Texas Family Law Courts: How a court determines child custody in a divorce

By far the most frequent question that I field from potential clients of the Law Office of Bryan Fagan has to do with custody. Concerned parents come to talk to us all the time about how their impending divorce will affect the lives of their children. The word that parents use frequently is “custody” to frame their questions.

What about sole custody? How do I get that if I don’t trust my spouse to take care of the kids after the divorce? Or what about split custody? I want to see my kids just as much as my wife once the divorce is finalized. Custody is on the lips of almost every parent that walks through our door.

Would it surprise you to learn that the word “custody” doesn’t appear in the Texas Family Code even one time? This is absolutely true. What we all commonly think about when we use the word “custody” is encompassed by the word “conservatorship” in our state laws regarding the relationship between children and their parents/guardians.

Broadly speaking conservatorship has mostly do with the rights and duties that parents/guardians have in raising a child. How these rights, duties and other aspects of parenting relate to your divorce will be the subject of today’s blog post.

What does conservatorship mean for you and your children?

Being a conservator of a child means that you have the ability to make decisions for that child until he or she reaches the age of majority. Where your child lives primarily, where the child will attend school, decisions regarding medical procedures and decisions regarding mental health and psychiatric treatment are all important aspects of any discussion on conservatorship. These are the meat and potatoes issues of parenting a child in Texas.

The type of conservator that you are determines the breadth of responsibility and ability, in general, to make these sort of decisions for your child, or at least be involved in the discussion with your ex-spouse after your divorce. Parents can share these sort of rights, and in the interest of full disclosure typically do share in these sort of rights absent extreme circumstances.

Should a court deem it in the best interest of your child, you may hold certain rights that your spouse does not and vice versa. In the event that you and your spouse do not agree on how to allocate these rights and duties to raising your child it will be left up to a judge to make those determinations for your family.

Visitation, Possession, and Access: How these subjects relate to one another in a family law case

The term visitation seems straightforward enough. It doesn’t take a detective to figure out that visitation has to do with either your or your spouse’s ability to visit and spend time with your child. The concept of visitation is wrapped up inside possession and access to your child in a Texas family law case.

Possession more specifically refers to your and your spouses right to have actual, physical possession of your child during a certain time period that is predetermined by your Final Decree of Divorce.

Instead of coming up with a schedule on the fly, your divorce decree will very specifically lay out a visitation schedule that you and your spouse will be expected to follow. However, if you and your spouse are able to work together after the divorce on modifications where need be, that is probably the best case scenario for both of you and your child.

What can your spouse and you agree to in the context of visitation/conservatorship

You and your spouse are free to hammer out an agreement between yourselves and your attorneys that do not involve the court and a judge one bit. As I stated a moment ago, this is by far the best case scenario as you all will be much better equipped to do so as compared to a judge.

While well-meaning, a judge will not have the time to learn enough about you and your family, even after a trial, to make a well-informed decision when compared to your spouse and yourself.

It is not enough, however, to tell a judge that you and your spouse will “play it by ear” after the divorce as far as a possession schedule is concerned. The State of Texas has within the Texas Family Code a Standard Possession Schedule that you can mimic or you all can come up with your own arrangement based on your particular family circumstances.

Joint Managing Conservatorship is not the same as split custody

As parents, what we want most with our child is time- or so we think. While spending time with our kids is important what we really need is the ability to play a role in their upbringing in the form of decision-making abilities. A joint managing conservatorship is the default setting for parents in Texas as far as sharing in the rights and duties to parenting your child.

What this means is that except for a few differences, you and your spouse can have pretty much equal say in raising your child and determining the course of his or her young life.

This does not mean that you and your spouse will necessarily have “split custody”. If you want to have your child as much as your spouse it is likely that you all will have to think up and agree to a means of sharing custody that is outside what the Texas Standard Possession Order sets forth. This may not be a problem, but it will require some negotiation

Conservatorship will be discussed tomorrow on this blog as well

Come on back for a continuation of our discussion regarding conservatorship tomorrow. The Law Office of Bryan Fagan wants to provide you with the resources and information to assist you in learning about your family law case. If you have any questions about this subject or any other in family law please do not hesitate to contact our office today.

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Other Articles you may be interested in regarding Houston Court Local Rules:

  1. 3 Important Facts about Texas Alimony and Spousal Support
  2. Alimony or Spousal Support and a Disabled Spouse in Harris and Montgomery Counties in Texas
  3. Texas Family Law Courts: Temporary Orders in a Divorce case
  4. Texas Family Law Courts: Beginning the Divorce Process
  5. Texas Family Law Courts: Divorce essentials
  6. Texas Family Law Courts: Mediation and Divorce Essentials
  7. Texas Family Law Courts: What to Expect
  8. Harris County, Texas Family Law Court - 245TH Judicial District Local Rules
  9. 247TH Judicial District Local Rules
  10. 246TH Judicial District Local Rules
  11. Harris County, Texas Family Law Court - 308TH Judicial District Local Rules
  12. Harris County, Texas Family Law Court - 257TH Judicial District Local Rules
  13. Why is Separate Property Important and How to Keep it Separate in a Texas Divorce?

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.

Our 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, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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