by Earl Jackson
Board Certified by the Texas Board of Legal Specialization.
The child custody case can be one of the most contentious forms of family law litigation. They are cases of he said, she said; he's bad, she's bad; he doesn't care about kids, she doesn't care about kids; he's not involved, she's not involved. So forth and so on. The bottom line is this: in order to determine primary conservatorship the court will look to the "best interests of the child." It is a "goody feely" term at best, but it is the standard.
Table of Contents - Child Custody
In Texas, we talk about "conservatorship." Though the term "custody" is often used by the public and as lawyer shorthand for the parent with primary possession, it is not the correct term.
Joint Managing Conservator is a phrase which means the "sharing of the rights and duties of a parent by two parties, ordinarily the parents, even if the exclusive right to make certain decision is awarded to one party." In Texas, it is presumed that the Joint Managing Conservator relationship is in the best interest of the child(ren). It is a rebuttable presumption, however. A finding of family violence removes the presumption.
In the Joint Managing Conservator relationship one party will have primary possession of the child. This is the person with whom the child will reside most of the time. This is often what is met by the phrase "having custody."
Sole Managing Conservator:
If the Joint Managing Conservator relationship is rebutted by one of the parties, then the Court will appoint a Sole Managing Conservator. The Sole Managing Conservator will have decision making powers that the other conservator will not, i.e., the power to authorize invasive surgical procedure.
If the Joint Managing Conservator relationship is rebutted by a party, then the Court will appoint a Possessory Conservator. This is the person who has visitation rights. This is the person with whom the child(ren) do not live with.
The phrase "access to the child" has replaced the term "visitation." However, the terms generally mean the same thing. A person with rights of access to a child may approach them, communicate with them, and visit with them, but may not take possession and control of the child away from the managing conservator.
A person with the rights to possession of children may exercise the rights of possession and control of the children, to the exclusion of all other persons including the managing conservator, during periods of possession.
At one time a child could sign an affidavit which would allow the child to "choose" the parent the child wanted to live with. This is no longer the law. There is no child's choice of managing conservator any more. The reason is this - and good reason - parents were trying to influince children into choosing a parent. Asking a child to choose a parent? It became so bad that the courts, it seemed, starting appointing the parent the child did not live with as the managing conservator. Today, a child age 12 or over has the right to be interviewed by the court and at that interview they can express their desires. In this manner, the court can feret out if there has been any undue influince.
The best interest of the child(ren) is always the primary consideration of the Court in determining the issue of conservatorship and possession of and access to the child. More below.
The Court must consider the qualifications of the parents without regard to the gender of the party or the child in determining which party to appoint as Joint Managing Conservator in possession, sole managing conservator and the terms and conditions of access/visitation. Practically speaking, the Courts are still leaning towards mothers, especially, when the age of the child is considered.
The Court must consider the qualifications of the parties without regard to their marital status. Recognize, that a single parent seeking possession will have to demonstrate that they are able to meet the needs of the child even when living alone.
The public policy of Texas is to promote the amicable and nonjudicial settlement of disputes involving children and families. A statement that a party will make a good faith attempt to resolve contested issues by alternative dispute resolution must be included in first pleading in suit affecting parent-child relationship.
In order for the Court to determine who will have possession of the Child, the Court will only consider the Best Interest of the Child. An extended number of factors have been considered by the Courts in ascertaining the best interest of the child. The lead case on this issue is Holly vs. Adams, 544 S.W.2d 367 (Tex. 1976). In determining possession and access, the Court will consider, among others, the following factors:
desires of the Child;
the emotional and physical needs of the child now and in the future;
the emotional and physical danger to the child now and in the future;
the parental abilities of the individuals seeking custody;
the programs available to assist these individuals to promote the best interest of the child;
the plans for the child by these individuals or by the agency seeking custody;
the stability of the home or proposed placement;
the acts or omissions of the parent which may indicate that the relationship is not a proper one; and any excuse for the acts or omissions of the parent.
A child custody case is usually not about the "better person." It is not about you. It is about the child. Ask yourself, who is the primary caregiver or better able to support the emotional needs of the child? Who has more time to spend with the child? Who is able to provide the better financial support? Who is more involved in school and extracurricular activities?
The foregoing list is not exhaustive, but does indicate a number of considerations which either have been and are pertinent to any child custody case.
Remember, it is a matter of public policy that a child should have a maximized relationship with both parents regardless of the parents' difficulties between each other.
Dallas Divorce Child Custoddy Lawyers
Practicing in Dallas, Collin, Denton, Tarrant, Kaufman Counties
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