One of the most frequent questions that I receive when I am meeting with potential clients of the Law Office of Bryan Fagan is whether or not that parent has a realistic opportunity to be named as the primary conservator of their child. In the world of family law, primary conservator references the parent who cares for a child on a primary basis. The day in, day out care that is associated with raising a child is what is being referenced here.
The most important aspect of this role is having your child reside with you during the school week. Another difference between being the primary conservator of your child and a possessory conservator is that the primary conservator has the right to receive child support payments from the possessory conservator. These are the two big elements associated with primary conservatorship that many parents are willing to go to court for in hopes that a judge would see the situation as they do and flip-flop custody.
Switching conservatorship roles can be difficult, but is not impossible
In some situations, your child's other parent will make the situation relatively easy for you to resolve. He or she could simply call you up to let you know they are coming to your house to drop off your child. The other parent would then leave and express no intention of returning to take the child back. In this situation, you would need to contact the Office of the Attorney General to let them know if this change and your child support could be stopped and a reversal of the conservatorship roles could be made by filing a modification lawsuit.
On the other hand, it is more likely that your child’s other parent will not agree with you that you should be named as the primary conservator of your child. He or she will not come by your house and drop off your son or daughter just like that.
Rather, he or she will contest any attempt that you make to be named as the primary conservator of your child. As we have already discussed, not only would a change in this regard mean getting less time with your child but it would also mean giving up the right to receive child support.
As with any modification case, you would be looking to show that a substantial change in circumstance has occurred that justifies your being named as the parent who has the primary right to house your child. This is a huge change and the evidence you present would have to convince a judge that a change made in this regard would be in the best interests of your child.
By all means, it is a good idea for you to consider hiring an attorney before you move forward with a modification case of any kind, specifically one where you would be named as the primary conservator of your child. Judges are not going to easily grant a request to throw a child’s life into turmoil for a period of time so your evidence has to be strong and arguments on point. While you can legally file a modification case without an attorney it is not advisable due to the complexity of the filing process and issues involved.
What happens in a modification case?
Essentially, you would be presenting information to a judge that would go to show why your child is better off with you as the primary conservator, while your opposing party would be presenting contrary evidence.
As I mentioned earlier, the case boils down to what is in the best interests of your child. Notice that what you want and what you think is fair is not especially relevant. If it makes sense for you to be named as the child’s managing conservator but a court determines that it is in your child’s best interests to remain in their current home, then your modification case will be unsuccessful.
Part of many modification cases, especially ones where primary conservatorship is at issue, is the appointment of a guardian ad litem to your case by the judge. The job of a guardian ad litem is to meet with all the parties to your case and to report back to the court on its findings. This is an important job since the judge cannot follow you and the other parent home. The guardian ad litem is sort of the eyes and ears on the ground for the court in terms of assessing what is in the best interests of the child.
More specifically, the guardian ad litem represents the best interests of your child in the modification case. Because you are attempting to change an important aspect of your child’s life, which may or may not actually be for the best, the law doesn’t allow for you to speak for your own and your child’s best interests in this regard.
A neutral person (the guardian ad litem) will be inserted to help the judge make an unbiased interpretation about this. The guardian ad litem does charge a fee so please be aware of that. The fee can be paid by one party or by both, depending on the orders from the judge.
More on modification cases in Texas family law
Keep in mind that whatever order you have in place from a family court judge will continue to be the rules of the road for you and your child's other parent until you come back to court and the judge makes additional rulings or signs off on a new order altogether.
Typically a new order is achieved through a modification case. A modification case allows for you or your child's other parent to modify a court order based on your ability to prove that a change is necessary due to a substantial change in circumstances for you, your child or the other parent.
Unless and until the court order is modified, you will be expected to follow that order exactly as the language reads in the order. If you do not follow the order exactly as the order reads then you can be held in contempt of court which carries with it criminal penalties including jail time. At the very least you can be made to pay fines to your ex-spouse and can lose time with your child.
Many parties to modification cases see their case effectively come to a close in mediation. Mediation allows you and the other parent (and your attorneys) an opportunity to settle your case outside of court with the freedom to come up with your own solutions. Sometimes with the help of an experienced mediator, you can arrive at solutions that you had previously not considered before.
Geographic restrictions: In your order for a good reason
Many of the changes that parents want to make in relation to a court order have to do with where they can live. As long as your child has friends and activities that he or she is happy with, it is unlikely that your child will be overly excited at the opportunity to move. However, you may have a new job that has been made available to you, a new location that seems more appealing or the desire to be closer to family in another area of the state.
Whatever the reason, your plans to move may be upended by a geographic restriction. A geographic restriction does just what you would think that it would do. It places a restriction on where your child can reside primarily. A typical geographic restriction would be to your home county and any county that borders your home county.
If your child’s custodial parent decides to move beyond the confines of the geographic restriction then you would need to alert him or her to the fact that you will need to file an enforcement case against him or her.
That enforcement case will attempt to enforce the terms of your prior court order by pointing out a specific violation of the order and then recommending a response that the judge should have that violation of the court order. Violating the court’s orders is generally known as being in contempt of court. There are criminal penalties that can be assessed in this type of situation.
Finally, if you made it out of your child’s initial court case without a geographic restriction in place, then you can attempt to file a modification case that would seek to insert one into an amended order. It would seem to me that there would be many ways that you could show that doing so would be in the bests interests of your child.
What can you do if your child tells you that he or she wants to live with you instead of their other parent?
Children tend to change their minds often on where they want to live on a full-time basis. So, if your child expresses an isolated desire to move in with you full time I would recommend that you look into it and see what your child’s desire to move is based on. If there is legitimate cause to attempt to switch the conservatorship arrangement, then you are justified in filing a modification case. If your child’s reasoning is based on not wanting to eat their veggies at mom’s house then you may want to hold off on filing that modification lawsuit.
Before you get involved with another family law case, it would make sense to me that you and your child's other parent should talk through this issue and see if there is any middle ground as far as modifying the order informally is concerned.
Maybe you two can negotiate successfully a couple of days each month where your child could have the option of being with you or their other parent. It would take some serious co-parenting skills to accomplish this.
The reasons why your child has told you that he or she wants to live with you primarily could be many. The older that your child gets the more in control of their living arrangement he or she will likely want to be. As a result, flip-flopping conservatorship roles and moving in with you primarily would be one way that your child could exhibit this characteristic. You will need to determine how realistic it is for you to take on this added responsibility. The decision to file a modification case will hinge on your decision.
Either way, it is better for you and your child's other parent to be the ones to make decisions in relation to where your child resides on a primary basis. Children change their mind more often than they change their t-shirt. What seems like a good idea one day may seem like a horrible idea the next day.
However, as adults, we are thought to possess the characteristic of wisdom. You can share your wisdom with your child by helping him or her through a situation like this. If you and your child’s other parent can come to your child as a team and parent from a position of strength then all of you will be better off.
More on modification cases to be shared with you tomorrow
If you have any questions about the topics that we wrote about today, 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 here in our office. The consultations are a great opportunity for you to ask questions and receive feedback about your particular circumstances.
Our attorneys and staff take a great deal of pride in serving members of our community just like you. We are known in the family courts of southeast Texas as being a team of attorneys who put the interests of our clients first. The results that we have earned in court have been the result of working with our clients to achieve their goals and from listening to our clients.
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Law Office of Bryan Fagan, PLLC | Kingwood Divorce Lawyer
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with ar Kingwood, TX Divorce Lawyer right away to protect your rights.
A divorce lawyer in Kingwood TX is skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Spring, Texas, Cypress, Spring, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.