Child Custody Issues in Default Divorce Cases in Texas

by Victoria McGrath
You can call the court to verify that your spouse has not filed an answer.

You can call the court to verify that your spouse has not filed an answer.

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When your spouse is not responsive to divorce filings and you fail to resolve child custody and child support matters, you may proceed with a default divorce. You may make your recommendations to the court regarding child custody and child visitation without your spouse's input. You can request that the court name you as the custodial parent and assign the non-custodial parent scheduled visitation or supervised visitation in the final divorce decree.

Uncontested Default Divorce

An uncontested divorce in Texas includes two types of divorce: a divorce in which you and your spouse agree to dissolve the marriage and you agree to the terms of the divorce, and a divorce in which you serve your spouse a petition for divorce and your spouse fails to respond to the divorce papers. When your spouse fails to provide an answer to the court within the prescribed time, the court can grant a default divorce. If you officially serve your spouse the papers, you must allow your spouse 20 days to file an answer, and the following day he may be considered in default. Under Texas law, your divorce cannot be finalized until at least a 61-day waiting period passes. Additional time may be required, depending on the way you served your spouse the petition for divorce.

Final Divorce Decree

After the waiting period, you can ask the judge to grant your divorce by default. The judge will issue a divorce decree, which includes your division of marital assets and debts, child custody issues, child support obligations and spousal support. If your spouse defaults and fails to communicate with you over distribution of marital property or child custody matters, you can prepare a divorce decree by yourself, but you must provide evidence to support each item in the divorce decree. For example, you may include the value of each marital asset, as well as the proposed distribution and the reason to divide the property in such a manner. In addition to the divorce decree, you present the court with proof of proper service and your sworn testimony for a divorce with children.

Child Custody

You may address the issue of child custody and visitation in the divorce decree, unless you and your spouse already have a standing child custody and support order previously issued from the court. Texas law requires parents to create a parenting plan. In a default divorce where one parent fails to respond to the divorce papers or participate in the divorce proceedings, the other parent continues the divorce without the spouse's involvement. One parent can prepare the parenting plan as part of the divorce decree and present it to the court for approval without the other parent's signature.

Conservatorship Over the Children

In Texas, the court refers to joint custody as a joint managing conservatorship. The court often names a custodial parent as the primary joint conservator and the non-custodial parent as the possessory conservator. As the primary joint conservator, you can determine the child's primary residence. In most cases, you and your ex-spouse make all other major decisions together. In extreme cases of physical neglect, emotional abuse, abandonment or conflict, the court can name one parent as sole managing conservator. As a sole managing conservator, you make major decisions involving your child's education and health on your own. In a default divorce, you can request a sole managing conservatorship over the children and present evidence to the court to show that your spouse refuses to reply to divorce papers or communicate with you over child custody issues.

Child Support

The court generally orders child support payments based on the possessory conservators net income and the state guidelines. For example, the non-custodial parent pays 20 percent of his net resources to one child, 25 percent for two children and 30 percent for three children, but no more than 50 percent of his income. The court can award additional cost for each child's special needs, medical care, therapeutic services and tutoring for learning disabilities. The non-custodial parent makes the child support payments directly through the state distribution center. Texas courts can issue orders to withhold child support payments from the non-custodial parent's paycheck.