For many parents, the issue of child custody instills great anxiety. Fortunately, this anxiety is often the product of the unknown. In its simplest terms, custody is comprised of two components; conservatorship and possession.
There is the presumption in Texas that both parents should be appointed joint managing conservators. Many parents misinterpret joint to mean that the parents will split possession of the child 50-50. This is not necessarily the case. Rather, when parties are named joint managing conservators, certain rights are granted to both parents. Each joint managing conservator is typically granted the following rights at all times
- The right to receive information from any other conservator concerning the child’s health, education, and welfare
- The right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child
- The right to access the child’s medical, dental, psychological and educational records
- The right to consult with the child’s physician, dentist, or psychologist
- The right to consult with school officials concerning the child’s welfare and educational status, including school activities
- The right to attend school activities
- The right to be designated on the child’s records as a person to be notified in case of an emergency
- The right to consent to medical, dental and surgical treatment during an emergency involving an immediate danger to the health and safety of the child
- The right to manage a child’s estate created by the parent or the parent’s family
Other rights, such as the right to designate the primary residence of the child, the right to receive child support and to make educational decisions, are rights that may be awarded to one, or to both parties. In every case involving children, the court’s primary duty is to determine what is in the child’s best interest; a concept which is further explained below.
There are situations where the court will not appoint joint managing conservators, and instead appoint a sole managing conservator and a sole possessory conservator. This occurs when the court finds that the parents cannot co-parent, or when there has been family violence.
Another presumption in Texas is that the entry of Standard Possession Order (SPO), is in the best interest of the child. This is a visitation order, and it sets the schedule for each parent’s time of possession with the child.
Terms of the basic SPO allows the noncustodial parent to have possession of the child during the regular school term, a couple of hours every Thursday night; on the first, third and fifth weekends of each month; on alternating holidays, and at least one month in the summer. Most possession orders use an expanded SPO.
An expanded SPO allows the noncustodial parent to take possession of the child during the regular school term, on Thursdays when the child is dismissed from school and to return the child to school on the following Friday. The non-custodial parent’s periods of possession commence when the child’s school is dismissed on the first, third and fifth weekends of each month, and ends on the following Monday when school resumes. When there is a high conflict divorce, it is usually best to try to make all exchanges of the child at school
Circumstances and schedules are sometimes not workable by the use of an SPO. When this occurs, we craft different possession schedules to meet the needs of the parties and the child.
It is important to note that whatever schedule is entered, parents can typically agree to any schedule that works for both of them. If they can’t agree, then they must follow the court order in place.
“Best Interest” Standard
The “best interest” standard is the standard used by the Court to make decisions that affect the child. For instance, if one parent has not actively participated in the child’s upbringing, the court may be less likely to name that parent as the custodial parent (the parent with primary custody), finding that it is in the child’s best interest to reside with the parent who has historically provided most of the child’s care.
Our approach is to always prepare, prepare and prepare. Child custody cases are very fact driven. We often tell our clients that by the time they’ve retained our services, that they’ve set the groundwork for a successful or unsuccessful campaign to obtain primary custody of their child. It is our job to present these facts in a manner in which they will be understood by the judge or jury and to show why it is in the child’s best interest to live with our client. Does this mean that every person that walks into our door is going to get what he or she wants? Absolutely not. It means that we will be honest with you in our evaluation of your case and that we will work as hard as we can to fight for the best interest of your child. We will listen to you, weigh the facts, and then devise a strategy and then institute that strategy to maximize your opportunities to be successful in the legal arena.