Texas Family Law

WHEN DO I GO TO COURT ABOUT THE CUSTODY OF MY CHILDREN?

Common situations:

a. If you are divorcing.
b. If you and your spouse have or will separate (even if you are not divorcing).
c. If you have a child, but are not married to the child’s parent.

WHAT IS “CONSERVATORSHIP”?

A Conservatorship or “custody” order determines the rights and duties of each parent. The Order explains which parent will make particular decisions concerning the child, such as education decisions and where the child will live.

WHAT IS “JOINT MANAGING CONSERVATORSHIP”?

The Court WILL appoint both parents as “joint managing conservators” in most circumstances because it is in the best interest of the child to have a close, on-going relationship with both parents.

In order for one parent to have “sole managing conservatorship”, there must be severe reasons negatively affecting the physical health or emotional development of the child.

DO THE PARENTS HAVE THE CHILD AN EQUAL AMOUNT OF TIME IF THE CONSERVATORSHIP IS JOINT?

Not necessarily.

The “joint” aspect of conservatorship refers to the fact that each parent has certain rights and duties regarding the children. Some rights and duties always belong to both parties; some may belong only to one party; some belong to one of the parties while they have possession of the children; and some are shared by the parties.

Normally, the visiting parent is given a Standard Possession Order. There are separate guidelines for those parents who live within 100 miles of each other and for those who live more than 100 miles apart.

The most important aspects of the order deal with weekends and mid-week visitation. Usually, weekend visitation begins at 6:00 on the first, third and fifth Friday of the month and ends at 6:00 p.m. on Sunday. Mid-week visitation is 6:00 to 8:00 p.m. on Thursday of each week during the regular school term.

There is a special schedule for holidays, spring and summer vacations.

WHAT IF THE PARENTS WANT A DIFFERENT VISITATION SCHEDULE?

The first line of the Standard Possession Order advises that parents are able to allow different visitation so long as they are in agreement. Parents rely on the Standard Possession Order when they are not in agreement.

The parties can also agree to some variations of the Standard Possession Order to meet their specific needs. In that case, they would have a “Modified Possession Order.”

CAN ONE PARENT MOVE THE CHILD OUT OF STATE?

Normally, the Court will require a geographic restriction of, for example, “Harris and contiguous counties.” This means that if the parties are living in Harris County at the time they divorce, that the person with whom the child lives must continue to live in Harris County – or any county which shares a border with Harris County.

WHAT IF I WANT TO BE ABLE TO MOVE FURTHER AWAY AFTER THE DIVORCE?

The Court will usually approve a divorce decree with no “geographical restriction” if the parties agree to this. If the parties do not agree, however, this is an important issue which could result in the divorce suit going to trial.

Sometimes the parties compromise by agreeing to a less severe type of restriction, such as to “Texas.”

WHAT IF MY EX-SPOUSE IS TRANSFERRED OR MOVES AWAY FOR SOME OTHER REASON?

The other parent would be released from the geographical restriction, if the visiting parent relocates out of the area of the restriction.

WHAT IF THE VISITING SPOUSE ALREADY LIVES FAR AWAY OR MOVES BEFORE THE DIVORCE IS FINAL?

This would support an Order with no geographical restriction.

WHAT DOES “SUPERVISED VISITATION” MEAN?

This is usually imposed when there are issues of family violence, or drug or alcohol use by the visiting parent causing a concern for the safety and well-being of the child.

Visitation, in this case, may not be allowed except in a specific time and place, and with another adult present. Visitation may be ordered to occur through a special program called SAFE.

CAN MY CHILD DECIDE WHICH PARENT TO LIVE WITH?

The Court will consider the desire of the child, but will make its decision based on a “best interest of the child” standard.

The child may file an affidavit regarding living preferences at age twelve or older.

WHAT IS AN “AMICUS ATTORNEY”?

The Court may appoint an “amicus attorney” to assist in determining the parent with whom the children should live. This attorney represents the children. Both parties are responsible for the fees of the amicus attorney.

The amicus attorney talks to the parties and the children and visits their homes; and may talk to teachers, doctors, counselors and other family members. The purpose is to gain enough information to be able to make an informed recommendation to the Court on the conservatorship and visitation issues.

Austin Child Custody Lawyer

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