Sole Custody refers to a situation where you or your co-parent are given exclusive decision-making authority when it comes to specific areas of your child’s life. This is done to exclusion of the other parent. Note that this does not mean the parent who does not have sole custody of the child will not have visitation rights regarding him or her. Sole custody relates to conservatorship rights and duties as opposed to possession, access, or visitation.
Sole custody is not the normal arrangement for Texas families. Rather, most of the time families in Texas are comprised of two joint managing conservators that will share in time and parenting rights/duties in a somewhat equal fashion. However, in some situations, a sole managing conservatorship is more appropriate and in the best interests of a child. For example, this occurs in situations where your co-parent may be unable to fulfill the obligations of a joint managing conservator due to job responsibilities. Or he or she may have an addiction or mental health issue that prohibits them from being able to make responsible decisions and look out for the best interests of your child.
If you are a parent who believes that you should be named as the sole managing conservator of your child, then you should begin to build your case as well as possible early on. Begin to think about reasons why it is in the best interests of your child for you to take on this responsibility. Remember that the presumption in Texas is that it is in the best interests of your child for you to be a joint managing conservator along with your co-parent. Having evidence and arguments to show why the contrary is true can take some effort and preparation. The burden is on your shoulders to be able to prove this.
What is joint custody?
Joint custody refers to a situation where you and your co-parent share decision-making authority about your child. Examples of this shared decision-making authority are the rights to consent to medical treatment, and psychiatric treatment, to represent your child in legal actions, to make decisions regarding their education, and right to the services and earnings of your child. It is presumed that in a Texas family law case it is in the best interests of your child that you and your co-parent have joint custody of him or her.
In a joint managing conservatorship, some rights are not equally shared across the parenting spectrum. One of those rights is the right to be able to receive child support. Only you or your co-parent will have the right to receive child support. The other parent will have the duty to pay child support commensurate with their income and the number of children in the present case.
The other right that is not shared equally between parents is the right to determine the primary residence of the child. This right allows you or your co-parent to be able to select where your child lives- with you or with your co-parent. This is the most important right of all in terms of being able to spend the most time with your child and to be able to receive child support. Of all the conservatorship issues that most frequently lead spouses or parents to be unable to settle their case in mediation, this is probably the most frequently debated topic,
What is a custody schedule?
When you and your co-parent create a custody schedule for your child then you are agreeing to divide your child's time between the two of you. Each day of the year is accounted for in a custody schedule. In many cases, this is known as a possession order. Typical visitation for a non-primary conservator looks like the first, third, and fifth weekends of each month in addition to extended periods of possession in the summer and alternating holidays with the primary conservator.
A standard possession order (SPO) is the most common method of dividing up parenting time between you and your co-parent. This is a tried and true method that can have variations to it depending on the specific circumstances impacting your family. For example, if you have work on the third weekend of each month then you may be able to negotiate with your spouse to be able to switch weekends where you have possession of your children on the second weekend of the month and she can have possession on the third weekend of the month.
You need to be familiar with the terms of your custody and possession schedule. Missing a drop-off or pick-up time is not something that is smiled upon. It pays to not only read the schedule when you have an opportunity but to keep a physical copy of the order handy, as well. It pays for you to be able to keep track of the necessary information like this. The best way to do so is to have a copy of the order itself in your home and within reach if there seem to be any disagreements between you and your co-parent.
Can I make changes to my child custody agreement?
Changes can be made after an initial child custody agreement. This is otherwise known as a child custody modification. A modification can be granted by a family court judge if 1) there has been a material and substantial change in circumstances for a parent or child since the prior order was issued and 2) the requested modification is in the best interests of your child. Examples of child custody-related matters that can be modified include child support, possession orders, and conservatorship rights and duties.
Modifications are not necessarily that simple to accomplish in many cases. The courts do not want to set up a situation where your orders can be changed all that frequently. Remember that stability and consistency are what courts strive for when it comes to child custody orders. Allowing a parent to be able to continually modify court orders is usually not warranted nor in the best interests of a child. However, if you find yourself in a situation where circumstances involving your family have changed in recent years then you can seek a modification based on those significant circumstantial changes.
In Texas, can parents refuse to allow visitation?
The presumption under Texas law is that parents act in the best interests of their children when making decisions on their behalf. Without a child custody order in place which contains a possession order, visitation can be denied by a parent. However, if possession and visitation orders are in place via court orders a denial of visitation can be addressed in an enforcement case as the denial is likely a violation of the court orders.
A common situation arises regarding child support not being paid. Imagine if you are due child support from your co-parent but he has failed to pay you for the past three months. The thought may cross your mind to deny your co-parent their time with your child due to your not having received child support from him. Is this tit-for-tat back and forth allowed under the Texas Family Code?
No, it is not. You are not able to deny your co-parent visitation time with your child because he has failed to pay you child support. By the same token, your co-parent cannot deny you child support just because you are denying him time with your child. It goes both ways when it comes to the denial of a benefit that you receive under court orders. You cannot deny your co-parent something just because he or she has denied you something else.
Do grandparents have custody rights in Texas?
Grandparents do not have custody rights to a grandchild, per se. However, if a child custody case has been filed about that child, then the grandparent can file to intervene in the lawsuit. Typically, a grandparent must be able to show that he or she has a substantial amount of past contact with the grandchild and that he or she has cared for the grandchild for an extended period before intervening in the previously filed case.
Grandparents have no "stand-alone" right to visitation, custody, or access to a grandchild. Their ability to interact with their grandchild is based on the permission and consent of a parent to the child. If a parent decides to deny visitation to a grandparent, it is presumed that the parent is acting in the best interests of the child.
The Law Office of Bryan Fagan has successfully helped many grandparents in attaining both visitation and conservatorship rights for their grandchildren. If you are a grandparent who is in a position where you would like to be able to spend more time with your grandchildren, you need to take a step back and reassess the situation and your prior involvement in the lives of your family. Specifically, what goals do you have? You need to be clear when you are attempting to intervene in a child custody case about what you would like to accomplish by doing so.
First, have you been a caretaker for your grandchild in your home? You need at least a six-month period of time where you have been the primary caretaker for your grandchildren to this point. Preferably it would be the six-month period immediately preceding the filing of the suit to intervene in the child custody case. Would separating them from you be contrary to their best interests and harmful to their physical, emotional, or developmental health? This goes beyond a child who misses their grandparent. Can you prove this?
The next thing you need to consider is the costs associated with a grandparent rights case and your chances of success. Filing a grandparent’s rights case is not akin to burning money but if your child can show that you have been denied time with your grandchildren for a valid reason then a court would be unlikely to intercede into your situation and grant you either visitation time with your grandchild or even conservatorship rights and duties.
How is custody determined in Texas?
There are two ways that child custody is determined in a Texas family law case. The first and most common method of determining custody issues is by the agreement of the parents of a child. Parents can come together in mediation or during informal settlement negotiations to settle matters related to children. In the alternative, if a settlement is not possible then the parents would proceed to a trial where a family court judge would issue orders related to custody after evidence is presented by both parents.
Mediation is a process that supports parties to family law cases by offering you a place to have a designated period where all your efforts can be focused on working out settlement agreements on any issue that is relevant to your divorce. Mediation is typically held with a currently practicing family law attorney acting as mediator. This is helpful because an attorney who is acting as a mediator will be able to help you understand the specific role that a judge will play in your case and can even help you determine how a judge would come down on various issues related to your case.
How does Texas law determine an unfit parent?
The fitness of a parent can be challenged in a variety of ways in a Texas family law case. Termination of parental rights is the most serious consequence of being found to be an unfit parent. If a parent is found to be incapable of preserving the well-being of a child, then his or her parental rights can be terminated. Additionally, even in a typical child custody or divorce case, parental rights can be restricted if it is found that the parent has acted in a manner that is not in the best interests of that child.
At what age can a child decide which parent to live with?
If a child is 12 years of age or older, he or she can speak with the judge in the judge’s chambers regarding their preference regarding primary conservatorship. This can be done upon motion by either parent. The judge in this instance must allow the child to speak with him or her as requested by a parent. A child under the age of 12 may be able to do the same only if the judge allows the motion to proceed.
Many people will go into a child custody or divorce case and think that the opinion of their child will certainly determine the outcome of the all-important primary conservator designation. While a judge will consider the opinion of your child if they can have a conversation, that opinion shared by your child will probably not be the most important piece of evidence that a judge will consider. The best interest determination made by a judge will look at your child's performance in school, discipline issues, medical issues, and the work schedules of you and your co-parent when making a primary conservatorship designation.
How can I get custody of a child in another state?
Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), you can file for emergency custody temporarily in a state other than Texas under a few different circumstances if Texas is the child's home state. 1) The child is present in that state, 2) the child has been abandoned or needs emergency protection or 3) because the child (or a sibling or parent of the child) has been subjected to abuse or mistreatment. Additionally, a Texas court must recognize and enforce a child custody order from another state.
Closing thoughts on this “grab bag” of questions
These are some of the more recently asked questions that some of our attorneys have received from individuals who have taken advantage of our free-of-charge consultations provided by our attorneys. We certainly encourage you to come in with your questions. We want you as a potential client to feel like you were treated with respect and given the time needed to ask questions and receive feedback about your case. However, we also understand that we cannot give you legal advice in this setting and that much of the information that we share may not be exactly accurate given that your run-down of the facts may have some differences to them.
However, you are still able to learn about the Texas Family Code and how it could impact your family in one of these consultations. These can be great lessons that you have been exposed to which can help you prepare for your family law case that much better.
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 the family laws of Texas can impact your family in a divorce or child custody case.