors include which parent the children spend the majority of their overnights with and each parent’s income. Typically, the parent who earns more pays child support to the other parent (even when they divide their parenting time evenly or nearly evenly).

The Basic Child Support Schedule

The basic child support schedule that is applied involves the noncustodial parent paying child support according to the following guidelines:

  • When couples share one child, the noncustodial parents pay 20 percent of their net resources.

  • When couples share two children, the noncustodial parents pay 25 percent of their net resources.

  • When couples share three children, the noncustodial parents pay 30 percent of their net resources.

  • When couples share four children, the noncustodial parents pay 35 percent of their net resources.

  • When couples share five children, the noncustodial parents pay 40 percent of their net resources.

  • When couples share six or more children, the noncustodial parents pay not less than 40 percent of their net resources.

These percentages are sometimes modified when parents share parenting time more evenly and/or when one or both parents have children from a different relationship who live with them and/or whom they support financially with court-ordered child support.

Special Considerations

There are, however, special situations in which the court awards child support outside of state guidelines, and when this is the case, the court takes the following factors into consideration:

  • Each child’s age

  • Any special needs any of the children have

  • Any special expenses any of the children require

  • Childcare costs

  • Alimony expenses

  • Each parent’s overall finances and ability to pay child support

  • The cost of children’s healthcare and medical insurance

  • The cost of children’s educational expenses (including college)

  • The travel costs associated with visitation

Child support can also be modified if either parent’s income changes significantly.

Do I need an attorney?

When it comes to a matter as important as child custody, you are always better off having professional legal counsel in your corner. Even if you and your spouse are in complete agreement about your child support arrangements, you might be surprised how often such agreements go south as the stress and high emotion inherent to divorce heat up. A good point to remember is that the closer you and your divorcing spouse are regarding your divorce terms, the less legal assistance you will likely need. If you do come up against a snag, however, you will have a seasoned divorce attorney on your side – who is up to speed with your case – to help keep things under control (and to help prevent any unnecessary escalations whenever possible). When the matter is as critical as child custody, it is far better to be safe than sorry.

Will my case go to court?

Every Texas divorce is finalized by the court in what is known as a prove-up. If you and your divorcing spouse have resolved your child custody terms (and all the other terms that apply), you will need to appear before the court in order for the judge to agree to your terms and include them in your final divorce decree. Only very rarely does the court deny terms that a couple has agreed to (generally when it finds that they are unfair to one or the other spouse). Your prove up will be brief and to the point, and it is nothing to worry about. However, the court may ask you some basic questions about the following:

  • Your name, the county you live in, and the length of time you have lived there

  • Your children’s ages and if any are from a prior marriage

  • If you plan to change your name with the divorce

If, on the other hand, you and your divorcing spouse have not resolved your child custody arrangements – after exhausting your negotiation options – you will need the court’s intervention, and your case will proceed to court. Your negotiation options – it is worth noting – do not end with you and your soon-to-be ex negotiating between yourselves or with you allowing your respective divorce attorneys to negotiate on your behalf. There are also alternative dispute resolution options (ADR), such as mediation. If your case does ultimately go to trial, your trusted divorce attorney will ensure that you understand what is involved and that you are well prepared to proceed.

Discuss Your Case with an Experienced Killeen Divorce Attorney Today

Brett Pritchard at The Law Office of Brett H. Pritchard – proudly serving Killeen, Texas – is a compassionate divorce attorney who has considerable experience successfully protecting the parental rights of clients like you. To learn more, please do not wait to contact or call us at 254-501-4040.

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