Divorce is rarely easy on anyone involved, including the children. In fact, divorce is often much more difficult on the children than it is on the parents. If you are contemplating divorce, or have already gone through the process, your child may have strong opinions on the terms of that divorce. For example, your child may have expressed to you that she (or he) wants to live with you post-divorce. A Fort Worth conservatorship lawyer Jon Boyd explains how the law addresses the issue of children being allowed to weigh in on where they live after a divorce.
“Custody” and “visitation” are terms most people understand given how often they have been used in the past 100 years. Texas, however, no longer uses the terms “custody” and “visitation.” Instead, the terms “conservatorship” and “possession and access” are used in their place.
Conservatorship deals with a parent’s rights and duties where a child is concerned. For example, a parent that has conservatorship over a minor child has the right to make important decisions relating to the child, such as where the child will go to school and what medical treatment the child will receive. Conservatorship can be joint or sole. When the parents share the rights and duties regarding the minor child it is referred to as “joint managing conservatorship.” If one parent alone has those rights and duties the parent has “sole managing conservatorship.”
Historically, when the parents of a minor child ended their marriage, physical custody of the minor child was awarded to the mother absent a very good reason to deny her custody. Legal custody, which referred to the right to make important decisions relating to the child, was often awarded jointly to both parents. Both the terms and the presumptions that were once used, however, are now considered antiquated. Instead, terms such as the “primary residential parent” and alternative residential parent are used when discussing with whom a child will live post-divorce. Furthermore, both parents are strongly encouraged to remain in the child’s life by exercising “parenting time” with the child. Finally, the law forbids presumptions based on the sex of the parent when making decisions relating to the children. In fact, all decisions relating to a minor child must be made using the “best interest of the child” standard.
When a divorce occurs, and conservatorship is contested, a court may consider a number of factors when deciding who should have conservatorship of the child. If your child is in favor of remaining with you, you may want to consider her feelings on the subject. While it may seem like a simple and straightforward request on your part, the court must also weigh any potential harm that might come from allowing a minor child to actively participate in the process.
In Texas, your child’s wishes cannot be the only factor a court considers when deciding who will have conservatorship over a child; however, once your child has reached the age of 12, the court can consider her wishes with regard to who she wishes to live with post-divorce. If your child has yet to reach the age of 12, you can petition the court for the right to have your child testify, but the court will make the ultimate decision and is not legally required to allow it.
Keep in mind that even the most clear-headed and mature child can be negatively impacted by a divorce – particularly if he/she expressed a preference for living with one parent over the other. In addition, children can (and do) change their minds frequently and often without any apparent explanation for why. For these reasons, it can be risky to have your child participate in the divorce process itself. Always consult with your attorney before making the decision to allow your child to participate in your divorce process.
If you are contemplating divorce, contact an experienced Fort Worth conservatorship lawyer at Boyd Family Law to schedule your appointment today.