Child Custody and Visitation

In Texas, it is presumed that it is in the best interest of the children for both parties to be named joint managing conservators (JMCs) of their children. Note, this does not mean 50/50, or equal, physical possession of the children. Rather, it refers to the sharing of many of the parental rights, duties and obligations as to the children. For example, barring a unique circumstance, each parent will have the right to direct the religious and moral training of the children while in a parent’s possession, or to attend school activities, parent-teacher conferences, or consult with the children’s health care providers. On the other hand, other rights may be better suited to be exercised by one parent instead of both. For example, the right to make educational decisions. What happens if you share this right, and after the divorce, you want the kids to attend private school and your now ex-spouse wants them to attend public school. Another example, is the right to take the children to a physician or psychologist. If shared, a situation may arise where the children have two different general physicians, or are seeing two different psychologists. As you might expect, this is an area ripe for disagreement. Good family lawyers are adept at negotiating compromises in this area, which may include methods of sharing such rights in dispute.

It is common for one of the JMCs to be designated as “the primary”. This is the conservator who has the right to determine the primary residence of the children, and usually, it is the parent with whom the children will reside on a daily basis. It is also common for a geographical restriction for the primary residence of the children to be set out in the divorce decree. This is usually something along the lines of a specified county, and counties contiguous thereto, but can be something more specific such as a particular school district, or more general, such as the continental United States. A recent change to the Texas law, does away with the obligation to designate one parent as the primary parent, so long as there is a geographical restriction on the primary residence of the children, it is not mandatory that one parent be designated as the primary parent. In other words, both parents hold the title of joint managing conservator. For good cause shown, or by agreement of the parties, one party may be designated the sole managing conservator (SMC) and the other party as the possessory conservator (PC).

Failing mutual agreement, the parties’ visitation periods are set out in the Standard Possession Order (SPO), which is found in the Texas Family Code. I emphasize the phrase “failing mutual agreement”. This means, basically, you and the other parent can do something different from the SPO, so long as you both agree. If one of you disagrees, however, the SPO applies. Most people who are about to go through a divorce have heard enough from friends, family and the internet to know that the SPO means, in general, the first, third and fifth weekends (which start on Fridays) of each month and Thursdays each week, during the school term, for a parent who resides within 100 miles of the children’s residence. The SPO is too lengthy to cover here in detail, but suffice to say, the SPO has additional provisions for Spring Break, Summer, the Thanksgiving and Christmas holidays, Mother’s day, Father’s day, and the children’s birthdays. The SPO also provides a schedule for when a parent resides more than 100 miles from the children’s residence. The SPO can be customized for other holidays, significant events, and special situations (such as, the shifting work schedules of police officers and firefighters). The SPO is presumed to be in the best interest of the children.

Most of my clients are surprised to learn that a Court may not always approve an agreed upon custody or possession schedule that varies from the SPO, such as one reached by the parties in an informal settlement conference or mediated settlement agreement. You will need to discuss this issue with an experienced family law attorney for further and full explanation.

Of course, a contested custody case, has many twists and turns, the outcome of which can rest on certain points with a jury, and others with the judge, solely. For example, a jury can decide the issue of geographical restriction, whereas a jury may not decide the parents’ possession schedule. A jury or a judge may decide which parent should be named the primary parent. There are many factors that go into preparing and presenting a contested child custody case at trial. Too many and varied factors to list on a website. Texas family law courts are some of the most powerful in the nation. They can decide deny custody, terminate parental rights, restrict possession to your children and set a visitation schedule not to your liking.