Today’s blog post will be a continuation of yesterday’s where
we discussed some basic information about
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.