Children’s issues can be some of the most hard fought and contentious parts of a Texas divorce. It is not uncommon for parents going through a divorce not to care about anything but the children. It is not uncommon for there to not to be any property or property issues and the only issue is the children.
Generally, the concern is expressed in either trying to get custody or protect their rights as a parent. I am often asked what they should be doing to prepare for the upcoming court case. I often give parents homework on what they should start doing immediately at its most basic level it comes down to knowing and being involved with their children.
In today’s blog post we will discuss the parts of a Texas custody case and what a parent can do to prepare.
Prepare as if You are Going to Trial
A good way to approach a custody case even when agreement is expected is prepare as if the case will be going to trial. Most cases never go to trial and end up settling. However, many cases do make it as far as a Temporary Orders hearing.
Do not let the name “Temporary Orders” fool you into thinking it is not an important hearing. You could be living with the orders that result from this hearing for a year or more. The decisions a judge makes in this hearing are often the same ones a judge will make in final trial.
Custody Cases can be Extremely Expensive
The cases involving contested custody issues are:
- Incredibly Expensive
- Time Consuming and
- Mentally Exhausting
I have had cases where the parties involved had no property and the only issues were involving the children. They were unable to agree so multiple court battles later they had both spent more than $20,000 each on attorneys.
What sort of things should you be doing to prepare?
One way to start preparing is to keep a detailed journal about:
- The activities of both yourself and your spouse
- Who is tending to the daily needs of the children
Daily needs of the children could include a variety of things such as:
- Dressing the children
- Preparing meals
- Taking or picking up the children from school
- Attending parent teacher conferences
- Taking the children to the doctor
- Taking the children or picking up the children from activities
Custody & Conservatorship - What Does Custody mean in Texas?
A good place to begin your custody case is to know what custody means in Texas. A good place to begin is that in Texas we do not have custody we have conservatorship. In Texas under the Family Code is presumed that parents should be Joint Managing Conservators.
Presumption of Joint Managing Conservatorship
When You look at Texas Family Code Section 153.131 it states:
(a) Subject to the prohibition in Section 153.004, unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.
(b) It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child. A finding of a history of family violence involving the parents of a child removes the presumption under this subsection.
This means that if a parent is asking to be sole managing conservator of the children they have an added burden of showing the court why both parents should not be joint managing conservators. A parent would have to show that by appointing the parents joint managing conservators would somehow:
- significantly impair the child's physical health or
- emotional development
In some cases, there are facts that make a Judge more likely to find that this burden has been reached such as:
- One of the parents is a registered sex offender
- Has committed family violence, or
- Has a huge problem with drugs that is well documented with several people willing to testify against them
However, just because a parent is awarded sole managing conservatorship does not mean they will not have visitation. Visitation may be restricted depending on the facts. There are very few cases where a judge will keep a former spouse from having some sort of contact with their child.
Sometimes spouses ask about terminating the rights or giving up their rights as a parent. This scenario is generally even more unlikely than the above scenario. This is the case in most circumstances even if both parents agree.
Rights and Duties of a Parent
Texas Family Code Section 151.001 sets out the basic rights and duties of parents. Under this section of the code a parent of a child has the following rights and duties:
(1) the right to have physical possession, to direct the moral and religious training, and to designate the residence of the child;
(2) the duty of care, control, protection, and reasonable discipline of the child;
(3) the duty to support the child, including providing the child with clothing, food, shelter, medical and dental care, and education;
(4) the duty, except when a guardian of the child's estate has been appointed, to manage the estate of the child, including the right as an agent of the child to act in relation to the child's estate if the child's action is required by a state, the United States, or a foreign government;
(5) except as provided by Section 264.0111, the right to the services and earnings of the child;
(6) the right to consent to the child's marriage, enlistment in the armed forces of the United States, medical and dental care, and psychiatric, psychological, and surgical treatment;
(7) the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
(8) the right to receive and give receipt for payments for the support of the child and to hold or disburse funds for the benefit of the child;
(9) the right to inherit from and through the child;
(10) the right to make decisions concerning the child's education; and
(11) any other right or duty existing between a parent and child by virtue of law.
Who gets to make the decisions?
Part of the Texas divorce process revolves around how these rights will be shared by the parents. Before a court makes orders regarding the children it can be a very difficult and unsettling time for parents if they are fighting.
Things are normally much better once it is decided by a court which parent will get to make decisions such as which parent can determine the primary residence of the child. As with most matter regarding the children these rights are divided based on the courts determination of the “best interest of the child.”
The Texas Family Code Section 153.002 specifically states that the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.
How is the Best Interest of the Child Determined?
One of the most cited case regarding best interest is the Texas Supreme Court's 1976 decision Holley v. Adams. The Court wrote that certain factors to consider in ascertaining the best interest of a child include the following:
- the desires of the child
- the emotional and physical needs of the child now and in the future
- the emotional and physical danger to the child now and in the future
- the parenting abilities of the individuals seeking custody
- the programs available to assist those individuals to promote the best interest of the child
- the plans for the child by these individuals or by the agency seeking custody
- the stability of the home or proposed placement
- the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one
- any excuse for the acts or omissions of the parent
These are not the only factors a court can consider when making a “best interest” determination. Nevertheless, the Holley Factors provide a framework for analyzing “best interest.”
Are Child Support and Visitation Connected?
No, if your review Texas Family Code Section 153.001 it states the following:
a) The public policy of this state is to:
(1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;
(2) provide a safe, stable, and nonviolent environment for the child; and
(3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.
(b) A court may not render an order that conditions the right of a conservator to possession of or access to a child on the payment of child support.
As you can see 153.001(b) specifically says that a court is not allowed to make an order that conditions the right of a conservator to possession of or access to a child based on the payment of support.
The payment of child support is not conditional based upon visitation and visitation is not conditional based on the payment of support.
Can My Child Decide Which Parent They Want to Live with?
No, your child’s preference is not binding on a Judge. The Judge always gets to make the decision unless your case involves a jury.
The Family Code’s permissible interviewing mechanisms is found in section 153.009. This statute allows the court to conduct precisely what the section heading says, “interview of child in chambers.” Tex. Family Code § 153.009.
The statute explains the purpose of the interview as being “to determine the child’s wishes.” A child’s preference can be considered by a judge. However, it is not binding on a judge. A judge will consider the child’s preference against what is in “the best interest of the child.”
This can sometimes be a dangerous option to use because:
- A child may say they want to live with the other parent. If this happens it will not help your case and may in fact work against you.
- Judges do not get excited about meeting with children and judges sometimes hold it against the requesting party. I am aware of at least one judge whose parents went through a contentious custody battle and made him meet with a judge when he was a minor. That is something he was not happy about as a child and so has carried that with him as a judge.
If you want to know more about what you can do, CLICK the button below to get your FREE E-book: “16 Steps to Help You Plan & Prepare for Your Texas Divorce”
Other Articles you may be interested in:
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- Child Custody Basics in Texas
- Roadmap of Basic Divorce Procedure in Texas
- Child Custody Basics in Texas
- 6 Mistakes that can Destroy Your Texas Divorce Case
- 10 Quick Tips About Parental Visitation
- Help!! My Ex-Spouse Kidnapped my Child
- Who gets to keep the kids while the divorce is pending in Texas
- When Can a Minor Child Weigh in on Custody Decisions in Texas?”
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