Just as no two divorces are the same, so, too, will no two custody agreements be the same. Ideally, both parents would agree on who has which rights and responsibilities. Divorce is rarely ever ideal and it is very common for divorcing parents to disagree over matters concerning their children. If you and your co-parent disagree over custody terms, it is in your best interests to hire a family law firm to help you navigate the process—regardless of whether you are in mediation or in court before a judge.
How to talk about custody in Texas.
In Texas, custody is called “child conservatorship”. The custodial parent is referred to as a “conservator”. Conservatorship generally includes the right to get information from the other parent about:
- The child’s health, education and welfare
- Having access to your child’s medical, dental, psychological and educational records
- Ability to talk to a physician, dentist or psychologist about your child
- Ability to talk to officials at your child’s school about his or her welfare, educational status and activities
- Consent to medical, dental and surgical treatment for your child during an emergency involving his or her health and safety.
Similarly, visitation is called “possession” of and “access” to the child. “Possession” refers to physical custody of the child. “Access” is what most people mean when they say “visitation.”
You can see even from just the language involved that using a family law firm to help you navigate your custody disagreements can help make a very difficult and painful process much more manageable and less stressful.
The best interest of your child.
As with so much else in the co-parenting relationship, it’s all about what’s best for the children. Texas encourages mediation in the case of custody disagreements. If mediation is successful, the court will approve the parents’ written agreement. When it is not, the case comes before the court, and the judge will determine all the matters affecting any children by the guiding principle of what is in “the best interest of the child.”
Joint, shared and sole custody.
The judge may consider several different kinds of evidence. Texas law presumes that some version of joint or shared custody (both called “joint managing conservatorship”) is in the child’s best interest unless one of the parents can prove otherwise (in which case, “sole managing conservatorship” might be awarded.)
What is in the best interest of the child is determined by considering factors which include (but are not limited to)
- History of contact between parent and child
- Relationship between each parent and the child
- Health, safety and welfare of the child
- Health of the parents
- Where the parents live
- Distance between where the two parents live
- Each parent’s finances
- Any abuse that may have occurred
As you can see, determining what is in your child’s best interest is a complicated legal question, and two parents can disagree strongly as to what that means when it comes to custody. This is another way your family law firm can help you reach the terms that are the best for your children and the fairest to you.
The final visitation schedule is called a “possession order.” You and your co-parent may agree to a schedule or a judge may set one he or she deems appropriate. The guiding principle of what is in your child’s best interest will drive visitation terms just as it does all the other decisions in a custody dispute. Each parent can generally get what Texas calls “possession and access” unless a judge determines that it is not in the child’s best interests and will endanger his or her emotional or physical well-being.
Texas laws delineate two statutory possession and access schedules (one called “standard” and the other called “extended standard,”) but parents can agree on different ones based on their needs, and a judge can—as always—order a different one based on the best interest of the child. Because determining what is in your child’s best interest can be just as complicated and elaborate in visitation matters as in the question of conservatorship a family law firm will be best placed to help you get the best schedule possible for you and your children.
If one parent can prove that a child’s wellbeing—be it physical or emotional—is at risk of being harmed during the other parent’s possession of and access to their child, then the court can order supervised visitation. If you think that this situation might occur or be alleged at all during your co-parenting relationship, it is imperative that you hire a family law firm to help protect your rights as a parent, subject to your child’s or children’s best interest.
As a practical matter, typically one of the parents has possession of and access to a child most of the time, even though both parents generally share the rights and responsibilities of conservatorship. The court may also award one parent the right to designate a child’s primary residence. In either case, such a parent (the “custodial parent”) is usually the recipient of some amount of child support which is paid by the other parent (the “non-custodial parent.”) A judge will always make his or her decisions about child support based on what is in the best interest of a child. The non-custodial parent must usually pay a set amount for each child until that child turns eighteen, but the court might order payment to continue for a longer time if a child is disabled.
A note about child support and visitation: The court can consider how much possession of and access to your child or children you have when determining the amount of child support the non-custodial parent must pay. However, non-payment of child support by itself cannot be used to restrict possession and access. If you already have a court order setting the terms of child support and/or visitation between you and your co-parent and there is a dispute whether the terms are being followed, then you should promptly contact a family law firm to ensure that your rights and your children’s rights under the order are being protected.
To learn more about this issue or to consult with one of our attorneys, call the Flores Harbour Law Office today for a private consultation (940) 387-3909.