It is not always a given that you or your child's other parent will be awarded the right to determine your child's primary residence in a child custody or divorce case. For the past ten years or so, people like you who are going through a family law case in Texas have had the right to choose a specific geographic area in which their child could reside. This alternative prevents either parent from moving outside that geographic area and therefore does not name one parent as the person with the exclusive right to determine the child's primary residence.
Of all the issues that are argued about in family law cases, I think this is the one that typically receives the most attention from judges, attorneys, and parents. "Winning," a family law case, often means being named as the parent who can determine where your child sleeps at night during the school year. In some instances, parents fight hard for this right because they honestly believe that they are better equipped to care for their children. In other situations, I believe that ego and spite play a role. It would help if you examined why you are pushing for this right and whether or not doing so is in your child's best interests.
A considerable aspect of determining where your child will be residing, whether as a result of naming a parent as having the right to determine the primary residence or via a geographic restriction, is what school your child will attend. If you live in a large urban area (like Houston), then you know that the quality of the public schools available in your area can vary dramatically. Many factors play into why this is, but you need to consider this before negotiating your family case.
The law in Texas is that your child can attend. School in the school district in which either you or your child's other parent resides. Once you figure out what school your child will listen to (and therefore where your child is going to live primarily), the next thing that you all need to figure out is how are the rights and duties associated with your child's education going to be divided between you and the other parent.
If you are named as the parent with the right to determine your child's primary residence, then you are likely going to have the upper hand when making educational decisions for your child. Your child will be with you more often during the school year; you live in the area zoned to that school and will be in charge of making sure your child does their homework daily. The real question occurs when a geographic area defines where your child can reside. How should you divide up educational rights and duties in that situation?
Do the questions start with where your child will attend school and then flow naturally into how our educational decisions will be made? Suppose you and your child's other parent cannot agree that one of you will be the sole decision-maker (after consulting with the other parent). In that case, someone will need to be chosen to play "tiebreaker" if you and the other parent do not see eye to eye on a particular topic.
For instance, your child may have a primary care doctor, therapist, counselor, or other trusted professional who is both familiar with your child and equipped to fulfill the role of the tiebreaker. This person could be in for huge responsibility, in that case, as far as choosing where your child will attend school. The primary care doctor would seem to be well suited to make decisions like this due to both you and the other parent trusting their judgment.
In extreme situations where you all cannot agree, and a third party cannot fulfill this duty, an independent arbitrator can be selected to make a ruling. Both you and your child's other parent can make a presentation concerning your choice for where your child should attend school. Recommendations from school personnel as well as school report cards can be submitted as evidence. The arbitrator would then determine where your child should attend the class for the upcoming school year.
What about medical procedures?
The term that you will see used in conjunction with your family law case is an "invasive medical procedure." This term could mean anything from braces to a piercing to an outpatient surgical procedure. What you need to know is that if you do not define this term, it can create problems for you and your family down the road. To be unclear is to be unkind is how I phrase it to clients. If you all agree when you are negotiating about this subject, you can avoid these problems.
More common than invasive medical procedures is scheduling your child for sick visits to the doctor and the run-of-the-mill checkups that frequently happen for younger children. If your child participates in athletics, then an annual physical will surely be a part of that process- at least for older children. You should include language in your final orders that determine the criteria for selecting the doctors who will be treating your children and how you all will make decisions on individual medical choices.
For most people whose children do not require specialized or frequent medical care, the primary care physician for the children will remain in that capacity after the family law case has ended. If this doctor cannot continue in this role, it is usually requested to choose their successor. This removes the decision from you and the other parent and avoids a potential disagreement.
In an ideal world, you and your child's other parent will be able to work out disagreements and discuss these issues as if you had never gotten a divorce in the first place. The process can look very much the same: everyone sits down and listens to one another and reviews the information that has been collected. At that point, each of you is ready to talk this issue out and decide that it will be in your child's best interests and not one that will make you feel better about yourself.
Psychiatric treatment: How are these issues determined in a Texas family law case?
We can mimic the same conversation we had above in the context of psychiatric and psychological treatment. These are also fundamental rights determined in conjunction with the other parent or done exclusively/independently. Typically, independent decisions can only be made after notifying the other parent what you plan to do with your child.
Medications are being prescribed at pretty high rates for conditions like Attention Deficit Disorder (ADD) and Attention Deficit Hyperactivity Disorder (ADHD). These medications can have powerful side effects on your child. Even the intended results can change your child's personality and habits when their health hangs in the balance; you and your child's other parent need to be on the same page. As often is the case, however, you and your child's other parent may have very different views on what should be done as far as allowing your child to attend therapy sessions and receive medication.
Disagreements on this subject may very well have led to your getting a divorce or no longer residing together as a couple. If you have a child who is experimenting with drugs or alcohol, your views may be highly different on how to handle that situation. You may be highly convinced that a harsh stance on drug use must be incorporated into the disciplining of your child. On the other hand, your ex-spouse may take a more relaxed approach and recommend not disciplining your child too severely for using drugs or alcohol.
I have seen worried parents unenroll a child from their high school and check them into a mental facility or drug rehabilitation center. The other parent would check the child out of that facility the following week and enroll the child back into their high school. Did this accomplish anything positive for the child? Not that I can tell. Did it disrupt your child's life significantly? I would think so.
You and your child's other parent need to be on the same page as to what you should do if you find yourself in a position where your child is using illegal drugs or alcohol. Most parents would tell you that these are pretty common problems among teenagers and even kids younger than 13. Having a plan in place to deal with these issues is ideal, and the time to agree to this type of plan is during the family law case- not in the months following its conclusion.
What about the other rights that are important but not listed in the family code?
The rights that we have discussed over the past few days are at the top of every parent's list of issues to sort through during a family law case. However, the rights that you need to be aware of do not stop at the edges of the Texas Family Code. Instead, some rights are available to you and your child's other parent not listed in the Family Code. Let's go through some of those right now.
The Right of First Refusal
The reality of your situation is that while you will be awarded specific periods of possession in your family court order, it is unlikely that you will be able to be present with your child every second of every day provided to you. Emergencies happen, both personally and professionally. You may get sick and be in bed for a week during the summer holiday with your child. Your mother or father may take ill, requiring you to hop on a plane at a moment's notice.
Along these same lines, you may have moved on since the conclusion of your family law case and have started dating. If you have a significant other, you probably want that person to develop a relationship with your child. As such, you may decide that if you cannot see your child for a day during the weekend assigned to you that it would be easiest if your girlfriend cared for your son while you are away from home. After all, it's your weekend. Shouldn't you be able to choose what happens with your child during your weekend?
Does it matter if your ex-spouse's mother, father, sister, or significant other watches your child during one of their weekend periods of visitation? You may see this as a waste of time. The weekend visitation period is designed for your child to be able to spend time with their parent- not with the grandparents. The retort of your ex-spouse could be that since the divorce decree allows him to designate a competent adult to pick your child up for the weekend, the same person can take care of your child if the parent cannot.
This is where a process called the right of the first refusal comes into play. Stay tuned for tomorrow's blog post to learn more about this topic and how it affects your parental rights in a Texas family law case.
Questions about Texas family law? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in this 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 here in our office. These consultations are an excellent opportunity to ask questions and receive direct feedback about your particular circumstances. Thank you for your time and consideration. We hope that you will join us again tomorrow.