Alex Hunt:
Welcome back to the Texas Family Lawyer Podcast. I am Hunt Law Firm, Managing Attorney Alex Hunt, and I am happy to be joined today by Hunt Law Firm Associate Attorney Elena Smith. Welcome.
Elena Smith:
Thanks for having me.
Alex Hunt:
So today we're just going to jump right in. We're going to talk about what happens to the kids in a family law case. And we've delved into some specifics in prior podcasts. If you go to our website at familylawyerkaty.com, there are a ton of resources. Click go to the website, click on the resources tab, click on the blog so you can see articles. And you can get a lot of really granular detail. You can get in the weeds. We give a lot of really detailed information. But today we just wanted to give an overview of people that are interested in what this process looks like, and what you can expect out of a final custody order or a final divorce order on the kid issues. We're just going to keep it general, and we're going to talk about what a default order would look like. So the caveat, the disclaimer is that every case is going to be fact-specific. The circumstances depend on the people and what's involved in your life and your kids and the parties. But we're just going to talk generally about what this will look like.
And the best place to start when you're talking about kid issues is conservatorship. What does that mean?
Elena Smith:
So you hear a lot about custody. Custody, this, custody that, I want sole custody, we're going to have joint custody. And it's important to know what that term really means in Texas. And you're right, a great place to start is conservatorship. And conservatorship in Texas is essentially the right to be a parent. It is decision-making authority for your minor child. And in Texas when there are two parents standing before a court, again, like you said, parents can make their own agreements in settlement negotiations and mediation and all of that good stuff. But if you go to a final trial or a temporary orders hearing and you're standing before a judge, in Texas, the presumption is that both parents are going to be named joint managing conservators. And what does that mean? That just means we have two active parents telling the court, "I'm here, I want to participate and I want to make decisions for my child." And barring some interesting factual determination otherwise. That is the presumption and that is likely what is going to happen in a court.
Alex Hunt:
Okay. So that's joint managing conservatorship. There's also the sole managing conservatorship.
Elena Smith:
Yes.
Alex Hunt:
We see that much less frequently. And as you mentioned, there's certain facts that are associated with that. Usually bad facts for one of the parents, there's something that's wrong. There's substance abuse or some reason that the kids can't be safe because of family violence, or there's just an absent parent. It's not a typical situation that we would normally default to. But what does the joint managing conservatorship bring with it, and what does the sole managing conservator bring with it in terms of the rights and duties that are associated with it?
Elena Smith:
Right. So when a parent is named a conservator, whether they are a joint managing conservator or they are a sole managing conservator, there are certain rights and duties that come along with that designation. And there are some rights that you're just going to get just by being named the conservator, whether you're joint managing or sole managing, possessory, whatever. And these are things like, you have the right to confer with your child's doctors, and you have the right to go get their medical records. You have the right to talk to their teachers or their principal and the right to access their school records, their attendance records, the report cards. You have the right to go to school and go to their extracurricular activities at school, or if they have a school performance, go to school lunches, go to field trips. And the other parent doesn't have the ability to prevent you from doing that. And the court doesn't have to make a decision about how those are parsed out, you're just going to get those no matter what.
Alex Hunt:
It's a lot of information, the ability to get information so that way if you have the right to make decisions, you can just be aware of things.
Elena Smith:
And I think that that's helpful. If you're co-parenting with somebody who's very difficult to communicate with, you're not relying on them only, you have the ability yourself to go access that information without them.
Alex Hunt:
Very important. So let's dig into the rights and duties that can differ depending on joint managing conservatorship, sole managing conservatorship. And we use those terms and what they mean is that there's certain rights and duties that are exclusive to one parent if you're sole managing conservator, but it doesn't mean that you can't have some exclusive decision making in an area if both of the parents are joint managing conservators. So let's dig into the rights specifically, and as family lawyers, we colloquially call them bed head med ed. So bed is the exclusive right to determine the primary residence of the child. Head is psychological, psychiatric decisions. Med is invasive medical decisions, non-emergencies. And ed is educational. So let's start at the top. The exclusive right to determine the primary residence. You might have heard this or read about this, if you're doing research, listeners, as the primary custodian or the primary conservator. Tell me what it means in reality.
Elena Smith:
So in a custody case, whether it's a divorce with children or you've never been married but you have a child with somebody and now you're in a court case and you're getting orders in place, the court is going to pick one of you when you are joint managing conservators. The court's going to make a determination between the two of you, who should be the parent, like you said, that has the exclusive right to designate the child's primary residence. And that just essentially means there's going to be one parent that we pick that has the right to decide where your kid lives most of the time.
Alex Hunt:
And exclusive means that parent would have the sole right to make that decision, obviously. And then, the primary residence, meaning where they're going to be living most of the time. We take all of that legalese and a lot of times you're just going to hear people say, "They're the primary parent," or "The primary conservator." The psychological and psychiatric decisions, there's a few different ways that the court or the parties could parse those rights out.
Elena Smith:
Yes.
Alex Hunt:
The default one is joint decision making.
Elena Smith:
Yes.
Alex Hunt:
Which would mean, in the absence of an agreement, the status quo is going to be what rules the day. Let me give you an example. If Mom wants the child to go and see a therapist and Dad says no, and you have joint decision making, the child's not going to go to a therapist because there's no agreement. The parties haven't come together. Each parent has a veto power. There are other ways that the court or the parties can assign these rights though. Tell me about those.
Elena Smith:
So the other two manners that the court or the parties can parse out this decision-making ability is exclusive decision making, which we already hit on a little bit. One parent has the right to make that decision without the other parent's consent. There is an expectation that if you have the exclusive right, you are going to consult beforehand with the other parent to inform them and get maybe even their opinion. But even if they disagree with you and you have that exclusive right, you're still able to make that decision on your own. The other one is independent decision making. And on these heads eds and meds, I think as practitioners we typically advise clients not to at least agree to independent decision making. It can create problems. What does it mean? Each parent has the right to make the decision on their own.
Something like psychiatric and psychological treatment, well, that might be okay. Because when the child is in one parent's possession and they say, "You know what, I want you to see a counselor, I want you to see a therapist while you're with me on my time." Fine, you can do that. It doesn't really interfere too much with the other parent. But as far as a medical decision, when we have one parent saying yes and one parent saying no, and they both have the right to say yes or no, it's a problem.
Alex Hunt:
Okay. I'll just have your tonsils taken out when I have you.
Elena Smith:
It's not workable.
Alex Hunt:
You can't undo it. The other thing to consider too is that psychological and psychiatric, those really are two very different decisions And you might be able to do psychological decisions independently and have the kid go to therapy with one parent or the other. But a psychiatric is more difficult because usually if the psychiatrist prescribes a psychotropic medication or an antidepressant or something like that, you can't just go off of it for an extended period of time. There needs to be some sort of agreement that it's going to continue while in the other parent's care. And so, for that reason, if we're going to do independent for psychological, we usually won't extend that to psychiatric as well. That would need to be a joint or exclusive decision-making.
One of the caveats this, so we've talked about joint decision-making, we've talked about exclusive decision making, we've talked about independent decision making. One of the things over the last, I'd say, 10 years or so that has gotten more in vogue is, on joint decision making for there to be a tiebreaker. And so, if you have joint decision making with a tiebreaker, usually for medical decisions it's the child's pediatrician. Usually for educational decisions it's the school principal or the school counselor.
Elena Smith:
Yes.
Alex Hunt:
To give an example of psychiatry, if one parent says the kid needs to go to a psychiatrist, the other parent says no, and the pediatrician is the tiebreaker. Then you go to the pediatrician and you give information about what the kid needs. And then, the pediatrician, most of the time, is going to say "Mom or Dad, you think the kid needs to see a psychiatrist? Yes, they should go see a psychiatrist." So usually the pediatrician is... I mean usually they're going to deflect any type of liability they might have in this. And a lot of times we find school principals and school counselors and pediatricians to be like, "I didn't sign up for this." But most of the time they're going to recommend going and getting whatever the treatment is or whatnot.
Elena Smith:
Absolutely.
Alex Hunt:
Okay. So that is the medical decision making. Then we also have educational decision making and it's the same there. But there's an additional piece of educational decision making and that's school enrollment. And that might be treated a little bit differently.
Elena Smith:
It can be. So sometimes it makes the most sense for the parent who has the exclusive right to designate the primary residence of the child to also be the parent who has the exclusive right to enroll the child in school. And then after that, both parents have a duty and an obligation to ensure that the child attends, while the child is in their possession, that school that the parent who has that exclusive right to enroll has enrolled the child in. Sometimes we see it as a joint right if they can work together and come to an agreement on that. I think sometimes it's a little cleaner when it is just one parent has the exclusive right.
Alex Hunt:
I agree.
Elena Smith:
It just sometimes bypasses some of that back and forth.
Alex Hunt:
And then, there are some other rights and duties that are a little bit, they're minor ones.
Elena Smith:
Lesser known.
Alex Hunt:
Yeah. They're important, but they're not the ones that there's usually a fight about. What are some of those?
Elena Smith:
These are things like the right to represent your child in a legal action. So you and your child have been in a bad car wreck, your child has a personal injury claim against a driver. And you want to file a lawsuit on their behalf because they're a minor, but your co-parent doesn't want to do that. We can parse that right out as an independent right and you can do that on your own. Other good examples are things like, enlistment in the armed forces before the age of 18, marriage before the age of 18. But those are kind of funny because you're not really allowed to do that in Texas before the age of 18 anyway anymore. But they're still there.
Alex Hunt:
And most of the time I see that as joint. I think I could probably count on one hand over this many years of practice, the amount of times that I've had a non-joint right for enlistment in the military or for marriage. And most of the time it's not something that people are fighting about a whole.
Elena Smith:
Usually not. Another big one that has become of more concern to people in the last few years relates to passports. The right to apply for a passport for your child, the right to renew it, and the right to maintain it. Generally, I think we see people having joint rights on at least the right to apply for and renew the passport. And then typically somebody has to have the right to hold the passport and maintain it. And so, that is usually an exclusive right. But then there is a nice long provision that we'd see in final orders, whether it be a divorce or a child custody case, about exchanging the passport and giving the other parent notice of international travel and all of those kinds of things.
Alex Hunt:
And you can customize that language if you need to. And we do that quite frequently. And again, we're talking about standard provisions here. But if there's some sort of specific provision you need to address that, you certainly could. All right. So let's move on from conservatorship and talk a little bit about possession schedules. In Texas, we have something called a standard possession schedule.
Elena Smith:
Yep.
Alex Hunt:
The way that this works is that the legislature puts a standard possession schedule into the laws. It's in something called the Texas Family Code. And this is what governs the default possession schedule for both of the parents. And then, unless there is a reason to move away from a standard possession schedule, the courts are generally going to apply the standard possession schedule in most instances. So tell me a little about what our listeners and our viewers need to know about a standard possession order.
Elena Smith:
So the first thing to keep in mind is that along with conservatorship, any possession and access order that a court renders, orders, makes has to be in the best interest of the child. And like you said, the Texas Family Code lays out a standard possession order that the Texas legislature has determined between two joint managing conservators is likely to be in the best interest of the child. Now, I think it's important off the bat to say that it is not a 50-50% time split. It's pretty close. It differs a little bit from year-to-year, but the number that we generally see is it's around a 58-42% split. It's near 50-50 but still not quite.
Alex Hunt:
And the time is, it's different time too.
Elena Smith:
Yes. It is.
Alex Hunt:
A lot of the time the non-custodial parent or the non-primary parent is going to get a lot more summer and vacation and weekend time, and the primary parent is going to get a lot more of the grind time.
Elena Smith:
Regimented school time.
Alex Hunt:
Yeah. Going to school and you're doing homework and you're going to dance class and you're going to basketball practice. So it's different time.
Elena Smith:
It can be, definitely. The way that it essentially works is our standard possession order in Texas looks something like this. The first, third and fifth Friday of every single month. And keep in mind, not every single month has a fifth Friday, but it pops up four or five times a year. First, third and fifth Fridays of the month, and let's talk about the expanded standard possession order because that's typically what we tend to see, from the time the child gets out of school on Friday until they go back to school on Monday morning, so the whole weekend. In addition, during the school year Thursdays from the time the child gets out of school on Thursday until they go back to school on Friday morning, and that's every single Thursday, that's a pretty significant chunk of time.
And so, the best way to think about it is those are two separate provisions in our Texas Family Code. But on the first, third and fifth weekends of the month, when you're the non-primary parent, you are essentially getting your child from the time they get out of school on Thursday, you pick them up and you return them to school on Monday morning and so you're getting four nights every other week.
Alex Hunt:
Right. And the expanded standard possession order is something that if you live within zero to 50 miles of the primary conservator, you automatically get that.
Elena Smith:
Yep.
Alex Hunt:
If you live 50 to 100 miles from the primary conservator, you have the choice.
Elena Smith:
Yes.
Alex Hunt:
And if you live 100 miles or more away, you're going to get a regular standard possession order.
Elena Smith:
Yes.
Alex Hunt:
How does that differ, a regular standard possession order, how does that differ from an expanded standard possession order?
Elena Smith:
The regular standard possession order without the expanded part is essentially just cut down a little bit on both sides. So under the standard possession order, when you live more than 100 miles away, or if you choose to have that little bit lesser time when you live within that 50 to 100 mile range, it is the first, third and fifth weekend, again. But from 6:00 PM on Friday until 6:00 PM on Sunday. And then on Thursdays during school year, instead of it being an overnight visit, you get essentially dinner time from 6:00 to 8:00 PM on Thursdays during the school year.
Alex Hunt:
And then, outside of the first, third and fifth weekends, there's special times that are also built into both of these schedules like during the summer the non-custodial parent would get 30 days. And the custodial parent can also make an election to have some extended period. So if they want to go on a vacation or something, they can do that too. And the way that that summer possession works is that the non-custodial parent can make the election by April 1st, and they can choose whatever period of 30 days they want. They could break it into two periods if they wanted to. And then, the other parent, once that election is made, they can make the custodial parent can make their summer plans and they can make their election. And it defaults for the non-custodial parent if they don't make that election in writing to July 1st to July 30th.
And then, you'd also have summer break, and you'd have every other Thanksgiving, and you would take the Christmas break and you would split it down the middle. And then, depending if it's an odd or even year, you would get either the first half or the second half. You'd also get Father's Day and Mother's Day and some special provisions on the kid's birthday. But this is what we go over in our consultations with our clients. And if you go to our website and you're interested in this, you go to FamilyLawyerKaty.com, you go to resources, and you'll see both this year's calendar and previous year's calendar. We have a very detailed graphical representation, a calendar, and it's shaded with what this actually looks like. And for our visual learners out there, I know I'm one of them, it really helps to see it displayed visually.
Elena Smith:
Yeah. And I think something important to say is that it's really important to have a calendar, and part of the reason you have this order is to make it clear when your possession time ends and when your co-parent starts. And so, having some kind of calendar, whether you use a resource like ours or you make your own and you share it with your co-parent so that you're on the same page and you avoid those, "I thought it was your day," "I thought it was my day." When you avoid those things and you have a calendar and you're sharing it and everybody's on the same page, it makes everything significantly easier.
And I think that we find getting on the standard possession order, whether it be the one with elections or without, can be a little bit overwhelming. It's a lot of switching and figuring out when you're going here and going back and what the kiddo is doing. But I think we find that once people get on that schedule, it brings some of the chaos down and everybody knows what they're doing, they know where they're going. And there's a nice long written out order, if anybody has any questions, that you can go and refer to and find the answer of, "Well, it's Friday and this is before a school holiday. Do I get this time? Is it my co-parent's time?" It just helps make everything a little bit more clear for everybody.
Alex Hunt:
100%. And one of the things that I like about that standard possession order is right at the outset of the standard possession order it says, "In the absence of an agreement otherwise, this standard possession order will be what governs the possession time." Meaning that if you and your co-parent agree to something else, you don't have to follow this, you can do whatever you guys want. And I have had clients that have taken the standard possession order and put it in a drawer and have never used it, because they can co-parent effectively. And now our listeners might be watching this or listening to this and saying, "Well, that must be nice, but that's not going to be my situation."
Elena Smith:
Sure.
Alex Hunt:
And that's why we have the order, is because that's not always the case. You want to have something in writing. You want to have something you can refer back to, so that way you can have some sort of confirmation of what you're doing. You always have a fallback.
Elena Smith:
Absolutely.
Alex Hunt:
And that's what this provides, is that type of assurance.
Elena Smith:
But that provision provides enough flexibility for when something comes up and something changes or the schedule changes, that if you and your co-parent can work it out together and be flexible and you can make a change, great. That's what we want you to do-
Alex Hunt:
Can we switch weekends?
Elena Smith:
Absolutely. That's what the court wants you to do. If you can agree on it, awesome. Go for it. Do what works for your life. Because, again, this is a standard default thing. It might not work for your family all the time, especially when your family and your dynamic looks a little bit different now if you're going through a child custody case or a divorce case. And so, when you can come to an agreement and do something else, great. It's when you can't come to an agreement and you're not agreeing, that at least we have an order in place that makes it very clear of whose possession time is when, when it starts and ends, and all of that good stuff.
Alex Hunt:
All right. So we've talked about conservatorship. We've talked about possession schedules. The third major area of a child custody order is child support.
Elena Smith:
Yes.
Alex Hunt:
How does the court in Texas determine child support?
Elena Smith:
So child support in Texas is determined based on a percentage of your net monthly resources. And there's a whole list of factors and things that the court will take into consideration as part of your income every single month when you are the non-primary parent. If you're the non-primary, you are the one paying child support. And there's a whole laundry list. It's all of the income you make from your job, if you have any kind of a side hustle that's making money, if you're receiving a dividend payment, that kind of thing. There's a whole list. And everything that you make for the year is factored into your yearly income. And then, we make a determination of your monthly net resources. Things like how much are you paying in social security taxes, are taken out. Because that's not an option, you have to pay those. As well as your federal income taxes that are withheld from your paychecks or any, if you're paying privately on your own, if you have some kind of side hustle going on. There are certain things that are taken out of that amount because you're not getting to benefit from that income, it's already being withheld.
And that is the number that the court will start with to consider how much can you pay in child support and how much is appropriate under the Texas Family Code guidelines for you to pay in support every month. And that's where we start.
Alex Hunt:
And the good thing is that we're not necessarily calculating this based on your individual withholdings, because like you do your W-4 at the beginning of the year and you say how many exemptions you have, you can withhold more money than another person. And so then, if you base the net resources off of what somebody is getting withheld, they can kind of fudge the numbers. What you do is, the office of the attorney general just has a database where they say, "This is your gross income, then this is what you should be taking out for taxes." And that will give you your net resources. And it's gotten a whole lot easier over the last 10 to 20 years because now you can literally pull up on the attorney general's website a calculator.
Elena Smith:
Absolutely.
Alex Hunt:
Anybody can do this.
Elena Smith:
Put in your own info. It's-
Alex Hunt:
Not just practitioners.
Elena Smith:
... easy.
Alex Hunt:
Anybody can do it. And you put in your information, you put in the amount of kids that you have, you put in how much you pay for insurance, and it spits out a number for you. And that is the same calculation and it's the same calculator that the judges use and that we use as well. So is it possible though that the court sometimes will not use that guideline child support number?
Elena Smith:
Absolutely. It's possible. There are some factors that the court can consider and some extenuating circumstances where it makes logical sense that a guideline amount might not be appropriate, and there should be some perhaps increase in the amount past the guidelines of what the non-primary parent should be paying in child support every month. I think the most common example that we see as practitioners is a child has a severe physical disability and they have significant occupational or physical or speech therapy appointments, and those are expensive and might not always be covered by insurance, or they have a specific medication that isn't covered by insurance, or whatever it may be. There are these extra costs that are necessary to the support and everyday life of this child. And so, the court can consider factors like that in saying, "Okay. Your guideline child support payment should be X, but because of these extra expenses, maybe it needs to be X plus some."
Alex Hunt:
Yeah. Generally child support is going to end when the child turns 18 or when they graduate from high school, whichever occurs later. The court does have the ability if the child has a disability and will require care for the rest of the child's life or for an extended period of time, can require that child support be extended past 18 and past graduation. And so, that's something to consider too. If you have a child with a disability and you're worried, "How am I going to take care of this child after he or she turns 18?" There are provisions in the family code to account for that.
Elena Smith:
Yes.
Alex Hunt:
Let's talk a little bit about medical and dental support. Talk about insurance because that's an important provision. It's not the same as child support, but it's still in the same section. And it is a way of supporting your child. So tell me about that.
Elena Smith:
Sure. So when you're the non-primary parent and you are ordered to pay child support, you will in addition, be obligated to cover the premiums for the cost of your child's insurance as well, for both health insurance and also for dental insurance. Vision insurance is great and we want everybody to have it, but it's not a provision that is required in the Texas Family Code that you are required to cover as well for your child.
Alex Hunt:
Okay. Some frequently asked questions, and this one I got before we did this podcast, college expenses, extracurricular activities. Are these things that the court will order one party to pay 50% or all of?
Elena Smith:
No.
Alex Hunt:
Have we had cases where the parties have agreed to it?
Elena Smith:
Absolutely.
Alex Hunt:
Yeah. Absolutely.
Elena Smith:
Of course, you can agree to that. Of course, you can.
Alex Hunt:
You contract anything. But the court really doesn't have authority to order that one side is going to pay for all or 50% of the extracurriculars. Parents in Texas don't have any obligation to their kids legally, morally maybe, but legally to their kids after they turn 18. And so, there's no obligation that the court can impose on the parents to make them pay for anything related to college expenses. But we will sometimes have people that both parties agree they want to put that in there, and they will put it into a divorce decree just to give the other parent peace of mind that they're not going to be completely on the hook for their kid's college education or whatever their training is after high school.
And then the last thing that I'll say is that you're always free to make your own agreement on any of these terms.
Elena Smith:
Completely.
Alex Hunt:
And there's ways that we can get these things locked in and the court will be obligated to accept it. But whether it's child support or conservatorship, possession schedule, if you want to do some sort of totally different possession schedule, we represent people that go and work offshore, there'll be two weeks off, there'll be two weeks back on. We've done a custom possession schedule because that's what works for their life. Standard possession order doesn't work for them. We also have people that want to do 50-50 custody.
Elena Smith:
That a lot.
Alex Hunt:
And let's dig into that a little bit. There's two ways to do that. Well, there's more than two ways. There's two common ways to do it. The first way is week on, week off. And that's where, say Sunday at 6:00 PM you're exchanging the kids every week. One week with Mom, one week with Dad, one week with parent one, one week with parent two. The second way is a 2-2-3, which is a little bit more complicated, a little bit more moving around.
Elena Smith:
Yeah.
Alex Hunt:
Talk a little bit about that.
Elena Smith:
Yeah. So the 2-2-3 is basically exactly what it sounds like. The instructions are in the name. You spend a designated two days with parent A, a designated two days with parent B, and then on that three day, which falls over the weekend typically, you're alternating. And so, everybody ends up with the same, essentially, amount of time. But we tend to caution people very carefully about agreeing to a 50-50 possession split, because while it sounds great, it really only works effectively once kids are... By the time they're school age, when they're in grade school, if they live so close together.
Alex Hunt:
And the courts really don't like it.
Elena Smith:
And a court, unless it's a situation where you've been doing a 50-50 split, a 2-2-3 type schedule for a long period of time, a year or something before this hearing or a final trial, when you go before the judge, they're not going to order it. Unless it's kind of a status quo consideration, they're not going to do it.
Alex Hunt:
Yeah. Yeah. No, I completely agree. Well, Elena, I think that we've covered most of the basics of what happens to the kids in a Texas family law case. We've covered the major components of child custody order, that conservatorship and possession schedules and child support. But if you have other questions out there, listeners or viewers, you're welcome to go to our website. We have a ton of information under the resources tab and in the blog link, where you can see a whole bunch of articles related to child custody and divorce, name changes, adoptions, estate planning, everything, under the umbrella of family law. Go to familylawyerkaty.com and you can get all of that information there. If you wanted to do a consultation with Elena or with myself or any of the lawyers in any of our four offices, we've got an office in Katy, Cypress, Sugar Land, and League City. You can also meet with us by Zoom or on the phone. Call us at (832) 315-5494. And until then, we'll see you next time on the Family Lawyer Podcast. Thanks, Elena.
Elena Smith:
Of course.