Divorcing spouses often have many issues to contend with, especially if they have children. If the divorce is amicable, spouses in Texas have the option of creating their own parenting agreement. This helps remove the uncertainty that arises when custody decisions are left to the court. When divorcing spouses are unable to work together, however, the court must step in decide custody based on the best interests of the child.
Types of Conservatorships
Texas recognizes two forms of conservatorships, which in other states is often referred to as custody: managing conservatorships and possessory conservatorships. With managing conservatorships, a parent is granted the right to make important decisions concerning the child, such as those affecting school, religion and health care. Possessory conservatorship includes the right to spend time with and have access to the child. Texas courts prefer to award joint conservatorships in divorce, meaning both parents typically share decision-making authority and access to the child. Although both parents share possession of the child in such arrangements, one parent usually serves as the child's primary caretaker of the child, and has the right to designate where the child lives. The other parent is known as the "non-primary" parent.
It is always preferable for parents to come up with their own parenting agreement rather than let the courts decide. The divorce process often moves along more quickly and with less conflict. With an agreed-upon parenting plan, divorcing couples can outline parenting arrangement that works best for their family and its unique dynamic. Once a parenting agreement is reached, spouses submit it to the court for review. Upon approval, the court will incorporate the agreement into the final divorce decree, turning it into a binding court order. However, if spouses are unable to reach an agreement, the matter will be considered contested and go to the court for resolution.
Best Interests of the Child
When divorcing spouses are unable to work together and agree on a parenting arrangement, the court will step in and make this decision for them based on what would be in the best interests of the child. Texas courts do this by evaluating several factors, popularly known as the "Holley Factors." These include the emotional and physical needs of the child, now and in the future; parental abilities of the spouse seeking custody; stability of the home or proposed residence; physical and emotional dangers to the child; and the child's wishes. In addition to the Holley factors, the court is also permitted to consider anything else it finds relevant.
Once conservatorships and living arrangements are decided, the court will move on to deciding child support. In Texas, child support is paid by the non-primary parent. Texas determines child support based on the percentage of income model. Under this standard, only the non-primary parent's income is used to calculate support and the monthly payment amount is based on the number of children the non-primary parent must support. For example, for non-primary parents with a net monthly income less than $7,500, Texas law requires child support to be paid in the following percentages: 20 percent for one child, 25 percent for two children, 30 percent for three children, 35 percent for four children, 40 percent for five children, and not less than 40 percent for six or more children.