When it comes to divorce, if you have children then almost certainly the issues related to your children will be the most important to you in the entire case. It is never easy to go through a divorce with children. They are going to be inquisitive about the process but also worried about the future. Their lives are being turned upside down to the same degree as yours is- if not more so. The toughest part for them is that they have no idea how to handle the stresses and difficulties of the case due to their limited life experience. They may not even understand what divorce is depending on their age.
Your job as a parent is to help them manage the emotions and changes that come about because of the divorce. That you must do so while working through the emotions and changes that you are undergoing in your own life can be difficult. Nobody would argue to the contrary. However, if you can manage to transition yourself through the divorce process then you can help your children do the same. The main part that will require some degree of preparation is to help plan out the issues surrounding custody effectively with your co-parent.
Child custody issues are a catch-all term for several issues that are relevant in a divorce. When we talk about child custody we are referencing: conservatorship, possession, visitation, and access. This is what we will be going over in today’s blog post from the Law Office of Bryan Fagan. I would like to help you understand better what you are going to encounter during your divorce from a child custody perspective. This is not going to be a one size fits all approach because every family is unique and what your family may encounter will likely be different than what your neighbor encountered in their divorce.
However, if you have kids then I think that it is valuable to be able to have some time to be able to approach this subject with a set of fresh eyes and ears. You have probably been told what divorce is like if you have kids. Ideally, nobody would put themselves and their children through the divorce process but sometimes that’s just how it all works out. You need to be diligent in preparing and bear in mind the best interests of your children when you are going through your divorce. If you can do that then you will be well-equipped to succeed in your case on the issues related to child custody.
Rights and duties related to your children
Child custody is a term that I think we all know the meaning of on some level. We hear about child custody issues in the news, on television, and from friends. These are issues that relate to children who are under the age of 18. If you have children at home who are in this age range, then you need to prepare yourself for them to be the focus of the child custody portion of your case. This does not mean that you are going to experience big changes concerning how your children interact with you but there will be changes that you need to be aware of. Additionally, these changes are almost all within your control and that of your co-parent.
The reason why I am telling you that you can determine the outcome of the child custody issues in your divorce is that you do have the ability to control how the issues in your case become court orders and how the rest of your child’s childhood will shape out. This is done through negotiations with your spouse. These negotiations are an opportunity for you and your spouse to be able to chart a course for your child well into their formative years and adulthood. Do not take the opportunity for granted and do not believe that parents must submit themselves to the ideas of a court when it comes to child custody issues in a divorce.
Many people that our office has had the good fortune of being able to represent in a divorce have come into our office with the assumption that their divorce is going to be completely decided by the family court judge. Who can blame these folks? When it comes to divorce there is so much information out there, much of it incorrect. Even the correct information out there may not apply to you and your situation. Therefore, we talked at the beginning of our blog post today about how even this blog that you are reading right now will not be a perfect representation of your divorce. Rather, you need to be able to take this information and apply it to the rest of your case using specific information gathered based on your specific circumstances.
The best place for you to do this is with a free-of-charge consultation with 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.
Let’s start with conservatorship. Conservatorship is a legal relationship whereby one person must support another person and have the right to make decisions for that person. You may have heard about conservatorship in a situation that involves a mentally handicapped adult or an adult who is physically incapable of caring for themselves. In that case, a relative or another person may petition a court to be named as a conservator for him or her. That will allow the person to step into a decision-making role and look out for the best interests of this person.
In other words, the conservator takes on most of the roles that you will be fulfilling for your children. You have already been a conservator of your children but by going through a divorce you are going to have those conservatorship rights and duties put into writing for the first time. Those rights and duties are going to be spelled out for you and your spouse to be able to see. One of the most important parts of your divorce case will be negotiating these rights and duties. Where your child is going to live primarily, who is going to pay child support, who makes decisions (and when) regarding medical, and education-related topics
Where your child is going to live primarily is probably the right that most people focus on the most in a divorce. As your family currently is situated, you can most likely go down the hallway and see your child whenever you would like when everyone is home. You eat meals with your children every night and you see them every morning when they wake up. Sometimes you may even take these moments for granted as we all tend to do from time to time with different aspects of our lives. Our kids are always going to be down the hall from us, and we are always going to be able to spend the time with our children that we would like.
Fast forward to a divorce and you are probably figuring out that this is not necessarily the case. Your children are going to go through this divorce with you and that means that you need to pay attention to how their best interests are looked after. Sometimes their best interests are not the same thing as what you want to see happen in their lives. This can be one of the most difficult realizations that many parents have to come to in a divorce case. However, if you can set aside your wishes and instead focus on what is best for the kids then everyone will be better off even if it does not seem like it at this moment.
Living with a parent full-time means that the parent needs to be equipped to care for the children based on their specific age and developmental stage. If you are attempting to become the primary conservator of your very young child (under the age of 3) then you need to be ready to do all the things necessary to care for a little kid. Dealing with their emotions, changing diapers, taking them to the doctor when they inevitably get sick at daycare, watching over them, feeding them, playing with them, etc. This is a full-time parenting gig and one that you should not try to take on just because you feel like having to or because you do not want your spouse to be able to have the ability to see the child more than you.
For older children, it is somewhat simpler to take on these responsibilities given that you do need to care for an 8-year-old in the same way that you do a one-year-old. Still, there are responsibilities nonetheless that you need to be aware of and need to spend some time focusing on. Being home for them when school lets out is important although if you have daycare or other childcare available to you then that is ok, as well. Many more people can work from home than previously so you may have a different work schedule now than you did previously. Helping your child with schoolwork, cooking for the child, and being available to pick the child up from school if he or she gets sick are all hallmarks of a primary conservator. If you have never filled these shoes before then it is unlikely that you will be given the opportunity for a divorce.
The role that you filled for your child to this point in their life will likely be the role that you are assigned in the divorce. Many people believe that mothers are always named as the primary conservator of children. This is not true. However, what is true is that mothers (by and large) are named as primary conservators more than fathers due to their being the parent who is more likely to have filled the role of primary conservator before the divorce. If you are a father of a child know that mothers are reluctant to give up the role of primary conservator so you may have your work cut out for you if this is something that you are interested in. However, if you have been a consistent presence in the life of your child then you have as good of an opportunity to be named a primary conservator as your wife.
The parent who is named as the primary conservator of the children will also be named as the parent who receives child support payments. Child support is monthly payments sent from the non-primary conservator to the primary conservator. These payments are intended to help the primary conservator pay for expenses related to the child. You can consider these payments for things like rent, groceries, clothes, and medical care. Since the primary conservator is with the children more than the non-primary conservator this is a major source of financial aid to help level the playing field.
Visitation, possession, and access
The other major part of a divorce case when child custody is at issue relates to the topics of visitation, possession, and access. In other words, these are the subjects that relate to when you can see your child. Much is made of how the primary conservator of a child can see their child more than the non-primary conservator. However, you and your spouse can negotiate on this subject together before ever allowing the judge to have a say in the matter. This is important because you can create a unique child custody visitation schedule that can be followed by both parents.
A standard possession order or some variation of this standard possession order is followed in many divorce cases. The standard possession order is the possession schedule that many of us are familiar with if we know people who have gone through a divorce with children. The standard possession order allows for the non-primary conservator to spend time with their children on the first, 3rd, and 5th weekends of each month. A Thursday night meal from 6:00 to 8:00 PM is also included in the standard possession order. This is the schedule that is maintained during the school year. The remaining periods Are when the primary conservator can spend time with the children.
Holidays, other than summer vacation, are divided straight down the middle. You and your spouse will alternate spring break and Thanksgiving each year. Christmas break is long enough that it is divided up into two parts. The parent who has possession on Christmas cannot also have possession on Thanksgiving. Families can negotiate on this subject and create whatever kind of arrangement they would like so long as it is in the best interest of their children. It is not necessary to strictly abide by the standard possession order when coming up with visitation and possession orders in your case. However, if you and your co-parent are unable to negotiate well together then the standard possession order exists to give you all an option that you may want to be able to choose from.
When most people talk about child custody this is part of the case that they have in mind. For too many people child custody equates to time with the children. While this is true in many regards, it is not a good idea to completely neglect the conservatorship discussion that we engaged in earlier in today’s blog post. Rather, you and your spouse are going to negotiate through all these subjects at least one time in mediation. The better prepared you can be for mediation and the more thorough your settlement offers are the greater the likelihood that you all can settle your case in mediation rather than having to rely upon a family court judge to set forth orders for you.
When it comes to child custody issues in a divorce, I think you can tell that there are a lot of issues to sort through. The last thing you want to do is feel like you are unprepared for any one of them. Having an experienced family law attorney by your side to walk you through your case can be a huge advantage and is a great short-term investment to make into your and your child’s future.
If you want to know more about what you can do, CLICK the button below to get your FREE E-book: “Child Custody E-Book”
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