Whether you are a parent going through a divorce or a child custody case in Texas, you need to be familiar with how a court will view your case if you and your child’s other parent cannot settle in mediation. The fact is that as long as you are not in a courtroom, what you and your opposing party can agree to is pretty much how your case will be decided. Meaning: if you all can settle on an arrangement for child custody a court is likely to honor it because there is a presumption under the law that as your child’s parents, you both have his or her best interests in mind.
On the other hand, if you cannot settle your case then it will head to a courtroom where all of the power as far as decision making is taken from you and your child’s other parent and placed in the hands of a family court judge. This judge, while well meaning and bound to make decisions based on the law in Texas, does not know you, your child or the opposing party in your case. He or she will have a limited amount of time to learn the facts and circumstances of your case and then apply the law in a fair manner.
Best interests of your child
It is presumed that naming you and your child’s other parent as joint managing conservators is in the best interests of your child. This is the starting point that your judge will being their analysis from when it comes to awarding a particular schedule of possession. However, once evidence begins to be presented in a trial a judge can make different decisions regarding what is actually in your child’s best interests.
What sort of evaluation does a judge make as to what is (or is not) in your child’s best interests? First of all, the judge would likely want to do a review of the home environments of both you and your child’s other parent. This often times meaning have an amicus attorney or attorney ad litem conduct a review of the home environments and to compile a report for the judge so that he or she can make a more informed decision.
Next, what your strong-suits when it comes to parenting and what are your weaknesses? What are those of your child’s other parent? Do you and your child’s other parent work well when it comes to co-parenting or are you unable to stand the sight of the other? Your jobs and your financial stability are also considered, although to a lesser extent when yours and that of the other parent are similar.
What a court will look to when making its ultimate determination as to child custody
Judges in Texas are empowered by the Texas Family Code to use their judgment to a great extent when making this decision. The law will guide him or her but in large part your judge’s own notions and opinions on the subject will be key.
I will note that if your child is over the age of 12 and you file a motion to have him or her speak to the judge about their own wishes as to where they want to reside primarily a judge must consider their opinion. How much the judge considers it is left up to that judge.
The current and future needs of your child (emotional, educational, financial, etc.) are considered along with your and your opposing party’s abilities to provide for your child’s needs. How stable is the home that you are living in and what do your habits and past actions in the realm of parenting indicate as far as your ability to provide the sort of environment that is conducive to raising a successful and happy child in today’s world.
There are other factors that will present themselves in your trial, but since they vary significant on a case to case basis I won’t attempt to discuss them here. Suffice it to say that a judge will consider a great number of factors when determining custody and conservatorship issues.
Sole custody of your child
A judge can award you or your child’s other parent a sole managing conservatorship. This means that your child would live primarily with that parent. This is how it would work under a joint managing conservatorship as well, but the major difference is that the sole managing conservator would be in the driver’s seat as far as making decisions for your child in regard to important subjects like education and health care matters.
Joint custody of your child
Joint custody is much preferred by judges and, as we just finished discussing, is the presumptive choice for judges to order in a child custody or divorce case. Not only does it encourage parents to both have a long lasting and committed relationship with their child but it also allows parents to split the responsibility of sharing rights and duties as to that child. I think in my years of practicing family law that this is most underrated aspect of parenting. Most parents focus on time and de-emphasize the rights and duties aspects of parenting. Ask any parent who feels left out of the conversation when it comes to making important decisions and that person will tell you how hard it is to be an effective parent without this right.
Drawing a distinction between rights/duties and time with your child
As a parent there are really two, main aspects to your ability to parent your child. The first is being able to spend time with your child and have him or her in your possession. Quality time is what most people like to call this. Evenings spent watching a movie in the living room, early morning breakfasts enjoying a sunrise together or playing catch in the backyard. These are familiar images for a lot of families and are what I think most clients in a family law case think about when considering what it means to be a parent and what is being fought for and over in a family law case.
I will again emphasize, however, just how important it is to have the legal right to make decisions on behalf of your child. Where your child attends school, what kind of religion he or she practices, the sort of medical care he or she receives and many other decisions are just the sort of life changing issues that I am talking about when I talk about rights and duties of parenting.
While you or I may commonly refer to this as legal custody of your child it is actually called conservatorship in the Texas Family Code. Ironically enough, despite how frequently it is used by the general public and attorneys alike, the word custody does not actually appear in the Texas Family Code even one time.
Using the parenting class as an opportunity to learn more about your child and your family
Most Texas counties will require you to go through a mandatory course on parenting. It may seem a little demeaning for a court to demand that you attend a course on parenting after you have been a parent for years. I understand this may seem like a waste of your time, but I have had more than a few parents tell me that it really did open their eyes on how to resolve conflict, work with the other parent after a family law case and how to maximize the time that you do have with your child.
More on the subject of child custody will be posted in tomorrow’s blog
If you are interested in the information contained in today’s blog post then you will want to stick around until tomorrow when we conclude this mini-series of child custody issues in Texas family law cases. If you have any questions in the meantime I suggest that you contact the Law Office of Bryan Fagan, PLLC. One of our licensed family law attorneys can meet with you six days a week for a free of charge consultation. We can answer your questions and address your concerns in a comfortable and pressure-free environment.