Children’s issues can be some of the most hard fought and contentious
parts of a
Texas divorce. It is not uncommon for parents going through a divorce not to care about
anything but the children. It is not uncommon for there to not to be any
property or property issues and the only issue is the children.
Generally, the concern is expressed in either trying to get custody or
protect their rights as a parent. I am often asked what they should be
doing to prepare for the upcoming court case. I often give parents homework
on what they should start doing immediately at its most basic level it
comes down to knowing and being involved with their children.
In today’s blog post we will discuss the parts of a
Texas custody case and what a parent can do to prepare.
Prepare as if You are Going to Trial
A good way to approach a
custody case even when agreement is expected is prepare as if the case will be going
to trial. Most cases never go to trial and end up settling. However, many
cases do make it as far as a Temporary Orders hearing.
Do not let the name “Temporary Orders” fool you into thinking
it is not an important hearing. You could be living with the orders that
result from this hearing for a year or more. The decisions a judge makes
in this hearing are often the same ones a judge will make in final trial.
Custody Cases can be Extremely Expensive
The cases involving contested
custody issues are:
- Incredibly Expensive
- Time Consuming and
- Mentally Exhausting
I have had cases where the parties involved had no property and the only
issues were involving the children. They were unable to agree so multiple
court battles later they had both spent more than $20,000 each on attorneys.
What sort of things should you be doing to prepare?
One way to start preparing is to keep a detailed journal about:
- The activities of both yourself and your spouse
- Who is tending to the daily needs of the children
Daily needs of the children could include a variety of things such as:
- Dressing the children
- Preparing meals
- Taking or picking up the children from school
- Attending parent teacher conferences
- Taking the children to the doctor
- Taking the children or picking up the children from activities
Custody & Conservatorship - What Does Custody mean in Texas?
A good place to begin your custody case is to know what custody means in
Texas. A good place to begin is that in Texas we do not have
custody we have conservatorship. In Texas under the Family Code is presumed that
parents should be Joint Managing Conservators.
Presumption of Joint Managing Conservatorship
When You look at Texas Family Code Section 153.131 it states:
(a) Subject to the prohibition in Section 153.004, unless the court finds
that appointment of the parent or parents would not be in the best interest
of the child because the appointment would significantly impair the child's
physical health or emotional development, a parent shall be appointed
sole managing conservator or both parents shall be appointed as joint
managing conservators of the child.
(b) It is a rebuttable presumption that the appointment of the parents
of a child as joint managing conservators is in the best interest of the
child. A finding of a history of family violence involving the parents
of a child removes the presumption under this subsection.
This means that if a parent is asking to be sole managing conservator of
the children they have an added burden of showing the court why both parents
should not be joint managing conservators. A parent would have to show
that by appointing the parents joint managing conservators would somehow:
- significantly impair the child's physical health or
- emotional development
In some cases, there are facts that make a Judge more likely to find that
this burden has been reached such as:
- One of the parents is a registered sex offender
- Has committed family violence, or
- Has a huge problem with drugs that is well documented with several people
willing to testify against them
However, just because a parent is awarded sole managing conservatorship
does not mean they will not have visitation.
Visitation may be restricted depending on the facts. There are very few cases where
a judge will keep a former spouse from having some sort of contact with
Sometimes spouses ask about terminating the rights or giving up their rights
as a parent. This scenario is generally even more unlikely than the above
scenario. This is the case in most circumstances even if both parents agree.
Rights and Duties of a Parent
Texas Family Code Section 151.001 sets out the basic rights and duties
of parents. Under this section of the code a parent of a child has the
following rights and duties:
(1) the right to have physical possession, to direct the moral and religious
training, and to designate the residence of the child;
(2) the duty of care, control, protection, and reasonable discipline of
(3) the duty to support the child, including providing the child with clothing,
food, shelter, medical and dental care, and education;
(4) the duty, except when a guardian of the child's estate has been
appointed, to manage the estate of the child, including the right as an
agent of the child to act in relation to the child's estate if the
child's action is required by a state, the United States, or a foreign
(5) except as provided by Section 264.0111, the right to the services and
earnings of the child;
(6) the right to consent to the child's marriage, enlistment in the
armed forces of the United States, medical and dental care, and psychiatric,
psychological, and surgical treatment;
(7) the right to represent the child in legal action and to make other
decisions of substantial legal significance concerning the child;
(8) the right to receive and give receipt for payments for the support
of the child and to hold or disburse funds for the benefit of the child;
(9) the right to inherit from and through the child;
(10) the right to make decisions concerning the child's education; and
(11) any other right or duty existing between a parent and child by virtue of law.
Who gets to make the decisions?
Part of the
Texas divorce process revolves around how these rights will be shared by the parents. Before
a court makes orders regarding the children it can be a very difficult
and unsettling time for parents if they are fighting.
Things are normally much better once it is decided by a court which parent
will get to make decisions such as which parent can determine the primary
residence of the child. As with most matter regarding the children these
rights are divided based on the courts determination of the “best
interest of the child.”
The Texas Family Code Section 153.002 specifically states 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.
How is the Best Interest of the Child Determined?
One of the most cited case regarding best interest is the Texas Supreme
Court's 1976 decision Holley v. Adams. The Court wrote that certain
factors to consider in ascertaining the best interest of a child include
- the desires of the child
- the emotional and physical needs of the child now and in the future
- the emotional and physical danger to the child now and in the future
- the parenting abilities of the individuals seeking custody
- the programs available to assist those individuals to promote the best
interest of the child
- the plans for the child by these individuals or by the agency seeking custody
- the stability of the home or proposed placement
- the acts or omissions of the parent which may indicate that the existing
parent-child relationship is not a proper one
- any excuse for the acts or omissions of the parent
These are not the only factors a court can consider when making a “best
interest” determination. Nevertheless, the Holley Factors provide
a framework for analyzing “best interest.”
Are Child Support and Visitation Connected?
No, if your review Texas Family Code Section 153.001 it states the following:
a) The public policy of this state is to:
(1) assure that children will have frequent and continuing contact with
parents who have shown the ability to act in the best interest of the child;
(2) provide a safe, stable, and nonviolent environment for the child; and
(3) encourage parents to share in the rights and duties of raising their
child after the parents have separated or dissolved their marriage.
(b) A court may not render an order that conditions the right of a conservator
to possession of or access to a child on the payment of child support.
As you can see 153.001(b) specifically says that a court is not allowed
to make an order that conditions the right of a conservator to possession
of or access to a child based on the payment of support.
The payment of child support is not conditional based upon visitation and
visitation is not conditional based on the payment of support.
Can My Child Decide Which Parent They Want to Live with?
No, your child’s preference is not binding on a Judge. The Judge
always gets to make the decision unless your case involves a jury.
The Family Code’s permissible interviewing mechanisms is found in
section 153.009. This statute allows the court to conduct precisely what
the section heading says, “interview of child in chambers.”
Tex. Family Code § 153.009.
The statute explains the purpose of the interview as being “to determine
the child’s wishes.” A child’s preference can be considered
by a judge. However, it is not binding on a judge. A judge will consider
the child’s preference against what is in “the best interest
of the child.”
This can sometimes be a dangerous option to use because:
- A child may say they want to live with the other parent. If this happens
it will not help your case and may in fact work against you.
Judges do not get excited about meeting with children and judges sometimes
hold it against the requesting party. I am aware of at least one judge
whose parents went through a contentious
custody battle and made him meet with a judge when he was a minor. That is something
he was not happy about as a child and so has carried that with him as a judge.
If you want to know more about what you can do,
CLICK the button below to get your
“16 Steps to Help You Plan & Prepare for Your Texas Divorce”
Other Articles you may be interested in:
- 12 Texas Custody & Conservatorship Battle Tips
- Child Custody Basics in Texas
- Roadmap of Basic Divorce Procedure in Texas
- Child Custody Basics in Texas
- 6 Mistakes that can Destroy Your Texas Divorce Case
- 10 Quick Tips About Parental Visitation
- Help!! My Ex-Spouse Kidnapped my Child
- Who gets to keep the kids while the divorce is pending in Texas
When Can a Minor Child Weigh in on Custody Decisions in Texas?”
Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers
The Law Office of Bryan Fagan routinely handles matters that affect children
and families. If you have questions regarding
divorce, it's important to speak with one of our
Houston, TX Divorce Lawyers right away to protect your rights.
divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and
developing a strategy to meet those goals.
Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online
form. The Law Office of Bryan Fagan handles
Divorce cases in Houston, Texas, Cypress, Klein,
The Woodlands, the FM 1960 area, or surrounding areas, including
Fort Bend County and