Dallas Divorce Law Blog by Michelle O'Neil

Someone recently wrote to me and asked me to post about my views on “parenting time adjustments to child support”.  The writer wasn’t very clear on what he meant by this, so I will just comment generally.  Side note, it is nice to hear from someone out there that actually reads my posts.  Sometimes it feels like I’m talking to the air. 

As a general rule, child support and parenting time are separate issues.  In other words, just because parent A refuses to allow parent B to see the child does not give parent B the right to stop making child support payments.  And, vice versa.

Texas has standard guidelines that are presumed to apply.  That refers to the standard possession schedule and the standard child support guidelines.  When a situation deviates from the standards, the court has discretion as to how to apply the guidelines. But, the analysis in each case begins with the application of the standard possession schedule and the standard guidelines for child support.  So, in a case where one parent has primary possession and the other parent has the standard possession schedule, it is presumed that the parent with the standard possession schedule will pay child support according to the standard guidelines (i.e., 20% for one child, 25% for two, etc.)

Child support can, however, be adjusted up or down based on the amount of time a child spends with each parent.  On the one hand, if parent B fails to exercise his or her parenting time, leaving parent A with 100% of the responsiblities of caring for the child, the court may award additional amounts of child support to parent A.

On the other hand, if parent A and parent B have a split of time that is roughly equal, the court may take that equal split in account in whether to apply the standard child support guidelines.  I’ve seen courts handle a 50/50 parenting time split in two ways.  First, where the parents make roughly equal incomes, I’ve seen courts call it “even” on child support and make no specific award.  Then, I’ve also seen it where there is a disparity of earning capacity between the parents.  In such a situation, courts will usually calculate what each parent would owe the other in a traditional scenario and net out the difference. 

The bottom line is that the judges have discretion to enter orders taking into account the child’s best interest — as the judge views the best interest.  A judge will almost never be wrong in applying the guidelines, even if the parenting time differs from the standard schedule.  Whether a judge is simply taking the easy route by applying the guidelines, or whether some other factors enter into the decision, the standard guidelines are presumed to apply.  Likewise, a judge will almost never be wrong for deviating from the standard guidelines where the possession schedule also deviates from standard. 

Hope that answers the question………….

For some parents, the Standard Possession Order does not fit with their situation or their children. Parents may either agree that an alternate schedule is in the best interest of the child, or a court may order a different schedule. For example, some parents choose to implement a plan where the child spends one week with one parent and the next week with the other parent. Other parents create more complex schedules for possession of the children. Even if the court enters a standard possession order, parents are still free to modify it by mutual agreement. So long as both the parties agree, there is no limit to the parties’ authority to change their respective visitation periods. Here are some suggestions for other non-standard possession schedules that divorce lawyers in Dallas Tx have used:

Equal possession, Week-on/week-off:

Under this type of schedule, the parents choose one day of the week to exchange the children, usually either Friday, Sunday, or Monday. So, every Friday the children will switch houses for the upcoming week. Some families prefer this situation, as it provides each parent the opportunity to spend a longer period with the child and to act as a parent in more of the normal parenting situations than weekend periods provide. On the other hand, some families find difficulty in this schedule because it requires more coordination between the parents on homework, doctors visits, extracurricular activity schedules, and other activities of the child.

Equal possession, 3/2/2/3:

Some children find that they miss the other parent during a week-on/week-off scenario, so a shorter but equal schedule works better. One suggestion for such a schedule would be the 3/2/2/3 schedule. Under this type of schedule, parent “A” would have the children for a three-day period, say Monday through Wednesday. Then, parent “B” would get two days, Thursday and Friday. Then, the children would return to parent “A” for Saturday and Sunday. The next week, parent “B” would get the 3 days, Monday through Wednesday. Then, parent “A” would get the middle two days; followed by parent “B” getting Saturday and Sunday. There are many variations of this type of equal schedule.

Teenager possession:

In some counties, judges will allow more vague provisions for possession of the child, recognizing the realities of teenager’s lives and preferences. Under such a scenario, the schedule would provide that the non-primary parent is allowed possession of the child at all such times as that parent and the child agree.

Child Under Three:

Children under the age of three present unique hurdles in crafting a possession schedule. Research shows that children between birth and the age of three have various developmental stages with regard to short-term and long-term memory. For example, a three-month old child will have virtually no long-term memory, so both parents need frequent contact with the child, say every day or two, so the child establishes a bond with both parents. However, such visits may be shorter in duration, say for a couple of hours, as the child’s attention span is shorter. As the child grows, the long-term memory and bonding become more established, allowing for longer periods at one time, with more time in between each visit.

Supervised possession:

On occasion, a parent may have issues such as substance addiction, domestic violence, or simply separation from the child, that suggest supervision of the parenting times may be warranted. In such situations, the supervised possession schedule will have to be very tailored to the individual circumstance. Usually, such supervised possession will occur during day-time hours on alternating Saturdays. Most often, judges appoint a facility to handle the supervision to ensure that the supervisor is trained in recognizing signs of inappropriate conduct. Sometimes, however, a judge will find an individual, known to both parties, that would be competent to act as supervisor. It is imperative, if the supervisor is an individual, that he or she be committed to protecting the child’s interest over and above the parent’s interest.

Stair-step schedule:

On occasion, there may be a situation where a parent has not seen the child for a period of time, requiring some adjustment schedule to allow the child to get used to the other parent. In such situations, a stair-step schedule can be used effectively to accommodate the child’s adjustment. For example, stage 1, lasting a couple of months, might involve a few hours during the daytime on a couple of days per month, like every other Saturday. Then, stage 2, for another couple of months, might provide the child spends the night with the non-primary parent overnight for those same days, every other Saturday overnight to Sunday. Stage 3 might progress to more of a schedule similar to the standard periods, beginning Friday at 6:00 p.m. until Sunday at 6:00 p.m. That stage might continue for another couple of months. Then, Stage 4 would progress to the Standard Possession Schedule.

A little off-topic today, but this article ran in the Plano newspaper today about me.  I entered the Souperbowl Challenge hosted by NorthPark Center and benefitting the Dallas Junior Forum, held last week.  I won third place for my Hearty Corn Chowder and first place for my Tortilla Ranch Stew.  I created both receipes myself.  The awards ceremony was hosted by Chef Dean Fearing, a local Dallas legend. 

Michelle May O'Neil with Chef Dean Fearing

It was fun to meet him and have him taste my creations.  Being a Dallas divorce lawyer can be stressful; after all, I deal with clients who are going through some of the toughest days of their life.  Being creative in the kitchen helps me to relax from a stressful day.

The new Presidential website – - – www.whitehouse.gov - – - complete with its own blog, is a wealth of information regarding the new Administration’s family law agenda.  Here’s a sampling from the “family” portion of the website, many of which pertain to economic matters:

Expand the Family and Medical Leave Act (FMLA):  

The FMLA covers only certain people who work for employers with 50 or more employees. Barack Obama and Joe Biden will expand the FMLA to cover businesses with 25 or more employees, and to cover more purposes including allowing: leave for workers who provide elder care; 24 hours of leave each year for parents to participate in their children’s academic activities at school; leave for workers who care for individuals who reside in their home for 6 months or more; and leave for employees to address domestic violence and sexual assault.

Encourage States to Adopt Paid Leave:

President Barack Obama will initiate a 50 state strategy to encourage all of the states to adopt paid-leave systems. Obama and Biden will provide a $1.5 billion fund to assist states with start-up costs and to help states offset the costs for employees and employers.

Expand High-Quality Afterschool Opportunities:

Barack Obama and Joe Biden will double funding for the main federal support for afterschool programs, the 21st Century Learning Centers program, to serve one million more children. They will include measures to maximize performance and effectiveness across grantees nationwide.

Expand the Child and Dependent Care Tax Credit:

The Child and Dependent Care Tax Credit provides too little relief to families that struggle to afford child care expenses. Barack Obama and Joe Biden will reform the Child and Dependent Care Tax Credit by making it refundable and allowing low-income families to receive up to a 50 percent credit for their child care expenses.

Protect Against Caregiver Discrimination:

Workers with family obligations often are discriminated against in the workplace. Barack Obama and Joe Biden will commit the government to enforcing recently-enacted Equal Employment Opportunity Commission guidelines on caregiver discrimination.

Expand Flexible Work Arrangements:

Barack Obama and Joe Biden will address this concern by creating a program to inform businesses about the benefits of flexible work schedules for productivity and establishing positive workplaces; helping businesses create flexible work opportunities; and increasing federal incentives for telecommuting. Obama and Biden will also make the federal government a model employer in terms of adopting flexible work schedules and permitting employees to petition to request flexible arrangements.

Strengthen Fatherhood and Families:

Barack Obama has re-introduced the Responsible Fatherhood and Healthy Families Act to remove some of the government penalties on married families, crack down on men avoiding child support payments, ensure that support payments go to families instead of state bureaucracies, fund support services for fathers and their families, and support domestic violence prevention efforts. President Obama will sign this bill into law and continue to implement innovative measures to strengthen families.

Support Parents with Young Children:

Barack Obama and Joe Biden will expand programs like the successful Nurse-Family Partnership to all low-income, first-time mothers. The Nurse-Family Partnership provides home visits by trained registered nurses to low-income expectant mothers and their families. Researchers at the Federal Reserve Bank of Minneapolis concluded that these programs produced an average of five dollars in savings for every dollar invested and produced more than $28,000 in net savings for every high-risk family enrolled in the program. The Obama-Biden plan will assist approximately 570,000 first-time mothers each year.

The State Bar of Texas Family Law section plans to ask lawmakers to repeal a portion of the Texas Family Code governing reimbursement to a spouse for community property spent on the separate real property of the other spouse.  Critics of the law say it leaves too little discretion to trial judges to decide redistribution of assets in divorces.  Most agree that the 2002 law was a good idea that proved too difficult in practice.

I suppose in any down time, we all look for silver linings to get us through.  Along those lines comes an article from Dallas Morning News, “The ‘divorce diet’ melts off pounds“.  The article cites to several folks that lost significant poundage just by going through their divorce.  As a traumatic event, many divorcing spouses shed weight quickly from forgetting to eat.  There’s even a book on the topic called The Heartbreak Diet.  Exercise, the article concludes, is a livesaver because it provides energy, relieves stress and eases depression.

Divorce has become the most recent victim of plummeting home values, says the New York Times in its article Breaking Up Is Harder To Do After Housing Fall.  Nearly 20% of homes are now worth less than the mortgages owed on them. Where couples once fought over who would keep the house, they now bicker over who will continue to pay for it.  As a result, divorce has become more complicated and often more expensive with lower prospects for a money outcome.  Some divorce lawyers say that some clients are electing to stay together because there are few assets left to help them start over.

In a normal economy, couples typically build equity in their homes, then divide that equity in a divorce, either after selling the house or with one partner buying out the other partner’s share.  But now, more couples own houses that neither spouse can afford to maintain and they cannot sell for what they owe. 

In the Dallas Texas divorce arena, we have been spared the worst of the housing bust, but our house values are, by most accounts, remaining stagnant.  That still creates the problems mentioned in the article in that houses are not the major cash-cow asset they once were.

 The January newsletter from Dallas Texas divorce lawyer Michelle May O’Neil of The May Firm.

It’s all over the news today (here and here and here) about a New York surgeon who’s getting a divorce from his wife and asking for the kidney back that he donated to her.  He gave her a kidney in 2001 and 18 months later, the husband claims, she’s taking his kidney out with another man.  Divorce ensues.  Custody issues abound… regarding their three kids.  Then Husband sues to get his kidney back… oh, or he’ll take $1.5 Million in lieu of the kidney.

Divorce lawyers in Dallas as well as nationally agree that he’ll probably be unsuccessful in his efforts.  “The kidney is a gift, which, under Texas law, would be the wife’s separate property,” says 17-year family law specialist Michelle May O’Neil.  “The affair certainly entitles the Husband to a divorce, and he may get an unequal division of the property in his favor because the Wife is a bad actor in the relationship, but he won’t win the lottery as a result.”  Husband should have thought about that possibilty before he parted with the organ.

Even so, it makes for good fodder for news media coverage.