Is it possible to fit absolutely everything you need to know about Texas family law into a single blog post? Divorce and child custody are the main two areas of the law that most people go to court and file cases for, but there are also Child Protective Services (CPS), adoption, and a host of other family law cases that are also a part of this discussion. Are we going to be able to fit it all into one, single blog post??
The answer to that question is: probably not if we’re being honest. What we want to do in today’s blog post from the Law Office of Bryan Fagan is provide you with the most important information in the most concise manner so that you can have a solid baseline of knowledge from which to proceed into your family law case. Without a doubt, there is a lot to learn but you are not expected to know absolutely everything about a family law case.
However, the more you know the better off you will be. If you can combine a great deal of knowledge with the experienced perspective of a family law attorney, then you will be in a very good position to accomplish your particular goals in a family law case. Do not wander into a family law case and not take the time to create some goals for yourself and your family. That would be a mistake. Simply making it out of your family law case alive is not a good enough goal- though it can feel like the most sensible goal, at times. Rather, you and your family should think critically about what position you are in and what sort of goals will allow you to build the best possible life after the family case.
With all of that said, let’s begin today’s blog post by examining the most basic and essential pieces of information that you should take on when it comes to the world of Texas family law.
The Best Interests of your child
The "best interest" standard concerning Texas family law cases involving children is a standard that is utilized not only in our state but in every state throughout the country when it comes to making decisions for minor children. It is presumed that, as a parent, you are making decisions based on the best interests of your children.
Child custody in Texas is no different. If you must go before a family court judge in a child custody case that judge will issue orders that he believes are based on the best interests of your children. Many times, the best interest of your children is served best by allowing you and your co-parent to negotiate on subjects related to your case rather than putting that issue in front of a judge.
The odds are good that in your family law case that you and your opposing party will settle your case in mediation rather than having to go before a judge for a final hearing or trial. Mediation is held at the office of an experienced family law mediator, or virtually. That mediator will meet privately with you and your lawyer and your opposing party and their attorney. You will make settlement offers and receive settlement offers from your opposing party. The mediator will communicate those offers, offer suggestions, and provide perspective of what you are likely to encounter on those relevant subjects were you to have to go before a family court judge.
When you are not able to settle your case in mediation then you do need to go before a judge for a trial or temporary orders hearing. A trial allows you and your opposing party to call witnesses, offer documents and other physical evidence into the record and allow the judge to make decisions about the relevant issues in your case. After a trial, the judge will issue orders on those subjects.
Issues related to children
When it comes to issues related to children under the age of 18, much of the time we refer to this subject as “custody.” You will hear judges, lawyers, and families alike all talk about custody issues as they relate to your child. However, you may be surprised to learn that the term custody does not appear in the Texas Family Code even once. Rather, the term that better encapsulates the issues related to child custody and children's issues, in general, is "conservatorship."
Conservatorship issues start with questions about how you and your co-parent will be dividing up rights and duties concerning your children. There are two types of conservatorship arrangements in Texas: Joint Managing Conservatorships and Sole Managing Conservatorships. Joint managing conservators share somewhat equally in their parenting rights and duties. A sole managing conservator would hold the majority of decision-making abilities for a child. Possession and visitation time is divided up more evenly between joint managing conservators whereas, in a sole managing conservatorship, the primary conservator will hold more of the parenting time.
The court must decide about conservatorship and how to divide up rights and duties if you and your co-parent are unable to do so. It will consider who cooks for the children, who take the kids to school or daycare, doctors appointment transportation, who is there for the kids before and after school as well as who ensures that your children go to school and complete their schoolwork.
Unless circumstances have changed recently for your family, a family court judge will likely allow the parent who has primarily filled these roles to continue doing so moving forward. Judges are hesitant to make drastic changes in the life of a child regarding their caretaker unless there is a very good reason for doing so. If you are a parent who has not filled these roles for your children to that point, then you will be at a disadvantage when it comes to conservatorship and attempting to win primary conservatorship rights and duties.
More on joint managing conservators
The default setting in a Texas child custody case is to name both you and your co-parent as joint managing conservators. There is a presumption that will always apply that your child benefits from being able to have a sustained relationship with both of their parents. This means that you have a strong chance of being named as a joint managing conservator, all other factors being equal. Sharing parenting rights and duties is important for you, your co-parent, and your child.
Your sharing of those rights and duties probably will not be exactly down the middle in a joint managing conservatorship. For example, one parent will be named as the primary conservator who can determine the primary residence of your children as well as receive child support on behalf of the kids. These are two big advantages of a primary conservator over a possessory conservator. For this reason, primary conservatorship is a hotly contested issue in many family law cases involving children. It is probably the single most likely issue that will cause your case to head to trial rather than being able to settle in mediation.
More on sole managing conservators
In a sole managing conservatorship, the judge would place an inordinate amount of rights and duties concerning a child in the hands of you or your co-parent depending on the circumstances that your family is facing. This right would include the ability to determine your child's primary residence, healthcare decision-making, psychological decision-making, and educational decisions.
As we mentioned a moment ago, the normal division of conservatorship rights and duties in Texas is a joint managing conservatorship. However, a judge may order a sole managing conservatorship for several reasons which include if you or your co-parent have a history of acting violently in the home, have been investigated by CPS previously for child neglect, have a drug or alcohol addiction, or is otherwise not a part of your child's life. If you and your co-parent disagree a great deal on medical, educational or religious components of your child's life then a sole managing conservatorship may be able to provide your child with more stability in their day-to-day life, as well.
One other aspect of this discussion that you should keep in mind is that the best interests of your child will be put at the forefront of this conversation. This means that what you want to see happen and what is in the best interests of your child may not be in lockstep with one another. Parents should work to cut through their desires and instead do what is best for their children. However, when that is not possible or at the very least is extremely difficult then a family court judge may be brought in to help make play a tiebreaker on a subject matter that you and your co-parent cannot agree on.
Visitation issues in Texas child custody cases
In Texas, visitation falls under the category of possession and access to your child. The judge will likely allow both you and your co-parent to have possession and access time with your child. It would be the exception rather than the norm for a parent to even have restricted visitation with their child. Restricted visitation would be more likely for a parent in circumstances where it is found that you or your co-parent pose a serious risk of harm to the child. Otherwise, the judge would attempt to create a possession schedule that works well for your child, you, and your co-parent.
The most typical possession schedule that is handed down in a Texas child custody case is known as a Standard Possession Order. The hallmarks of a Standard Possession Order, or SPO, are the first, third, and fifth weekend of each month's possession for the non-primary parent.
What about custody considerations for single parents?
If you are a single mother, then you already know a lot about being the sole conservator of your child. Even if the child’s biological father is also a legal father to the child that doesn’t mean that he necessarily helps a great deal with the time, expense, and stresses associated with raising a child. If you and the child's father have never gone to court to establish any kind of custody orders the time to do so may be now.
For one, you may want to get in writing from the court an order that sets up your co-parent for child support responsibilities. Think about all the costs that you have carried on your shoulders for your child since her birth. Your co-parent has a responsibility to provide care for your child, as well, as financial care. As a result, you can hold him responsible for that by filing a child custody case that can establish child support as well as medical support.
Do you have health insurance available to your child from your employer or union? If so, then you may have already been providing that to your child. If you do so your co-parent would have the obligation under a child custody order to reimburse you for the cost of that insurance and to split uninsured costs with you, as well. These can be costs that you may not think about daily but can be incredibly helpful to your household budget.
Next, while it may be preferable to you right now it may in time turn out to be a negative for you and your child that your co-parent spends no time or next to no time at all with your child. For one, you may like to have control and autonomy over your child's days now. In the long run, however, it can be good to have someone else be able to assist you with those responsibilities. Remember that you have eighteen years of caretaking for your child. To have a helping hand, even an imperfect helping hand, assist you during those years is a good thing for most people.
Bad behavior can impact a child custody case
It is not a given that you will be able to have the custody arrangement that you desire with your child because of your child custody case. Even if you are the child's mother, bad behavior can harm how a judge sees your case as well as the positions that you take. The more stable an environment that you can promote for your child the better chance you will have to be able to convince a judge that you should be provided more rights, duties, and time with your child moving forward.
Bad behavior can mean more than just the things you do. Rather, it can also be a reflection on what you failed to do as a parent but should have done. Do you not take your child to the doctor or dentist regularly despite having insurance? Do your children not always have food to eat or clean sheets on their beds? These are all considerations that a judge would look at and consider regarding your case.
Parental rights termination is also a reality for very few parents who go through child custody cases. For example, let’s suppose that you were the biological and legal father to a child but were never around at all as a parent. You may have sent birthday cards to your son, but you haven’t seen him in years and live multiple states away. Your child’s mother has married and now the stepfather would like to adopt your son.
In that case, your child’s mother and her husband could file a petition to terminate your parental rights along with a petition to adopt your son. Terminating parental rights is a serious request that cannot be appealed or done over. A judge would have to determine that it would be in the best interests of your child to do so which, under the circumstances here, it may be. You would have to have an awfully good excuse as to why you have not been a part of your child’s life to maintain your parental rights. Especially because your son may have a very close relationship with his stepfather.
If you have never been through a child custody case before, we hope that this guide has been helpful. There are so many moving pieces in a child custody case that to assume you have all the answers would be a mistake. With so much at stake and so little time to make mistakes, it is best to be able to start strong and maximize your opportunities in a child custody case. An experienced family law attorney can help you do just that and then some.
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 as well as about how your family's circumstances may be impacted by the filing of a divorce or child custody case.