Child custody or “conservatorship” is a very 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 case of the latter, you will need to hire a Houston child custody lawyer who is experienced in litigating complex child custody cases.
Frequently Asked Questions:
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 primary residence of the children. 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 a 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 on a temporary basis 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 an responsibilities regarding their children. Historically, one parent was named a Sole Managing Conservator and the other parent was named 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 prior to making decisions);
independent (each parent can make decisions on their own); or
exclusive (one parent has the sole right to decision making)
How the rights are allocated in a Houston child custody case depends on how the parties co-parent. For instance, one spouse may want the exclusive right to medical decisions because they were the primary decision maker prior to divorce. Parents may want to have joint rights so that each party is involved in the decision making process. Even when rights are shared, one parent will usually have the exclusive right to designate the residence of the children, decide what school they are enrolled in and receive child support. This is commonly referred to as the “primary parent”.
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 withing 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 on their own. Shared custody can be very 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 fits their needs and those of the children. In fact, courts encourage parent 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 times one parent believes that the other parents 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 parent take proper care of the children. 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 the need arises. A court’s power to restrict a parent’s access can include; no overnight visitation, a schedule that increases in visits over time (step-up plan) and in severe cases, supervised access to children. If the above mentioned restrictions are not agreed to by both parents, the court will order them only if it finds that such limitation is necessary for the physical safety and emotion well being of the children. A Houston child custody lawyer will be able to present facts to the court if restrictions are necessary. Courts will often restrict overnight possession or lengthy summer periods for infants or children under the age of 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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