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. It’s 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) it’s 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 child’s “best interests.” What exactly
is in the child’s best interest is not particularly well
defined, but Texas Court’s 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 : “(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.” Sometimes these factors are referred
to “Holley” factors. Other factor’s 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 parent’s periods
of possession which the Court’s 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 children’s
best interest. The non-custodial parents possession schedule is
often call “Standard Visitation.” 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 Mother’s day falls on and the father
always gets the full weekend that Father’s day falls on
regardless whether it’s 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 Court’s 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 doesn’t apply. For
children under three years of age there isn’t a set schedule in
the Texas family code, and each Judge has broad authority to
determine a schedule that fit’s the needs of the parents and is
in the child’s best interests. Most child psychologists have
determined that more frequent contact, but of a lesser duration
per visitation period is in the child’s best interest. So for
example, some Judge’s 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
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