Child Custody and Visitation

Child Custody & Visitation Lawyer in Houston, TX

Child custody or “conservatorship” is a complex part of Texas family law. At the outset of divorce, many parents can agree on where the children will live and what type of visitation they will follow.  When parents cannot agree, the courts act in the children’s best interest.  In the latter case, you must hire a Houston child custody lawyer experienced in litigating complex child custody cases.

Child Custody and Visitation Lawyer in Houston, TX

Who will get custody of the children once I file for divorce?

In a divorce, neither parent has an automatic or superior right to designate the children’s primary residence.  Until a hearing can be held, each parent has an equal right to be with the children but should refrain from upsetting the children’s daily routine.  A temporary restraining order (TRO) is usually issued automatically by the court when a divorce petition is filed forbidding both parents from removing the children from school or hiding them from the other parent.  A temporary restraining order does not typically award parent-child custody unless allegations of abuse or neglect are present.  For most parents fighting over child custody, a temporary orders hearing will be their first introduction to the judge.  At that hearing, a judge will hear testimony and look at evidence to determine where the children will live temporarily until the case is resolved.

How does child custody work in Texas?

In Texas, custody is referred to as conservatorship. Conservatorship describes a parent’s legal rights, duties, and responsibilities regarding their children. Historically, one parent was named a Sole Managing Conservator and the other a Possessory Conservator. The Sole Managing Conservator (SMC) had the exclusive right to make all major decisions regarding the children. The Possessory Conservator had visitation rights only.  As of September 1, 1995, the legal presumption in Texas is that the parents should be named Joint Managing Conservators (JMC). The effect of this presumption is that the rights and duties of parents are to be shared.  Plainly stated, if there are no credible allegations of abuse, neglect, or drug use, parents will be considered “fit” under the law and named Joint Managing Conservators.

What rights do I have as a Joint Managing Conservator of my child?

Chapter 153 of the Texas Family Code sets out the rights of parents and how they are to be allocated.  The most commonly litigated rights are:

  • To determine where the children live;
  • To  make invasive medical decisions;
  • To make psychological and psychiatric decisions;
  • To make educational decisions; and
  • To receive child support

The rights mentioned above can be:

  • Joint (parents must agree before making decisions);
  • independent (each parent can make decisions on their own); or
  • Exclusive (one parent has the sole right to decision-making)

Can parents share physical custody of children in Texas?

Yes.  The Texas Family Code does allow parents to agree that a geographical area will be the “primary residence” of the children.  In short, neither parent has the exclusive right to say where the children live so long as they reside within a specified area, usually a school district.   This may be accomplished by agreement only, normally done in mediation, as the law does not give the courts authority to make such an order independently.  Shared custody can be tricky to make work logistically and should be explained to you in detail by a Houston child custody lawyer.

What is “standard” visitation?

Parents may establish customized periods of possession of the children that fit their needs and those of the children. Courts encourage parents to arrange periods of possession by agreement as much as possible. It is always advisable to remain flexible to adjust to circumstances. However, the final decree of divorce or final custody order must include a visitation schedule that will control if the parties cannot agree in the future. Agreeing on a visitation schedule is recommended if possible.

If parents cannot agree on a custom visitation schedule, the judge must order one. This is typically is the “Standard Possession Order”.  If the parties live within 100 miles of each other, this standard schedule allows for possession by the parent with whom the children do not primarily reside on the 1st, 3rd, and 5th weekends of each month from 6:00 p.m. (or the time school lets out) on Friday until 6:00 p.m. on the following Sunday (or when school resumes the following Monday); one weeknight each week from 6:00 p.m. to 8:00 p.m. (or from the time school lets out until the time school resumes on the following day).; alternating Thanksgiving and Spring Break holidays; one week at Christmas; and thirty days during the summer break. If this parent lives farther than 100 miles away, the weekend and weekday periods may be modified or omitted and he or she will have visitation every Spring Break and for six weeks of the summer break.

Often, one parent believes that the other parent’s access to the children should be restricted. This may be because the children are very young or because one parent doesn’t trust the other to care for the children properly. Although the law presumes that the Standard Possession Order is in the children’s best interest, a court can restrict a parent’s access to the children if needed.  A court’s power to restrict a parent’s access can include no overnight visitation, a schedule that increases visits over time (step-up plan), and, in severe cases, supervised access to children.  Suppose both parents do not agree to the above-mentioned restrictions. In that case, the court will order them only if it finds that such limitation is necessary for the children’s physical safety and emotional well-being. A Houston child custody lawyer can present facts to the court if restrictions are necessary. Courts often restrict overnight possession or lengthy summer periods for infants or children under three.
If you have questions regarding child custody, contact us today for a FREE consultation with a Houston child custody lawyer.

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For child custody and visitation in Houston, Texas, call The Rudisel Law Firm, P.C. Our divorce lawyers have the knowledge, trial experience, and professional staff to protect you, your family, and your property.