Winning a Divorce Case...Taking care of the kids during the divorce.
Most parents will tell you that one of their most important goals is to make the time a divorce is pending as painless as possible for the children. Parents ask …
o How will we care for the children while the divorce is pending?
Kids suffer as a result of their parents’ divorce. Parents who tell themselves … “the kids will be fine” are just fooling themselves. Divorce is horrible for children. Their worlds are changed forever in ways that no one can predict, including the persons that children depend on the most … Mom and Dad. The divorce may be necessary and best from an adult perspective, but it is almost never good for the children.
One of the worst parts of divorce for kids is the time immediately following their parents decision to divorce. Eventually, the situation will stabilize; but during the divorce litigation, most things are at best “loosely” held together for the children,
Divorce cases take somewhere between two months and two years. I tell clients to use six months as a planning number for the length of their case. That’s a long time for the lives of children to be up in the air, no matter how you count it. This transitory state makes the fear and uncertainty for children worse. Their relationship with extended families is strained, their school work is disrupted and now … they are going back and forth between two parents … and two households. The Courts have predictable things they will do to help the children during this transition.
In Texas, the primary vehicle used to handle the children and the children’s lives, while a divorce is pending, is the temporary orders hearing. A temporary orders hearing will usually take place two or three weeks after the divorce is filed. At the temporary orders hearing, the Court will make orders for the children that the Court thinks are in the children’s best interest.
Almost always, if the parents agree to how the children should be handled, the Court will go along with the parents ideas. Usually, it is a good idea to agree with the other parent if at all possible. After all, the Judge, well intentioned as he/she might be, cannot pick your children out of a crowd. Your children … the children you love are only abstractions to the Judge.
While each case is different, the Courts in Texas usually use the following approach in establishing, on an interim basis, the rights and duties of the parents, the possession time of each parent along with any unique conditions of possession, child support, and the provision of health care.
1. Rights and duties – The Court will establish the rights and duties of each parent on a temporary basis using a straight forward and somewhat simple analysis. The idea is this … whoever has been the primary caretaker of the children should continue to be the primary care taker of the children unless there is a big problem. Courts often look at the following:
a. Disqualification – Is one of the parents disqualified to care for the children and how disqualified are they? This often includes looking at illegal or excessive drug use, criminal conduct, domestic violence, mental illness and similar potentially major impediments to parenting a child.
b. The history of child care in this family – who has always done what? Remember the Courts know that disruption should be minimized for the children. Let’s keep the kids’ lives as stable as possible.
c. Special conditions – such as breast feeding, medical training and infant care.
2. Possession and Access – The kids should normally have access to everybody. Most of the Texas Courts use the Standard Possession Order (about 40-45% possession) as a starting place for fit parents. Some more adventuresome Texas Courts use a 50/50 starting place. You and your attorney need to know the starting place the Court your case is assigned to uses.
3. Temporary Child Support and Health Insurance – Whoever has been providing health insurance for the kids will be ordered to continue to do so absent some highly unusual circumstances. Child Support is a numerical calculation based on the parents’ income. If you tell an experienced Texas lawyer how much each parent makes, that lawyer should be able to tell you how much each parent will be ordered to contribute to the support of the children.
These basic items ordered by the Court, will help you and your children as you navigate through a divorce lawsuit. However, Court orders are no replacement for parental love. No matter how angry you or your soon to be ex are … both of you have to get over it. The kids need you both.
If your ex refuses to get over it, you still need to do what is best for the kids. Remember … one day you will be at your son or daughter’s wedding, your ex will be there too! It will be nice if at the wedding, you and your ex can be cordial. It will be even better if you and your ex can congratulate each other on putting your children above your differences.
