Similarly, a court may modify a child support order following a request by either party, or a showing of a material and substantial change in circumstances.  The right to child support is personal to the child and does not terminate if the custodial parent remarries or cohabitates.  However, it may be reduced or increased, based on the changing needs of the child, the ability of the obligor parent to pay, or to reflect changes in child support guidelines.

Courts have a number of tools at their disposal in enforcing child support and maintenance orders.  These include wage garnishment and even arrest and imprisonment for contempt.  An inability to pay these obligations—due to the loss of a job or other major reduction in income—does not excuse the obligor spouse or parent from making payments, unless he or she first obtains a modification order from the Texas court that issued the initial support or maintenance order.

Any credible evidence of past or present neglect, physical abuse, or sexual abuse of a child, the other parent, or spouse by a parent creates a rebuttable presumption that unsupervised visitation by that parent is not in the best interests of the child.  Additionally, Texas courts may not allow a parent who engaged in a pattern of domestic violence during the previous two years to have access to the child, unless it is satisfied that access would not endanger the physical or mental welfare of the child.

Even then, the court may impose conditions for access, which include the following:

• Requiring supervision by a court-appointed observer
• Limiting the setting and conditions of access
• Requiring the parent to abstain from drugs and alcohol for 12 hours prior to visitation
• Requiring the parent to complete an approved Battering Intervention and Prevention Program (BIPP), or other course of treatment

Parents can, and often should, work together to establish a parenting plan that settles issues such as child custody and visitation.  Parents can utilize tools such as mediation, collaborative law, and other forms of alternative dispute resolution in doing so.  Such a plan, however, is still subject to court approval to determine if is serves the best interests of the child.

However, when the parties are amenable, a no-fault divorce can be substantially less complicated than a fault divorce.  While there still may be disputes regarding property division, child custody, child support, and spousal maintenance, a no-fault divorce at least protects the parties from having to publicly explore the intimate details of their marriage and the reasons for its ultimate failure.

Most states now have some version of no-fault divorce.  In Texas, insupportability is the no-fault ground for divorce.  A court may grant a divorce on these grounds if a marriage has become insupportable due to discord or incompatibility to such an extent that the legitimate ends of the marital relationship are no longer attainable and no reasonable expectation of reconciliation exists.

While it can still be stressful and emotionally taxing, a no-fault divorce is often a superior alternative to a divorce on fault grounds.  Additionally, this less contentious type of divorce is often a good candidate for the mediated or collaborative divorce process.  These processes allow the parties to work together to form a divorce agreement that covers issues such as property division and child custody.

In fact, this standard is quite subjective.  Sixteen states and the District of Columbia provide specific statutory criteria for determining the best interests of the child.  Fortunately, Texas is among them.  These factors appear in the Texas Family Code in the context of providing permanent placements for children in government custody.  However, Texas courts have applied similar factors in other types of cases using the best interest of the child standard.  These factors include the following:

• Desires of the child
• Present and future emotional and physical needs of the child
• Emotional and physical dangers to the child
• Parental ability of each person seeking custody
• Programs available to assist the individuals seeking custody
• Plans that each individual has for the child
• Household stability of each individual seeking custody
• Acts or omissions by each individual seeking child custody that indicate the quality of the parent-child relationship

Even with these guiding factors in place, the best interests of the child can still be a difficult concept.  Experienced family law attorneys in Texas, however, have seen this standard in action.  This gives them a practical understanding of its application that goes beyond mere words.

The UPA provides a number of situations in which the law presumes paternity.  These include the following:

• When a man is married to a mother and a child is born during the marriage or within 300 days of its dissolution
• When a man marries a mother after the birth of a child and voluntarily asserts his paternity
• When a man resided in the same household as a child for the first two years of the life of the child and held himself out to the public as the father

In these cases, the law presumes the man is the father and the mother usually need not request genetic testing in a paternity or support proceeding.

In cases where there is no presumed father or where the alleged father denies his paternity, a mother seeking child support or to otherwise establish paternity may need to seek a court order for genetic testing.  A laboratory accredited by the American Association of Blood Banks or similar organization must perform these tests for them to be admissible as evidence of paternity.

In Texas, courts grant these orders in most cases unless equity or the conduct of the parties demands otherwise.  An alleged father who fails to submit to court-ordered genetic testing may be subject to civil or criminal contempt.

Houston family law attorney Robert Reid McInvale has been a member of the State Bar of Texas for nearly 30 years.  He provides legal counsel and representation to Texans regarding a wide variety of family law issues, including the following:

We understand the value of family and strive to provide a sympathetic ear to all our clients.  While the emotional burden of these types of disputes can be unfathomable, we do our best to provide support and advice through the entire process.

Whether you are going through a divorce, arranging an adoption, or facing any other family law issue, we have the experience needed to put you on the right track.  With a full understanding of all the options available to those facing family law issues in Texas¾including mediation, collaboration, and other forms of alternative dispute resolution¾we can guide you to the options that are best for your individual situation.

• Spouses who were victims of domestic violence
• Spouses leaving a marriage of 10 years or longer who were unable to support themselves due to a mental or physical disability
• Spouses who were unable to obtain employment due to custody of a child with a mental or physical disability precluding employment

Recent changes contained in House Bill No. 901 took effect on September 1, 2011 and expanded the availability of maintenance to former spouses after divorce in Texas.  Most importantly, any spouse who is unable to support him- or-herself following a marriage of 10 years or more may seek maintenance during divorce proceedings.  Additionally, a spouse who is unable to support him or herself due to a physical or mental disability, or due to custody of a child with a physical or mental disability may now seek maintenance regardless of the duration of the marriage.

Besides expanding the availability of maintenance in Texas, H.B. No. 901 made small but important changes to the guidelines Texas courts use for calculating maintenance amounts.  These changes are generally favorable to the spouse seeking maintenance. They include allowing courts to consider marital misconduct by both spouses rather than only the spouse seeking maintenance.

In addition, courts can now consider whether it is feasible, rather than merely possible, for the maintenance-seeking spouse to obtain additional education or training.  The new law also increased the maximum length of a maintenance order from three years to up to ten years, depending on the duration of the marriage.

Upon petition, the court that issued the original child custody or support order may enforce that order through a variety of means.  The court may hold the non-complying parent or spouse in civil or criminal contempt, and issue a capias—or warrant—for his arrest and incarceration.  It may require the parent or spouse to post a bond with the court as security for his future compliance.

The court may place the non-complying parent on community supervision.  It may also issue a judgment for any child support arrearages; supervise the repayment thereof (including interest) and place a lien on most property that the non-complying parent or spouse owns.  If possible, the court can order the employer of the non-paying parent or spouse to withhold support payments from his pay.  In most cases, the non-complying spouse is also liable for attorney fees incurred during enforcement.

Because of the variety of remedies available and the complex procedures and time limits involved, it is important to consult a seasoned family law attorney who has experience with child and spousal support and child custody enforcement¾and can help you pursue your rights under a support or child custody agreement.

As a general rule, a Texas court will only modify an existing child custody or visitation order if the circumstances of any affected party have materially and substantially changed since the court issued the ordering to be modified or, in the case of collaborative or mediated divorce, the date the parties signed their child custody or visitation agreement.  For children 12 years of age or older, a court may also modify a child custody order based on a preference expressed by the child to the judge in chambers.

Any party affected by a child custody order can petition the court for modification.  This generally includes both custodial and noncustodial parents, but in certain situations can extend to many other individuals. These include the following:

• Guardians
• Conservators
• Foster parents
• Stepparents
• Government agencies
• Child placement services
• Family members
• Grandparents
• Other individuals who acted as parents to the child for at least six months

Siblings separated from the child by the Texas Department of Family and Protective Services may also seek a modification that allows them access to the child.  A child may even seek to modify his or her own custody or visitation order through a court-appointed representative.

Fortunately, Texas and many other states adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).  This law gives the home state of a child jurisdictional priority in child custody matters and prevents a Texas court from assuming jurisdiction, except in an emergency, when the courts of another state would be more appropriate or when a court in another state has already made a child custody determination.

Conversely, the UCCJEA also protects parents who obtained a child custody determination in Texas from facing a challenge in the court of another state.  This law grants Texas courts exclusive continuing jurisdiction over child custody matters on which they made an initial determination.

The UCCJEA fosters uniformity and cooperation among state courts.  It does so by allowing the courts of various states to cooperate on child custody matters and establishing uniform jurisdictional rules to prevent confusion and forum shopping.  Nearly every state in the United States as well as the U.S. Virgin Islands has adopted the UCCJEA as their jurisdictional law regarding child custody matters.

Texas and many other states adopted similar uniform laws such as the Uniform Interstate Family Support Act (UIFSA) and the Uniform Parentage Act (UPA) to provide the same uniformity to other family law issues, such as child and spousal support and paternity determinations.