A Divorce Guide

Answers to common questions about getting divorced in Texas

 

      What is a Divorce?

 

      Divorce is a legal procedure to end a legal marriage relationship. It is available in traditional marriages as well as in common-law marriages.

 

      Where does my divorce case get filed?

 

      Your divorce must be filed in a court that has jurisdiction over all the parties. Usually, this will be a court in the County where both of you live. If you live in different counties, your attorney can determine where to file the case, unless there is children.  When there are children, the case must be filed in the county where the children reside.  Also, if you have a court order in effect regarding the child (May with the attorney general), the court where that was filed has jurisdiction and may need to be transferred to the new county where the children reside.

 

      You must be a resident of Texas for the last 6 months and a resident of the county where you want to file your case for the last 90 days.

 

      *If you live in different counties most of the people I work with prefer to file their case first, before the other spouse does so you can attempt to avoid having your case handled in another county far away.

 

 

      What do I file to begin my divorce case?

 

      Every divorce case begins with a formal pleading titled “Original Petition for Divorce.” The initial pleading must contain enough information to establish that the court where you file it has jurisdiction over the case and the parties involved.

 

      In addition it must include a request for the relief that you are asking from the court as well as the basis for that relief. If you leave something out on the Original Petition and need to correct it later on you may be forced to re-serve the petition on the other party.

 

      What if there are mistakes in my Original Petition?

 

      The Original Petition for Divorce is a very important pleading because it puts the other party on notice concerning which claims you are making and the relief you are seeking. If you leave something out of the Original Petition then the judge may not allow you to argue a specific claim or present evidence on an issue. Do it right the first time.

 

      What are the filing and other fees?

 

The filing fee is determined by the county in which you for a divorce.   Most of the fees can be found by going online to the county website under the district clerk tab.

 

      In addition you will have to pay the process servers fee to complete service of process which varies with the person you choose, but is generally $75. If you request a temporary restraining order with your divorce petition the filing fee is $284.

 

For current filing fees for Montgomery County, visit

 

http://www.mctx.org/dept/departments_d/district_clerk/docs/Family_Law_BOC_0927131.pdf

 

For current filing fees for Harris County, visit

 

 http://www.hcdistrictclerk.com/Common/Family/Family.aspx

 

For current filing fees for Liberty County, visit

 

http://www.co.liberty.tx.us/default.aspx?Liberty_County/District.Clerk

 

      Do I need an Attorney?

 

You are not required to have an attorney protect your rights and interests in a divorce case. Many people end up finding some of the advantages to having an attorney are:

 

  • getting on the court’s docket faster while pro se trials are currently set about 1 year from filing according to Judge Gilbert of the 418th District Court;

     

  • having everything in acceptable form when you do need the court to rule on the divorce or a pre-trial motion – Judge Gilbert recently revealed he refuses approximately 50% of the self-represented divorce decrees that people ask him to grant because they do not meet the legal requirements of enforceability;

 

  • Protecting rights you may not even know you had (Is the child support figure accurate? Are you in a position to enforce a breach of the divorce settlement? Are you walking away from property that you have a legal right to? Is all of the community property divided in the decree? Is Alimony correctly determined?)

     

    Can One Attorney Represent Both of Us, if we Agree?

     

       No. One Attorney can never represent both parties to a divorce, even if you agree. A divorce is litigation where one spouse is suing the other spouse to divide property and determine legal rights and responsibilities towards each other and children. An Attorney representing both sides in a divorce would be the same as representing Coke and Pepsi in a lawsuit between the two companies.

 

 

      I’ve Been Served With Divorce Papers, What Now?

 

      If your spouse had you served with his or her divorce petition it is critical that you and your attorney file a written Answer to the petition within the deadline, usually the Monday following 20 days after you are served. If you do not file a valid Answer before the deadline, then your spouse may obtain a default judgment against you and the judge may decide on your case without ever hearing your side. The clock is ticking once you are served; contact The Tavel Law Firm immediately so we can begin to prepare your case.

 

      We Are Already Separated

 

      That is great, but it does not mean much in a Texas divorce court. You may be living separately for 2 months or twenty years but the State of Texas does not recognize legal separation in any form. All the property and income you’ve accumulated during the time you believed you were separated can be brought into the final property division as presumed community property.

 

      How long will it take before my divorce is final?

 

      There is a minimum 60 day waiting period from the date of filing before a divorce can be finalized in Texas. In a very simple divorce where there are absolutely no disputed issues or unusual circumstances that need to be addressed a divorce can be finalized on the 61st day if the court has room on its docket.

 

      Very few divorces are finalized on the 61st day however. If children are involved, or as the amount of property that has to be divided increases it generally takes longer to reach a settlement agreement.

 

      If you intend to go to trial, you will generally not receive a trial date until 6 months after your case was filed. In addition, there may be delays due to discovery or other issues that develop during the course of your case.

 

      What is an Uncontested Divorce?

 

      An uncontested divorce is generally used when the parties have already maintained separate residences for some time and have already divided property. If there is any negotiation remaining that you need your attorney to be involved in then your case probably does not qualify as uncontested.

What is a Collaborative Divorce?

 

      A Collaborative Divorce is not the same as an Uncontested Divorce and is generally only used when the parties need to maintain a parenting relationship with each other after the divorce is final, there are complicated business assets that need to be divided, or both parties want to maintain their families’ privacy.

 

      Collaborative divorce is a process through which you and your spouse, and each of your attorneys, commit themselves to resolving all issues of the divorce by negotiated agreement without resorting, or threatening to resort, to costly court proceedings. Collaborative divorce uses informal methods such as voluntary production of financial documents, four-way conferences, negotiation, and where needed, outside professionals such as accountants, financial planners and family counselors.

 

      What is a Contested or Litigated Divorce?

 

      A contested divorce does not mean one party objects to getting the divorce. In almost all contested divorces both parties want a divorce, but they have not resolved the vital issues of custody, support, and property division. One quick way to tell if your case is contested is if your spouse had you served with a divorce complaint then odds are your divorce is contested.

 

      What is Community Property?

 

      Community property consists of the property, other than separate property, acquired by either spouse during marriage.

When Does Community Property End?

 

      Texas is one of the few states left that continues to presume all property acquired up until the day the judge orders the divorce as community property. That means even after one of you has filed divorce and your case is proceeding the court still presumes any property you acquire is community property and subject to division in the final divorce. Spouses may also set aside all or part of their community property as separate property by partition or exchange agreement.

 

      What is Waste of Community Property?

 

      One common area of dispute during a divorce is if one spouse “wasted” community property and should therefore be penalized for that waste in the final property division. The legal requirement for “waste” requires disposal of community assets for non-community purposes or transfer of assets outside of the community. For example, gifts to a new girlfriend or boyfriend or even family member. Those are transfers of assets that remove community property from the estate. A court recently confirmed that it is not “waste” when one party to a divorce makes large purchases during the divorce because the purchases remain community property and subject to division as part of the divorce. A party making such purchases may be guilty of other things, but “waste” is likely not one of them.

 

      What is Separate Property?

 

      Separate property consists of (1) the property owned or claimed by a spouse before marriage; (2) the property acquired by the spouse during marriage by gift, devise, or descent; and (3) the recovery for personal injuries sustained by the spouse during the marriage, except any recovery for loss of earning capacity during marriage.

 

      This is it for separate property. If you have an item that does not fit into one of those categories then you probably cannot protect it as separate property. Depending on the facts, there may be other strategies available to protect the value of the property however.

 

       How much child support is required?

 

      Child Support is determined by first discovering what the parent paying child support’s “net resources” are. “Net resources” is a legal term with a very specific meaning and is generally the center point of disputes concerning child support. Once the net resources are determined, the statutory guidelines set the following percentages as presumed reasonable:

 

1 child = 20%

2 children = 25%

3 children = 30%

4 children = 35%

5 children = 40%

 

Sec. 154.062.  NET RESOURCES

 

(a)  The court shall calculate net resources for the purpose of determining child support liability as provided by this section.

 

(b)  Resources include:

(1)  100 percent of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses);

(2)  Interest, dividends, and royalty income;

(3)  Self-employment income;

(4)  net rental income (defined as rent after deducting operating expenses and mortgage payments, but not including noncash items such as depreciation); and

(5)  all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits other than supplemental security income, United States Department of Veterans Affairs disability benefits other than non-service-connected  disability pension benefits, as defined by 38 U.S.C. Section 101(17), unemployment benefits, disability and workers' compensation benefits, interest income from notes regardless of the source, gifts and prizes, spousal maintenance, and alimony.

 

(c)  Resources do not include:

(1)  Return of principal or capital;

(2)  Accounts receivable;

(3)  benefits paid in accordance with the Temporary Assistance for Needy Families program or another federal public assistance program; or

(4)  Payments for foster care of a child.

 

(d)  The court shall deduct the following items from resources to determine the net resources available for child support:

(1)  Social security taxes;

(2)  Federal income tax based on the tax rate for a single person claiming one personal exemption and the standard deduction;

(3)  State income tax;

(4)  Union dues;

(5)  expenses for the cost of health insurance or cash medical support for the obligor's child ordered by the court under Section 154.182; and

(6)  If the obligor does not pay social security taxes, nondiscretionary retirement plan contributions.

 

(e)  In calculating the amount of the deduction for health care coverage for a child under Subsection (d)(5), if the obligor has other minor dependents covered under the same health insurance plan, the court shall divide the total cost to the obligor for the insurance by the total number of minor dependents, including the child, covered under the plan.

 

      Child support will only be ordered on a child until they graduate from high school or turn 18 years of age, whichever is later.  Only by Agreement can you get child support to be paid while the child is in college or some other date in the future.

Child Support for High Income Parents

 

      The guidelines above only apply to the first $7,500 of monthly net resources in the case of a high income parent. The amount of child support applied on the amount above $7,500.00 is based on many different factors and the evidence available in your case.

 

      Child Support for Disabled Children

 

      Child support usually ends when the child reaches 18 or finishes high school. However, if a child is disabled and meets certain legal and factual criteria the court can order child support for as long as is necessary, and even indefinitely.

 

      Am I eligible for Spousal Maintenance?

 

      In order to be eligible for spousal maintenance the marriage must have lasted at least ten years. If your marriage did not last ten years the court does not have authority to grant spousal maintenance. However the Court has the following law to follow for maintenance:

 

Sec. 8.053.  PRESUMPTION.  (a)  It is a rebuttable presumption that maintenance under Section 8.051(2) (B) is not warranted unless the spouse seeking maintenance has exercised diligence in:

(1)  Earning sufficient income to provide for the spouse's minimum reasonable needs; or

(2)  Developing the necessary skills to provide for the spouse's minimum reasonable needs during a period of separation and during the time the suit for dissolution of the marriage is pending.

 

Sec. 8.054.  DURATION OF MAINTENANCE ORDER.  (a)  Except as provided by Subsection (b), a court:

 

(1)  May not order maintenance that remains in effect for more than:

(A)  five years after the date of the order, if:

(i)  the spouses were married to each other for less than 10 years and the eligibility of the spouse for whom maintenance is ordered is established under Section 8.051(1); or

(ii)  The spouses were married to each other for at least 10 years but not more than 20 years;

(B)  seven years after the date of the order, if the spouses were married to each other for at least 20 years but not more than 30 years; or

(C)  10 years after the date of the order, if the spouses were married to each other for 30 years or more; and

 

(2)  shall limit the duration of a maintenance order to the shortest reasonable period that allows the spouse seeking maintenance to earn sufficient income to provide for the spouse's minimum reasonable needs, unless the ability of the spouse to provide for the spouse's minimum reasonable needs is substantially or totally diminished because of:

(A)  Physical or mental disability of the spouse seeking maintenance;

(B)  Duties as the custodian of an infant or young child of the marriage; or

(C)  Another compelling impediment to earning sufficient income to provide for the spouse's minimum reasonable needs.

(b)  The court may order maintenance for a spouse to whom Section 8.051(2) (A) or (C) applies for as long as the spouse continues to satisfy the eligibility criteria prescribed by the applicable provision.

(c)  On the request of either party or on the court's own motion, the court may order the periodic review of its order for maintenance under Subsection (b).

(d)  The continuation of maintenance ordered under Subsection (b) is subject to a motion to modify as provided by Section 8.057.

 

Sec. 8.055.  AMOUNT OF MAINTENANCE.  (a)  A court may not order maintenance that requires an obligor to pay monthly more than the lesser of:

 

(1)  $5,000; or

(2)  20 percent of the spouse's average monthly gross income.

A-1)  For purposes of this chapter, gross income:

    (1)   includes

(A)  100 percent of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses);

(B)  Interest, dividends, and royalty income;

(C)  Self-employment income;

(D)  net rental income (defined as rent after deducting operating expenses and mortgage payments, but not including noncash items such as depreciation); and

(E)  all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, unemployment benefits, interest income from notes regardless of the source, gifts and prizes, maintenance, and alimony; and

(2)  Does not include:

(A)  Return of principal or capital;

(B)  Accounts receivable;

(C)  Benefits paid in accordance with federal public assistance programs;

D)  Benefits paid in accordance with the Temporary Assistance for Needy Families program;

(E)  Payments for foster care of a child;

(F)  Department of Veterans Affairs service-connected disability compensation;

(G)  Supplemental security income (SSI), social security benefits, and disability benefits; or

(H)  Workers' compensation benefits.

 

      Even if your marriage did not last ten years you may be eligible for temporary spousal maintenance while the case is pending.

What are Temporary Orders?

 

      Temporary Orders are the rules for what each spouse can and cannot do while the case is pending. Temporary orders may include a restraining order, child support, spousal support, payment of legal fees, and other court orders designed to protect property and maintain the status quo. Montgomery County has standing orders that automatically go into effect when a case is filed. It is attached to this information sheet, and are usually set by the court about two to three weeks after the case has been filed.

 

       What is the Standard Possession Order?

 

      The Standard Possession Order is visitation schedule which is followed by most courts. The Standard Possession Order only applies to children age 3 or older.  The possessory conservator has the choice of whether to have possession of the child(ren) from 6 pm on the 1, 3, or 5th Fridays of a month or have an extended possession of the child(ren) from Friday when school is dismissed on the 1, 3 or 5th Fridays of a month until school resumes on the following Monday.   This election must be made at the time the orders are entered with the court.

 

      What is Visitation for Children Younger than 3?

 

      In the case of a child younger than 3 years old, the judge is responsible for entering a visitation order that is appropriate based on:

 

  • the age, developmental status, circumstances, needs, and best interest of the child;

     

  • the circumstances of the managing conservator and of the parent named as a possessory conservator; and

     

  • Any other relevant factor.

     

    Can we modify the Standard Possession Order?

     

    Yes you can, however it is your responsibility to convince the judge that the modifications are in the child’s best interests. It may seem logical that splitting time between both parents is in the child’s best interests but the judges are very familiar and very comfortable with the Standard Order. Generally the only time you can obtain a modified possession order is by agreement of the parties through mediation.

     

    What is Discovery?

     

      Discovery is a pre-trial process used to gather information from the other spouse and 3rd parties. Usually this is focused on obtaining information about assets but it can also be used to pursue information on other issues such as adultery.

How are Retirement Accounts like 401(k)s handled?

 

      Retirement accounts such as 401(k)s are subject to the community property and separate property rules just like any other asset. Just because it is in one spouse’s name does not mean they own 100% of it and it is not community property. Dividing retirement accounts and 401(k)s are generally done through a Qualified Domestic Relations Order (QDRO).

 

      How are Student Loans handled?

 

      Student loan debt is generally treated the same way as property. This means that if the loans were incurred before marriage it is likely, not guaranteed, that the judge will treat the debt as separate debt. If the loans were incurred during the marriage, then it is likely the judge will treat the debt as community debt and it is subject to allocation between both parties.

 

      How much does it cost?

 

      The Tavel Law Firm currently uses the following fee schedule at the time this book was published, however rates are subject to change in the future:

 

Uncontested Divorce with no property, no debt, and no children $1500 + filing fees

Uncontested Divorce with property, debt, or children $2,500 + filing fees

Litigated Divorce ($3,000.00 retainer required) $250/hour

  

      Will I have to go to court?

 

      In the end everyone has to go to court at least once for the final hearing at a minimum. If you end up in a litigated divorce then you will have to go to court many more times than that.

 

      What about my privacy?

 

      Divorces are heard in a public courtroom and are part of public record. If you want to protect your privacy, consider a collaborative divorce.

Is Counseling Required?

 

      Most Texas judges do require parental counseling before a divorce is granted when children are involved. This is not marriage counseling to try to reconcile the marriage relationship. It is a short course taught by professionals that addresses some of the common issues with how divorce affects children.

 

      If you do not have any children involved in your divorce then no counseling is automatically required, although the judge does have authority to order counseling if they choose to.

 

      What Information or Documents Will I Need?

 

Each case requires different documents. At a minimum you will need:

 

 Your 2 most recent paystubs;

 Your 2 most recent income tax returns;

 The most recent statements for all accounts you own;

 The deeds for any real estate;

 The most recent statements for any debts that you owe;

 A list of your monthly expenses that is as accurate as possible.

 

You do not have to have this information ready to begin your case, but you will need to provide it within the first 30 days after your case is filed.

 

 

 

      Additional Information

 

      Most Courts require Mediation.  Many of the courts require mediation prior to Temporary Hearings and prior to Final Hearings.  Mediation is a good process.  Mediation, as used in law, is a form of alternative dispute resolution (ADR), a way of resolving disputes between two or more parties with concrete effects. Typically, a third party, the mediator, assists the parties to negotiate a settlement. Disputants may mediate disputes in a variety of domains, such as commercial, legal, diplomatic, workplace, community and family matters.

      The term "mediation" broadly refers to any instance in which a third party helps others reach agreement. More specifically, mediation has a structure, timetable and dynamics that "ordinary" negotiation lacks. The process is private and confidential, possibly enforced by law. Participation is typically voluntary. The mediator acts as a neutral third party and facilitates rather than directs the process.

      Mediators use various techniques to open, or improve, dialogue and empathy between disputants, aiming to help the parties reach an agreement. Much depends on the mediator's skill and training. As the practice gained popularity, training programs, certifications and licensing followed, producing trained, professional mediators committed to the discipline.

The benefits of mediation [1] include:

  • Cost—While a mediator may charge a fee comparable to that of an attorney, the mediation process generally takes much less time than moving a case through standard legal channels. While a case in the hands of a lawyer or a court may take months or years to resolve, mediation usually achieves a resolution in a matter of hours. Taking less time means expending less money on hourly fees and costs.

  • Confidentiality—While court hearings are public, mediation remains strictly confidential. No one but the parties to the dispute and the mediator(s) know what happened. Confidentiality in mediation has such importance that in most cases the legal system cannot force a mediator to testify in court as to the content or progress of mediation. Many mediators destroy their notes taken during a mediation once that mediation has finished. The only exceptions to such strict confidentiality usually involve child abuse or actual or threatened criminal acts.

  • Control—Mediation increases the control the parties have over the resolution. In a court case, the parties obtain a resolution, but control resides with the judge or jury. Often, a judge or jury cannot legally provide solutions that emerge in mediation. Thus, mediation is more likely to produce a result that is mutually agreeable for the parties.

  • Compliance—Because the result is attained by the parties working together and is mutually agreeable, compliance with the mediated agreement is usually high. This further reduces costs, because the parties do not have to employ an attorney to force compliance with the agreement. The mediated agreement is, however, fully enforceable in a court of law.

  • Mutuality—Parties to a mediation are typically ready to work mutually toward a resolution. In most circumstances the mere fact that parties are willing to mediate means that they are ready to "move" their position. The parties thus are more amenable to understanding the other party's side and work on underlying issues to the dispute. This has the added benefit of often preserving the relationship the parties had before the dispute.

  • Support—Mediators are trained in working with difficult situations. The mediator acts as a neutral facilitator and guides the parties through the process. The mediator helps the parties think "outside of the box" for possible solutions to the dispute, broadening the range of possible solutions.[2]

      The main thing to know about the mediation process, is that it is conducted by a mutual third party as mediator.  If you make an agreement with the other party and the mediator reduces the agreement to writing and all parties sign it, (MSA), it is a done deal and you cannot come back and make changes.

Most of the Court in Texas require a parenting class.  Each County has a list of providers that they prefer the parents to use.  Some counties allow on line courses and other counties will only allow in class courses.  The Attorney will inform you as to which course to take.  These courses are designed to help the parents understand how to treat and respect the children during the divorce proceedings and after.

This Guide is only to cover some of the most basic information about getting divorce. For additional information please make an appointment (free consultation for 30 minutes) with our office. If you need a local and experienced divorce attorney that represents people throughout the State of Texas, call me at (281) 354-8156.

 

 

Texas Child Custody Questions

 

Texas child custody attorneys provide answers to frequently asked questions about child custody laws and what determines who gets custody in Texas.

 

What is joint custody? What is sole custody?

 

In Texas, courts divide child custody issues into two different categories: conservatorship and possession and access.

Conservatorship is basically the rights and duties of the parents (i.e. to make decisions for the child regarding schooling, medical decisions, and psychiatric decisions, among many other things). Conservatorship can be done in different ways, including allowing one parent to make all the decisions (Sole Managing Conservatorship) or allowing both parents to jointly make the decisions (Joint Managing Conservatorship).

When determining the rights and duties of the parent(s), the court will decide what is in the “best interest” of the child, which takes into account a large number of factors.

Possession and access refers to when the parents have physical custody of the children or when they can visit with the children. Texas has two statutory possession and access schedules: standard and extended standard. These schedules dictate the time each parent spends with the child.

However, the parties can agree on different possession and access schedules based on their needs or the court can order a different possession and access schedule based on the best interest of the child.

 

If I have custody, will I receive child support? If both parents share custody does anyone pay child support?

 

Whether or not a parent has to pay child support depends on what the court determines to be in the best interests of the child.

In determining the best interests of the child, the court will consider evidence relating to a wide array of factors including: 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; and fitness of each parent (including abuse, physical force and family violence).

Typically the parent who is awarded the right to designate the primary residence and/or has possession and access to the child a majority of the time is the recipient of child support.

 

Can a parent refuse to allow visitation if child support is not paid?

 

No, child support and visitation do not go hand-in-hand. While the court can take into consideration how much possession and access to the child(ren) is being exercised when determining the amount of child support to be paid to an obligee, a parent nor a court can refuse to allow visitation solely on the issue of non-payment of child support.

 

When can my child decide which parent to live with?

 

In Texas, a child’s decision cannot be the sole factor in determining which parent the child lives with. However, once the child reaches the age of 12, and upon motion, the court can consider the child’s wishes as to whom he/she wishes to live with.

 

Do grandparents have custody and visitation rights?

 

No, grandparents do not typically have custody and visitation rights, unless they can meet the statutory requirements, including:

1.) at least one parent not having their parental rights terminated at the time relief is requested;

2.) overcoming the presumption that a fit parent acts in the best interest of their child in denying possession or it would significantly impair the child’s physical health or emotional well being; and

3.) the grandparent must be the parent of the child and that parent of the child must be either i.) declared incompetent by the court; ii.) is dead, or iii.) does not have actual or court-ordered possession to the child.

 

What is a parenting plan, and do I need one?

 

Yes, every case involving children needs a parenting plan. A parenting plan sets the rights and duties of a parent regarding the child. Some rights and duties include: right to designate primary residence; right to make decisions regarding the child’s health; rights to make decisions regarding the child’s education; duty to provide health insurance; duty to provide child support and many others.

 

If my separation agreement includes custody/support can it be included in the divorce decree?

 

Texas does not have separation agreements. Instead the state has temporary orders. Upon agreement of the parties or upon order of the court, the possession and access/support terms from the temporary orders can be included in the final decree of divorce.

 

What can I expect from temporary orders?

 

Upon filing of a divorce or other family matter, a party may request the court enter a temporary order governing the matter. Temporary orders allow the parties to get agreed upon or court-ordered “rules” governing various aspects of the domestic arena, including child conservatorship, possession and access, child support, property division, spousal support and various other items.

 

When will child custody be decided?

 

Possession and access will be decided on a temporary basis in the temporary orders either by agreement or by order of the court. Possession and access will be decided on a permanent basis in either the final decree of divorce or in the order on Suit Affecting Parent-Child Relationship (SAPCR).

 

When can I modify custody?

 

You can modify custody if it is in the best interests of the child and:

1   the parents agree;

2  if the child is 12 years old or older and tells the court he wants to change his primary caretaker;

3  the person with the right to determine the primary residence relinquishes care and possession of the child for at least 6 months; or there has been a material and substantial change in the circumstances of either the child, the parent, the conservator or another significant party.

The most common way people modify custody is by showing that there has been a significant change in a party’s circumstances, which is a very broad category and can be proven in a variety of ways.

 

What if we cannot agree on a custody arrangement?

 

The parties can request a trial to have the court determine custody arrangement or the parties can participate in mediation to help the parties come to an agreement.

 

What is an ex parte order?

 

An ex parte order is an order that was taken without one of the parties present. These are usually only warranted upon an emergency of one of the parties.

 

Who will get custody of our child(ren) and how is custody decided?

 

The court will determine possession and access to the child/children based on the best interest of the child.

In determining the best interest of the child, the court will consider evidence relating to a wide array of factors including: 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; and fitness of each parent (including: abuse; physical force; family violence).

 

How can I increase my chances at getting a larger custody agreement?

 

You can increase their changes at getting a larger custody agreement by proving to the court that you are an integral part of the children’s lives. This includes showing the court that you exercise regular visitation; that you take the kids to their extra-curricular activities; that you care for them on a daily basis; and that you are stable and competent to take the children for longer periods of time.

It is always helpful to keep a journal and calendar of everything that you do for and with the children leading up to the temporary orders or final determination of custody so you can show the court, mediator or opposing party that you are capable and deserving of a larger possession and access period.

 

What is visitation?

 

Texas does not use the term “visitation.” However, as stated above Texas uses the terms “possession and access.” Possession and access refers to when the parents have physical custody of the children or when they can visit with the children. Texas has two statutory possession and access schedules: standard and extended standard.

These schedules dictate the time each parent spends with the child. However, the parties can agree on different possession and access schedules based on their needs or the court can order a different possession and access schedule based on the best interest of the child.

 

Can a judge order supervised visitation or no visitation?

 

If the other party can prove that the children’s emotional or physical well-being is at risk of being harmed, the court can order supervised visitation.

 

Do courts favor the mother over the father?

 

No, courts are not supposed to favor a mother or father. The courts are supposed to consider what is in the best interests of the child.

 

What should I know before a custody trial?

 

You should know extensive and detailed information about your child. For example, you should know:

  • Child’s birthdate;

  • Child’s allergies;

  • Child’s special needs;

  • Child’s medical background;

  • Child’s schedule;

  • Child’s extracurricular activities and the names of all sponsors/coaches;

  • Your children’s school, teachers and grade.

Basically you should know any basic information about your child that your spouse/the other parent will know.

 

Can I collect my own evidence to use if my custody case goes to court?

 

It is always best to have an attorney to guide you through the collection of evidence. There are complicated rules governing the collection of evidence as well as the admissibility of the evidence.

 

Do I need to use a Guardian ad Litem/Custody Evaluator?

 

In Texas, we typically don’t use Guardian ad Litems, we more typically use amicus attorneys. A Guardian ad Litem and/or amicus attorney is often used when the children are under the influence of the strength of one party or the children are experiencing a great amount of change. It allows the child to have an advocate for their rights who is not persuaded by other factors.

Because the parties sometimes become wrapped up in “side issues,” it may be most helpful to the judge to have a third party neutral or advocate for the children come in and evaluate the case. Typically Guardian ad Litems and amicus attorneys are used when there is to be a termination of the parental rights, an adoption, or if there is physical/mental abuse.

 

Will my child need to appear in court?

 

Typically your child will not need to appear in court unless one of the parties has filed a Motion to Confer with Child. This type of motion is usually filed when one of the children is 12 or older and wants to express with the court whom they would like to reside with.

Please note that it is never a good idea to bring your child to the court for any family matters.

 

What is the Parental Kidnapping Prevention Act?

 

The Parental Kidnapping Prevention Act is in effect a statute enacted by Congress to assist states in enforcing possession and access to a child. It provides some jurisdictional rules as well as enforcement standards that can assist in allowing parents to have their possession and access rights enforced.

 

What if my wife tries to move the kids out state?

 

It is always important to try and maintain a stable and safe environment for the kids and the judge will try and maintain that stable and safe environment. 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 your wife from moving out of state.

 

If you already have orders in your case regarding possession and access to your children, you can still file a Temporary Restraining Order to keep your wife from moving the children from the state. It is possible to limit the children’s residence to the state of Texas, the current county and/or contiguous counties.

 

Can a parent change the child’s last name without the other parent’s permission?

 

No. Both parents must consent to change the child’s last name.