In recent months I have had a handful of people come into the Law Office of Bryan Fagan, PLLC, with questions about how set in stone their Divorce Decree is. The real issue that these folks face may be facing you as well: they have an order in place that is many years old, and their circumstances have changed since then. Does your court require you to live under that agreement until your child turns eighteen or graduates from high school?
The answer is no. Texas courts provide opportunities to people like you to amend or modify their prior court orders, but some detail must be given before we move on. First of all, you cannot just file a modification case without justification. Meaning: you must show a judge that there has been a significant change in circumstances (Either for you, your ex-spouse, or your child) that justifies the modification you are requesting. This could be a change regarding your child's needs; your ex-spouse's income may have increased, leading to a need for their child support obligation to increase, or a move may necessitate new child custody orders.
Overall, whenever you ask a court to do something regarding your child, it must be shown that doing so is in your child's best interests. I mention this not to say that you would be doing anything against your child's best interests, but since it is an integral part of every child custody case, I felt it needed to be mentioned. The best interests of the child standard are not explicitly laid out as far as factors that a judge must consider. Instead, they can utilize their own experiences and judgment when deciding what is in their child's best interests.
Visitation issues about your divorce case
One characteristic that many parents beginning a divorce case possess is an all-or-nothing mentality. By this, I mean that these well-meaning and concerned parents will walk into our office to speak to one of our attorneys with a mission in mind. That mission is to win "full custody." Time and time again, I hear this phrase used. I have found people to mean when they use this phrase because they want the vast majority of their child's time to be spent with them, to the exclusion of their soon-to-be ex-spouse. Whether or not their spouse deserves not to receive any time with their child is no concern of theirs.
Having absolutist thoughts like this about your divorce is understandable, especially at the outset of your case when emotions are still raw. However, as you begin your journey through your divorce case, you should quickly realize that there is not much at all about your divorce that is either completely good or bad or a decision that goes entirely for you or against you.
With that said, why don't we consider the topic of what happens if you are not named as the of your child who has the right to determine the primary residence of your son or daughter? What will be made available to you by the judge regarding visitation with your child? Are you giving up your rights to your child and leaving them to fend for themselves without your love or guidance?
Thankfully, you will find that the answer to that question is, "No." A Standard Possession Order in Texas tells you that as the parent with visitation rights, you would be entitled to at least every other weekend visitation with your child beginning at 6:00 p.m. on Friday and ending at 6:00 on Sunday. One weeknight per week during the school year, you can pick your child up and have dinner with them as well. This does not mention holiday visitation and extended visitation periods in the summer. You are even provided alternatives if you reside more than 100 miles from your child. Finally, if you and your spouse can settle on terms for visitation purposes, you can implement any visitation structure that you can agree on.
My point is this: if you can avoid absolute thinking that leads to thoughts like: "If I don't win primary custody, I will never be happy." While we all want as much time as possible with our children, you can lead a happy and fulfilling life as a parent of your child, even with visitation rights instead of primary Custody. What's more- consider that you can always attempt to modify the visitation orders should circumstances warrant them in the future.
Can my ex-spouse deny me visitation with my child?
Under most circumstances, the answer to this question is no. For example, if your ex-spouse has not paid you the court-ordered amount of child support for the past two months, you cannot withhold your child from them as a means to encourage speedier payments. Your divorce decree will likely state this expressly.
However, as a parent, you should use your best judgment to determine if your child is not safe with your ex-spouse and may be justified in your refusal to allow the visitation session to occur. Think about if your child were to tell you that his other parent hit him or left him alone for an extended period the last time he went to their house. This should give you pause before you allow your child to go to their house. Don't expect your ex-spouse to take that denial lying down. You may have to attend a hearing on the matter if your ex-spouse hires an attorney to take you to court for denial of visitation; however, if you can present evidence that can substantiate the fears that you had regarding your child's safety, then you may not be punished by the judge.
Joint Custody explained
The default setting for parents in Texas who are going through a divorce is to become Joint Managing Conservators of their child after the divorce concludes. This is what is sometimes called "joint parenting." Let's discuss some highlights of what a joint managing conservatorship means about your child.
Keep in mind that the rights and duties you have about your child are just as important (if not more so) than the time you are ordered to have with them. In my opinion, making decisions on behalf of your child is what parenting is all about. I'm talking about educational, medical, religious training, and other vital issues. Depending on your settlement or trial results, you may be given some rights to make decisions for your child independent of your ex-spouse. Other decisions may have to be shared, causing you both to come together to make decisions in your child's best interests.
Suppose you and your ex-spouse cannot agree on how to decide on a particular area. In that case, you are likely given alternative methods such as speaking to a counselor, physician, or therapist to utilize as a "tie-breaker" when you and your ex-spouse differ on a particular issue.
As far as time with your child is concerned, we have already discussed that a joint managing conservatorship means that you and your ex-spouse will share time with your child. Ultimately, the parent named as the primary conservator of your child will be allotted more time, but the parent with visitation rights is not left out in the cold, either. What's more- if you and your spouse agree in mediation on how to divide up time with your child, you can essentially be as flexible as you both can agree to be in terms of splitting up time between the two of you.
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