There are two types of divorces that come to mind when the two people have children. The first is a divorce where the couple has grown apart and want to legally end the marriage. Sure, there is some bad blood, frustration and anger under the surface but that is it. The parties want what is best for their child and want to go their separate ways. For lack of a better word, these couples have numbed senses and just can’t work together anymore as a parenting unit. These divorces are typically pretty amicable and settlements are reached earlier rather than later.
On the other hand, we have divorces where for any number of reasons an upset spouse will come in to talk with me and will nearly demand that he or she get “sole custody.” Sole custody can mean a lot of things to a lot of different people, mind you, but for the most part I think people mean that they want to have the only say in decision making on “big” issues like school and health care and then leave their ex-spouse will as little time as the law will allow as far as possession of their child is concerned.
To be fair, when these folks usually start telling their story I will have to reign them back in to inform them of the fact that there is a presumption that a joint managing conservatorship is what is presumed to be in their child’s best interest, rather than the sole managing conservatorship which they would seem to prefer. What’s more- the circumstances of their case usually don’t approach anything close to the sort of evidence that would rebut (overcome) the presumption that a joint managing conservatorship is what should be handed down in your case.
An unfit parent leads to sole managing conservatorships
If your spouse is determined to be unfit in some regard these are the circumstances that often lead to having a parent named as a sole managing conservator, with the “unfit” parent being named as a possessory conservator. Possessory conservators essentially have limited rights and duties as to their child and then often times have limited visitation as well. What situations lead to judges ordering sole managing conservatorship.
You see it most often in circumstances where abuse or neglect have been present. If your spouse has been violent towards you or towards your child that is a somewhat easy situation for a judge to determine that you need to be put in a position where you hold the majority of the decision making capabilities for your child as well as the lion’s share of the time in physical possession of your child.
What happens when a third party enters into the conservatorship picture?
If you are in a child custody situation (you and your child’s other parent were never married) and there are circumstances in place where your, your child’s other parent or both of you may be determined to be unfit or potential sources of harm for your child then a third party be able to be intervene and become a conservator of your child. There are two cases from this past year that come to mind as good examples to share with you all.
The first involves a mother who we represented in a child custody case. The circumstances are a bit unique. The mother and father had active child custody orders in place here in Harris County when our future client decided to remove her daughter from school and took her to live in Jacksonville, FL with her and her new husband. This was approximately one year prior to the beginning of the family law case. Our client did not return phone calls and did not make the child available to the father in Houston.
Finally, the father filed an enforcement case against the mother asking for the return of the child. He also filed a modification case asking to be named as a sole managing conservator. It was with these two lawsuits pending against her that the mother hired our office.
We attended mediation where, to be honest, not much progress was being made as far as hammering out a deal to settle both cases. The mediator, the client and I were talking about the home life of her daughter as always being chaotic. However, our client had a great deal of respect for the father’s mother- her child’s grandmother. From there, an unorthodox solution came about. The child’s paternal grandmother would be named as the managing conservator of our client’s daughter. Both mom and dad would remain conservators but grandmother would have the right to determine the child’s primary residence and would have primary decision making capabilities and health care and education.
The end result was that the other attorney and I had to file a joint motion for the grandmother to intervene into the case in order so that she could be named as the primary conservator of this child. Our client would have regular visitation, could drop by the school where the child attended whenever she wanted and had a great deal of flexibility. This suited her well since she lived in Florida with her husband who is in the Navy.
Grandparents and conservatorship
The other situation that immediately comes to my mind when the topic of third party conservators is discussed is a case that involved grandparents attempting to win conservatorship over their grandchildren. The kids’ parents (the son of our clients and his wife) were both in trouble with the law. Our clients’ son was already in jail on a charge related to sexual abuse of a minor and our clients’ daughter in law was not far behind him. They were both either on the hook or soon to be on the hook related to these sort of serious charges.
The problem for our clients was that the mother did not want to allow the children any time with the grandparents. The children had been living in the Houston area with the mother’s sister (their Aunt). Grandparents are not guaranteed time with their grandkids under the law in Texas. In fact, parents are presumed to make all decisions in relation to their children in the children’s best interests. This gives parents a tremendous amount of authority and autonomy to make decisions for their children. In most cases this is a good thing but here it was not.
What we saw happen was in an initial case, our clients attempted to win merely visitation time with their grandkids- which they were able to win. We negotiated an order that guaranteed them time with their grandkids throughout the year. Once that case concluded and the fate of the children’s mother was settled, mom agreed to name grandma and grandpa as the primary conservators of the kids. Both “kids” were actually teenagers and would not be affected for too long by a family court order, anyways. However, since these grandparents had shown an interest and never gave up hope of being in a position to impact their grandkids life they were rewarded in this way.
Unorthodox circumstances require representation of an attorney
If you and your family find yourself in unique circumstances and you believe that a child custody case needs to be filed I recommend that you hire an attorney to do so. The fact is that there is some maneuvering behind the scenes that I did not have room to include in this blog but were absolutely essential to the folks I discussed achieving their goals. Hiring a family law attorney is an investment but it is one that I can promise you each of the above people would do again in a heartbeat.
Questions about child custody cases? Contact the Law Office of Bryan Fagan, PLLC
If you have any questions about the information that we presented in today’s blog post then please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. Our licensed family law attorneys meet with potential clients six days a week. We answer questions, address concerns and share how our office can benefit you and your family.