In Texas, the terms of a couple’s divorce are established either by agreement of the parties or by a judge. These days, most couples resolve at least the majority of their differences out of court.

There are a variety of methods – including mediation and collaborative divorce – that spouses can use to resolve their differences amicably, and doing so allows them to retain control over their decision-making instead of putting their (and their children’s) futures in the hands of a judge.

But, while spouses have a significant amount of flexibility in crafting their marital settlement agreement, this flexibility is not unlimited. In particular, Texas law imposes certain limitations on the terms spouses can agree to regarding child custody (technically called “conservatorship”) and support.

Factors for Establishing Child Custody in Texas

Texas’ child custody law is clear: “The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”

In determining the best interests of the child, the Texas courts weight a number of different factors. No one factor outweighs any other; rather, the courts will balance all of the relevant factors in order to reach a decision on what is best for the child.

For example, the factors the Texas courts consider for children under the age of three include (but are not limited to):

  • Whether one or both parents were involved in the child’s caregiving prior to the divorce
  • The effect on the child that may result from being separated from each parent
  • The parents’ availability as caregivers and their willingness personally care for the child
  • The child’s physical, medical, behavioral, and developmental needs
  • The parents’ physical, medical, emotional, economic, and social conditions

As you can see even from this short sample, the factors used to determine the best interests of a child vary widely, and they do, to a certain extent, take into account the parents’ respective wants and personal circumstances.

Since all custody determinations focus on the best interests of the child and marital settlement agreements are subject to court approval, divorcing spouses who develop a parenting plan without court involvement should generally focus on these factors as well.

Establishing the Right to Receive (and Obligation to Pay) Child Support

Child support determinations are not made based on a list of factors, but instead according to a formula that takes into account the parents’ respective net incomes. As a result, parents’ control over the determination of child support is in some ways more limited than it is with regard to child custody.

In addition, since the focus in child support matters remains on serving the best interests of the child, one parent generally cannot agree to waive the other’s child support obligations.

When negotiating a divorce settlement, parents will need to structure their respective child support rights and obligations with the statutory formula (and the need to obtain court approval) in mind.

Nordhaus Walpole, PLLC | Family Lawyers Serving Clients in McKinney, TX

If you are preparing to go through a divorce and have questions about child custody or child support, we invite you to contact us for a free consultation. To speak with one of our experienced family law attorneys in confidence, call (214) 726-1450 or submit a request online today.