There is a presumption under the law in Texas that it is in the best interests of your child that he or she be able to develop a long lasting bond and relationship with their mother and father. As such, if your divorce or child custody case were to make it all the way to a trial a judge would start from this point when making a decision regarding conservatorship. By and large most parents, whether their case settles prior to trial or gets to a trial itself, will end up being joint managing conservators. One parent will be designated as having the right to determine the primary residence of your child, while the other will have visitation rights.
A key part to this discuss extends beyond being able to determine the primary residence of your child, however. There are rights and duties that relate to raising a child that are very important and will impact your child’s life just as profoundly, in my opinion, as where he or she lives during the school year. Specifically I am thinking about the decision making abilities for a parent in regard to education, religion and medicine.
Every divorce and child custody case is different- yours will be no exception. The rights and duties division between parents in your best friend’s divorce may not look at all similar to yours. In general, parents split their rights and duties pretty much evenly in terms of being able to make decisions for a child when he or she is in your possession. However, some decisions regarding medical procedures, religious practices and education can be made only in conjunction with the other parent.
This means that you cannot unilaterally make a decision about whether or not your child should be held back a grade if he or she is struggling in school. You may have to consult with your ex-spouse to get their perspective and preference. At the very least you may need to at least provide him or her notice that you are going to make a decision on a subject and then weigh whatever input he or she is able to provide you with.
What a court looks to when deciding whether or not to institute a joint managing conservatorship
There are five topics or subjects a judge in your family law case would look to guide him or her in when deciding what type of conservatorship arrangement is appropriate for your case.
First of all, a judge will consider to what extent you have been an involved and active parent in your child’s life. If you have been an absentee parent it is unlikely that a judge would award you primary conservatorship of your child in a joint parenting situation. If you have been completely uninvolved in your child’s life to the point where you have not seen him or her in years you may be named as a possessory conservator, rather than a joint managing conservator depending on how the other factors affect your family.
Next, a judge would look to how well you are likely to engage with your child’s other parent and to encourage your child developing a relationship with him or her. This can be a tough one for judge’s to evaluate and a tough one for you as a litigant to stomach. A divorce is an adversarial process. This means that you and your spouse are pitted against each other in a civil case. As such, it can be difficult to separate yourself from that structure and think about your spouse as an ally in parenting.
Have you displayed tendencies to cause strife between your spouse and your child? Have you attempted to alienate your child from your spouse? What evidence has your spouse shown of this in your trial? If you cannot be trusted to act in good faith towards your ex-spouse in affirming and encouraging the parent-child relationship between your child and your ex-spouse you can still be named as a joint managing conservator but this will work against you if you are attempting to become a primary conservator.
Third, a judge would look to evidence that would either go towards showing that you put your child first in your life as a priority or fail to do so. If you are a parent who has always been involved, always been present and has shown a propensity towards working with your spouse on issues even when it has not been easy then you are likely to score points with a judge. Different families show these sort of traits in different ways but being physically present for your child and willing to work with your spouse in co-parenting are the hallmarks of being a parent who puts your child first.
Fourth, how far do you plan on living from your ex-spouse? A judge will want your residence to be close to that of your ex-spouse. If you make a decision, or have already made a decision, to move some distance from him or her it can be difficult logistically to name you as a joint managing conservator. An example of this is a past client of ours made it well known that he would be moving to Seattle, WA immediately after his divorce. His family lived there and since our client worked around the country he had no need (in his mind) to stay in Houston.
His plan was to fly his son out to see him on a regular basis and to pay for the costs of doing so. This was a case that actually settled in mediation rather than in a trial because he understood what he was setting himself up for in terms of making it difficult for his ex-wife to be able to consult with him on every little issue that may arise in their child’s life. It’s not every case where parents are self aware enough to be realistic of their circumstances and that of their child but this was certainly one.
Last, a judge would look to the wishes of your child if he or she is over the age of 12 in regard to where the child will live primarily. The law in Texas is that if your child is over the age of 12 and your attorney files a motion to have the judge confer (speak) to the child, that motion must be granted. Many clients think that this is a one way ticket to getting exactly what the client wants.
You should know, however, that even if your child has voiced a preference to live with you primarily that does not necessarily become the strongest evidence in front of the judge in terms of his or her decision making. Children change their minds based on a number of different factors and judges know this. From my experience, most judges will use this as a “tie breaker” if the case is very close, but it cannot be enough for your child to want to live primarily with you if the other factors point against doing so.
Conduct during the trial is important
I tell clients that from the moment you first step into the courthouse you are being watched. Even if you don’t think you are this is true. A judge will remember little actions that you take and can form opinions of you based on this that you don’t even notice. After all- judges are human and they have biases and opinions just like any of us. If you conduct yourself well and act respectfully towards court personnel, attorneys and your spouse you will engender a great deal of goodwill from a judge.
Questions about conservatorship issues in Texas? Contact the Law Office of Bryan Fagan
The attorneys with the Law Office of Bryan Fagan, PLLC have one more blog post’s worth of information to share with you tomorrow on this subject. In the meantime if you have any questions in the meantime please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. Our office has licensed family law attorneys available to meet with you and answer your questions six days a week.