Texas Family Law Courts: Child Custody Essential Knowledge

Today’s blog post will be a continuation of yesterday’s where we discussed some basic information about divorce, custody and conservatorship in Texas. While we cannot hit on every subject that may be relevant to your family or to your divorce, we hope to at least get through many subjects that will be relevant to many people. With that said, let’s begin our discussion today by going over information regarding where your child may be residing after your divorce.

Where exactly will your child reside after the divorce is finalized

Many people get divorced just to ensure that their child will not longer have to be exposed to fights between themselves and their spouse. It is unfortunate that people have to make life altering decisions like this but they happen with regularity. While there are assumptions that the mother always ends up with having the child stay with her after a divorce this is not always the case. If you are a father who is interested in having your child reside with you primarily after your divorce then this section is for you.

One of the rights that are inherent in any conservatorship is the ability to determine the primary residence of the child. This is a right that is typically either agreed to by the parties or assigned by the judge after a trial is had. The old stereotype is that the mother always wins the battle to be named primary conservator. While this is often true, it is only the case to the extent that the mother is typically the parent who wants to be named the primary conservator and has also served in this capacity while the parties were living together.

If you as a father want to be named the primary conservator and have the right to determine the primary residence of the child then it is up to you to come into the divorce with a history of caring for your child on a level that is equal to that of your wife. If you were working most of the time your child was home during your marriage then don’t expect the judge to allow you time to make up for that. Come in to the divorce with a strong case to become the primary parent and there’s a strong case to be made that you should be.

What happens if your spouse is named Sole Managing Conservator

Suppose that in your divorce your spouse is named Sole Managing Conservator. We discussed yesterday that the default setting for parents is to be named Joint Managing Conservators. That designation allows parents to share equally (in most things) in decision making, rights and duties to their child. Sole Managing Conservators do not share equally on these fronts due to the past behavior of one spouse. If you are involved in a divorce and the judge names your spouse as sole managing conservator this will not end the relationship between yourself and your child, however.

The court’s main goal is to encourage the continued relationship between parents and children in a divorce. Possession and access with your child does not necessarily have to be affected by your being only a possessory conservator of your child versus your spouse being named sole managing conservator. The Texas Standard Possession Order outlines that the first, third and fifth weekends of each month are yours to have your child as well as extended periods of time during the summer months. Holidays and Spring Break are alternated between you and your spouse as well.

What is a geographic restriction?

Suppose, on the other hand, that you are named the parent with the ability to determine the primary residence of your child after a trial. While this is great news for you it does not come without limitation. It is likely that you will be restricted to where you can live in order to give your ex spouse an opportunity to live close to your child.

For example, without a geographic restriction you would be able to pick up and move with any frequency that you choose to any location that you choose. This would put your ex spouse in a position where he or she would have to move every time that you do in order to keep up and keep near to your child. This is no way to create a stable and consistent home for your child and therefore the majority of final orders mandate that your home will be restricted either to the county in which you reside or the county in which you reside as well as the adjoining counties to your home county.

Will your child be able to tell the judge where he or she wants to live?

This is another question that I field pretty frequently from clients and prospective clients of the Law Office of Bryan Fagan. Many parents believe that after one or two “talks” about the subject that their child is hell-bent on living with him or her and not the other parent. It’s with this information in mind that he or she will confidently stroll into our office with the preference of their child as to where he or she lives fresh in their mind.

Unfortunately, I have to tell them that their divorce may not be made any easier even with this information in mind. First of all, children over the age of 12 have to be able to speak with the judge if a parent requests it or the judge requests it on their own motion. Children younger than 12 may also confer with the judge in their office but it is up to the judge to determine if the request will be granted.

What each judge discusses with each child is anybody’s guess, but the judge does not have to listen to or make their decision based on what the child says. The opinion of the child will be a part of the information that the judge utilizes to make the decision as to which parent the child will live with primarily.

Questions on child support? Come back tomorrow to learn more

The every important subject of child support will be discussed in tomorrow’s blog post from the Law Office of Bryan Fagan. In the meantime, if you have any questions about family law in Texas please do not hesitate to contact our office. A free of charge consultation with one of our licensed family law attorneys is available six days per week.

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