Texas Divorce Settlements Should Focus on Minimizing Impact on Children



Posted: Sunday, August 30, 2009

by Tony Bertolino
Bertolino LLP

When a couple reaches the difficult decision that divorce is the only way to bring peace to a home, there are often strong and conflicting emotions involved. The parties may feel anger, sadness, fear, and even relief with a resolution that perhaps has been years in the making. All too often, however, the husband and wife are not the only people whose emotions and futures need to be considered. When children are placed in the middle of divorce negotiations, consideration for the physical and psychological well-being of these innocent participants should be placed above every other factor. Statistics show that 43.7% of custodial mothers and 56.2% of custodial fathers in our country are either separated or divorced . [1] In Texas alone, there were 58,736 children affected by divorce in 2005, with an average of 0.8 children per divorce. Out of all of the divorces in Texas for that year, 23.5% involved two or more children. [2] This means that there are thousands of divorcing parents just in the Lone Star State who are struggling with the life decisions that will forever impact their children.

There have been repeated studies which show the difficulties that are experienced by children whose parents are divorced. It is not uncommon for these children to display negative behaviors such as aggression toward peers, impatience, defiance towards parents, and a regression in childhood milestones such as potty training. [3] Older children may choose to engage in early sexual activity and have an increased chance of experimenting with drugs or alcohol. Also, while the husband and wife are likely dealing with fears of being alone and providing financially for their family, children are dealing with their own very real set of fears which must be acknowledged and discussed. Kids in the middle of a divorce are often afraid of a change to their schedules, the possibility of abandonment, the need to mediate their parents' disputes, and losing an attachment to the non-custodial parent. [4] The good news is that children do not necessarily have to come out of a divorce with long-term problems. Research has proven the long-term resiliency of children, even though an incredibly difficult experience such as divorce. Parents can assist in this process by being responsive to their children's needs and feelings, keeping conflict away from the eyes and ears of their children, and developing a child custody and visitation plan that is in the best interest of the kids.

The more you know about child custody laws in Texas, the more prepared you will be to make the settlement process a smooth and amicable one for your entire family. Texas law starts with the assumption that joint custody, called "conservatorship," is in the best interest of children, with one parent determined to provide primary physical custody. While the mother has traditionally been thought to receive the benefit of the court concerning primary custody, and still has the advantage concerning younger children, recent trends have shown fathers being awarded custody on an increasing basis. Texas courts prefer that parents agree to the custody arrangement together, if possible, as this is the optimal course of action for the children. If the court must get involved, a family law judge will consider the following factors when determining the custody of children [5]:

history of contact between each parent and the children

mental and physical health of the parents

work schedules of the parents

living arrangements of each parent

any history of abusive behavior

preference of the child if he or she is at least twelve years of age

In addition to determining primary custody, the courts also must file a visitation schedule for the non-custodial parent. Unless there is a history of abuse or abandonment, it is in the child's best interest to have active involvement from, and quality time with, both parents. The Texas Family Code has a standard visitation schedule in place [6] , with deviations from this plan being allowed assuming that both parents agree to the changes. For children who are at least three years old, the holidays are divided evenly between parents and the non-custodial parent has the kids two weekends a month, as well as every Thursday evening and thirty days during the summer.

No one will ever be able to tell you honestly that divorce is easy on children. Depending on the age of the children at the time of the separation, parents can expect to deal with a wide variety of behavioral and emotional issues. Reassuring your children that they are loved and that the divorce had nothing to do with them, keeping a routine, and respecting your estranged spouse are all steps that you can take to make a bad situation as positive as possible. [7] In addition, make sure you are using the legal system in a way that benefits your kids' long-term stability and does not use them as pawns in an angry battle. If you have any questions about the laws in Texas regarding children and divorce, please consult a family law attorney as soon as possible.

[1] "U.S. Divorce Statistics," Divorce Magazine, http://www.divorcemag.com/statistics/statsUS.shtml, 2009.

[2] "Marriage and Divorce," Texas Department of State Health Services, http://www.dshs.state.tx.us/chs/vstat/latest/nnuptil.shtm, January 18, 2008.

[3] "Understanding and Dealing with Children During Divorce," Oregon Counseling, http://www.oregoncounseling.org/Handouts/DivorceChildren.htm, May 20, 2007.

[4] Parker, Wayne, "The Effects of Divorce on Children and How to Cope," About.com: Fatherhood, http://fatherhood.about.com/cs/divorceddads/a/divorcekids.htm, 2009.

[5] "Texas Child Custody Laws," Child Custody Coach, http://www.childcustodycoach.com/texas/, 2009.

[6] "Child Custody in Texas," The Enos Law Firm, P.C., http://www.enoslaw.com/PracticeAreas/Child-Custody-Texas.asp, 2005.

[7] Parker, 2009.

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