Examining the Rights and Duties of Texas Parents, Part Two

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 similar situation.

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 rights and 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 child’s life.

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:

  1. 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 child support.
  2. 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 necessary.
  3. 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.
  4. 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.

The 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.

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