At Capps Law Firm, PLLC, our team of experienced family law and divorce lawyers in Austin handles all types of custody, visitation and child support, including:
- Contested custody disputes — We help parents establish their rights and duties toward their children and one another, establish possession schedules and set child support. We craft parenting plans that create the foundation for the process of decision-making and time with children for years to come. It’s important to get it right the first time.
- Interstate and international custody — We assist families with multi-jurisdictional issues and disputes, including child abduction/Hague Convention cases.
- Parental relocation — Even if you only want to move to a different city in Texas, you may be required to obtain the court’s approval. We can help.
- Grandparent rights — We advise grandparents and other third parties who want to protect their relationships with the children or act in loco parentis.
- Child support — The amount of child support can be affected by how much time the child spends with each parent and finances beyond the salary of the paying parent.
- Paternity — Before a father can obtain any access and visitation rights by law, he must first legally establish paternity. Without a court order, the father’s rights may be at the whim of the mother.
Texas Child Custody Jurisdiction Issues
As a child custody attorney in Austin, Texas, I have many clients who either live out of state, or who are involved in child custody litigation with parties who live out of state. Whenever a party to child custody litigation resides in another state or country, “jurisdictional” issues often arise, and are often the source of great controversy and contention.
The term “jurisdiction” refers to the power of a court to hear a case and to issue orders to the parties involved. The power of the court to listen a particular type of case, such as a child custody case, is called “subject mater jurisdiction.” The power of a court to order a particular person to do something is called “personal jurisdiction.” You can read about personal jurisdiction in a posting I wrote previously. The subject of this suit is a certain type of subject matter jurisdiction involving parties and/or children who live in other states.
Child custody jurisdiction issues in Texas, and any other state for that matter, are governed by the body of law commonly referred to as the Uniform Child Custody Jurisdiction Enforcement Act. Virtually all states in the U.S. have adopted a version of the UCCJEA. The original plan was for all states to adopt the same jurisdictional laws to eliminate conflicts between laws of different states.
Unfortunately, some states’ version of the UCCJEA is different than that adopted by Texas. Therefore, conflicts sometime arise between Texas law and the law of another state when both Texas and the other state try to claim jurisdiction over a case.
In a nutshell, subject matter jurisdiction in Texas child custody case is determined by the amount of time a child has spent in a particular state. In an original custody proceeding, Texas can assume subject matter jurisdiction according to a hierarchical ladder of situations, the first and foremost of which is that the child must have lived in Texas for the last six months prior to filing the lawsuit (or since the child’s birth, if the child is less than six months old). When the child hasn’t been in any state for the previous six months, other parts of the ladder apply. Once Texas (or some other state), has determined that it has jurisdiction to hear a particular child custody case, then that state acquires “exclusive continuing jurisdiction” over the case, and no one can file a suit involving the custody or support of that child in another state unless the original court loses continuing exclusive jurisdiction over the case.
Generally speaking, Texas loses its continuing, exclusive jurisdiction over a child custody case only in two situations: (1) when none of the parties nor the child live in Texas any longer; or (2) when neither the parties nor one parent and the child have a significant connection with Texas AND there is no longer substantial evidence in Texas concerning the child’s care, protection, training, and personal relationships.
These issues can be very important, since the parent who lives in Texas does not usually want to go to another state to litigate issues regarding custody or visitation, and the parent who does NOT live in Texas doesn’t want to keep coming to Texas to litigate those issues. Any parent who finds himself/herself involved in a custody or visitation issue when one party and/or the child lives in a state other than Texas should discuss these issues at length with his or her attorney.
Taking Steps to Protect Your Long-Term Relationships
Founding attorney Kelly J. Capps is keenly aware of how divorce impacts children for the rest of their lives. She says:
“My parents divorced when I was six. Both of my parents remarried right away and, suddenly, I had step-siblings. My father divorced again and remarried another woman with children when I was 18, so I’ve lived in every type of blended family imaginable. I understand having to go to the airport on Christmas day or racing home from vacation for a 6 p.m. exchange. What I’ve learned from my experience is that regardless of how angry you are with your spouse, you need to be able to resolve the divorce on the most amicable terms possible for the benefit of the children. Years down the road, you will want to be invited to your child’s college graduation, attend the birth of your first grandchild and be a part of other important events in your children’s lives. Chances are, doing those things means that you’ll be dealing with your spouse, and possibly his or her new spouse, many, many times over the years long after the divorce and after the children are grown. Everyone’s better off if those interactions can be positive.”
Our goal in every child custody dispute is to help our client resolve the situation in a way that fosters positive relationships with his or her children and preserves a working relationship with the other parent.
We assist clients in Austin and throughout Central Texas with modifications and enforcement of existing court orders. We provide prompt, personalized attention with:
- Establishing child support
- Modifying court orders — As the saying goes, change is the only constant. If you lose your job, you may need to modify the child support orders. If you want to relocate to a different state with your children, you will need to modify the child custody or visitation orders. No matter your situation, we can advise you about how to proceed.
- Enforcing court orders — If your ex-spouse is refusing to follow the property division agreement or abide by the set visitation schedule, for instance, we can provide the legal advocacy you need.
“Kelly and the entire staff at Capps Law Firm, PLLC, put heart and soul into resolving my divorce. The case had drawn out several years and become extremely complicated before Kelly took over. I wasn’t even able to visit my two sons in another state, but thanks to her aggressive advocacy my children are back in Austin, thriving, and I have equal custody and possession.”
—David Campbell, Austin, Texas
Thinking Ahead To Save You Time, Trouble and Expense
For some attorneys, modifications are the norm. They expect their clients will repeatedly go back to court. At Capps Law Firm, PLLC, we don’t believe you should require the services of your lawyer forever, returning to court to “fix” issues that should have been addressed at the beginning. The foresight we have gained from our decades of experience allows us to be proactive and detailed at the outset — which can save you time, money and frustration down the road.
Texas Child Support – things you should know
As an Austin, Texas family law attorney, I see child support issues come up nearly all the time, whether in divorce cases, child custody cases, child support enforcement cases, child support modification cases, paternity cases, and even in adoption/termination cases.
Most folks know that Texas applies percentage guidelines to calculate child support. In a nutshell, Texas figures out your NET income (after taxes, costs for health insurance, and a few other things), then multiplies that figure by a percentage which has been statutorily “presumed” to be in the best interest of the child.
What many people don’t understand are the factors which a judge can consider in reducing or increasing the presumptive amount of child support. The Texas Family Code lists a whole bunch of those factors. Chief among those is the costs the non-custodial parent may be paying in order to exercise visitation. For example, it isn’t uncommon for a custodial parent to move out of state shortly after a divorce (unless there is a geographical restriction–but that’s a different subject). In doing so, the custodial parent is engaging in conduct which will increase the non-custodial parent’s cost of exercising visitation, even if the parties split the costs.
Since the Texas Family Code also provides that continuing and frequent contact between the non-custodial parent and the child is in the best interest of the child, the Court will often reduce child support to account for those increased costs. The Court can also simply require the custodial parent to pay 100% of the travel costs, which I think is a much better idea. That way, the actual costs of visitation are born by the custodial parent, rather than the hypothetical costs. For instance, reducing child support isn’t really fair to the custodial parent if the non-custodial parent doesn’t in fact exercise any of his or her visitation.
The previous examples assumed the custodial parent moved first, thereby being the cause of the increased cost of visitation. What about if the parents are already living in different states at the time of the suit? Or if the non-custodial parent moves to get a better job? The Court can still reduce child support to account for the increased cost of visitation if the Court is convinced that it will help the non-custodial parent be able to visit his child.
What about getting more child support than what’s called for by the percentage guidelines? That’s also a possibility under the Texas Family Code. Occasionally, a child is considered a “special needs” child, requiring an extraordinary amount of financial support (uninsured medical expenses, special education, etc.). In such cases, the Court will look at the parents’ respective ability to pay those costs, may increase the statutory amount of child support to account for the child’s needs.
To learn more, contact Capps Law Firm, PLLC, in Austin, Texas. Call 512-410-2453 or email us today.