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.
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."
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.
A minor child 10
years or older may sign an affidavit, a "Choice of Managing
Conservator," stating which parent the child wants to live with.
This creates a presumption that it is in the best interest of the
child for the child to live with the parent named in the
affidavit. It is unfortunate, however, that some parents will
pressure or coerce a child to sign this affidavit.
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.
