Custody and Child Support FAQ By Ashley Miller

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on 16 June 2016
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Want answers to some of the most frequently asked questions about custody and child support in Texas? Keep reading!

1.  What is custody? In Texas, what people think of as custody actually consists of conservatorship and possession and access. The parents’ rights and duties are determined by conservatorship. If joint managing conservatorship, both parents share in deciding where the child’s primary residence is, which school the child attends, medical decisions, etc. If sole managing conservatorship, only one parent has the right to make those decisions. The most popular is joint managing conservatorship, but sole is possible if the court decides it is in the best interest of the child. Physical custody of the child is determined by either standard or extended standard possession and access schedules. Again, the court determines who gets what visitation based on the best interest of the child.

 2. Who gets custody? The determination for who gets custody is based on the best interest of the child. (It is a myth that the mother of the child is automatically favored by the court for custody.)

 3. Can my child decide who to live with? While the child’s choice is not the determining factor, at age 12 and upon motion, a court can consider the child’s choice.

 4. Will my child need to appear in court? Normally no. Unless the child is at least 12 years of age and wishes to express his or her preference.

 5. Can one parent move the kids out of state? Typically, counties will have a standing order that will prohibit the parties from taking the children out of state, or your attorney can help you get a Temporary Restraining Order that will prevent the other parent from moving out of state (even if you already have orders in your case regarding possession and access to your children). Also, it is possible to limit the child’s residence to the state of Texas, the current county and contiguous counties.

 6. Can I modify custody or child support? According to the family code, you can modify, by a suit affecting parent-child relationship, if: 

  • The circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed;
  • The child is at least 12 years of age and has expressed to the court in chambers the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child; or
  • The conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months.

 7. How much is child support? Texas has guidelines in place for determining child support. For example:

  • One Child 20% of net resources
  • Two Children 25% of net resources
  • Three Children 30% of net resources
  • Four Children 35% of net resources
  • Five Children 40% of net resources
  • Six Children Not less than 40% of net resources*

It is important to note that a court may order one or both parents to pay the difference between the Texas guideline child support amount and the child's proven needs, but the judge cannot order more than the presumptive Texas guideline amount of child support or one hundred percent of the child's proven needs, whichever is greater (unless of course the parents agree to that amount).

*If you have other children that require your support, there is a multiple family adjusted guideline.

 8. Who gets child support? Usually, the parent with the right to designate the primary residence of the child/has the child the majority of the time will receive child support. However, the standard is still the best interest of the child. This means the court will consider evidence relating to physical and emotional needs, physical and emotional danger, stability of home, plans for child, cooperation between parents, parenting skills, who was the child’s primary caregiver, the child’s preferences if the child is 12 or older, geographic proximity of the children, keeping siblings together, false reports of child abuse, fitness of each parent (including abuse, physical force and family violence), etc.

 9. Can I refuse visitation if child support is unpaid? No. Although courts can consider possession and access when determining how much child support is to be paid, they cannot deny visitation based solely on unpaid child support.

 10. What are grandparents’ rights? Grandparents’ rights to possession and access can be authorized by the court if it proves to be in the best interest of the child and one of the following is satisfied: 

  • The parents divorced;
  • The parent abused or neglected the child;
  • The parent has been incarcerated, found incompetent, or died;
  • A court-order terminated the parent-child relationship; or
  • The child has lived with the grandparent for at least six months.

However, visitation statutes do not give a grandparent an absolute right to visitation. Also, a grandparent may not request visitation if the grandchild has been adopted by someone other than the child's step-parent.

713 227-1717

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About the author: Ashley Miller is a 3L law student at the University of Houston Law Center and the 2016 summer intern at Frye, Oaks, Benavidez & O'Neil, PLLC. As a law student she has researched and academically written on Texas Family Law, Marital Property, and Homestead in the foregoing blog post which is educational in nature only - at time of blog posting Ashley Miller is not a licensed Texas attorney and is not dispensing legal advice. This blog post should not be relied upon as legal advice by any prudent person under any circumstances at any time. 

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