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Children’s Issues in a Divorce

by Houston Divorce Attorney Sam M. “Trey” Yates, III

It is the policy of the State of Texas to assure children will have frequent and continuing contact with both parents who have shown the ability to act in the best interest of the child. With this in mind, the courts in Texas favor joint managing conservatorships in which both parents share decisions about their child’s upbringing.

The State of Texas also encourages every parent going through a divorce to submit a detailed parenting plan to the court before the judge issues a temporary or final custody order. The court will intervene only if the parents cannot reach an agreement.

Any divorce or child custody lawsuit has the potential of resulting in lasting harm to both the children and their parents. Most Texas family law judges are willing to accept a parenting plan that has been crafted by the parents with the guidance of their respective legal counsel, to fit that family’s unique traditions and cultural influences once the court has been shown that the parenting plan is in the best interest of the children.

Mediation is almost always mandatory when children’s issues are in dispute and before a no-holds-barred custody fight is played out in the courtroom.

Most divorces involving children name one parent as the primary Joint Managing Conservator and grant the other parent (also a Joint Managing Conservator) “Standard Possession Order” visitation. The visitation is spelled out in great detail in the statute (Texas Family Code Section 153.312) and should also be spelled out in detail in the Final Decree of Divorce.

The court may consider the following factors in determining conservatorship:

  • Whether a parent can provide a safe, stable and nonviolent environment for the child;
  • Whether a parent has participated in child rearing before the filing of the suit;
  • The geographical proximity of the parents’ residences once separated;
  • The physical and mental health, stability and moral character of both parents;
  • If the child is 12 years of age or older, the child’s preference, if any, regarding the person to have the exclusive right to designate the primary residence of the child;
  • Evidence of abuse or domestic violence; and
  • Other relevant factors.

Either or both parents may be ordered to make periodic, lump sum, or both types of child support payments. There are official child support guidelines set out in the statute and these are presumed to be reasonable and in the best interests of the child. The factors for consideration are: (1) the age and needs of the child; (2) the ability of the parents to contribute to the support of the child; (3) any financial resources available for the support of the child; (4) the amount of possession and access to the child; (5) the net resources of the parent to pay support, including the earning potential of the parent to pay support if the actual income of that parent is significantly less than what that parent could earn, if intentionally unemployed or underemployed;(6) any childcare expenses necessary for the employment of either parent; (7) whether a parent has custody of another child and any child support expenses being paid or received for the care of another child; (8) the amount of alimony being currently paid or received; (9) provisions for healthcare; (10) any educational or healthcare needs of the child, including college expenses; (11) any benefits a parent receives from an employer; (12) any debts or obligations of a parent; (13) any wage or salary deductions of the parents; (14) the cost of traveling to visit a child; (15) any positive or negative cash flow from any assets, including a business or investments; (16) any provisions for healthcare or insurance; (17) any special or extraordinary educational, healthcare, or other expenses of the parents or the child; (18) whether either parent has a car or housing furnished by an employer or other person or business; and (19) any other relevant factor.

The court may order health insurance coverage to be provided for the child. In addition, the court may order income withholding to secure the payment of child support. [Texas Codes Annotated; Family Code, Chapters 154.001 to 154.309].

The goal of any child custody or visitation dispute should be to obtain a fair resolution of that dispute so that the children in question can resume a stable and positive routine as quickly as possible either on a temporary basis or upon final settlement or trial of the matter. Choosing a Board Certified Family Law attorney who is comfortable in mediation, negotiation or in the courtroom is essential to obtaining that goal.

*Based on Texas Statutes; Family Code, Chapter 153

Sam M. “Trey” Yates, III is a Houston-based Board Certified Family Law Attorney and creator of The Guide to Good Divorce  seminars for women. If you have questions about your Texas divorce or child custody issue, please contact The Law Office of Sam M. “Trey” Yates, III, P.C. for a consultation. If you’d like more information about Trey Yates’ upcoming Guide to Good Divorce seminars, please visit or call 713.932.7177..

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