Custody and Conservatorship

Child custody proceedings are complicated and can't be exhaustively covered in this short article. I will however, touch upon some general conceptions that I feel are generally accepted as guiding principles in Texas custody proceedings.
In this article, the term "custody" refers to the parent (or person) who will have the exclusive right to determine the primary residence of the child(ren) or who the children will live with. The person who has this right is often called the custodial parent and the parent who has visitation is often called the non-custodial parent. For a more in depth examination into what conservatorship is please see http://www.dallasdivorcelawyer.com/top10.htm question number three.
Under Texas law there is no presumption that a woman or a man, based on gender alone, is either more or less fit to be a custodial parent. By law, gender can not be used when making a custody determination.
A custody proceeding is started by the filing of either a Divorce Petition (if the parties are married) or a Suit Affecting Parent-Child Relationship, also known as a SAPCR. The filing of either of these lawsuits is very similarly to filing a lawsuit in civil court, with the exception you are suing to be designated the custodial parent of a child. Itís very important to consult with a lawyer if you are faced or will face a child custody proceeding before taking any action. If you are married and you are still living with your spouse (even if you are sleeping in separate bedrooms) itís very important to not leave the marital residence without your child(ren). If you are in a physically abusive relationship then different rules apply and you should call the police and let them help you remove your spouse from the residence. Domestic violence aside, if you voluntarily leave the residence and your spouse files for divorce it is very difficult, if not impossible to get back into the house while the divorce is pending. This puts you at a disadvantage. The best course of action is to let a Court decide who should be the custodial parent while you wait for your divorce.
The Courts guiding legal principle in deciding who should be the custodial parent is the childís ďbest interests.Ē What exactly is in the childís best interest is not particularly well defined, but Texas Courtís have provided guidance. In one case, Nanci Holley v. David Adams the court came up with a non exclusive list of factors to look at in determining the best interests of the child. The Court found some pertinent factors are : ď(A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger (of one parent) to the child now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interest of the child; (F) the plans for the child by these individuals; (G) the stability of both parties homes; (H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (I) any excuse for the acts or omissions of the parent.Ē Sometimes these factors are referred to ďHolleyĒ factors. Other factorís which a Court will look to are who has been making the educational decisions of the children, who has been making any medical related decisions, who generally prepares for and feeds the children, which parent regularly meets with the teachers if the child is school age, has one parent been alienating the child from the other parent, who gets the child up in the morning and puts him/her to bed at night, and who participated in extracurricular activities. Again this list is not exhaustive, but it does provide guidance.  
Other factors that a Court will always look at are if either parent has or is using drugs or has either parent been involved in any criminal activity. Either of these will almost always result in an adverse ruling and sometimes a restriction in the amount of visitation the non-custodial parent has.
 
VISITATION
Texas has a set schedule for the non-custodial parentís periods of possession which the Courtís presume to be in the best interests of the child. Of course this can be changed, and frequently is, if either parent can not act in the childrenís best interest. The non-custodial parents possession schedule is often call ďStandard Visitation.Ē Standard visitation applies to children over three years of age. The schedule is generally: the 1st, 3rd, and 5th weekends of each month beginning at 6 p.m. Friday and ending 6 p.m. Sunday. Friday determines which weekend is the 1st, 3rd, or 5th (Not Saturday!) Every Thursday night from 6 p.m. until 8 p.m. There is also time for summer and holiday provisions that supercede the above described possession periods. Summer is 30 days in the summer, and Thanksgiving and Christmas are generally alternated every year. The mother always gets the full weekend that Motherís day falls on and the father always gets the full weekend that Fatherís day falls on regardless whether itís his/her weekend. The one week spring vacation is alternated between the parties yearly. Of course there are many nuances to the visitation periods but this gives the general idea. One of the most important features of Texas Standard visitation is if the parents can agree on a different possession schedule, then the parents are always free to change it. The Courtís encourage this!
Once a child is over the age of 18 and is no longer enrolled in school then that child is no longer considered a minor for custody purposes and the possession schedule doesnít apply. For children under three years of age there isnít a set schedule in the Texas family code, and each Judge has broad authority to determine a schedule that fitís the needs of the parents and is in the childís best interests. Most child psychologists have determined that more frequent contact, but of a lesser duration per visitation period is in the childís best interest. So for example, some Judgeís will order that the non-custodial parent have any where from two to four days of visitation per week, but the length of time is not as long as it is under "Standard" visitation.

www.dallasdivorcelawyer.com

Turley Law Center
6440 North Central Expressway, Suite 450 (Corner of N. Central Expy. & University Blvd.)
Dallas Texas 75206

Telephone: (214) 977-9050

Dallas Divorce Attorney - Michael P. Granata

 

   
© The Law Offices of Michael P. Granata