Without exception, the issue that parents going through a divorce or child custody voice the most concern over at the beginning of the case is the outcome about their children. It is completely understandable to want to be able to spend the most amount of time possible with your children while minimizing any disruptions to your relationship despite the challenges of a divorce. What I can tell you is the attorneys with our law practice focus intensely on doing our best to make sure that our clients maintain a strong relationship with their children no matter what happens in their divorce or child custody case.
The troublesome aspect of a divorce or child custody case comes into play when you begin to consider that not every facet of the case is something that you have direct control over. From custody to child support to Visitation and possession, parents like yourself have a lot of decisions to make in conjunction with their family law case. While it is not always possible to control every aspect of your case it is possible to act intentionally and to learn as much as possible about the family law case before its beginning.
That is why I give you a lot of credit for spending time with us today here on our blog. I would like to share with you some thoughts on an important area over child custody or divorce case namely that of conservatorship rights. When Texas parents talk about custody rights what they refer to under the law is known as conservatorships rights. Being a conservator over another person means that you have a legal ability to make decisions and a legal duty to perform certain actions regarding that person. You and your Co-parent are conservators of your children. It does not take a court case to establish this.
Once your family law case begins a question will arise regarding who has the right to establish the primary residence of your children. When your children lived with your Co-parent and yourself this was not a big deal. Sharing a home with your family is one of the hallmarks of parenting in married life. However, once a separation in the marriage occurs and one person moves out then the nature of that relationship begins to unravel and change. That is where a family law case like a divorce or child custody lawsuit comes into play.
Of the rights and duties that are established in a child custody or divorce case, no single one is more important than being able to determine the primary residence of your child. The primary residence of your child is where your child stays on most days throughout the year. Most notably, these days coincide with the school calendar and being able to live in that home throughout the school year during the school week. Because the school year is so long the parent with whom your child resides during the school year primarily will end up having more time with your children than will the other parent.
I have never performed an exact analysis of the breakdown of days but the parent who has the primary designation of residence right will be able to spend around 55% of the year with the child as opposed to 45% of the time being spent with the non-primary parent. Since there is a fairly significant difference between the two I would like to take some time and walk you through the extent to which your child will be able to determine where he or she ends up living on a full-time basis based on several factors, most specifically their age.
A standard possession order explained in greater detail
For today's blog post, I am going to base my opinions on the information that I'm giving on an assumption that your child custody or divorce case will result in a standard possession order being in place for you, your co-parent, and your children. A standard possession order is what most families end up living under after a family case is ended. This is the fairly typical post-divorce structure that you may be familiar with where the nonprimary parent has the right to have their children on the 1st, 3rd, and 5th weekends of each month with longer periods of possession taking place in the summertime.
Even under a standard possession order where a majority of the year I spent dividing up time for a child between two parents in a somewhat predictable fashion, it can still occur where a child will go anywhere from 5 to 10 days without seeing the other parent. Bearing in mind that this can be a long time depending upon the circumstances of your family I want you to be aware of the role that your child can play in determining where he or she ends up living on a full-time basis.
When tasked with deciding on anything having to do with your child a Texas family court judge must do so bearing in mind the best interests of your child. This means that he or she will have to take a broad range of considerations into his or her analysis and therefore make a decision that reflects what would be in your child's best short-term and long-term interest. Their emotional and physical development, their ability to succeed in school, their ability to maintain a relationship with their extended family, and also the willingness of each parent to include the other in the child's life are among the factors that are going to be considered.
A judge will be tasked with making this decision not only based upon pre-existing law and precedent but will also have the ability to utilize their lived experience as a family court judge in making determinations regarding the best interests of your child. The idea is that a judge has seen so much in their time on the bench that their prior experiences should be able to inform future decision making. Whether or not the judge knows what is in the best interest of your child is up for debate. However, if you leave it up to a judge to decide your case then this is a pretty good summation of how a judge will arrive at decisions regarding conservatorships, possession, and Visitation.
What role does your child get to play in determining where he or she lives on a full-time basis?
One of the most significant misnomers that people encounter amid a child custody or divorce case is the idea that their child gets to play a primary, if not the only, role in determining where he or she lives on a primary basis. An extremely confident parent will oftentimes walk until our office for a free of charge consultation and will tell one of our attorneys that their child has already expressed to him or her that he or she wants to live at their home and that therefore the divorce or child custody case should be pretty easy or at least very short as a result of the child's wishes being made clear. The assumption is that the child gets to pick and choose what he or she wants and the judge has to listen to what the child wants to do, no matter the age of the child or the circumstances of the case.
Either fortunately or unfortunately, depending on your perspective, this is simply not the case. As we are about to see, the desires of your child about where he or she wants to live on a full-time basis oftentimes do make a significant difference. However, the difference it makes with your particular judge is anyone's guess and ultimately the age of your child and the circumstances of your case play just as much of a role if not more so then the desires every child about where he or she wants to live on a full-time basis.
At what age does a child in Texas begin to have a right to determine where he or she lives?
The Texas family code says that a child who is at least 12 years old does have an ability to voice their opinion as to where he or she will live on a full-time basis. This reflects the understanding that at 12 years old a child begins to mature to the point where he or she can voice an opinion on the subject with more intelligence due to their age. The rub of this entire discussion is that a judge does not have to follow what your child wants to do exactly. As I mentioned earlier A judge will take into consideration the desires of your child who is over the age of 12 but the Buck does not stop with what he or she wants.
It is a mistake for you or for anybody else who enters into a child custody or divorce case to assume that your child's wishes are the most important factor in a case. By all means, I would not recommend that you tell your child that once he or she reaches 12 years old that he or she will be able to determine where they live on a full-time basis. This could stand to upset your child a great deal in the long run once it becomes obvious that your child will not be able to determine their living arrangements exactly the way they want. I would imagine that most judges consider what a child has to say more and more the older the child gets.
From my understanding, years ago Texas law allowed a child who was over the age of 12 to simply sign some sort of paperwork stating where he or she wanted to live and that would be the deciding factor in a divorce or child custody case. Now, a child has to meet with the judge in their office to have a conversation and answer questions about their desires in a permanent living situation. One thing that you very likely do not have to worry about is your child having to testify in front of a judge or a jury in a trial or hearing.
A judge must, however, meet with your child who is over the age of 12 in their office if you file a motion requesting that he or she do so. The judge will ask questions and listen to answers about your child's desire to live in a certain home or to have certain conservatorships rights attached to one parent or the other. The most significant issue that the judge has to find out your child's wishes regarding is where he or she will live primarily. A child who is under the age of 12 does not have the right to speak to a judge in this way. In that case, it is up to the judge to decide whether or not to speak to your child.
What is the process like for a judge to interview your child in conjunction with a child custody or divorce case?
If your trial will be a jury trial the judge will not be allowed to interview your child in his or her office regarding the issue of where their primary residence should be. However, most Texas divorce and child custody cases do not involve a jury and at that point, it will be left to the judge to decide whether or not you are an attorney will be able to be present during an interview. Typically these meetings are not recorded by a court Reporter but if your attorney or the opposing attorney requests that a court Reporter be present the judge must allow it to happen.
As I have already mentioned the judge does not have to listen to what your child has to say explicitly. Any parent of a child knows that children are prone to changing their minds and at the very least making decisions that are not always based on reason and a lot of forethought. Your child may want to live with you for one week and in the next week may change their mind and want to live with your spouse. Even their reasoning as to why he or she wants to live in a certain place may be based on completely unreasonable factors.
It boils down to the judge's understanding that what is in your child's best interests may not be what your child wants at that moment. I think any parent reading this blog posts would have to agree that This is a reasonable position to take for a judge who does not know your family that well and certainly does not know your child that well. Oftentimes a judge will ask a child why he or she wants to live in a certain place to find out whether or not the child is being bribed or even being threatened in telling him or her where they want to live on a full-time basis.
Consider that if you are a strict disciplinarian and your spouse is very lax in their disciplining of your child that he or she may be more likely to want to live with your spouse as a result of their more permissive attitude towards discipline. As I mentioned a moment ago, the maturity and intelligence of your child will surely be measured by the judge in determining how much weight to give to the testimony and responses of your child regarding where he or she wants to live. A child does not have a specific part in determining anything other than where he or she will live on a primary basis after the court case is done.
In conclusion, it is up to you and your spouse to determine the course of your case. If you all can work together and can create a flexible and effective possession schedule without having to go to court then this is all for the better. You would have to involve your child in the case and put him or her in the middle of a difficult custody question. It can be easier said than done when it comes to working through difficult issues with your spouse. For that reason, it is highly recommended that you have an experienced family law attorney to help you sort through difficult circumstances to arrive at solutions that work best for your family.
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 consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances can be impacted by a divorce or child custody case. Thank you for your interest in our law office and we hope that you will join us again on our blog tomorrow.