Conservatorship of a child is an issue that comes up frequently in Texas family law cases. Conservatorship refers to rights and duties towards another person- in the world of family law, it references rights and duties towards a child. Whether it is due to paternity, child custody, or other family law cases conservatorship is an issue that can become quite contentious. What we call conservatorship here in this blog post is usually referred to as custody in casual conversation. One of the critical parts of custody is having the ability to spend time with your children- otherwise known as possession and access.
If you are an established parent of a child, then there won't be any question as to your ability to participate in a family law case that involves the conservatorship of a child. For example, if you are married and are about to go through a divorce then there should not be much of a question on topics like the paternity of a child. If a child is born to a married woman, then the husband is presumed to be the child’s father. There is no need to send in an Acknowledgment of Paternity to assert paternity. The situation becomes more complex if you are not the child’s biological parent and would still want to participate in a conservatorship case.
What you need to understand about this type of situation is that if you are not the biological parent to a child then you have an uphill battle on your hands as far as being a part of a child’s life from a legal perspective. While it is possible for you to spend time with a child having conservatorship rights and duties is another matter altogether. For you to be able to insert yourself into a conservatorship case regarding this child will take some degree of legal maneuvering. The reason why this is true is that in Texas parents are given a great deal of authority and autonomy over the lives of their children. This means that other people, yourself included, are not typically given much ability to weigh in on the life of that child.
One of the major reasons for this is so that extended family members, disruptive ex-boyfriends, and people like this do not try to interfere in the child-rearing process. When you find yourself on the outside looking in as far as the conservatorship situation is concerned then you need to be able to work alongside an experienced family law attorney with the Law Office of Bryan Fagan. We can help you navigate choppy waters and get you a seat at the table for the negotiation of a child custody case. The question that we are going to be answering today is can you be awarded parenting time for a child who is not your biological son or daughter?
What rights can a non-biological parent have under Texas family law?
There are two roles for biological parents in Texas family law. The first is as a primary conservator who has the right to determine the primary residence of the child. This means that your child would live with you as the primary conservator. The other parent would have the right to visitation with your child which would likely mirror a Standard Possession Order. This means visitation on the first, 3rd, and 5th weekends of each month as well as a weekly dinner on Thursday from 6:00 to 8:00 PM. Holidays like Christmas, Thanksgiving, and Spring Break would be divided between both you and your co-parent. There would also be an extended period of summer possession of at least 30 days in duration. there are exceptions to this general rule such as if domestic violence is involved in your circumstances. However, in most family situations a Standard Possession Order would be the norm for a possessory conservator.
if you are an adult who is not a biological parent to the child, and you would also like parenting time with him or her then the question that we need to answer is what is your relationship like with the child and what role have you played in the child's life to this point? Answering this question is going to be extremely important. If you are a biological parent to a child, then the court has more of a reason to provide you with conservatorship rights and parenting time even if you have never played a role in the life of that child. There is no strong presumption in favor of any kind of protection like this if you are an adult who is not the biological parent to a child. This is true even if you have played a major role in the life of the child to this point.
A question that we sometimes receive regarding this subject is what happens when you adopt a child. What are the parental rights and duties that you gain from adopting a child? The answer is that as an adoptive parent, you gain the same rights and duties as a biological parent. There is no distinction between a child that you adopted and a child that is your biological offspring. Once you have adopted the child there is no distinction made under the law as far as what your rights and duties are. It would be as if you had been that child's parent since his or her birth. When you adopt a child through a Texas family court you gain parental rights and the child's biological parents have their parental rights terminated. This is a key distinction to make compared to a situation where a person becomes a parent while caring for a child consistently. Even if you have played a large role in the life of this child the parents still maintain their parental rights. You would not have gained anything in a legal sense by caring for a child on an extended basis.
Another important group to take note of regarding conservatorship rights to a child is grandparents. Grandparents, no matter how close you are to your grandkids or how much you care for them, are not on the same level as biological parents. However, grandparents do have the ability in Texas to file a petition in court where you can request visitation via a child custody order. Everything that we are talking about today is viewed through the prism of what is in the best interests of the child. Unfortunately, what is in the child’s best interests does not always align with what is in your best interests or what you want to see happen.
Grandparents can gain visitation rights to a child if a denial of visitation would harm the child's physical and emotional well-being. This means that the child could be emotionally or physically harmed if your visitation with the child could be guaranteed via court order. This typically is the case when you have been the primary caretaker of the child for an extended period. We also see this happen if your child would be placed into a situation where he or she was likely to be physically harmed in some way were he or she not able to spend consistent time with you. If the child's parents are incarcerated, incompetent, or have passed away this would also set up a situation where you could step in and gain conservatorship rights over your grandchild.
If you are the adult sibling to a child, then you would also have the ability to petition a court for parenting time with a younger sibling. You can either attempt to intervene in a previously filed child custody case or can even file an independent lawsuit where you ask for visitation or conservatorship rights to your younger sibling. Your relationship with your little brother or sister will be examined closely including the extent of your relationship and your ability to parent him or her or provide parent-like structure and care.
What happens if you are successful in winning visitation time?
If you are successful in winning visitation time with a nonbiological child, then you can work out an arrangement with the other parent on a specific schedule on how to share time and access with the child. This can be done in one of two ways. The preferable method for figuring out how to share time with the child is via negotiation. This is done with direct negotiations with the other parent or via mediation. Direct negotiation is preferable because it is less expensive and faster. You can give him or her a call and do it that way or even reach out through your attorneys as a facilitator. Even if you have paid your attorney fees to help get this done it is possible to do so with some effort and patience. It is better to go about it this way than to need to work with a mediator.
On the other hand, mediation is a great weapon for a family law attorney due to how successful it is in helping couples, parents and parties of all kinds work towards settling matters before having to go to court. Mediation involves working with an independent, third-party mediator who can help you all determine how much time each parent can get considering the specific circumstances of your case. Every family is different. The fact that you are a nonbiological parent who is about to get visitation time with a child should tell you that. Regardless, you can take advantage of the time that you do get with your child by considering first and foremost what is in the child's best interests. There is no doubt that the child is better off being able to spend time with you. However, now you need to focus on how to share time with the other parent. A mediator may be the exact person that you need to help you figure out how to do that.
The other option as far as getting a determination on how to divide time between parents and a child is through a court case. A trial is the last major step of a child custody case. All parties would submit evidence to the judge to present arguments as to whose plan for visitation is more advantageous and in the best interests of the child. Remember that the Standard Possession Order is the gold standard as far as visitation is concerned. If all else fails, if all evidence is equal in the case, then it is likely that the judge will order some sort of visitation schedule that resembles a standard possession order. Otherwise, you can always submit your idea to the judge and see whose ideas he chooses to implement.
Just what sort of visitation could you be looking at when it comes to your non-biological child? as we mentioned earlier in this blog post, the first, 3rd, and 5th weekend of each month's visitation is common for the non-primary conservator of a child. Depending on your existing relationship with the child this may be the best course of action for a judge to implement in your case. It provides regular contact between you and the child without having to sacrifice an inordinate amount of time for the primary conservator. The Standard Possession Order is highly thought of by judges because it is a part of the Texas family code and reflects public policy in Texas that a child should have meaningful contact with both parents.
The great part about a Standard Possession order is that holidays and birthdays are alternated between parents. This way neither parent can feel like they are getting the short end of the stick when it comes to this important subject. An important element of this type of possession schedule is being able to have a nearly uninterrupted month of visitation time in the summer. For parents who live within 100 miles of their child, it is a typical 30-day period of possession. On the other hand, parents who live more than 100 miles from their child can have up to six weeks of possession during this time. You can work with your experienced family law attorney to determine how you construct your visitation with your child once you are assured of visitation time.
In the future, if you are co-parent attempts to interfere with your parenting time you can utilize your Child custody order to enforce the time that you have been awarded. You should always keep track of a parent's violations of your court order so that you can specifically cite those violations in your enforcement case if that becomes necessary. The better organized you can be the stronger your case will be in front of a judge.
Final thoughts on shared parenting time for a nonbiological parent
You can probably see from this guide that the subject of visitation time for parents is complicated. There are always many factors to consider when it comes to how to best divide up time for parents in a shared parenting situation. Your child is no exception. You and your co-parent will need to be able to think critically and be able to work together to figure out a parenting plan that works best for your child and your circumstances.
On top of that, you as a non-biological parent must jump through an additional hoop to even have the ability to when visitation time. It is not a given that you will be successful in winning any visitation time with your child as we discussed earlier in today's blog post. To position yourself best and to give yourself the best possible opportunity when visitation time with your child you should strongly consider working with an experienced family law attorney. From the beginning of your case to the end, working with an experienced attorney can be seen as a short-term investment into your long-term future relationship with your child. The last thing you would want to do is lose out on all the bonding and recreational time that you would otherwise be able to have with your child because you were unwilling to talk to an attorney about your situation.
An experienced family law attorney cannot only help you determine if you have a strong case for visitation rights but can also help you to strategize for a potential mediation or trial on the subject. Building a strong case means presenting yourself well to the judge and being organized. If you can establish that you have played a major role in the life of the child to this date, then that is a huge part of the equation. An attorney is an expert at building a strong case, staying organized and generally being productive inside a difficult-to-manage family law case.
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 covered 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.