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Child Support

As many of you know, I worked for the Attorney General’s Office in the Child Support Division for many years. One of the things that never ceases to surprise me is that many litigants and even attorneys approach Child Support as though it is a ‘cut and dry’ matter of simply multiplying the net income by the appropriate fraction and arriving at the correct child support amount.

I believe this is a job half done. Texas Family Code section 154.123 makes clear that there are several other factors to consider. For instance, how close do the parties live to one another? If they don’t live close to one another, who moved away? Does the “visiting parent” actually exercise all of their available possession and access? Do they exercise greater than the ‘standard’ possession and access? Does the child have any extraordinary expenses? Does the Obligor have an automobile, travel, cell phone, etc. that are provided by the employer? Just as the division of a marital estate is not 50/50 rather it is to be ‘just and right given the circumstances of the parties’ child support is not net resources (don’t forget to also consider income or resources provided by trusts, mineral interests, employers) multiplied by a particular fraction. Instead that is the point where we then ask the questions outlined in Section 154.123 to see whether or not a variance, either up or down is appropriate to reach a result that is ‘just and right’ given the circumstances of the parties.

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To set up a free initial consultation to discuss your child support concerns, contact us online or call us at 844-402-2992. For your convenience, we answer our phones 24 hours a day, 7 days a week. We will meet with you evenings or weekends upon request.

Family Law Mediation

by R. Keith Spencer

Families going through a divorce or separation frequently must devise co-parenting plans to ensure continuity of care for children of multiple households. Simple matters, like consistent bedtimes and nighttime routines, are very important for children struggling to cope with a fractured household. However, it is often difficult for parents to set aside differences long enough to discuss and resolve such issues while struggling themselves to adapt to their new roles as single parents. Mediation allows parents the opportunity to craft child care plans tailored to their child’s specific needs and schedules rather than forcing the court to impose a generic and impersonal set of guidelines.

Mediation is a dispute resolution process that utilizes an impartial mediator specifically trained to work with cases involving children. Frequently, the parents are placed in separate rooms while the mediator shuttles back and forth between the two. Thus, parties and their advisors do not have to engage in face-to-face confrontations during the mediation process. Issues of child support, visitation, discipline, bedtimes, supervision, residency restrictions, extracurricular activities, travel and education can be addressed based upon the particular facts and circumstances surrounding the individual family. Recognizing that parents can make better decisions for their kids than can judges, mediation places the parents in charge of these life-changing decisions.

Family attorneys may refer their clients to a number of programs that prepare parents for their new roles as single parents and provide them with vital tools to promote effective co-parenting. Childreninthemiddle.com, theparentingcenter.org and texasafcc.org provide services and links to many organizations specializing in helping parents adapt to the co-parenting process. Many attorneys use these services to assist in the preparation of child care proposals, which will form the first proposals at mediation sessions.

Most family courts require the involved parties to attempt mediation prior to trial. Mediators vary widely in cost and experience. Local Dispute Resolution Centers provide a low-cost mediation experience. However, the mediators may or may not be attorneys and may or may not be familiar with family court. Retired judges frequently serve as mediators, utilizing their special knowledge and experience to assist parents. Such mediators are generally more expensive and may cost each party in excess of $500 per mediation session. It is important to note that mediators do not render decisions or rulings. Rather, they simply assist the parties in crafting a workable agreement. It is up to the parties to reach that agreement. Failure to do so simply means that the court will have to make the important decisions instead of the parties.

What is said in mediation stays in mediation. Settlement conferences and mediation sessions are privileged, and statements made or offers discussed in mediation cannot be raised at trial by either party. This promotes a free exchange of ideas without the necessity of posturing to protect one’s position at trial.

It is important to note that most family law cases ultimately settle before trial. Thus, employing mediation early in the process can save the parties the significant money and heartache that accompany protracted litigation.

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Grandparent access in Texas

Many grandparents wonder what their rights are when visitation with grandchildren is being denied by parents. The leading case on this issue is named Troxel v. Granville (99-138) 530 U.S. 57 (2000).

Under Troxel, the highest court determined that parents have a fundamental right to determine decisions concerning the care, custody, and control of their children but that grandparent access can be awarded if it is in the best interest of the child or children. However, Troxel stated that there are specific requirements that must be met in order to determine grandparent visitation as there is a parental presumption the court assumes which says that parents ultimately have the right to determine what is in the best interest of their children except when certain conditions are met. These conditions are codified in the Texas Family Code in section 153.433 which states that the court shall order possession if:

“(1) at the time the relief is requested at least one biological or adoptive parent has not had that parent’s right terminated;

(2) the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent’s child by providing by preponderance of evidence that denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being;

(3) and the grandparent requesting possession of or access to the child is a parent of a parent of the child and that parent of the child:
(a) has been incarcerated in jail or in prison during the three-month period preceding the filing of the petition;
(b) has been found by a court to be incompetent;
(c) is dead; or
(d) does not have actual or court-ordered possession of the child.”

The Texas Family Code leaves the ultimate decision to overrule the parents’ desires to the court’s discretion based upon the best interest of the child regardless of the desires of the parent. However, this is a very high threshold to meet as it is very difficult to overcome all of the elements listed in subsections 2 and 3(b). The parental presumption can be overcome in specific instances and as such anyone seeking information should contact an attorney to review the facts of the case.

There are some instances where a parent is deceased and a grandparent has been names as a managing conservator of a child when the other parent has not has his or her rights terminated. This presents a very interesting issue to the court as in some instances the parent that has not had his or her rights terminated may have little or no visitation with the child or may be an incompetent parent. In this instance the Court is presented with an interesting question – if a non-parent managing conservator is the primary caretaker of a child or children, are they subject to the high threshold of the parental presumption? Do they have a right to deny another grandparent’s access to a child or children? Even if a grandparent is not a conservator of the child, would any child’s primary conservator be allowed to deny access to a grandparent of a child or children?

In In re Kevin John Smith and Debbie Staley Smith, Realtors, 260 S.W.3d 568 (2008) (“Smith”), the Texas 14th District Court of Appeals specifically addressed this issues and found that paternal grandparents who were serving as joint managing conservators of a child could not claim the parental presumption that they were acting in the best interest of the child. Smith, 260 S.W.3d 568 at 574. In Smith, a trial court judge found that it would not be in the best interest of the child to have the parents appointed as joint managing conservators. Rather, the court determined that the best interest of the child would be to have the paternal grandparents appointed as joint managing conservators and for the parents to be possessory conservators of the child with limited access to the child.

Although in Smith, the maternal grandmother was not a party to the initial action, the managing conservators allowed the maternal grandmother to have limited access to the child. The managing conservators withdrew access to the child, a modification suit was filed, and subsequently the maternal grandmother was granted access to the child after a temporary orders hearing. The managing conservators challenged the maternal grandmother’s legal standing to request access and the Court of Appeals upheld that the maternal grandmother did, indeed, have standing to bring a suit for access to the child. Id. As in the current case, the managing conservators asserted the belief that section 153.433 imposes additional conditions for access to the child after the grandparent has been established as a parent of a parent of the child. The Court found that “the plain statutory language does not support this interpretation.” Smith, 260 S.W.3d 568 at 572.

Additionally, the Court asserted that standing is conferred by Section 153.432 of the Texas Family Code whereby grandparents are given standing to bring a suit for access and that conditions for granted access are outlined in Section 153.433. Id. at 573. With regard to the parental presumption at issue, the Court determined that the managing conservators, as non-parents, “may not claim the parental presumption.” Id. at 574. The Court limited the parental presumption to parents as defined by Section 101.024 of the Texas Family Code. Id. The Court concluded to “decline to extend the parental presumption…to non-parent conservators when such an extension would conflict with the plain statutory language.” Id.

In In the Interest of J.M.T., a Child, 280 S.W.3d 490 (Tex. App-Eastland 2009), the Court of Appeals ruled that paternal grandparents opposing requested maternal grandparent visitation attained the same status as parents of the child only after the parental rights of the biological parents had been terminated and the child had been adopted by the paternal grandparents. In the Interest of J.M.T., 280 S.W.3d 490 at 490. The Court determined that post adoption, the parental presumption and Section 153.433 would apply to the granting of visitation and that it was the maternal grandparents’ burden at that time to overcome the statutory requirements for access. Id.

In In the Interest of N.A.S. and A.D.S., 100 S.W.3d 670 (Tex.App.–Dallas 2003), the Court of Appeals determined in a case where the father was deceased and mother had allowed access to the paternal grandparents prior to the funeral of the father, the trial court did not abuse its discretion in granting grandparent access to the children, even over mother’s objection to any access to the children being court ordered. In the Interest of N.A.S. and A.D.S., 100 S.W.3d 670 at 673. The mother testified in this instance that the grandparents had a relationship with the children, that she had not objected to visitation before, and that she was denying access by the grandparents to the children at the time the grandparent’s petition was brought to court but that she did not want to totally deny visitation. Id. Although the mother did not want to have a court order specifying visitation the Court affirmed the order granting grandparent visitation. Id.

Grandparents have the right to seek access to a child when facing a non-parent managing conservator. Clearly, in the Smith case, the Court has asserted the parental presumption does not extend to a non-parent managing conservator by strictly interpreting and adhering to the plain meaning of Section 153.433 of the Texas Family Code governing grandparent access. Adopting the plain meaning interpretation of the statute, it is clear that the parental presumption does not extend to non-parent managing conservators but, rather, parents as defined by Section 101.024 of the Texas Family Code which states that:

(a) “Parent” means the mother, a man presumed to be the father, a man legally determined to be the father, a man who has been adjudicated to be the father by a court of competent jurisdiction, a man who has acknowledged his paternity under applicable law, or an adoptive mother or father. Except as provided by Subsection (b), the term does not include a parent as to whom the parent-child relationship has been terminated.

Interpretation of court orders and court-granted visitation can be a confusing and complicated process. For anyone questioning their individual legal rights in relation to access to a child should consult with an attorney. In many instances where visitation and access are in question, there is a short time period when parties have the legal standing or right to bring a request for access to a child. It is important to bring cases within this specific time frame so that the right to access and visitation with a child is not forfeited.

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Relocation Geographic Restrictions

By Texas Family Law Attorney, Doug Wright

There is a presumption in our State law that in a custody order the court will require that the child/children’s residence be restricted to a geographic area. The courts typically restrict the area to the county where the order is entered and it’s contiguous counties. If one of the parties later seeks to have the residence restriction lifted the case law suggest that there are certain factors that the court should consider.

  1. The distance involved;
  2. The quality of the relationship between the non-custodial parent and the child;
  3. The nature and quantity of the child’s contact with the non-custodial parent, both de jure and de facto;
  4. Whether the relocation would deprive the non-custodial parent of regular and meaningful access to the children;
  5. The impact of the move on the quantity and quality of the child’s future contact with the non-custodial parent;
  6. The motive for the move;
  7. The motive for opposing the move;
  8. The feasibility of preserving the relationship between the non-custodial parent and the child through suitable visitation arrangements; and
  9. The proximity, availability, and safety of travel arrangements.

The answers to these factor could determine whether or not the Court allows relocation with the child/children.

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When do you need an attorney on a child support case?

The short answer is that if the case purely concerns the creation or enforcement of a child support obligation, in Texas you may not need an attorney. This is largely because in Texas the calculation of child support is a mathematical calculation based on the paying parent’s income and number of children being supported. If you are the parent seeking to create or enforce a child support order and you are no longer cohabitating with the other parent, the Attorney General can assist in the creation of the original order and later enforcement of such an order if the other parent does not comply. If you are the parent under a support obligation and are trying to make sure the amount of support is correct or that you are properly credited for payments you have made, the attorney general (who represents neither party) can assist in going through your records to ensure that the calculations are proper.

In some cases, you may need an attorney in child support matters: if you are facing a jail sentence for contempt, have a court order not issued by the attorney general that you need modified or enforced, or are having a hard time getting the attorney general’s assistance, hiring a respected and competent attorney is probably the best option. Just don’t delay! Many people who need legal representation wait until the last minute before a hearing to seek a lawyer and find it difficult to both find an available skilled lawyer and gather the necessary fees.

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Change In Child Support Law Effects Paternity Disputes

There has been a change to child support laws in Texas, effective September 1, 2013. The new law will allow men to dispute paternity within a year of figuring out that they are not the father of a child they are paying support to. Under the new law, if a man waits longer than a year to report that he may have been wrongly ordered to pay child support, he could be stuck paying it.

To seek termination, the father must file a verified petition stating that he is not the child’s father. Additionally, the father must state that he signed the acknowledgment of paternity or failed to contest parentage because of the mistaken belief that he was the child’s genetic father. The mistaken belief must have been held at the time the acknowledgment was signed or on the date the court order in the previous proceeding was rendered.

If you believe you have been wrongly ordered by the court to pay child support, it is important to take action immediately. Contact Bailey & Galyen for a free initial consultation. To set up an appointment with an experienced Texas family law attorney, contact us by e-mail or call 1-800-208-3104. We will take your call 24 hours a day, seven days a week.

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Change in Texas Maximum Child Support Cap, Effective September 1, 2013

There has been a change in Texas divorce law in September, 2013. Under Texas law, there is a cap in the monthly net resources used when calculating child support. Prior to September, 2013, the cap in the monthly net resources was $7,500.00 per month. Beginning September 1, 2013, the child support cap increased to $8,550.00 per month. Depending on the number of children involved, the monthly net resources are then multiplied by a percentage for the number of children a parent has a duty to support. This change will affect all cases filed after September 1, 2013, in addition to cases that are pending as of September 1, 2013.

Contact Us

At the law office of Bailey & Galyen, we provide a free initial consultation to every client. To set up an appointment with an experienced Texas family law attorney, contact us by e-mail or call 1-800-208-3104. We will take your call 24 hours a day, seven days a week.