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Chowins Law Firm 
405 State Highway 121
Suite A250
Lewisville, TX 75067
Tel: (469) 630-2550

  

Family Law: Divorce, Marriage, Children, Elderly

  • Divorce, Separations & Annulments
  • Divorce Settlement Agreements
  • QDRO orders
  • Guardianships of Minors, Elderly & Incapacitated Persons
  • Paternity
  • Child Custody
  • Child Support
  • Adoptions
  • Prenuptial and Postnuptial Agreements 
  • Child Welfare Cases 
  • Grandparent Rights
  • Name Changes 

Guardianship & Probate Administration

  • Probate of Estates and Administration
  • Will Contests
  • Guardianship of Minors and Incapacitated Persons
  • Guardianship Alternatives
  • Guardianship Litigation
  • Small Estate Administration
  • Intestate Succession
  • Independent Administration
  • Muniment of Title Proceedings
  • Court Supervised Administration
  • Estate Tax Returns
  • Claims Against Estate

Wills, Trusts & Estate Planning

  • Estate & Gift Tax Avoidance
  • Business Succession Planning
  • Wealth Preservation
  • Health Care Directives
  • Medical Powers of Attorney
  • Simple and Complex Wills
  • Trust Planning
  • Effective Use of Insurance
  • Planning for Incapacity
  • Charitable Giving & Legacy Planning

 

Guardianship of Minor Children

Who Can Serve as a Guardian of Minor Children?

Generally, any person could apply and potentially serve as a guardian of a minor child unless the court finds that one of the following exceptions applies to the applicant.

  • Persons who are minors or who are otherwise incapacitated.      
  • Persons incapable of properly managing or controlling the ward or the ward's estate due to lack of experience, lack of education or "other good reason."
  • Persons the court finds otherwise unsuitable
  • Persons with a history of notoriously bad conduct. While not specifically defined, the following acts are presumed to be "notoriously bad conduct": any sexual offense, including sexual assault, aggravated sexual assault, and prohibited sexual conduct; aggravated assault; injury to a child, elderly individual, or disabled individual; abandoning or endangering a child; terroristic threat; or continuous violence against the family of the ward or incapacitated person.
  • Persons with a conflict of interest with the proposed ward.       Such conflicts could include indebtedness to the proposed ward, being a party to a suit affecting the welfare of the potential ward, or asserting claims adverse to the proposed ward or the ward's property.
  • Persons the proposed ward properly disqualified as part of a valid written declaration made while the proposed ward had capacity to make such a declaration.
  • Person who has not completed the required certification to serve as a guardian. This can be corrected by taking a basic course.
  • Persons who are nonresidents, unless the nonresident obtains a registered agent in Texas for service of process.
  • Persons subject to a protective order for family violence

Priorities in Selecting Guardians of Minor Children

Since more than one person will often be both qualified and willing to serve as a guardian of the minor, Texas courts will give priorities to

certain persons depending upon the circumstances.   The priorities differ depending upon circumstances of the case.

Guardians for Minors with Living Parents

Parents are the natural guardians of minor children's person, but as to minor's estate, the court will appoint one of the parents if the parents do not agree, based on which is better qualified if the parents live together or based on the child's best interest if the parents do not live together. In the case of a minor with only one living parent, that surviving parent will be appointed guardian of the minor's estate.

Guardians for Orphaned Minors

Generally, the minor's grandparents are given priority, then great grandparents, followed by next of kin.   If more than one qualified person within the same priority level applies to be guardian for the minor, the court will choose the person based on the best interest of the minor child. If no member of the minor's family is willing and qualified, the court will appoint another qualified person.

Notwithstanding this, if the minor's last surviving parent, by will or written declaration designates a person to serve as guardian, the court will appoint that person so long as the person is otherwise qualified, is willing to serve as guardian for the minor child and such appointment is not contrary to the child's best interest.

Notwithstanding this, if the minor child is at least twelve years of age, the minor may select a guardian so long as the court finds that the person selected is competent and suitable and that the appointment of the selected person is in the minor child's best interests.

 

Meet the Owner

David W. Chowins

David Chowins

David Chowins is a family law and divorce attorney with over twenty years experience in practice. He established his own law practice in the Fall of 2000 after several years practicing with two of the nation's top law firms.    

"Don't try to be the best lawyer in Texas, but rather be the best lawyer in each day in each case for each client.  That way your performance can be measured, learned from, and improved upon.  Trying to be the best lawyer period is simply an aspirational goal that can never be achieved and will not help one become a better lawyer."

David Chowins

David focuses on divorce and family law which includes estate planning, guardianship law, and probate law.  These areas often include litigation of various types including, divorce and child custody cases, probate challenges, guardianship litigiation, among other types of cases.

David also serves as both Attorney Ad Litem and Guardian ad Litem where he is tasked by the court to represent parties that have a stake in the litigation but are not present or to advise the court as to the best interest of those who can not advocate for themselves such as minors, incapacitated persons and others who may not be in a position to advocate for their own best interests.   

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Featured Article

  • Child Support Calculation in Texas

    Basic Calculation of Child Support Under Guidelines

    To determine the appropriate amount of child support in any case, the divorce lawyer will first turn to the Texas Child Support Guidelines, which incorporates use a two tiered system for calculating monthly child support.  For a parent obligor with net monthly resources of $8,550 or less, child support is calculated as a percentage of the obligor's monthly net resources--20% for one child, 25% for two children, 30% for three children, 35% for four children and 40% for five children.   For six or more children before the court, the guidelines only specify that the percentage may not be less than the percentage for five children.    If the parent paying child support has a duty to support other children, such as from a previous or subsequent marriage, the percentage is reduced according to a schedule set by statute to reflect such obligations.  The resources of the parent receiving support are not considered under the guidelines.  However, for an obligor parent with total net resources in excess of $8,550.00 per month the court may order additional amounts based upon the income of the parties and the proven needs of the child.

    Calculating Net Resources for Purpose of Child Support Calculations

    While there are similarities, it is important to note that resources for child support purposes is not the equivalent of income for tax purposes.  Generally, all sources of income are included as resources of a parent including gross wages, bonuses, interest, dividends, royalties, business profits, net rental income. pensions, trust income, social security benefits, veterans benefits (with certain exceptions), unemployment benefits, disability and worker's compensation and prizes.  In addition, amounts received as gifts, spousal maintenance and alimony are also included.  However, not included are payments representing a return of capital, receivables (i.e., amounts owed but not yet received) benefits under federal assistance programs, and payments for foster care of a child.

    The court will then deduct the following items  to determine the net resources of the parent:  1) social security taxes; 2) federal income tax withholding for a single person claiming one exemption and the standard deduction; 3) any state income tax withholding; 4) union dues; 5) expenses for court ordered health coverage of children (including dental effective 9/1/2018); and 6) if the person does not pay social security tax, any non discretionary retirement plan contributions. 

    Variations from the Texas Child Support Guidelines

    Court's will typically follow the Texas Child Support Guidelines in calculating child support.  Such calculations are presumptively fair and equitable.  However, district courts are have broad discretion to consider other factors in setting child support payments upon a finding that the evidence warrants departure from the presumptive amount as calculated from the guidelines.  Absent abuse of discretion, the district courts can consider any factor it deems relevant including the following:

    (1) the age and needs of the child;
    (2) the ability of the parents to contribute to the support of the child;
    (3) any financial resources available for the support of the child;
    (4) the amount of time of possession of and access to a child;
    (5) the amount of the obligee's net resources, including the earning potential of the obligee if the actual income of the obligee is significantly less than what the obligee could earn because the obligee is intentionally unemployed or underemployed and including an increase or decrease in the income of the obligee or income that may be attributed to the property and assets of the obligee;
    (6) child care expenses incurred by either party in order to maintain gainful employment;
    (7) whether either party has the managing conservatorship or actual physical custody of another child;
    (8) the amount of alimony or spousal maintenance actually and currently being paid or received by a party;
    (9) the expenses for a son or daughter for education beyond secondary school;
    (10) whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity;
    (11) the amount of other deductions from the wage or salary income and from other compensation for personal services of the parties;
    (12) provision for health care insurance and payment of uninsured medical expenses;
    (13) special or extraordinary educational, health care, or other expenses of the parties or of the child;
    (14) the cost of travel in order to exercise possession of and access to a child;
    (15) positive or negative cash flow from any real and personal property and assets, including a business and investments;
    (16) debts or debt service assumed by either party; and
    (17) any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents

    Your divorce lawyer will examine each of these and other factors to determine whether or not to seek a variance from the child support amount as calculated by the Texas Child Support Guidelines.