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Determining the primary residence of your child in a Texas family law cases

The most significant area of contention that can exist between two parents who are going through a family law case is which parent will become the primary conservator of the children. If you and your spouse are going through a divorce then you likely have thought about what will happen after your divorce as far as who is going to take care of the children on a primary basis. Along with the right to determine the primary residence of the child comes also the rights to determine where the children go to school and the ability to receive child support

With these important factors hanging in the balance, there is no wonder as to why you may want to spend time and money fighting this issue. Along with determining where your child is going to reside primarily, courts will typically institute a geographic restriction on where that residence can be located. Most of the time that restriction allows for residency to be established in the county where your case is being heard and any county that touches your home county. For example, if your case is being heard in Harris County the geographic restriction would for Harris, Montgomery, Ft. Bend, Brazoria, Liberty, Waller and Chambers counties.

The reason that geographic restrictions appear with such frequency in cases is that judges want to allow both parents an equal opportunity to establish relationships with their children. If your ex-spouse was able to leave with the kids and move wherever she wants to without your permission, that would put you in a tough spot. Having to move constantly to keep up with your kids is no way to raise a family or establish a career. You are already at a disadvantage as far as not being with the kids as much as the primary conservator and having to travel to see them would make it even more difficult for you. 

Pinpointing the geographic limitation in order to avoid naming a primary conservator

In some instances, I have seen parents (typically in mediation) agree that neither of them would be named as the primary conservator of the children. What they will usually do is agree to a very limited area where the child can reside and then both parents will choose to live in that area. Many parents want to limit their child to a particular school district and as a result, both parents will have to have a residence that allows them to be zoned to that district.

The benefit of agreeing to this sort of arrangement is two-fold. One, it is good for children to have stability and consistency in their lives. Knowing that they will not have to pick up and leave to move to a new place after a divorce can ease the mental burden of a significant change in their lives. Another benefit that comes to mind is that judges look very favorably upon parents who decide to put their children first above their own interests.

A logical follow-up question to this topic would be if no parent is designated as the primary conservator of the kids, does either parent then have the right to receive child support from the other? If you and your ex-spouse split the parenting responsibilities of your child due to how close you all live together, it makes sense on some level to question whether or not child support is necessary. This is especially true if you both earn similar incomes. 

I will tell you that the vast majority of the time your plan of splitting time with your kids 50/50 does not work out as cleanly in practice as it does in theory. Circumstances come up, work commitments and personal commitments can all keep you from seeing your child as often as you would like. As a result, a court would likely want to establish some amount of child support to be paid by one parent to the other. If you earn less money than your ex-spouse does it is probable that you would be the person who would receive the support. 

What about having your child testify where he wants to live?

One thing that I consistently hear from clients is that they expect their older children to be able to testify in open court about their preference as to where they live on a full-time basis. This seems to be the ultimate trump card in their mind. The case will effectively end as soon as their opinion is addressed to the judge- at least in their mind. The reality is not so clear cut, and as a result, I would like to discuss that reality with you all today.

Much of what I just talked to you about, as far as parents’ perceptions of what a child’s preference means, is fiction. Yes, a child over the age of 12 shall have the ability to talk to the judge about their preference as to where he lives on a primary basis. A motion must be filed by a parent to have this occur, however. A child under the age of 12 can also tell the judge their preference but the judge can decide whether or not to allow a younger child the same opportunity. 

What happens when a judge meets with your child?

Your child Is not likely to see the inside of a courtroom at any point in your family law case. So, you don't have to worry about your daughter being asked to choose between mom and dad in open court. What will happen is that the judge will speak to your child in their office without either you or the other parent present. Questions will be asked about how the child is doing, how the school is going and what their preference is as to where he or she lives primarily.

The opinion of your child is important, but the case does not hinge on what your child tells the judge. It is one piece of information that the judge will utilize as evidence in order to make a decision. That is not to say that the judge does not care about the opinion of your child. However, judges understand that children can base their opinion on things that can change on a weekly, if not daily basis. 

The decision as to where your child resides primarily will be the judge’s to make 

If you and your spouse cannot agree on where your child should live primarily then you will be asking a judge to make that decision for you. It is obviously a very significant decision and one that you need to think long and hard about whether or not you are comfortable with having a stranger make for you. Typically a judge will hold your trial first and then listen to testimony from your child on what their preference is. Depending on what happens in your trial the judge could have already made up their mind one way or the other before even speaking to the child. Once your child does make it back to the judge’s office it is likely that only the judge and the court staff will be present in the room. Your attorneys will likely not be present. 

Keep in mind that not only is the judge experienced at hearing family law cases, but he or she is likely a parent themselves. As a result, they are good at picking out a teenager who is only wanting to live with a parent in order to get away with more as far as rule-breaking is concerned. Before you file a motion to have your son talk to the judge you should talk to your child and make sure he knows what will be expected of him. If the judge gets the impression that their opinion is based on your bad-mouthing your spouse this will not be a good look for you. 

How often will be you be able to see your children after the divorce concludes?

It seems like we have been talking about everything but this subject so far in today’s blog. Ultimately, parents are usually most concerned with being able to spend time with their children as much as possible. All of the factors that we have been discussing the past few days are relevant in determining the answer to this question. Of all the factors that we have discussed, however, your paying child support is not one of them. Your ex-spouse cannot withhold visitation from you if you are not current on your child support obligation. 

If you are a parent who receives child support as a result of a divorce, it may be tempting to use your child as a chess piece in order to force your ex-spouse to pay you child support. Sending angry texts or threatening him with not being able to see their child is not the way to go about getting the child support that is owed to you. A back and forth battle puts your children in the middle of everything and can negatively impact their mental well-being. 

The Standard Possession Order

For the most part, parents that go through family law cases in Texas are provided with a Standard Possession Order in the event that he or she is not provided with the right to determine the primary residence of their child. A Standard Possession Order involves visitation periods on the first, third and fifth weekends of each month during the school year. A weekly visit during the school week from 6-8 p.m. on Thursday will allow you to take your child to dinner each week- even when you do not have visitation the following weekend. 

Holiday visitation allows you to have an extended period of possession each summer- usually totaling around 30 days. Other holidays: Thanksgiving, Christmas and Spring Break will be alternated from year to year. Christmas break is broken up into two parts because the holiday is so long. The first half of the holiday begins at 6:00 p.m. on the day that school is let out and ends at 6:00 p.m. on December 28th.  The second half begins at that point and ends at 6:00 p.m. on Sunday before school resumes.

What other possession schedules are available in family law cases in Texas?

There are other possession schedules available to parents, however. Keep in mind that if you would like a non-traditional visitation/possession schedule with your kids it is best to try to work out this agreement with your spouse in mediation rather than to ask a judge to order it in a trial. 

Many parents who want atypical or non-traditional visitation schedules to be implemented for their family will ask for a 50/50 split in custody. Parents who have flexible work schedules or that plan on living close to one another may find this sort of visitation arrangement appealing. In tomorrow's blog post from the Law Office of Bryan Fagan, I will go over more details about how you may be able to structure a 50/50 possession schedule and what difficulties you may not foresee occurring that can impact your family in the future.

Questions about family law cases in Texas? Contact the Law Office of Bryan Fagan

If you have any questions about a family law case that involves your family, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys are available six days a week to meet with you for a free of charge consultation. These consultations are a great opportunity for you to learn more about your case and more about our office, as well. 

Our attorneys and staff take a great deal of pride in representing people in our community across the courts of southeast Texas. We are experienced and achieve favorable results for clients every day. We welcome you to explore our website and read as much as you would like about the services that our office provides to clients. However, contacting our office will allow you to learn a great deal more and to see what our office can do for you and your family.


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