When clients come into the
Law Office of Bryan Fagan to discuss their
family law questions and problems it is frequent that I will hear him or her use
the term “fight” or “war” or “battle”
to describe what is going on at home. As a parent, I can understand how
emotionally involved these folks feel about their children and their family.
If you’re reading this blog post you probably find yourself in a
For the purposes of this blog, and your family law case as a whole I would
caution you to take a step back from using that sort of language, however.
When we are discussing your
duties to parent your child it is inherently personal. That much is obvious.
It is easy to fall into a trap that parenting your little boy or girl
is a “zero sum” game. This means that for you to gain a right
to do something, you must take away the same right of your child’s
other parent. If the situation were like this then using terms like “war”
or “battle” may actually make sense.
Don’t seek out a custody battle and the odds are good one won’t find you
The simple fact is that the
Texas Family Code does not allocate rights and duties between parents in a manner that should
lend itself to courtroom fights and acrimony. At this point I will say
that if you are meeting with a lawyer to discuss your case and the lawyer
seems to be a little too excited to do exactly that then I would probably
think twice before hiring him or her. In most situations it is in the
best interests of your child for you and the other parent to be named
joint managing conservators. If either you or the other party disagree with that opinion then a judge
will likely be forced to tell you the same thing in a hearing or trial.
To piggy-back off yesterday’s blog post on rights and duties of parents
in Texas, it would then make sense that most of the rights that you and
the other parent hold are to be shared jointly. When you are raising a
child together with another person there are few times that you should
be making major decisions for the child exclusive of the other parent’s
input. I know that if I unenrolled my daughters from their school and
put them in a brand new school and my wife had no say-so in the matter
she would be none too pleased. It would follow then that since you didn’t have the
exclusive right to make major decisions for the child before the divorce then your life
after the divorce should not be much different.
If you enter into a family law case where rights and duties to parent your
child are in question my advice would be to truly and honestly assess
what is in the best interests of your child. From a family law attorney’s
perspective, in the middle of a difficult
child custody or divorce case it can be tempting to push for an exclusive rights for
your client. Unless the situation demands it (and it rarely does) exclusive
rights are not in the best interest of your child from my experience.
Jointly held rights and duties will encourage co-parenting where possible
and will force both parents to take an active and involved role in their
A hypothetical breakdown of rights and duties for Texas parents
Here is a breakdown of how I would envision rights and duties to be split
between parents. It could be that this manner of dividing up rights and
duties would not work for you and your child’s other parent and
that’s ok. Your particular situation can be discussed in greater
detail at no charge to you with one of the Law Office of Bryan Fagan’s
family law attorneys. With that said, here is how I breakdown rights and
duties for Texas Parents:
Child Support- The right for one parent to receive child support and one parent to pay
child support is pretty straightforward. I can’t recall any situation
that didn’t call for one parent to have the exclusive right to pay
and the other parent to have the exclusive right to receive payments for
Primary Residence of the Child- We’re starting this list off with all the situations
where an exclusive right for one parent or the other should be installed.
Here, if you and your child’s other parent can agree to a geographic
restriction or other mechanism that will allow either you or the other
parent to share this right jointly then an exclusive designation is not
- Underage enlistment in the armed services and marriage. I have never had
a client where this was an issue but it may be relevant to your situation.
This is a right that is best held jointly with the other parent. The situations
where it is in a child’s best interest to enroll in the military
or get married before age 18 are few and far between. If your ex-spouse
doesn’t understand that then your child will thank you later that you do.
- All remaining rights and duties should be held independently until a major
conflict arises that cannot be worked out between yourself and the other
parent. In which case, a judge would most likely end up ordered you and
the other parent to work together jointly moving forward. This will force
you and the other parent to co-parent and encourages the close and sustained
contact with each parent that your child craves and the State of Texas
desires to be in place.
Conclusion: Play nice in the parenting sandbox and your child will benefit
If you have it in your mind that you need the exclusive right to do something
for or with your child then you can bet dollars to donuts that you will
wind up back in court with a lawsuit filed by the other parent once your
original case is done. On the other hand, if you see your rights and duties
as ones to be shared with the other parent then it is likely that the
child will benefit from having more contact with both parents.
Law Office of Bryan Fagan is available six days per week to meet with you to discuss your particular
questions in the field of
family law. Our consultations are free of charge and we would be honored to speak
to you about your case and the possibility of representing you.