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Questions you may have about child custody
- How is child custody usually handled?
- What sort of visitation is usually awarded?
- What is the standard possession order?
- What does the Standard Possession Order include?
- What visitation schedule is followed if the parents live more than 100 miles apart?
- How is visitation handled for children under the age of 3?
- When should a parent fight for custody?
- Can a child decide who he or she will live with?
- How is custody decided?
- What can I do to improve my chances of winning custody?
Texas law assumes that most divorcing parents will be made joint managing conservators of their children. This does not mean that the child will live half of the time with Dad and half with Mom. Conservatorship involves the rights, powers, duties, and responsibilities of parents, not how much time they have the kids. In the typical joint managing conservator (JMC) order, both parents share most rights, such as the power to consult with school officials and doctors about the child. Some rights belong to a parent only when they have the child (such as the power to discipline).
In the usual JMC order, only one parent is given the right to decide where the child will live. Sometimes the divorce decree will require a parent to get court permission before changing a child’s residence or will limit the residence to a certain county or city.
In some cases, one parent is named a child’s sole managing conservator (SMC) and is given more of the parental rights that are usually shared. In such cases, the other parent is typically appointed the child’s possessory conservator with the visitation privileges.
Texas law presumes that a standard visitation schedule will be followed in most cases for children age 3 and over. A judge can deviate from the standard schedule with good cause, and special allowances can be made for religious holidays.
Of course, parents can agree on custody arrangements that differ from the standard visitation schedule, and judges will almost always go along with their agreement.
Regardless of the visitation schedule written into the divorce decree, divorced parents can always agree to follow any workable schedule of visitation they feel is best for their child. Possession orders are made by judges to provide a definite visitation schedule in case parents cannot agree.
The Texas Family Code provides a visitation schedule that years of experience have shown works for most families. The standard possession order for parents who live within 100 miles of each other basically divides holidays evenly between both parents and gives the parent with visitation at least two weekends a month, two hours every Thursday during the school year, and 30 days during the summer.
School holidays can extend a parent’s visitation. Under the standard possession order, if a parent has visitation on a weekend and the following Monday is a school holiday, then the period of visitation ends at 6:00 p.m. on Monday instead of Sunday. Likewise, if school is out on Friday, the weekend visitation starts at 6:00 p.m. Thursday instead of Friday
The standard child custody order for parents who live less than 100 miles apart presumes that a child age 3 or older will live most of the time with one parent and the other parent will have visitation on the following schedule:
Weekends starting at 6:00 p.m. on the first, third and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday (an option is to start when school is dismissed on Fridays)
Thursdays during the school year starting at 6:00 p.m. and ending at 8:00 p.m. (option: beginning when school lets out and/or ending when school resumes, usually on the next Thursday morning).
From 6:00 p.m. to 8:00 p.m. on the child’s birthday. Fathers have possession for Father’s Day from 6:00 p.m. on the Friday before Father’s Day until 6:00 p.m. on Father’s Day. Mothers have the same period for Mother’s Day.
In even-numbered years: Dad has the child during Spring Break, Mom has the child for Thanksgiving, Dad has the child for Christmas from the time school lets out until noon on December 28, and Mom has possession from December 28 until 6 p.m. on the day before school resumes. The use of “Mom” and “Dad” is for an example only—it could be reversed depending on who has primary custody. In odd-numbered years, the holiday schedule is reversed.
The parent with visitation has the child for 30 days during the summer. If that parent gives notice before April 1, he/she can designate the 30 days during the summer when he/she has possession in up to two separate periods of at least seven days. If no notice is given, he/she has possession from July 1 until July 31.
Visitation for Thanksgiving, Christmas, the child’s birthday, Mother’s Day and Father’s Day remain the same when parents live over 100 miles apart. The parent with visitation gets 42 days with the child during the summer and can follow the first, third, and fifth weekend schedule or choose to select one weekend a month with 14 days advance notice.
The standard possession order usually does not apply until a child turns 3. Most courts will establish a limited visitation schedule for very young children, but in some cases the amount of visitation is significant and overnight visitation is allowed. It all depends on the age and needs of the child and the circumstances of the parents.
Parents who are used to spending every day with their kids are often torn apart by the thought of “losing” their children. The truth is, of course, that both parents will see a lot of the children and both will face periods of time without the kids, no matter who has primary custody.
The decision whether to fight for custody should be based solely on what is best for the kids. A parent’s selfish needs or desires to hurt the other spouse should not be a factor. Always bear in mind that a custody fight will be expensive, will probably be harmful to the kids emotionally, and may make lifelong enemies between the spouses and their families.
In general a child who is 12 and over can have a say in where he or she will live but the child does not have the final decision — the judge does. For more information go to When Can A Child Choose?
The judge (and sometimes a jury) decides custody questions based on evidence presented in court. The best interests of the child determine conservatorship, primary residence, and visitation. Texas law requires fathers and mothers to be treated equally in custody cases.
In some cases, one parent has serious problems and is obviously not a good parent. The judge’s choice in that situation is easy. The much harder case involves two basically good, loving parents. The judge in that instance will usually want to know who has been more involved with the children, who has better parenting skills, whose schedule will allow more time with the kids, and who has family or other resources to help with the children. Judges always want to know which parent is truly putting the kids first and doing their best to keep the kids out of the custody fight.
The judge will sometimes order a social study, in which a social worker visits both homes, meets the family and submits a report.
The judge may order psychological examinations of the parents and/or children. Usually the parties split the cost of a social study or psychological exam, although the court can order one side to bear all such costs. Either parent may hire his or her own psychological experts to testify.
The court may also appoint an amicus attorney litem or attorney ad litem to look after the interests of the children.
At trial, both sides can present witnesses (the parents, family, friends, teachers, counselors, etc.) and evidence about the good and bad parenting abilities of both spouses.
All too often, custody battles involve allegations of adultery, violence, drug use, etc., between the spouses. A person who makes false allegations usually is the one to get burned by such tactics. Truthful but negative information about a parent can, of course, influence custody decisions.
Adultery, if proven, can affect a judge’s decisions on child custody and property division. Most judges do not like parents to bring new lovers around the children before the divorce is over.
Be a good parent above all else. Keep your kids out of the fight and hire a good lawyer.