Based on my experience as a family law attorney, the term joint custody means a wide variety of things to many people. Most of the time, it is a term utilized by fathers and mothers to describe in my idealized arrangement where they and their Co-parent will share time in decision-making capabilities for their children in an even fashion. Whether or not it is possible to win joint custody or whether or not joint custody is honored by the law are additional considerations altogether. What these parents know is that joint custody is a good thing and something to be strived for.
I will take an opportunity to mention how it is fathers, especially those who seem to be especially in favor of joint custody. It would seem to me that the general belief is that fathers can, at best, win joint custody of their kids. I don't know where this position comes from, but I can tell you that it is the dominant view among fathers. The reality is that nothing is stopping a father from becoming the primary conservator to a child, all things being equal. The major thing is that you cannot assume that, as a father, you stand no chance of being named as primary conservator. Many fathers back themselves into a corner with this assumption that can certainly hurt their long-term chances of winning as much time as possible with their kids.
Joint custody is the general standpoint that parenting time should be shared equally between parents. There is nothing wrong with this position. The state of Texas believes that it is in the best interests of you and your children that they have an opportunity to build and maintain a relationship with you. As such, even a standard possession order allows for you to have a great deal of time each year with your child, even if you are not named as primary conservator or even awarded joint custody.
The ironic thing about the whole discussion we are about to engage in is that joint custody is not even mentioned in the Texas Family Code. Notably, the Texas family code does not use the word custody even one time. Custody is more or less a term that the public and attorneys utilize as a substitute for something called “conservatorship.” Conservatorship is a widely used term in the Texas Family Code and is a topic discussed a great deal throughout family court orders.
Conservatorship refers to an arrangement where you would be positioned to make decisions on behalf of another person and have responsibilities regarding the care of that person. This is important for you to understand. Conservatorship referenced within a family court order means less about time than it does about decision making. The actual time with your children has more to do with possession and visitation. When we talk about joint custody, most people who come into our office for a free-of-charge consultation do so out of a desire to have as much time with their children as possible. I am going to write about this topic from that perspective, as a result.
What are the types of possession and visitation arrangements that are used in Texas?
Joint custody is a relevant outcome for possession and visitation arrangements only when we consider the other types of possession and visitation arrangements that exist. The most commonly utilized possession order in Texas is called a standard possession order. The standard possession order divides parents by naming one parent as a primary conservator and the other parent as a possessory conservator. The primary conservator will have the children for the majority of the year. Most emotive Lee, the primary conservator, can designate the primary residence of the children.
This means that if you are named the primary conservator of your children, they will reside with you during the school year, most specifically during the school week. This alone gives you a major advantage when it comes to time with your children. Additionally, you will be able to split time as far as Holidays are concerned with your Co-parent. As far as the rights and duties contained in a child conservatorships order, the most important designation is typically that of a primary conservative to designate the children's primary residence. If your case were to go to trial, it would likely be related to something having to do with being able to designate the children's primary residence.
For the possessory conservator, your possession schedule would allow you to own your children on the 1st, 3rd, and 5th weekends of each month. Additionally, you would be able to alternate Holidays with your Co-parents, such as Christmas, Thanksgiving, and spring break. I have not sat down and done the math on this, but I would estimate that a primary conservator will have the kids for 55% of the year, whereas the possessory conservator would have the kids for the remaining 45% of the year. Holiday visitation and possession are much more equal than during the school year.
Most typically, this is the arrangement set forth for parents who are joint managing conservators. Joint managing conservators not only share time with their children on a somewhat equal basis but also share in the decision-making responsibilities, as well. However, it is not always possible or appropriate for you and your co-parent to be named as joint managing conservators. In a situation like that, a sole managing conservatorship arrangement may be more appropriate.
Sole managing conservatorships
In a sole managing conservatorship, the sole managing conservator will be in the driver's seat when it comes to possession and visitation and decision-making rights and responsibilities. If you are involved in a sole managing conservatorship with your co-parent and children, you should be aware that your possession and visitation of the kids will not be as frequent as most parents who go through divorce or child custody cases. There are many reasons why this may be the case. I want to discuss with you why you could find yourself in that position.
First and foremost, a judge would look to what is in the best interests of your child when determining what sort of conservatorship arrangement is appropriate. The long-term and short-term impacts of the conservatorship arrangement will be important to a judge. This means that if you present some potential harm to your child as far as your parenting is concerned, then a judge may consider not allowing you to be in contact with your child all that frequently. Also, you would not be able to exercise conservatorship rights on the same level as a primary or possessory conservator under a joint managing conservatorship.
Frequently, drug or alcohol addiction is a reason that is used to justify a sole managing conservator. This is an extreme example that I will discuss when the subject of sole managing conservatorships comes up in conversation with a client or a potential client of the Law Office of Bryan Fagan.
Our office represented a mother in the Houston area a few years ago whose daughter visited with her father during a divorce case immediately after being issued temporary orders. The parents had been named joint managing conservators in those temporary orders, with the father had the right to possess his daughter on the first, third, and fifth weekends of each month. This fairly standard possession schedule was almost exactly like a standard possession order contained in the Texas Family Code.
A major issue arose when our client’s husband was driving under alcohol with the child in the vehicle. This occurs during the middle of one of his weekend periods of Visitation. Our client's husband was arrested and was awakened at night with a call from the police saying that she had to come immediately to the arrest scene to pick up the child. Needless to say, this greatly upset our client and set the stage for her filing of an immediate petition to modify the temporary orders.
The temporary orders restricted the husband's Visitation a great deal. They only allowed four additional Visitation periods once remedial measures were taken like drug and alcohol counseling and testing for alcohol before periods of Visitation. The husband cannot drive to any place with the child other than at the grocery store or a doctor's visit. These were understandably strict requirements that were put in place to prevent anything like this from happening again.
In the long term, we negotiated for a sole managing conservatorship where our client was named the sole managing conservator of the child. This did not have to go before the judge as to the circumstances and facts or completely in our favor. It would be nearly impossible for someone to argue it is in the best interest of a child to be in regular contact with someone who would drive under the influence of them.
Fathers beware of the joint custody “trap.”
Are you a dad who is reading this blog post? Are you going through a divorce or child custody case and worried that your child’s mother stands in between you and your kiddo? Are you worried about the prospect of not winning any time in the case with you and losing your relationship with them? Has your co-parent threatened you with having all your time taken away? If so, then this section of today’s blog post is for you.
Importantly, I wanted to reach out to any father who is reading the blog to talk about how believing in the idea that joint custody of your child is the ideal set-up for your post-divorce or post-child custody case. The reality of your situation is that it is normal to be worried about your future if you are beginning your family law case. You have no way of knowing how the case is going to proceed. You have no way of knowing what the results of the case will be, either.
When I am worried about something, I tend to feel that way because I am limited in my options. Limited options mean that when a problem confronts you, you can take only a few different routes to try to solve that problem. Limited options can make you feel trapped and in need of a lifetime. After having had the opportunity to work with many families going through a divorce, I can tell you that these folks feel worried because they believe so much of their divorce or child custody case to be out of their control. In other words- you would not be the first person to feel trapped within your family law case if that is how you feel at the moment.
With that being said, I would invite you to take a second and reassess your options and your situation. So much of our society is geared towards promoting fear. We are all familiar with the age-old axiom regarding the evening news: if it bleeds, it leads. Meaning: the gorier, sadder, and the top a news story is, the more likely it is to generate interest. That is why the evening news doesn't bury the horrible stories of violence until the middle of the program. Rather, they lead off with those stories at the beginning of the news to trap you and cause you to stick around through the rest of the program.
It’s our human nature to cling to these worst-case scenarios that I believe contribute greatly to a father's ability to be overly pessimistic about their chances of success in a family law case. This is true across the board, by the way. Fathers of all kinds- good dads, not-so-great dads, dads who take an actively involved role in their children's lives, or fathers who take little to no interest in the lives of their children all believe this way. Interestingly, fathers seemingly have little in common tend to think similarly once they become involved in a child custody or divorce case.
Why then, are I would ask myself, is this the case? How do fathers who have little in common share similar beliefs regarding their family law case prognosis when it comes to custody? I think it has a lot to do with the information that I was discussing with you earlier. People like to tell horror stories about their own experiences in divorce and child custody cases. As a result, we tend to hear about the extreme outlier situations rather than what actually can and does happen in these family law cases.
For example, rather than listening to your friend's cousin's sister's uncle's perspective on divorce, why not consider your circumstances before assessing custody-related issues. I can tell you that your own experiences may be significantly different from those in a similar position has experienced for no other reason than their lives are slightly different from yours. These fathers involved in family law cases across the state experience success because they are not bound by the stories and stereotypes they hear from other people. Rather, these men stick to their guns and choose two live their life based on their well-being in that of their children.
While there is nothing wrong as a father in being awarded joint custody in your divorce or child custody case, the reality is that you should not settle for joint custody if there is something better available to you. Often, fathers will settle for joint custody because they believe that fathers can't be awarded primary custody. I can tell you that this is not the case. Fathers who say they have no better options available tend to make worse decisions, all things being equal.
However, by allowing yourself to consider the possibility that you could be awarded more parenting time than your spouse or child's mother, you are opening up a wide world of possibilities. Do not back yourself into a corner and instead consider the possibility that you could be awarded more parenting time than your spouse. Of course, you need to position yourself before the beginning of the case to give yourself a chance at this sort of outcome.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in 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 consultation six days a week in person, over the phone, and via video. These consultations are a great way for you to learn about the world of Texas family law and how your family may be impacted by the filing of a divorce or child custody case.