Divorce With Kids in Austin: Custody, Parenting Plans and Child Support Under Texas Law

When parents divorce in Texas, the court decides more than the end of the marriage. A divorce with children must also settle who holds the right to make major decisions, where the children live, when each parent has them and who pays support. The petition must say whether the marriage produced or adopted children, and when the parents have a child who is not under another court’s continuing jurisdiction, the divorce suit must include a suit affecting the parent-child relationship (Family Code Section 6.406). If you are speaking with an Austin divorce attorney about a divorce with children, this page explains how Texas courts decide those questions, what a parenting plan does and how support is calculated in Travis County.

The guide covers what a divorce with children must decide, how custody is determined, parenting plans, possession schedules, child support and medical support, temporary orders and the court process, protecting children while the case is pending, changes after the decree and the first steps to take. It is written for parents at the start of a case and for parents who already have temporary orders.

What a Divorce With Children Must Decide

• Conservatorship. Texas uses the term conservatorship for what most people call legal custody. It covers the right to make decisions about the child’s education, medical care and other major matters.
• Possession and access. This is the schedule of when the child is with each parent, including weekends, holidays and summer.
• Child support. The court sets support under the Texas guidelines and addresses health insurance and uninsured medical expenses.
• Primary residence. The order designates which parent has the exclusive right to determine the child’s primary residence and whether the child must live in a geographic area.
• Property and debt. The marriage is also divided, and the two parts of the case affect each other. See our property division lawyer in Austin page.

Most of these questions can be settled by agreement. If you and your spouse agree on every issue, see uncontested divorce in Austin. If the conflict is the main problem, see high-conflict divorce in Austin.

How Texas Courts Decide Custody

• Best interest of the child. The child’s best interest is the primary consideration in deciding conservatorship and possession (Family Code Section 153.002). Custody is not decided by which parent is the mother or father. The court weighs each party’s qualifications without regard to marital status or the sex of the parent or child (Section 153.003).
• Joint managing conservatorship. Texas starts from a rebuttable presumption that appointing both parents as joint managing conservators is in the child’s best interest (Section 153.131). The court may not appoint joint managing conservators if there is credible evidence of a history or pattern of child neglect, or of physical or sexual abuse by one parent against the other parent, a spouse or a child (Section 153.004).
• What a joint order must say. The order must designate which parent has the exclusive right to determine the child’s primary residence, and either set a geographic area or state that the parent may choose the residence without a geographic restriction. It must also specify each parent’s rights and duties for the child’s physical care, support and education, divide the remaining parental rights, and include provisions that limit disruption to the child’s schooling, daily routine and friendships (Section 153.134(b)).
• Factors in the analysis. When the parents have not filed an agreed parenting plan, the court considers whether the child’s needs and development will benefit from joint managing conservators, whether the parents can put the child’s welfare first and reach shared decisions, whether each can encourage a positive relationship with the other parent, whether both parents took part in raising the child, how far apart they live and, for a child 12 or older, the child’s preference (Section 153.134(a)).
• Sole managing conservatorship. A court can appoint one parent as sole managing conservator when the evidence shows that joint conservatorship is not in the child’s best interest. The other parent is generally a possessory conservator with the time and access set in the order.

Our pages on suits affecting the parent-child relationship and shared or joint custody explain the orders, and our articles on how conservatorship works and the best interest standard in Austin go through the standard. For custody cases generally, see our Austin child custody lawyer page.

The Parenting Plan

• What it is. Parents may sign a written agreed parenting plan to promote settlement. It can cover conservatorship, possession and how the plan may be modified, including variations from the standard possession order (Section 153.007).
• Court approval. If the court finds the plan serves the child’s best interest, it must issue an order in accordance with it. If the court rejects the plan, the parents may be asked to submit a revised one.
• Enforcement. Plan terms that are in the order, or incorporated into it, are enforceable like any judgment, including by contempt, but they are not enforceable as a contract (Section 153.007).
• What to include. Decision-making by subject, the possession schedule, holidays, exchange times and places, travel, the child’s school, communication between the parents and between the child and the other parent, and how disputes will be handled. Section 153.134(b) asks the court to recommend alternative dispute resolution before the parents litigate over the joint conservatorship terms, when feasible.
• Fit the plan to the child. A plan for a toddler differs from one for a teenager who has activities and a job. Build in review points and a way to adjust the schedule by agreement.

Possession and Access

• The standard possession order. A parent appointed as a possessory or joint managing conservator is presumed to be entitled to the standard possession order, and the order is presumed to serve the child’s best interest, though the presumption can be rebutted with evidence (Section 153.252).
• Children under three. For a child younger than three, the court must enter an order suited to the circumstances, considering factors such as the caregiving the child has received, the child’s developmental and medical needs, the distance between the homes and whether the schedule should step up toward the standard order. The court also enters an order that takes effect on the child’s third birthday and presumptively will be the standard possession order (Section 153.254).
• Agreed schedules. Parents can agree to a schedule other than the standard order, and many do for work, school or distance. Write it down in the plan.
• Possession and support are separate. A court may not condition a conservator’s possession of or access to a child on the payment of child support (Section 153.001).

See our pages on the standard possession order and custody rights and duties. Two related articles cover specific clauses: the right of first refusal and international travel and passports.

Child Support and Medical Support

• The guidelines. For an obligor whose monthly net resources fall within the statutory range, the guidelines set support at 20 percent of net resources for one child, 25 percent for two, 30 percent for three, 35 percent for four and 40 percent for five, and not less than the amount for five children for six or more (Section 154.125).
• Net resources. Resources include wages and other pay for personal services, bonuses, interest, dividends, royalties, self-employment income, net rental income and other income actually received. From them the court subtracts Social Security taxes, federal income tax computed for a single person claiming one personal exemption and the standard deduction, state income tax, union dues, the cost of health insurance or cash medical support for the obligor’s child and, in some cases, nondiscretionary retirement contributions (Section 154.062).
• High incomes. The guidelines apply to net resources up to the maximum amount published in the Texas Register. For resources above it, the court may order additional support based on the parties’ incomes and the child’s needs (Section 154.126). See high-income child support in Texas.
• Other children. If the paying parent has children in more than one household, the court may use an alternative method of computing support (Section 154.129).
• Medical support. The court must enter a medical support order. Before a temporary or final hearing, the parties disclose whether the child has private insurance, who pays the premium and what it costs, and unless good cause is shown the court keeps existing coverage in place until the final order (Section 154.181).
• How long support lasts. A court can order support past the child’s 18th birthday only if the child is enrolled in secondary school under the conditions in Section 154.002. Support for an adult child with a disability that requires substantial ongoing care and supervision, who cannot support himself or herself and whose disability began on or before age 18, can be ordered for an indefinite period (Section 154.302).

Our Texas child support calculator gives an estimate, and the article on how child support is calculated explains the steps. For help with the order itself, see our Austin child support lawyer page and calculating child support. Two articles cover planning issues: child support and life insurance and college savings in a divorce.

Temporary Orders and the Court Process

• The standing order. The Travis County Standing Order for Family Law Cases, adopted by the civil district judges in December 2019 for cases filed on or after January 1, 2020, is attached to the petition and applies to both parents from filing. Among other things, it bars derogatory comments about the other party or the other party’s family in front of a child or on social media a child can access, and bars threatening or harassing communications. It states that it may be enforceable by contempt. We confirm the version that applies when we file.
• Temporary orders. While the case is pending, the court may enter temporary orders on conservatorship, child support, restraining a party from disturbing the peace of the child or another party, prohibiting removal of the child from a geographic area, and attorney’s fees (Section 105.001). Temporary conservatorship and support orders generally require notice and a hearing. See temporary restraining orders in Texas divorce.
• Parent education. The court may order the parties to attend a parent education and family stabilization course if it serves the child’s best interest (Section 105.009).
• Mediation. Many parents work out the parenting plan and support at mediation. See divorce mediation in Austin.
• The timeline. Texas bars a court from granting a divorce before the 60th day after the suit is filed (Section 6.702). After that, the timeline depends on the issues, whether the parents settle and the court’s docket. See how long a divorce takes and our divorce case timelines tool.

Protecting Your Children While the Case Is Pending

• Keep routines. School, meals, bedtimes and activities should stay as steady as the schedule allows.
• Keep the dispute away from the children. Do not discuss the case or finances with them, ask them to carry messages, ask them to choose or ask them to report on the other parent.
• Support the child’s relationship with the other parent. The court looks at whether each parent can encourage and accept that relationship (Section 153.134).
• A child’s voice. On the application of a party, the amicus attorney or the attorney ad litem, the court shall interview in chambers a child 12 or older about the child’s wishes on conservatorship and the exclusive right to designate the primary residence, and it may interview a younger child. The wishes are not binding, and the court keeps its discretion on best interest (Section 153.009). See the age a child can choose.
• Counseling and support. If a child shows distress, a counselor can help. Ask us how counseling records are handled in the case before sessions start.
• Co-parenting. Our co-parenting tips for Austin parents cover day-to-day practice.

When Circumstances Change After the Decree

• Modification of custody. A court may change conservatorship or possession if the change is in the child’s best interest and there has been a material and substantial change in circumstances, a child 12 or older has told the judge in chambers which parent should decide the primary residence, or the primary-residence parent has voluntarily given up primary care for at least six months (Section 156.101). A suit to change the right to decide the primary residence within one year of the order requires an affidavit (Section 156.102). See modifying a Travis County custody order.
• Moving. If the order has a geographic restriction, the primary-residence parent has to keep the child’s residence within it until the order is changed. Talk with us before a move. See parental relocation in Austin.
• Support. Support can be modified when circumstances change. See modifying child support.

What This Means for Your Travis County Case

1. Write down the children’s schedule, school, doctors, activities and who handles each part now.
2. Decide what you want the parenting plan to say, including the schedule, the holidays and who makes decisions about school and medical care.
3. Gather income records for both parents and the cost of the children’s health insurance, so that support can be calculated.
4. Follow the Travis County standing order exactly, and do not move the children or change their schools without an agreement or an order.
5. Keep communication with the other parent short, polite and in writing.
6. Keep the children out of the dispute and out of the courtroom unless the court asks.
7. Decide early whether you want to settle through mediation, and tell us about any safety concern before it starts.

More About Divorce With Children in Austin and Texas

These guides cover related questions.

• father’s rights: custody and access for fathers.
• child support termination: when the duty ends.
• emergency custody orders: when a child is in immediate danger.
• protecting yourself financially: a checklist for the first weeks.

Why Austin Clients Choose Barton & Associates for Divorce With Children

Barton & Associates has tried Texas cases since 2001. The firm’s family law attorneys include Duane Graeff, our managing attorney, who has practiced for more than 26 years, and Désirée Flye, a trial attorney on the family law team. Decisions about children made early tend to last. We explain what the statutes require, what the plan should say and what each choice risks, and we do not recommend a fight that does not help the child.

We cannot promise a result. What we can do is tell you what the statutes require, what we recommend and what each choice risks. The first consultation is free and confidential. Our Austin office is at 316 W. 12th Street, Suite 400, Austin, Texas 78701, and we meet with clients there by appointment. You can get directions to our office before your visit. For the first meeting, bring what you can of the following, and call even if you cannot find everything.

• The date of the marriage, the children’s names and birth dates, and any prior court orders
• The last three years of tax returns and your most recent pay stubs
• Recent statements for bank, retirement, brokerage and credit card accounts
• Health insurance cards and the monthly cost of the children’s coverage
• The names of your children’s schools, doctors and counselors, and a description of the current schedule
• The deed, mortgage statement and vehicle titles
• Any court papers, protective orders or prior orders involving either parent
• A calendar of your key dates and deadlines

Frequently Asked Questions

What is the difference between legal custody and physical custody in Texas?

Texas uses different terms. Conservatorship covers the rights and duties of a parent, including the right to make decisions about the child’s education and medical care. Possession and access cover when the child is with each parent. The order also names the parent who has the exclusive right to determine the child’s primary residence (Family Code Section 153.134).

Does Texas favor mothers in custody cases?

No. The court weighs each party’s qualifications without regard to marital status or the sex of the parent or the child (Section 153.003), and decides on the child’s best interest (Section 153.002). Both parents start from the same position.

Will we share joint managing conservatorship?

Probably, unless the evidence rebuts it, because Texas starts from a rebuttable presumption that appointing both parents as joint managing conservators is in the child’s best interest (Section 153.131). The presumption does not apply, and joint conservatorship cannot be ordered, if there is credible evidence of a history or pattern of child neglect or of physical or sexual abuse (Section 153.004). Joint conservatorship does not mean equal time.

What is a parenting plan?

A parenting plan is a written agreement on conservatorship, possession and how the plan may be changed, including variations from the standard possession order (Section 153.007). If the court finds it serves the child’s best interest, the court must issue an order in accordance with it. Terms in the order are enforceable like any judgment, but not as a contract.

What is the standard possession order?

It is the default possession schedule that Texas presumes serves the child’s best interest for a parent who is a possessory or joint managing conservator (Section 153.252). The presumption can be rebutted, and parents can agree on a different schedule. For a child under three, the court enters an order suited to the circumstances and a prospective order that presumptively becomes the standard order on the third birthday (Section 153.254).

How is child support calculated in Texas?

The guidelines are 20 percent of the paying parent’s net resources for one child, 25 percent for two, 30 percent for three, 35 percent for four and 40 percent for five, within the statutory range (Section 154.125). Net resources start with income from all sources and subtract items such as Social Security tax, federal and state income tax, union dues and the cost of the child’s health insurance (Section 154.062). The court can also order additional support above the cap (Section 154.126).

How long does child support last?

A court can order support past the child’s 18th birthday only if the child is enrolled in secondary school under the conditions in Section 154.002. Support for an adult child with a disability that requires substantial care and supervision, who cannot support himself or herself and whose disability began on or before age 18, can be ordered for an indefinite period (Section 154.302). Other events can end support, and we review the order for them.

Can a child choose which parent to live with?

Not by choice alone. On the application of a party, the amicus attorney or the attorney ad litem, the court shall interview in chambers a child 12 or older about the child’s wishes on conservatorship and who has the exclusive right to designate the primary residence, and it may interview a younger child (Section 153.009). The interview does not reduce the court’s discretion in deciding the child’s best interest.

Who pays for the children’s health insurance?

The court must enter a medical support order. Before a temporary or final hearing, the parties disclose the child’s coverage, who pays the premium and the cost. Unless good cause is shown, existing coverage stays in place until the final order, and the court may not require coverage that a parent cannot get at reasonable cost (Section 154.181). The cost of the child’s coverage is also subtracted in computing the paying parent’s net resources.

Can I move with my child after the divorce?

That depends on the order. If it has a geographic restriction, the parent with the exclusive right to designate the primary residence must keep the child’s residence within it until the order is changed. If the order says the parent may choose the residence without regard to location, a move may be allowed, but other terms, such as the possession schedule, can still be affected. Talk with us before you list a house or sign a lease.

Can the custody order be changed later?

Yes, but the bar is higher than most parents expect. The change must be in the child’s best interest, and the person asking must also show one of three things: a material and substantial change in circumstances since the order, a child 12 or older who has told the judge in chambers which parent should decide the primary residence, or the primary-residence parent’s voluntary relinquishment of primary care for at least six months (Section 156.101). A request to change the primary residence within a year of the order must come with an affidavit of supporting facts (Section 156.102).

How long does a divorce with children take?

Texas bars a court from granting a divorce before the 60th day after the suit is filed (Section 6.702). After that, the timeline depends on the issues, whether the parents settle, the temporary orders and the court’s docket. A case where the parents agree on the parenting plan and support can move faster than one where they do not. We cannot promise a date.

What should I bring to the first meeting about a divorce with children?

Bring the date of the marriage, the children’s names and birth dates, any prior orders, tax returns and pay stubs, account statements, the monthly cost of the children’s health insurance, and the names of their schools, doctors and counselors. Call even if some records are missing.

Talk With an Austin Divorce Attorney About Your Children

Decisions about the children’s schedule, residence and support are the hardest to change later. Speak with an Austin family law attorney at Barton & Associates before you sign a parenting plan or move out.

Call our Austin office at 512-THE-FIRM (843-3476) or complete the online Free Consultation form to schedule a confidential meeting about your divorce. Consultations at the office are by appointment only. The office is at 316 W. 12th Street, Suite 400, Austin, Texas 78701.

Main Category: Family Law Austin
Practice Area Category: Divorce & Separation
Barton & Associates, Attorneys at Law
316 W 12th St Suite 400, Austin, TX 78701
Office: 512-THE-FIRM (843-3476)