Going through the divorce process is difficult for most people. If you have minor children that are part of that process, the prospect of divorce can be even more stressful and intimidating. Knowing the answers to some basic questions regarding custody and divorce may help. With that in mind, Fort Worth child custody lawyer Jon Boyd discusses five things you need to know about child custody in a Texas divorce.
“Custody” and “visitation” are outdated terms. Like many other states, Texas does not use the terms “custody” anymore. Instead, the term used to refer to a parent who has legal rights and responsibilities for a minor child is “conservator.” A parent who has the sole right to make decisions regarding the minor child has “sole managing conservatorship.” In that case, the other parent is referred to as a “possessory conservator.” If both parents share the right to make decisions, they are referred to as “joint managing conservators.” The term “visitation” has also been loosely replaced by the term “possession and access” which refers to when the parents have physical custody of the children or when they exercise parenting time with the children. Texas uses two possession and access schedules, standard and extended, to help parents schedule their parenting time. If both parents agree to a deviation from those schedules or to a completely different schedule, however, the court will usually accept that schedule.
There is no presumption in favor of a mother when it comes to conservatorship. Until relatively recently, an unspoken (and sometimes legal) presumption in favor of awarding custody to a mother existed throughout the country. Not only has society finally accepted that fathers should have equal rights to their children, but the law has also codified that right in the State of Texas. Section 153.003 of the Texas Family Code states “The court shall consider the qualifications of the parties without regard to their marital status or to the sex of the party or the child in determining:
which party to appoint as sole managing conservator
whether to appoint a party as joint managing conservator
the terms and conditions of conservatorship and possession of and access to the child.
Conservatorship and child support are separate issues. When the parents of a minor child divorce, both the issue of conservatorship and the issue of child support must be decided during the course of that divorce. Once the divorce is final, however, both parties need to avoid making possession of the children dependent on payment of support and vice versa. In other words, you cannot refuse to pay child support because your ex won’t let you spend time with the children. Likewise, you cannot refuse to allow your ex to spend time with the kids if he/she is behind on support payments.
You have rights when your children are with you. Even if you are not a sole or joint conservator, you still have rights when your children are with you. Unless the terms of your divorce specifically dictate otherwise, you have the following rights and responsibilities:
The responsibility to care for, protect, and reasonably discipline your child.
The responsibility to support the child, including providing the child with clothing, food, shelter, and routine medical and dental care.
The right to consent to routine medical and dental care that does not involve an invasive procedure.
The right to direct the moral and religious training of your child.
Conservatorship can be modified after the divorce is final. Divorce is somewhat unique within the law in that the “final” orders of the court issued at the end of the divorce process are frequently modified, unlike most other litigation. In Texas, you may petition for a modification of conservatorship at any time. To prevail, however, you will need to prove:
The child is 12 years old and wishes to change the primary caregiver; OR
There has been a change in circumstances that is material and substantial; AND
The proposed changes to the order would serve the child’s best interests
If you are the parent of a minor child and you are contemplating divorce, contact an experienced Fort Worth child custody lawyer right away at Boyd Family Law to schedule your appointment today.