Child Custody Essential Information
Child custody is the most difficult and emotionally charged aspect of family law. Whether the custody fight is part of a divorce or a separate legal matter, child custody is a parent’s worst nightmare. From mothers who are threatened with losing their children to fathers who feel their rights are being taken away, knowing more about the process helps.
Child Custody Essential Information: What is Conservatorship?
Basically, child custody is a court order providing how each parent is involved in caring for their child(ren). In Texas, our laws call it conservatorship, but custody is the term most people use. Each case is unique, but a good rule of thumb to understand is that, according to Texas Family Code Section 153.002 makes it clear that, “the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”
The court may rule that only one parent have conservatorship — sole conservator. The court most often rules that both parents will participate in the raising of their child — joint managing conservatorship
Child Custody Essential Information: What are Rights and Duties?
Again we refer to the Texas Family Code for the specific definition of rights and duties. Essentially, each parent has certain rights regarding the child, and the ability to make certain decisions on behalf of the child. In addition, each parent has specific duties, or responsibilities for the child.
Children have rights also, which is easily forgotten in the child custody process. As a reminder, Children in the Middle of Tarrant County provides this handy reminder with the Children’s Bill of Rights.
Child Custody Essential Information: What is Possession and Access
Sometimes called visitation, possession and access refers to the schedule for the time each parent spends with the child. One parent is almost always has what is called ‘primary’. This person has the right to designate the residence of the child. In a standard possession order, the non-primary parent has the child on the first, third and fifth weekend, on Thursday evening, on alternating holidays and for an extended time in the summer. The parents can agree to other arrangements, but if there is disagreement, the fallback is the standard schedule.
Expanded Standard Possession
Many families choose to utilize what is referred to as an expanded standard possession order. Generally, the expanded standard possession schedule allows the non-primary parent a greater amount of time with the child. More information about this option is outlined in the Texas Family Code, 153.317.
Non-Traditional Possession Schedule
In some cases, there is a reason the non-custodial parent cannot have a standard or expanded standard schedule. The child may require special care, the parent may not be able to properly care for the child, or there may be another reason to have a non-traditional schedule. If a parent travels extensively, a non-standard order may be necessary.
If there is a history of child abuse or neglect or there is a significant threat to the well-being of a child, the judge may order supervised visitation. Typically supervised visits are a temporary step which can be gradually stopped as certain criteria are met. Supervised visitation may require that a parent complete drug or alcohol rehabilitation, counseling or therapy prior to having unsupervised visits with a child.
Child Custody Essential Information: What is ‘Best Interest of the Child’?
Texas judges ultimately look to the best interest of the child in making a ruling on child custody matters. There is no specific, concrete list of items to check off concerning what defines best interest. However, it is presumed that the best interest of the child consists of some combination of the following criteria:
- ability to ensure safety
- ability to foster well-being
- ability to offer physical nurturing
- ability to encourage positive mental development
- ability to demonstrate parenting skills
- ability to maintain family relationships
This last item, family relationships, refers to the court’s perception of how the child is allowed to receive positive parenting from both parents. Judges want children to have the benefit of both parents unless there is a danger to the child. Judges want to see effective co-parenting. Judges do not want to see parental alienation.
Child Custody Essential Information: Can My Child Decide Which Parent to Live With?
In 1976, the Texas Supreme Court’s decision in Holley v Adams listed a number of factors to consider in determining best interest of the child, including the desires of the child. As this decision has become part of our legal system, and our social culture,many people believe it means the child can choose where to live. Or it means that a child over a certain age can choose to live with one parent or another. Not true. A minor child cannot choose his or her residence.
This does not mean that the child’s wishes are not considered. If your child is at least 12, and your attorney requests it, the judge will talk to the child. The judge will want to assess a child’s maturity and intelligence. The judge will ask the child why one household is better than the other. Bear in mind that judges understand a child may be choosing a household with no rules over a more strict household. A child may choose the parent who gives more financial incentives, and judges recognize this as well.
After speaking with the child AND reviewing all of the evidence, the judge will rule based on the best interest of the child.
Child Custody Essential Information: What Should I Have in My Order?
- First and foremost, the arrangement you and the other parent make should be in the best interest of your child.
- Second, the order should be very clear so that there is no room for miscommunication. Clarity will also benefit you in the unhappy event of an enforcement proceeding down the road.
- Third, the order should be something you can comply with. If you work until 5:30 p.m. and your child has to be picked up by 5:00 p.m., the odds are you will not be able to comply with the order.
- Fourth, remember that you and the other parent can agree to anything that works for your specific family. Just be sure to adhere to items one through three.
Get More Child Custody Essential Information Today from an Experienced Child Custody Attorney!