If you are a parent, then the most important issue in your divorce is going to be how you divide up the rights, responsibilities and time associated with parenting your children. Make no mistake, there can be vastly different outcomes achieved in conjunction with how time with your children will be divided up between you and your spouse.
Keep in mind that if you and your spouse cannot agree on your own as far as how to divide parenting time up between the two of you, a judge will intervene and will make that decision for you. As such, it is crucial that you all be willing to negotiate with one another unless you want a judge to decide the subject instead of your child’s parents. It can be even more difficult to set aside what you want and do what is truly in your child’s best interests.
What is custody and what does it mean to you and your family
A word like custody is used so often in conjunction with family law that you would think that there is a lot of information on it contained within the Texas Family Code. On the contrary, the word "custody" does not actually come up in Codebook even once. However, the term has come to encapsulate a great deal of information that is relevant to you, your spouse and your child as you head into a divorce.
There are really two parts of custody that you need to concern yourself with in relation to your divorce case. Those elements would be physical custody and legal custody. Let’s spend some time discussing each.
Physical custody with your child has to do primarily with where your child is going to reside on a full-time basis once your divorce is completed. One parent will be named as the parent with the right to determine the primary residence of your child. The other parent will be able to have visitation rights in relation to their children. You will fall into one of these two categories at the conclusion of your divorce case.
As opposed to physical custody, legal custody refers to the rights and duties of raising your child and how those rights and duties will be divided between you and your spouse after the divorce. The ability for you to be able to share in and in some circumstances make independent decisions regarding your child’s educational, physical and spiritual upbringing is incredibly important. This is something that some parents overlook during the course of their divorce case because their focus is solely on winning as much physical custody of their child as is possible.
What sort of time-sharing plan do you think is in the best interests of your child?
Dividing up your time with your child can be very difficult for many parents to do. You are likely used to being able to see your child as much as you would like, whenever you would like to. It is going to be an adjustment to not be able to see your child at the drop of a hat. Other factors like where your children go to school, the age of your kids, the extracurricular activities that they are involved in as well as your own work schedule will all factor into the decisions that you make in regard to custody of your children.
Write it down and plan it out
I recommend to clients that they begin to brainstorm this information at the beginning of their case. You can even take some time to write your thoughts down. What arrangement is in the best interests of your children? What steps will you take to ensure that you are able to spend as much time with your children as is possible? What problems do you foresee facing you and your family as your divorce comes to a close?
If you want to be particularly detail-oriented, you can pull out a calendar out and mark down days of the month that you want to keep your children. Of course, your spouse may have their own opinions on this subject and those opinions may not coincide with your own thoughts. However, you can head into your divorce with a plan of action that you will be taking rather than worrying about what could happen that it outside of your control.
When it is all said and done, you can plan for a lot in conjunction with a divorce case, but you cannot anticipate every change in circumstance that will confront your family. Your perfectly thought out custody plan may not work well for a family two, three or four years down the road. When you find yourself in a situation like that a modification of the original orders may become necessary.
What to do in advance in order to win your modification case
In the event that you need to bring a modification case, I would recommend that you stick to the following rules in advance so that you stand the best opportunity to get your modification request approved
Always pay your child support. This means that there is no excuse for not paying child support when it comes to wanting to modify an order. The failure to pay child support can sink your case before it even has a chance to swim. It is a difficult argument to make for you to tell a judge that you know what is in your child’s best interests better than the other parent when you are $10,000 behind in paying child support.
Once you start having to explain the issue of owing child support you have already lost in the eyes of many judges. You can spend all the time in the world explaining it to the judge and you can have all sorts of good reasons, but the fact is if you have to stand there in court and make arguments about child support you have lost on many levels. Specifically, if you are a father and are attempting to win primary custody of your kids, any mark against you could cost you big time.
Take advantage of all the time afforded to you under the original orders
No matter if you left your divorce case thinking that you got the least fair visitation award in the world, you need to follow through with your parenting plan and see your child as much as you are able to. Remember that nothing when it comes to a court order is forever. Circumstances change and the orders can change along with them.
It is a sign that you are taking your responsibilities seriously when you see your kids on time and every time that you are able to. Missing pickups, constantly arriving late to drop the kids off and other relatively "small" violations of the court order can all stack up against you when you come back to court and attempt to modify the orders in your favor.
Treat your ex-spouse well
It is easy to feel angry towards your ex-spouse, especially in the time period immediately after your divorce. Feelings of anger and resentment can bubble to the surface without much cause and those feelings could lead to you saying and doing things that you later regret. Think about the golden rule- do unto others as you would want them to do unto you.
There is no reason to rock the apple cart throughout the year with your ex-spouse. Making decisions with him or she is a necessity as you enter into the post-divorce years. Not only does it help him and her to feel included but it also complies with your court orders. If something happens with your kids while he or she is with you then you should inform your ex-spouse. Let me give you an example to illustrate this point.
Communication is key in a post-divorce, co-parenting world
I had a case recently where a mother filed a modification case against a client of ours. That modification was a bit of a long time in coming. Our client had not always followed the rules that I just laid out for you above as far as being a pleasant ex-spouse. He would drop the kids off a little late on every weekend and was not a great communicator. He's not being a great communicator would come back to bite him in the rear.
Our client's six-year-old son was not feeling well on a Monday morning and as a result, did not go to school that day. Normally our client would drop his kids off at school on his way to work. Because the youngest child did not go to school, an alert was sent to the child's mother who received an email stating that her child was not in school.
A little flustered she called our client panicked. He told her to calm down because their son was with him at home. He was planning on calling his ex-wife early in the afternoon to let her know that so she wasn’t looking for him when it came time to pick the kids up from school. His failure to call her earlier in the day was the straw that broke the camel’s back. She ended up filing an enforcement case due to his continued violations of the court orders.
What can you learn from this? Well, for starters you should be able to tell that this mom was willing to overlook our client’s relatively minor violations of their court order until she became worried about the health and safety of the child. She would not have gotten to that point had our client communicated better with her. In fact, she and our client had made a conscious choice not to communicate with one another because they simply did not want to.
Our client had told me that his plan was to eventually file for primary custody of the kids. That plan had to be put on the backburner as he now had to defend himself against an enforcement case. I was able to negotiate a settlement to the case with the mother’s attorney and keep our client out of a court case that he was likely to lose. However, because he was not able to do right under prior order he cost himself an opportunity to modify the order more to his liking.
Parting words on the subject of parenting time division
Above all else, remember that you are going through the difficulties of your family law case because you want what is best for your child. Do not frame decisions that you make as to whether or not they are good for you or good for your ex-spouse. Rather, these cases need to center around your children and what will be best for them now and in the future.
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