Child custody is referred to as “conservatorship” under Texas law. Conservatorship deals with the rights, duties, and responsibilities of parents regarding children. The following rights must be addressed in a divorce or custody suit:

  • Where the child lives
  • Which doctors and medical treatment the he/she receives
  • The psychologicial treatment he/she receives
  • The school he/she attends
  • Which parent receives child support
  • Early marriage and military enrollment
  • Geographical restrictions for children

Joint and Shared Custody

Divorce is a difficult enough situation, but is made that much more emotional when children are involved in the divorce process. Each parent wants an equal say in the raising of the child and regular access to the child, which can sometimes be difficult depending on outside circumstances.  Texas courts agree that both parents should play a role in a child’s life, but outside circumstances may limit custody and visitation rights.

You and the other parent will be conservators of the child; handling the financial and/or daily life affairs of the child.  With an intact family these rights and duties are generally split amongst both parents and sometimes even extended family.  Most intact families jointly manage rights and duties with both parents working together to find schools near them, doctors and dentists (and covered by their health insurance, if this applies).  If you are able to co-parent before your divorce, or custody suit, it is still possible to co-parent on these decisions after your divorce.  Jointly held rights require both parents to agree on major decisions prior to making major medical, psychological and or educational decisions.  Jointly held rights require discussion and agreement prior to changes.  This is the essence of co-parenting and the State of Texas public policy and court systems encourage the parents to work together as much as possible.  In some cases, parents are able to come together and create an agreement for a shared custody arrangement. There is no one standard shared custody arrangement.  Even if the parents agree on all conservatorship issues the Court must still order and approve these agreements.

During your family lawsuit if the parties do not agree on which parent has the above rights and duties, then a court may order you to share your rights and duties or may assign them without regard to either parent’s preferences.  Parenting is, and always will be, a joint effort on many levels.  The more agreements made on the front end by both parties, the less time and money spent on attorneys and the ever slow family law court system.

Under the Texas Family Code, each parent has the following rights and duties:

  • The right to receive information from the other parent concerning the health, education, and welfare of the child.
  • The right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child.
  • The right of access to medical, dental, psychological, and educational records of the child.
  • The right to consult with a physician, dentist, or psychologist of the child.
  • The right to consult with school officials concerning the child’s welfare and educational status, including school activities.
  • The right to attend school activities.
  • The right to be designated on the child’s records as a person to be notified in case of an emergency.
  • The right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child.
  • The right to manage the estate of the child to the extent the estate has been created by the parent or the parent’s family.
  • The duty to inform the other parent in a timely manner of significant information concerning the health, education, and welfare of the child.
  • The duty to inform the other parent if living with a registered sex offender.

During their respective periods of possession, the father and mother, as conservators, each have the following rights and duties:

  • The duty of care, control, protection, and reasonable discipline of the child.
  • The duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure.
  • The right to consent for the child to receive medical and dental care not involving an invasive procedure.
  • The right to direct the moral and religious training of the child.

The following rights can be allocated exclusively to one parent, independently to both parents, or jointly between the parents:

  • The right to designate the primary residence of the child.
  • The right to consent to medical, dental, and surgical treatment involving invasive procedures.
  • The right to consent to psychiatric and psychological treatment.
  • The right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child.
  • The right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child.
  • The right to consent to marriage and to enlistment in the armed forces of the United States.
  • The right to make decisions concerning the child’s education.
  • The right to the services and earnings of the child.
  • Except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government.

Having an exclusive right means that a parent can make the decision exclusively, and the other parent does not have the right to make that decision for the child.  When the rights are awarded to both parents, either parent can make the decision independently.  When the rights are allocated jointly between the parents, both parents have to jointly agree on the decision that was made.

If a case is referred to as being a “contested custody case,” this basically means the parents are disputing which parent will have the right to designate the child’s residence and which parent will have a visitation schedule and pay child support. In some cases, the issue can be whether or not one parent’s visitation will have to be supervised, or in extreme cases, whether there will be visitation at all. Nothing in life is more precious than one’s own child. Nothing else can match the depth of the joy, satisfaction, love, excitement, and pride of being a parent. It is not surprising to learn that well over half of all trials in the family courts are child-related suits.

What are the Child Custody Laws in Texas?

The Texas Family Code provides guidance relating to child custody. Suits Affecting the Parent-Child Relationship (or “SAPCRs”) are attached to divorce proceedings if children were a product of the marriage.  If a child custody case is not attached to a divorce proceeding, then the SAPCR may be brought separately, if the parents were never married. Many child custody disputes can be settled without court intervention, but if two parties cannot come to an agreement, they will have to bring it into family court where the court will decide how to divide custody.

Texas courts prefer parents to have shared custody, which means that each parent will be what Texas law refers to as a “joint managing conservator.” The court will often look at the following factors when taking into account custody arrangements:

  • History of domestic violence
  • Emotional and developmental needs of the child
  • The ability of both parents to give first priority to the welfare of the child
  • The involvement of both parents in the rearing of the child prior to the suit
  • Geographic proximity of the parents’ residences, or
  • The child’s preference

Texas makes it difficult for parents to lose access to their child and courts frequently look at a laundry list of what Texas law refers to as the “best interests of the child.” If a court does decide against joint conservatorship, one parent will be the sole managing conservator and the other will be a possessory conservator. Both parents will have rights of access to the child, although the sole managing conservator will have more of a say in the child’s upbringing, as well as everyday decisions. The possessory conservator will only have heightened parental rights during periods of visitation.

The parents or the court will come up with a parenting plan based on the guidance of the Texas Family Code, which outlines all visitation, holidays, and parental rights during visits and other times.  Parents are encouraged to draft their own parenting plan, and technology now allows parents to communicate visually with their children on a daily basis even if they are unable to physically be with them, through Skype or FaceTime.

Child custody arrangements can be modified if a substantial event takes place (such as a move to a different country) or if a parent remarries.

If you are going through a difficult child custody dispute, you understand the urgency of coming to a peaceful resolution. Divorce is a difficult time for everyone involved, but it is important not to forget the needs and wants of your child. Attorney Ned Gill will assist you in developing a custody agreement that suits the best needs of your child and ensures that you continue to have access to all the important moments and decisions in your child’s life.

Visitation and Conservatorships

In Texas, the court will make custody decisions based on what is in the “best interest” of the child if the parents can’t come to an agreement. Courts will presume that joint legal custody – called “conservatorship” is best, unless you can prove otherwise.  In deciding which parent should have primary physical custody, the court will consider:

  • The history of contact between the parents and the child
  • The health, safety and welfare of the child
  • The mental and physical health of the parents, and how close they live to each other
  • The preference of a child age 12 or older
  • Evidence of child abuse

Texas laws encourage the parents to work out custody arrangements themselves instead of bringing the matter to court.

After the custody order is signed by the judge and filed with the court clerk, both parents are bound by it. If a parent is denied court-ordered access to a child, he or she may bring the issue back before the court. The judge may decide to modify the visitation order and order makeup visitation for the time missed.

In Texas, both parties are appointed joint managing conservators unless it is not in the best interest of the child or children. The parent who is appointed the primary joint managing conservator and whom the children will live with is the parent who has the responsibility for making day-to- day decisions. The other parent is also called a joint managing conservator and he or she will have visitation rights and will pay child support. The decisions for the children’s education, religion, and nonemergency medical care can be shared by the parents.

Custody and visitation rights are an important part of divorce agreements or other Suits Affecting the Parent-Child Relationship (SAPCRs) brought separate from divorce. Each parent wants to ensure they continue to have access and visitation with their child after a separation. Texas courts agree that both parents should play a role in a child’s life, but outside circumstances may limit custody and visitation rights.

Visitation

In addition to finalizing who manages necessary financial and daily life affairs of the child, the court will approve or order a plan addressing visitation rights. The Texas Family Code provides guidance on how to structure a visitation schedule if parents can come to a mutual agreement on their own. The Code allows for parents to have access to children every other weekend and specific days throughout the year, such as Mother’s Day, Father’s Day, birthdays, and other holidays. While this may be confusing to start with (summer vacations are specifically outlined), it becomes routine after a few months. Parents can additionally come to their own terms instead of relying solely on the Code or a court order. A Texas court will base its recommendations on the Texas Family Code, and therefore will be quite strict in the visitation schedule. If you are able to come to amicable terms with the other party, the visitation schedule can be much more fluid.

Visitation schedules can additionally include daily visits if the parents live in the same city. Many parents work out a school drop-off/pick-up schedule which allows the other parent to see the child on a daily basis. Visitation schedules can additionally include provisions for technological face-to-face communications, such as through Skype or Facetime. This allows parents to have a set schedule when they can communicate with their child and allows them to see their child on a daily basis.

If you are in the midst of a child custody dispute, do not hesitate to contact Attorney Ned Gill III, an experienced family law attorney. Custody agreements can lead to the inability to visit your children if the court agreement is improperly handled. Attorney Ned Gill will carefully examine your case and fight for your rights to custody and visitation. Children grow up so fast, and denying you the ability to see them on a regular basis can drastically affect your parent-child relationship, as well as result in many missed important life events.