Attorney at Law
101 E. Park Blvd., Suite 600
Plano, TX 75074
FAX: (877) 527-8913
Family Law/Civil Litigation Practice in Dallas County and Collin County (Texas)
A divorce case that involves children culminates in a final order that resolves issues having to do with (a) property and (b) children. The part of the order that deals with property is final (and can't be changed) after 30 days. The part of the order that deals with children - child support, custody, and visitation - is subject to modification by the court if there is a significant change in circumstances prior to the time the children turn 18.
A paternity suit also involves a final order that requires somebody to pay child support.
The idea behind modification is simple: When the children are five years old, Dad may be the vice president in charge of credit default swaps at Shearson Lehman. The Judge makes a ruling and sets child support. It's calculated based on Dad's salary of $250,000.00 per year.
Six or seven years later, things have changed. Dad lost his job (through no fault of his own) and he's now making $32,000.00 per year as an assisstant manager at Wal-Mart. It isn't fair for him to be ordered to pay $1,875.00 per month in child support. Dad files a motion to modify his child support (to decrease the amount).
Or it's the other way around: Dad was a junior in college when the divorce was granted. He was earning $8.00 per hour. Six years later, he gets a promotion to Senior Sales Representative for Microsoft, and he comes to pick up the kids in his new Lexus. He now doesn't have any trouble at all paying the $223.00 per month that was ordered in the divorce decree. Mom files a motion to modify child support (to increase the amount).
Child support is calculated based on the following factors [pardon me for assuming that it is Dad who will be paying]:
1. the net income — from all sources — including the "second job," overtime, commissions, and bonuses — of the person who is paying ("net income" is gross income minus taxes, which are calculated based on a table that is published each year in the Family Code [§154.061]);
2. the number of children for whom he will be paying child support under that particular order; and
3. the number of "outside children" for whom he is legally responsible. "Outside children" means children that aren't "before the Court" in case #1; it includes (a) children for whom Dad is paying child support under another Court order AND (b) minor children who are "his" (doesn't include stepchildren) and who are living with him.
For instance, a man who has only one child will pay that ex-wife 20% of his net income (that's AFTER taxes) for child support PLUS he will be required to provide health insurance for the child (unless the parties agree otherwise). For two children, it would be 25%. Three children would be 30%.
If he has two ex-wives, each with one child, he should be paying each ex-wife 17.5% of his net income (a total of 35% of his net income for two children).
Child support ends when the youngest child (in that particular family) turns 18 or finishes high school, whichever happens last. When they're 18 and out of high school (and are able to vote), they're supposed to start supporting themselves.
Child support also ends if a child gets married or dies.
The percentages apply only to the first $8,550.00 of your net monthly income, if you're fortunate enough to be earning more than that.
Your motion to modify will allege that (a) circumstances have changed and (b) the old order should be modified so that it reflects the current reality.
Child support is always decided by a Judge, not a jury.
|Back to Top|
Modification of Custody (or Visitation)
A divorce that involves children culminates in a final order that resolves issues having to do with (a) property and (b) children. The part of the order that deals with property is final (and can't be changed) after 30 days. The part of the order that deals with children - child support, custody, and visitation - is subject to modification by the court if there is a significant change in circumstances.
The idea behind this is simple: When the children are five years old, Dad may be an alcoholic and a drug addict, and Mom may be a sensible person, a solid citizen. The parties get a divorce; the Court makes a ruling based on the circumstances that exist at that time. Six years later, things have changed. Dad has gotten his life together. Mom now faces an indictment for child abuse. The old order is no longer appropriate and is no longer in the best interest of the children.
The Texas Family Code (section 153.002) says that in any custody case, the "primary consideration" is the best interest of the child.
The Texas Constitution (Article I, Section 3a) and section 153.003 of the Family Code state that gender discrimination isn't allowed. This means that the father is NOT at a disadvantage if he seeks custody of his 3-year-old son; there's no such thing as a "tender years doctrine." The law sees him as being on exactly the same legal footing as the mother.
If a child is age 12 or older, one can ask the Judge to interview him in chambers (if there's a case pending where custody is at issue). The child's wishes are not binding on the Court. In cases involving a 16- or 17-year-old, the Judge will tend to go along with the "child's" wishes unless there's a good reason not to.
There is no age at which a minor child can "choose which parent he wants to live with." I once tried a case to a jury where the child (age 13) had filed a statement with the Court saying that he wanted to live with his mother; he also testified, at the time of trial, that he wanted to continue to live with her. I represented the father. I was able to convince the jury that despite the child's wishes, he'd be better off with his father; we won the case.
Child custody can be a jury issue, if somebody pays the jury fee ($30.00 in Dallas County). "Visitation" (the actual terms and conditions of access to the children) is still decided by the Judge — not the jury. One party may "win" the jury verdict, but the Judge can then award possession on a 50-50 basis.
The factors that figure into a custody fight also figure into a case where the only issue is the modification of visitation. The Family Code (section 153.252) says that there is a presumption that a "standard possession order" for the "visitation parent" is in the best interest of the child.
The legal fees for a full custody fight can exceed $25,000.00, and I'll get a large retainer up front.
Often the difference between the "parenting abilities" of the two parents is very subtle and is difficult to prove. In a "close case" (which many of them are), you may want to hire a psychologist to evaluate the parties, and testify for you at trial. This will cost several thousand dollars.
To prove what is in the best interest of the child, you want to show (1) what is GOOD about you as a parent and (2) what is BAD about the other parent. Some of the factors are:
1. which parent has participated in the children's activities;
2. which parent attends most of the parent-teacher conferences;
3. any aspects of a parent's past which reflect negatively on him, such as suicide attempts, mental illness, criminal convictions, alcoholism, chronic health problems, family violence, or drug addiction (these would be things that happened SINCE the last order);
4. the ages of the children (very young children may be "closer" to their mother).
Custody contests almost always involve a "social study." In Dallas County, the fee for the social study is calculated thus: each party pays the equivalent of 1.5% of his net annual income. The social study is done by Dallas County social services (their office is at 600 Commerce, on the second floor). If a private individual were to do the social study (as is customary in Collin County), it could cost thousands of dollars, with each parent (usually) being ordered to pay half the cost. A "social worker" will visit you in your home (and the other party in his home) and gather information about your situation, employment, and background. This social worker then writes up a report and sends it to the Judge. The social worker himself can also testify at your trial, and his opinion carries a great deal of weight. And his report comes into evidence and becomes part of the record of the case.
|Back to Top|
The information on this website is not legal advice, and it may not be applicable to any specific set of facts ... especially your own personal situation. The perusal of this website does not establish an attorney-client relationship. You should consult an attorney for advice regarding your individual situation, and I invite you to contact me; I welcome your calls and emails. Contacting me does not create an attorney-client relationship. Please do not send any confidential information to me. I am an attorney licensed by the Supreme Court of Texas to practice law in all State courts and certain Federal courts, but I'm not board certified by the Texas Board of Legal Specialization.