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In divorces that involve children born during the marriage, child custody determinations are automatically included in the divorce proceedings. However, there are circumstances in which a child was born to unmarried parents. Child custody proceedings filed outside of divorce initially are known as Original Suits Affecting the Parent-Child Relationship.

The basic legal issues in child custody proceedings, regardless of whether it is a divorce case or parents separating, are appointments of conservatorships. This appointment awards the parents certain specified rights and duties including child support, medical and dental support, and possession and access.

Why Create A Parenting Plan?

Family court judges often have subjective viewpoints as to what would be in the best interests of the children. As such, it is always strongly encouraged that if you are seeking custody, you first attempt to resolve issues with the other parent in a parenting plan. This gives you more control of the outcome. This agreement (or parenting plan) can be an informal agreement between you and the other parent or an agreement made with the other parent in mediation.

Appointment Of Conservatorship For The Child

Texas courts hold it to be true that both parents of a child should have rights and responsibilities. This is why in most cases, both parents are appointed as joint managing conservators. This gives both parents certain rights and duties.

Such rights include:

  • The right to consent to medical treatment involving invasive procedures or in an emergency
  • The right to seek psychiatric treatment
  • The right to consent to marriage
  • The right to consent to the joining of the armed forces of the United States
  • The right to represent a child in a legal action of substantial legal significance concerning the child
  • Other rights not listed here

One parent is typically awarded as a “custodial parent” over the other “noncustodial” parent. This means that the child will typically live most of the time with one parent. It also means that the other parent, whom the child spends much less time with, will typically pay some child support.

When One Parent Is Charged With Mistreatment Of The Child

Evidence of maltreatment through family violence, sexual abuse or child abuse will typically prevent that parent from having custody. In such situations, the court could appoint that parent as a possessory conservator with limited or restricted access to the child. A parent who is facing a protective order needs to understand their rights and limitations under the order.

Each Parent’s Possession And Access To The Child

Child custody is an issue that divorcing parents can have difficulty agreeing on.

Depending on the circumstances of the case, the courts will typically award the parents a standard possession order. Then the other noncustodial parent will have visitation rights. The visitation schedule should be fair for all parties involved. The schedule should take into consideration the school hours, holidays, breaks and vacations.

A judge will give parents a standard possession order only when the parents are unable to create or agree on a schedule between themselves. It serves as a safety net to protect all parties who would be entitled to possession of the child during specific periods.

A judge may enter orders of possession and access to protect the safety and welfare of the child in cases involving allegations of child abuse and/or neglect. It is therefore important for a parent accused of child maltreatment by CPS or the other parent to seek skilled defense.

Facts About Texas Child Support

Child support proceedings are sometimes brought and filed by the Texas attorney general. In such cases, the following factors apply:

  • The noncustodial parent, also known as the “obligor” under a child support order, is required to pay 20% of his or her calculated monthly net earnings.
  • It is an extra 5% for each additional child subject of the suit.
  • If the noncustodial parent has other children with another parent that are not part of the lawsuit, then the outside child would be taken into consideration when calculating the decreased amount the custodial parent (otherwise known as the “oblige”) in the current proceedings would receive per month.

What You Need To Know About Providing Medical And Dental Support For Your Child

Regardless of which parent is the noncustodial parent obligated to pay child support to the other custodial parent, at least one of the two parties is required to maintain medical and/or dental insurance coverage for the child subject to the suit.

If the noncustodial parent is unable to maintain such insurance coverage at a reasonable cost, then the noncustodial parent may be required to pay additional cash medical support to reimburse the custodial parent to maintain medical coverage not to exceed 9% of the noncustodial parent’s annual resources and not to exceed 1.5% of those annual resources for dental coverage.

Although child support and cash medical support are normally calculated by the present earnings of the noncustodial parent, the court may still consider the parent’s other assets when determining the noncustodial parent’s “ability to pay.”

Texas family law courts also address how parents will handle a complex situation when uninsured or uncovered medical expenses arise.

When To Seek A Modification To An Order

In Texas, a final order providing for conservatorship, possession and access, and child support can be modified upon a showing of a material and substantial change in circumstances with respect to the conservators or the child.

If a request for a modification is made within one year of the date the prior final order was signed, the petition for modification must be supported by sworn affidavit. This should show the continued appointment of the parent as sole managing conservator or managing conservator with the exclusive right to determine the primary residence of the child would significantly impair the physical and emotional development of the child.

Enforcement Of Child Custody And Support

Enforcement proceedings are intended to enforce compliance of a court order pertaining to either the payment to child support or for possession and access.

The remedies available for a motion for enforcement include:

  • A court order
  • Jail time for contempt of court
  • Attorney’s fees

For child support enforcement, the court can grant the party bringing forth the motion a lump-sum award of all child support that is owed. The court may compel the obligor to pay a specific amount per month until the awarded judgment is satisfied, including 6% interest on the balance owed.

With respect to enforcing possession and access, if a parent is entitled to access under the court order and is being denied access by the other parent, one remedy that can be sought by the parent with superior right of possession of the child can request a filing for a Writ of Habeas Corpus.

The Writ Of Habeas Corpus – “Bring The Body”

The Writ of Habeas Corpus in the family law context is used by a parent with superior right of possession in an effort to regain physical possession from a person wrongfully retaining the child. In Latin, it is translated as “bring the body” of the individual subject of the Writ.

An order by the court to issue the Writ of Habeas Corpus compels the person who unlawfully has custody of the child to “bring the body” of the child to the court to determine the parties’ right of possession. In some situations where the wrongful party is uncooperative even with the court order, the court would sometimes issue what’s called a “Writ of Attachment.”

The Writ of Attachment can be viewed as a warrant for law enforcement to go physically take custody of the child from the party unlawfully keeping the child in possession. Enforcement action on possession and access can also provide for jail time against that individual for unlawful possession as a deterrent against future violations.

Child Custody Suits Brought By Nonparents With Standing

Child custody proceedings may be brought by other persons who are not parents of the child. However, there are statutory grounds under Section 102.003 of the Texas Family Code of which a nonparent petitioner has standing to file a suit for custody of the children.

Nonparent parties with standing to file suit includes DFPS, grandparents, relatives within the third degree of consanguinity, and foster parents who had children placed in their home by DFPS for at least one year, just to name a few. Standing pertains to original suits, modifications or even interventions on pending suits.

Reach Out For Premier Legal Representation

Send an email or call The Law Office of Dan-Phi V. Nguyen, PLLC, in Houston at (713) 485-0781 to arrange a consultation. The firm primarily assists clients throughout Houston and the surrounding communities, but will consider certain cases statewide.