Without exception, the issue that parents going through a divorce or child custody voice the most concern over at the beginning of the case is the outcome about their children. It is completely understandable to want to spend the most amount of time possible with your children while minimizing any disruptions to your relationship despite the challenges of a divorce. I can tell you that the attorneys with our law practice focus intensely on doing their best to make sure that our clients maintain a strong relationship with their children no matter what happens in their divorce or child custody case.
The troublesome aspect of a divorce or child custody case comes into play when you begin to consider that not every facet of the case is something that you have direct control over. From custody to child support to Visitation and possession, parents like yourself have a lot of decisions to make in conjunction with their family law case. While it is not always possible to control every aspect of your case, it is possible to act intentionally and to learn as much as possible about the family law case before its beginning.
That is why I give you a lot of credit for spending time with us today here on our blog. I want to share some thoughts on an important area over child custody or divorce, namely conservatorship rights. When Texas parents talk about custody rights, what they refer to under the law is known as conservatorships rights. Being a conservator over another person means that you have a legal ability to make decisions and a legal duty to perform certain actions regarding that person. You and your Co-parent are conservators of your children. It does not take a court case to establish this.
Once your family law case begins, a question will arise regarding who has the right to establish the primary residence of your children. When your children lived with your Co-parent and yourself, this was not a big deal. Sharing a home with your family is one of the hallmarks of parenting in married life. However, once a separation in the marriage occurs and one person moves out, then the nature of that relationship begins to unravel and change. That is where a family law case like a divorce or child custody lawsuit comes into play.
Of the rights and duties established in a child custody or divorce case, no single one is more important than determining the primary residence of your child. The primary residence of your child is where your child stays on most days throughout the year. Most notably, these days coincide with the school calendar and live in that home throughout the school year during the school week. Because the school year is so long, the parent with whom your child resides during the school year will primarily end up having more time with your children than the other parent.
I have never performed an exact analysis of the breakdown of days. Still, the parent who has the primary designation of residence right will spend around 55% of the year with the child as opposed to 45% of the time being spent with the non-primary parent. Since there is a fairly significant difference between the two, I would like to take some time and walk you through the extent to which your child will be able to determine where they end up living on a full-time basis based on several factors, most specifically their age.
A standard possession order is explained in greater detail.
For today's blog post, I will base my opinions on the information that I'm giving on the assumption that your child custody or divorce case will result in a standard possession order being in place for you, your co-parent, and your children. A standard possession order is what most families end up living under after a family case is ended. This is the fairly typical post-divorce structure that you may be familiar with. The nonprimary parent has the right to have their children on the 1st, 3rd, and 5th weekends of each month, with longer periods of possession taking place in the summertime.
Even under a standard possession order where a majority of the year I spent dividing up time for a child between two parents in a somewhat predictable fashion, it can still occur where a child will go anywhere from 5 to 10 days without seeing the other parent. Bearing in mind that this can be a long time depending upon your family's circumstances, I want you to be aware of the role that your child can play in determining where they end up living on a full-time basis.
When tasked with deciding on anything having to do with your child, a Texas family court judge must do so, bearing in mind the best interests of your child; this means that they will have to take a broad range of considerations into their analysis and therefore make a decision that reflects what would be in your child's best short-term and long-term interest. Their emotional and physical development, their ability to succeed in school, their ability to maintain a relationship with their extended family, and the willingness of each parent to include the other in the child's life are among the factors that will be considered.
A judge will be tasked with making this decision not only based upon pre-existing law and precedent but will also have the ability to utilize their lived experience as a family court judge in making determinations regarding the best interests of your child. The idea is that a judge has seen so much in their time on the bench that their prior experiences should inform future decision-making. Whether or not the judge knows what is in your child's best interest is up for debate. However, if you leave it up to a judge to decide your case, then this is a pretty good summation of how a judge will arrive at decisions regarding conservatorships, possession, and Visitation.
What role does your child get to play in determining where they live on a full-time basis?
One of the most significant misnomers that people encounter amid a child custody or divorce case is the idea that their child gets to play a primary, if not the only, role in determining where they live on a primary basis. An extremely confident parent will oftentimes walk until our office for a free of charge consultation and will tell one of our attorneys that their child has already expressed to them that they want to live at their home and that, therefore, the divorce or child custody case should be pretty easy or at least very short as a result of the child's wishes being made clear. The assumption is that the child gets to pick and choose what they want, and the judge has to listen to what the child wants to do, no matter the child's age or the circumstances of the case.
Either fortunately or unfortunately, depending on your perspective, this is not the case. As we are about to see, your child's desires about where they want to live on a full-time basis often make a significant difference. However, the difference it makes with your particular judge is anyone's guess. Ultimately, your child's age and the circumstances of your case play just as much of a role, if not more so, than the desires of every child about where they want to live on a full-time basis.
At what age does a child in Texas begin to have a right to determine where they live?
The Texas family code says that a child who is at least 12 years old can voice their opinion as to where they will live on a full-time basis. This reflects the understanding that at 12 years old, a child begins to mature to the point where they can voice an opinion on the subject with more intelligence due to their age. The rub of this entire discussion is that a judge does not have to follow what your child wants to do exactly. As I mentioned earlier, A judge will consider the desires of your child who is over the age of 12, but the Buck does not stop with what they want.
It is a mistake for you or anybody else who enters into a child custody or divorce case to assume that your child's wishes are the most important factor in a case. By all means, I would not recommend that you tell your child that once they reach 12 years old, they will be able to determine where they live on a full-time basis. This could stand to upset your child a great deal in the long run once it becomes obvious that your child will not be able to determine their living arrangements exactly the way they want. I would imagine that most judges consider what a child has to say more and more the child gets older.
From my understanding, years ago, Texas law allowed a child over the age of 12 to sign some sort of paperwork stating where they wanted to live, which would be the deciding factor in a divorce or child custody case. Now, a child has to meet with the judge in their office to converse and answer questions about their desires in a permanent living situation. You very likely do not have to worry about your child having to testify in front of a judge or a jury in a trial or hearing.
However, a judge must meet with your child over the age of 12 in their office if you file a motion requesting that they do so. The judge will ask questions and listen to answers about your child's desire to live in a certain home or to have certain conservatorships rights attached to one parent or the other. The most significant issue that the judge has to find out your child's wishes is primarily where they will live. A child under the age of 12 does not have the right to speak to a judge in this way. In that case, it is up to the judge to decide whether or not to speak to your child.
What is the process like for a judge to interview your child in conjunction with a child custody or divorce case?
If your trial is a jury trial, the judge will not be allowed to interview your child in their office regarding where their primary residence should be. However, most Texas divorce and child custody cases do not involve a jury. At that point, it will be left to the judge to decide whether or not you are an attorney will be able to be present during an interview. Typically these meetings are not recorded by a Court Reporter. Still, if your attorney or the opposing attorney requests that a court Reporter be present, the judge must allow it to happen.
As I have already mentioned, the judge does not have to listen to what your child has to say explicitly. Any parent of a child knows that children are prone to changing their minds and, at the very least, making decisions that are not always based on reason and a lot of forethought. Your child may want to live with you for one week and may change their mind and want to live with your spouse in the next week. Even their reasoning as to why they want to live in a certain place may be based on completely unreasonable factors.
It boils down to the judge's understanding that what is in your child's best interests may not be what your child wants at that moment. I think any parent reading these blog posts would have to agree that This is a reasonable position to take for a judge who does not know your family that well and certainly does not know your child that well. Oftentimes, a judge will ask a child why they want to live in a certain place to find out whether or not the child is being bribed or even being threatened in telling them where they want to live on a full-time basis.
Consider that if you are a strict disciplinarian and your spouse is very lax in disciplining your child, they may be more likely to want to live with your spouse due to their more permissive attitude towards discipline. As I mentioned a moment ago, the maturity and intelligence of your child will surely be measured by the judge in determining how much weight to give to the testimony and responses of your child regarding where they want to live. A child does not have a specific part in determining anything other than where they will live on a primary basis after the court case.
In conclusion, it is up to you and your spouse to determine the course of your case. If you all can work together and create a flexible and effective possession schedule without having to go to court, then this is all for the better. You would have to involve your child in the case and put them in the middle of a difficult custody question. It can be easier said than done when it comes to working through difficult issues with your spouse. For that reason, it is highly recommended that you have an experienced family law attorney to help you sort through difficult circumstances to arrive at solutions that work best for your family.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
if you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law and how your family circumstances can be impacted by a divorce or child custody case. I appreciate your interest in our law office, and we hope you will join us again on our blog tomorrow.
