Answering common child custody questions for Texas parents
In recent months I have had a handful of people come into the Law Office of Bryan Fagan, PLLC with questions about how set in stone their Divorce Decree is. The real issue that these folks face is one that may be facing you as well: they have an order in place that is many years old and since then their circumstances have changed. Does your court require you to live under that agreement until your child turns eighteen or graduates from high school?
The answer is, no. Texas courts provide opportunities to people like you to amend or modify their prior court orders but some detail must be given before we move on. First of all, you cannot just file a modification case without justification for having done so. Meaning: you must be able to show a judge that there has been a significant change in circumstances (Either for you, your ex-spouse or your child) that justifies the modification that you are requesting. This could be a change in regard to your child’s needs, your ex-spouse’s income may have increased leading to a need for their child support obligation to increase or a move may necessitate new child custody orders.
Overall, whenever you are asking a court to do something in regard to your child it must be shown that doing so is in your child’s best interests. I mention this not to say that you would be doing anything that goes against your child’s best interests but since it is an important part of every child custody case I felt like it needed to be mentioned. The best interests of the child standard is not specifically laid out as far as factors that a judge must consider. Instead, he or she are able to utilize their own experiences and judgment when deciding what is in the best interests of your child.
Visitation issues in relation to your divorce case
One characteristic that I find many parents beginning a divorce case possess is an all or nothing mentality. By this I mean that these well meaning and concerned parents will walk into our office to speak to one of our attorneys with a mission in mind. That mission is to win “full custody”. Time and time again I hear this phrase used. What I have found people to mean when they use this phrase is that he or she wants the vast majority of their child’s time to be spent with him or her, to the exclusion of their soon to be ex-spouse. Whether or not their spouse deserves to not receive any time with their child is no concern of theirs.
Having absolutist thoughts like this about your divorce is understandable, especially at the outset of your case when emotions are still raw. However, as you begin your journey through your divorce case you should quickly come to the realization that there is not much at all about your divorce that is either completely good or bad, or a decision that goes completely for you or against you.
With that said, why don’t we consider the topic of what happens if you are not named as the of your child who has the right to determine the primary residence of your son or daughter. What will be made available to you by the judge as far as visitation with your child. Are you basically giving up your rights to your child and leaving him or her to fend for themselves without your love or guidance?
Thankfully, you will find that the answer to that question is, “No.” A Standard Possession Order in Texas tells you that as the parent with visitation rights you would be entitled to at least every other weekend visitation with your child beginning at 6:00 p.m. on Friday and ending at 6:00 on Sunday. One weeknight per week during the school year you have the ability to pick your child up and have dinner with him or her as well. This is not to mention holiday visitation and extended visitation periods in the summer. You are even provided alternatives if you have to reside more than 100 miles from your child. Finally, if you and your spouse are able to settle on terms for visitation purposes you can basically implement any visitation structure that you can agree on.
My point is this: if you can avoid absolute thinking that leads to thoughts like: “If I don’t win primary custody I will never be happy.” While we all want as much time as possible with our children, it is possible for you to lead a happy and fulfilling life as a parent of your child even with visitation rights as opposed to primary custody. What’s more- consider that you can always attempt to modify the visitation orders should circumstances warrant them in the future.
Can my ex-spouse deny me visitation with my child?
Under most circumstances the answer to this question is no. For example, if your ex-spouse has not paid you the court ordered amount of child support for the past two months you cannot withhold your child from him or her as a means to encourage speedier payments. Your divorce decree will likely state this specifically.
However, as a parent you should use your best judgment to determine if your child is not safe with your ex-spouse and may be justified in your refusal to allow the visitation session to occur. Think about if your child were to tell you that his other parent hit him or left him alone for an extended period of time the last time that he went to their house. This should give you pause before you allow your child to go to their house. Don’t expect your ex-spouse to take that denial lying down. You may have to attend a hearing on the matter if your ex-spouse hires an attorney to take you to court for denial of visitation. However, if you are able to present evidence that can substantiate the fears that you had regarding your child’s safety then you may not be punished by the judge.
Joint Custody explained
The default setting for parents in Texas who are going through a divorce is to become Joint Managing Conservators of their child after the divorce concludes. This is what is sometimes called “joint parenting”. Let’s discuss some of highlights of what a joint managing conservator-ship means in relation to your child.
Keep in mind that the rights and duties that you have in relation to your child are just as important (if not more-so) than the time that you are ordered to have with him or her. Being able to make decisions on behalf of your child is what parenting is all about in my opinion. I’m talking about educational, medical, religious training and other important issues. Depending on the results of your settlement or trial, you may be given some rights to make decisions for your child independent of your ex-spouse. Other decisions may have to be shared, therefore causing you both to have to come together to make decisions that are in your child’s best interests.
If you and your ex-spouse cannot agree how to make a decision in a particular area you are likely given alternative methods to utilize such as speaking to a counselor, physician or therapist to utilize as a “tie breaker” when you and your ex-spouse differ on a particular issue.
As far as time with your child is concerned, we have already discussed that a joint managing conservator-ship means that you and your ex-spouse will share time with your child. Ultimately the parent who is named as the primary conservator of your child will be allotted more time, but the parent with visitation rights is not left out in the cold, either. What’s more- if you and your spouse come to an agreement in mediation on how to divide up time with your child you can essentially be as flexible as you both can agree to be in terms of splitting up time between the two of you.
More on joint custody in tomorrow’s blog post
Stay tuned tomorrow as we will post more information on joint custody in Texas. In the meantime if you have any questions about today’s topics please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations with a licensed family law attorney six days a week.