Texas often has its own way of doing things, and custody issues are no exception. Although the concept of custody itself is much the same everywhere, the legal terminology in this state is different. If you're facing divorce and concerned with its impact on your children, understanding the state's custody laws begins with deciphering its terms.
Like other states, Texas encourages parents to form their own parenting plans to address issues regarding their children post-divorce. If you have a reasonably amicable relationship with your spouse and you can negotiate a parenting plan with her, you can commit its terms to writing and submit it to the court at any time during your divorce process. If the judge finds that the plan is in your children's best interests, he'll incorporate its terms into an official court order that eventually will become part of your decree. If your plan includes factors with which the judge isn't comfortable, he can send you and your spouse back to the drawing board to try to come up with a better one. If all else fails and you just can't reach an acceptable agreement, the judge will set the custody terms.
Texas law refers to legal custody as conservatorship. A child's conservator has the right to make all important decisions regarding his upbringing, such as schooling, religion and medical care. Parents can act together as joint conservators. You must state in the parenting plan you submit to the court which parent will serve as conservator or if you will serve as joint conservators. If you share conservatorship of your child, you should implement tie-breaking procedures in case you find yourselves on opposite sides of the fence regarding an important issue. If the court sets custody terms, Texas judges prefer ordering joint conservatorships in the belief that a child's best interests are served by having both parents actively involved in his life.
Physical custody is called possession in Texas. Assuming you and your spouse are joint conservators, which is common, the parent your child lives with most of the time is the managing conservator. The parent who has visitation is the possessory conservator. Parents who share joint possession of their child with a 50-50 time-sharing arrangement are joint managing conservators. If you can't agree on custody and a judge must decide for you, one of the factors the court considers is your child's feelings. Your child can't testify at trial, but if he's over 12 years old, the judge can talk to him in chambers regarding the issue.
Standard Possession Schedule
Texas courts want both parents to spend substantial time with their children post-divorce. The state has a statutory "standard possession schedule" -- what other states might call a visitation schedule -- and judges often defer to this when they must decide custody terms at trial. You can feel free to fall back on it when you're negotiating a parenting plan with your spouse. The schedule provides for the possessory conservator to have his child on the first, third and fifth weekends of the month. If you're not the managing conservator, you also would share Thursday evenings with your child -- although not necessarily overnight -- as well as a month in the summer. Holidays are rotated between parents. You might begin your negotiations for a parenting plan with this schedule, then tweak it to fit your family's needs.
If your divorce is particularly acrimonious and you and your spouse can't possibly agree on a parenting plan, a Texas judge can appoint a guardian ad litem for your child as part of the divorce process. This is an attorney who represents your child's interests. She will investigate your family and might order a custody evaluation in an effort to determine the best interests of your child. Judges rely on these best interests factors when deciding a custodial arrangement. They include your child's preference, the parenting abilities of each parent and the stability of your home environment. By law, judges cannot award joint managing conservatorship if your family has a history of domestic violence, child neglect or child abuse. Texas law also takes a strong position against false allegations of abuse in custody disputes. The state's code allows a judge to impose a $500 fine on the parent who levels trumped-up charges.
References & Resources
- Texas Constitution and Statutes: Family Code Title 5 Chapter 153
- Beverly J. Greely: Texas Child Custody and Visitation – Frequently Asked Questions
- El Paso County, Texas: Child Custody and Rights
- Jack K. Robinson: The Best Interest of the Child -- The Guiding Principle in Texas Child Custody Litigation
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