Many people enter into a family law case in Texas with the mistaken idea that they are above all else attempting to win as much time with their children as possible. Every other issue comes in a distant second to being able to tuck their little ones into bed at night, as often as possible. As a parent of two small kids, I will not disagree that being able to be with your children is among the most important aspects of parenting. Without it, everything else just doesn't amount to much.
As much as it may surprise you to learn, I think there is an aspect of your divorce or child custody case that is even more important than a possession or visitation schedule. Specifically, I think that your ability to make decisions for your child after your divorce is incredibly important. It is so important that I wanted to devote a chunk of today’s blog post from the Law Office of Bryan Fagan discussing that very subject.
Best interests of your child are what matters
We hear all the time about doing something that is in the best interests of a person, or a group of people or a fill in the blank. That is also the legal standard that a judge will use in your child custody or divorce case if you were to ever sit before a court in a temporary orders hearing or trial. When it comes to your kids the judge will need to decide what alternative, usually one posed by you and the other by your spouse or ex-spouse, is best for your kids.
It is a purposefully vague and open-ended standard that allows Texas family court judges to use their experience, intuition and the law as a basis for deciding what circumstances will best allow your child to thrive and succeed as he or she grows older. What you want and what your spouse wants is not all that relevant here. It could be that what you want coincides with what is in the best interests of your child, which in that case is a good thing. However, the judge won’t be overly concerned with your wants versus what is in the best interests of your child.
Your child's mental health, physical well being, the stability of their home environment and minimization of conflict are all important factors that judges will use to consider what ultimately is in the best interest of your child.
You will need to figure out a way to at least tolerate your ex-spouse
The irony of all ironies when talking about family law cases is that although you are working towards ending a relationship with your spouse, the truth is that you are also working at creating a bond with that person through parenting a child despite living in the same house. Think about how difficult it can be at times to raise your child with another person who lives in the same home as you do. Now imagine how difficult it will get to do that when you only talk occasionally and never see one another.
For those of you who are celebrating your divorce as the end of the days where you and your spouse have to work together or even communicate, think again if you have kids. The burden will be placed squarely on your shoulders to work together to raise your child. The parenting orders of your divorce decree will basically force you to do so. The well-being of your child will benefit greatly if you can look past your differences and coordinate and collaborate on how to raise a child after a divorce.
You are the adult in the room. Your child is a child. You may look to your older child as a confidant of sorts. You may look to your younger child as a distraction and perhaps a reminder of a more innocent time in your lives. However, none of this changes the fact that you are the grown up and your child is a child. You have to do the changing once a divorce begins. Your child is busy enough learning how to grow up and develop into a solid citizen.
Think about your ex-spouse as someone who you don’t have to be best friends with, but you do have a common goal with: to help a little person that you helped create achieve success in life. Different people define success in different ways and that in and of itself is a challenge for two people who probably don’t see eye to eye. Remember that the more you fight and go back and forth with your ex-spouse, the person who is hurt the most by that is your child. This is the time that you could have devoted to him or her.
What are your rights as a parent in Texas?
No matter if you are married, single or somewhere in between, all parents have the same rights in conjunction with their children. The exception is if you have been to court and have had a judge issue orders in regard to your parental rights. In that case, those rights that you have could have been expanded or contracted by some measure based on the circumstance of your case.
We can go over a handful of those rights that the vast majority of parents have in Texas. These are the rights that you will be pushing for in your own family law case.
First off, you have the right to be able to work with your child's other parent when it comes to making decisions regarding your child's health, education, and well-being. For people who have never been to court, the assumption under our state laws is that you and your child's other parent make decisions that are in the best interests of your child. The most fundamental areas that we as parents are entrusted with when it comes to decision making is in school, at the doctor and in any place of worship.
Next, consider how important it is to be able to request and receive information about your child from their school, the doctor or the other parent. To not be able to receive test results from a doctor or a report card from school can severely disconnect you as a parent from the life of your child. Similarly, if your child’s other parent takes your child to the doctor you have the right to ask him or her to provide you with a copy of any paperwork from either school or the doctor.
So much of your child's life revolves around their social engagements, extracurricular activities and school pursuits. You have the right to attend any of these events. Obviously, you cannot break the law or the terms of your court orders while at one of these events, but even if it not "your weekend" you can go to your daughter's basketball game. It may be awkward to see your ex-spouse there but this gets back to being able to work with him or her even in circumstances that don't always feel natural.
One last right that is very important to take note of is the right to make decisions for your child when it comes to emergency medical or dental procedures that may be necessary to save the life of your child. Hopefully, something like this never comes up for your child. However, if it does you will be in a position to be able to consent to surgical intervention that is needed to save the life of your child. In most circumstances when it comes to the surgery, you would need the consent of your ex-spouse to allow your child to get a procedure done. However, when time is of the essence you can move forward with surgery even without the express written consent of your spouse.
Duties of raising a child in Texas
Just as there are rights that you are entitled to as a parent in Texas, you are also duty bound to provide your children with certain conditions, items, and essentials that will allow him or her to live.
We just finished talking about having the right to not only access medical information about your child but to also consent to emergency procedures on his behalf. A duty that you have that is associated with these rights is the duty to inform your child’s other parent about any important information regarding their health, education or general welfare.
Two duties that you have which hopefully will never be relevant to you or your child are the twin duties to notify the other parent if your child resides in the same home as a person who is the subject of a protective order or is a registered sex offender. You can look to the language of your final decree of divorce to see just what is expected of you in these areas. This is intended to allow the other parent an opportunity to assess the situation and be aware of any circumstances that could potentially put your child at risk of harm.
Superior rights of the custodial parent
So far we have been discussing rights and duties that you and your child’s other parent possession in tandem with one another. I would like to let you know that if you are named as the parent who has the right to determine the primary residence of your child, there are two rights that you will hold over and above any of those for the other parent.
Those rights are the exclusive right to determine the primary residence of the child as well as the exclusive right to give a receipt for the payment of child support. You are then responsible for taking those child support payments and utilizing them for the betterment of your child.
In most circumstances, these are the two rights that you or your ex-spouse will hold that are superior to the rights of the other parent. It is assumed that it is in the best interests of your child that you and your ex-spouse hold rights that are essentially equal. This is known as a joint managing conservatorship of your child.
The biggest area of contention in a divorce: determining which parent gets to determine where your child lives primarily
In most any family law battle, it is almost always the truth that the most highly contested issue is where the child should live primarily. Being able to have this right means that you can decide where your child lives, where he goes to school and what he does on most days during the school year. Often times there is a geographic restriction put in place that limits how far a child can live from their other parent. Many families use Harris County and any other county contiguous to Harris. Others pick a school district where their child is currently enrolled. The point is that the court wants to do everything it can to encourage both you and the other parent to develop meaningful relationships with your child without fear of that child being moved away.
More about the right to designate the primary residence of the child will be discussed tomorrow
We will pick up right where we left off today in tomorrow's blog post. In the meantime, if you have any questions or seek clarification on anything you read today 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 here in our office. These consultations are a great opportunity for you to learn more about your case and about our office.
Our attorneys and staff take a great deal of pride in representing the people in our community. These folks were in the same position that you are now- a little worried about their family and not knowing exactly where to turn next. We want to be able to educate our clients about their case so that they are equipped to make decisions that will positively impact themselves and their family now and in the years to come.