Once you and your spouse have gotten a divorce you will likely want to move on to the “next phase” of your life as quickly as possible. No matter how well your divorce went it is an experience that you do not want to relive or think about with any frequency. The thought of being able to build a new life for yourself and your family was likely at the forefront of your mind, as well. What would you do now that your case is over with and you are “free” to do what you want?
Well, as you have quickly realized your life isn't as free as you might have hoped for. Your final decree of divorce includes pages and pages of orders from the judge that dictate how you can behave in relation to your property and your children. It is up to you to keep yourself in line with those orders. The effect of your violating a court order could be that you and your ex-spouse wind up right back in court after your ex-spouse has filed an enforcement lawsuit against you. Your post-divorce life is full of possibilities, but those possibilities must comply with the court orders that were handed down in your divorce.
Where you live has a great deal to do with how you approach your new life. You may want to find a new location to raise your family due to the bad memories associated with your former home. If you have family or a support system outside of Texas it may be tempting for you to want to move in order to be closer to those folks. The question is: are you able to move outside of Texas after your divorce and still comply with those court orders we were just discussing. Today’s blog post from the Law Office of Bryan Fagan will delve into that topic and hopefully shed some light on this very important subject.
Parenting responsibilities and sharing time with your ex-spouse
If your family does not have a history of parental bad acts (like violence involving you, your spouse or your children) then a court is likely going to name you and your ex-spouse as joint managing conservators of your children. This means that you and your ex-spouse are going to share the rights and duties associated with your children. While many parents think of the time that they can spend with their children as being the most important aspect of a divorce, I want to emphasize to you that this concept of conservatorship is just as important.
Consider the different rights, for a moment, that we have over our minor children. The right to make decisions regarding medical, educational and psychiatric issues. The right to spend time with our children. The right to direct their religious upbringing. The list goes on and on. So while possession of your child is important it is critical that you have the right to influence and guide your child’s upbringing- especially in those post-divorce years.
Now that I’ve made my points about the importance of all elements of the conservatorship arrangements, let’s delve into joint managing conservatorship. Joint Managing Conservators will likely be the titles applied to you and your ex-spouse after your divorce is complete. This means that you and your spouse will be sharing- jointly- the parenting rights and duties that relate to your child. The state of Texas presumes that this is what is in the best interests of your child- absent evidence to the contrary, like a history of family violence.
Joint managing conservators effectively share in those rights and duties with some exceptions when it comes to certain rights. The ability to receive child support will be held by either you or your spouse (not both, obviously) and you or your spouse will likely be given the right to determine the primary residence of the child as well. It could be that the primary conservator (the parent with whom your child resides with primarily) will have slightly superior rights when it comes to other areas as well, but otherwise, the rights are split between you and your ex-spouse in a pretty even fashion.
Sole managing conservatorship as an alternative
Sole managing conservatorship is what a court will likely shift their attention to if it is found that a joint managing conservatorship is not in your child’s best interests. We have already discussed that things like family violence in the home could create a situation where a sole managing conservatorship is for the best. The sole managing conservatorship looks similar to a joint managing conservatorship in that both parents will still be permitted time with your child, and both parents will be able to make decisions for your child. However, the key difference between a sole managing conservatorship and a joint managing conservatorship is that for the non-primary parent those rights and duties are restricted.
The possessory parent under a Sole Managing Conservatorship will have reduced time and reduced rights and duties due to their having been found to not be fit to have as much say-so in the raising of your child. This arrangement is not common in Texas divorces but it is an option for parents to agree to or for a judge to hand down as an order.
What will a court look to when making custody determinations?
We have already discussed how a court will view family violence in terms of awarding either joint managing conservatorship or sole managing conservatorship designations to you and your spouse. There are still other factors that a court will consider, however, when making custody determinations in your divorce case. In no particular order these include:
-your and your spouse’s ability to set aside your own well being and do what is best for your child. Attorneys often times will speak about themselves as a fiduciary- someone who is in a position where their interests need to take a back seat to that of their client in all aspects of representing that client. The same goes for the parent-child relationship but on a much bigger and more far-reaching scale. Are you able to put your child’s interests ahead of your own in all things? Most parents can and this is a difficult factor for courts to evaluate when a judge has two parents who are willing and able to do so
-what situation benefits your child the most from a psychological and physical perspective? I like to think of this as asking what situation will lead your child to thrive more fully. A court is looking at the emotional and physical well being of your child as perhaps the most important aspect of its entire evaluation on custody. In what environment is your child likely to do better in- yours or your spouse's. If it is so one-sided that a judge believes that you or your spouse are likely to harm your child's development in some way it could be a sole managing conservatorship is implemented
-will you be able to encourage the growth and development of your ex-spouse’s relationship with your child? This is an important consideration. It is easy to be petty after a long, hard divorce. You likely don’t want to think about your ex-spouse any more than you must. To think that you must encourage your child to have a good relationship with that person may seem difficult, but again, parenting is not a walk in the park.
- depending on the age of your child, what he or she wants as far as a primary residence is going to be considered by the court. It works like this- if your child is over the age of 12 and a motion is filed with the judge to have him or she listen to the thoughts of your child on this subject the judge must allow it to occur. It is discretionary if your child is under the age of 12 and a similar motion is filed. There is no set way that a judge has to talk to your child in their office about their preference as to where he or she will primarily reside. In my opinion, a judge isn't likely to delve at that deeply into the situation other than asking your child if both parents treat them well and what their preference would be. Otherwise, remember that a judge is not a counselor or therapist and likely will not want to have your child too involved in the day to day workings of the case
-how involved were you and your ex-spouse in the rearing of your child before the divorce case began? Many are the parents who, as soon as the divorce is filed, become the most involved parents in the world. This is, of course, done to impress the judge and doesn’t come from an organic love or concern for their child. This sort of behavior is pretty transparent and can impact how a judge views you and your ex-spouse. If you were the parent who worked a lot, provided income for the raising of your child but was not physically present all that much in your child’s life to this point that will not bode well for you in terms of awarding your primary conservatorship of your child. This may not seem far, and it may not be, but this is how I have come to experience most judge’s attitudes on this subject
Geographic restrictions and primary conservatorship
It is a difficult decision for a court to make as far as which parent, you or your spouse will be named as the primary conservator of your child with the ability to determine their primary residence. If both you and your spouse display strong parenting skills and a desire to put your child's interests ahead of your own it is especially difficult. For those reasons, a court would prefer to have you and your spouse agree to a conservatorship arrangement in mediation. That way you and your spouse could do the hard work yourselves and could leave the court out of it. After all, no two persons know the dynamic that your family has better than you and your spouse.
If either you or your spouse is not named as primary conservators of your child, another option is to state a specific geographic restriction wherein your child must reside. Remember that a court cannot order you or your ex-spouse to live in a certain area without your consent. That is why typically the geographic restriction centers around where your child may reside. The court will have ongoing jurisdiction over your child until he or she graduates from high school or turns 18, whichever occurs later in time.
Once this issue is determined you and your spouse must then figure out how you are going to divided possession of your child throughout the year. There are many creative solutions to this problem that can be implemented. However, if you and your spouse cannot come to an agreement on this subject then a judge will then be forced to intercede on your behalves and decide the issue once evidence has been presented in a trial.
Geographic restrictions and relocating with a child- tomorrow’s blog post topics
This all leads us to the issue of when and how can you or your spouse move out of state with your child once your divorce is finalized. It was my intent to dive into this issue today but obviously, the explanations I was giving you all on other important factors in a divorce got in the way. Please join us tomorrow as we discuss this is subject in detail.
In the meantime, if you have any questions regarding the content of today's blog post 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 where we can answer your questions and address your concerns in a comfortable, pressure-free environment. Thank you for spending some of your time with us today.
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Other Articles you may be interested on regarding Custody
- Child Custody Basics for Texas Parents Revisited
- When Can a Minor Child Weigh in on Custody Decisions in Texas?
- Texas Child Custody Modifications
- Amicus Attorneys in Child Custody Disputes in Texas?
- Sole Managing Conservator in a Child Custody Case in Texas?
- Teens with Children, Child Custody and Child Support in Texas
- Child Custody and Divorce in Spring, TX
- Custody and Visitation Rights of Grandparents in Texas
- 11 Things You Must Know About Texas Child Custody
- 12 Texas Custody & Conservatorship Battle Tips
Law Office of Bryan Fagan, PLLC | Houston, Texas Child Custody Lawyers
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding child custody, it's important to speak with one of our Houston, TX Child CustodyLawyersright away to protect your rights.
Our child custodylawyers in Houston TX are 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 child custodycases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, 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.