Last week, we posted a blog about how to keep the divorce process as amicable as possible and mentioned that one of the key reasons for keeping a divorce amicable is because many couples that go through divorce have children and need to maintain a co-parenting relationship once the divorce is finalized. This week, we delve a little deeper into the rules in Texas that define the co-parenting process and we’ll answer a number of frequently asked questions that we often get from our clients about co-parenting and the related topic of custody in Texas.

First, let’s clarify a few things about the custody process. In Texas, what most people think of as “custody” is what we legally refer to as “conservatorship”. There are two types of conservatorships in Texas – managing conservatorships and possessory conservatorships. The main difference between these is that managing conservators have the right to make decisions on behalf of the child related to the child’s education, health care, and primary residence whereas possessory conservators maintain parental rights but generally do not have final say on most decisions. Managing conservatorships are further divided into sole managing conservatorships and joint managing conservatorships.

In Texas, the law presumes that both parents should be joint managing conservators, which means that the parents share decision-making rights on behalf of the child. However, one of the most fought over rights is who will be the managing conservator with the right to decide the primary residence of the child. The parent who gets this right is often referred to as the primary conservator, which means that one parent has the right to make certain decisions for the child. Primary conservatorships generally result from agreements between the spouses or from court orders. These are different from sole managing conservatorships in that a sole managing conservator retains most if not all decision-making rights for the child.

Now that we’ve covered the basics, let’s get into the frequently asked questions. The number one question we get is Can I get sole custody (conservatorship) of my child? – which is ironic since sole custody negates the concept of co-parenting altogether. However, many of our clients sincerely believe that having sole custody is in the best interest of the child.

The short answer: yes. However, in Texas, it is up to the court to decide which custody option is truly in the best interest of your child. Furthermore, the reality is that sole custody in Texas is extremely difficult to obtain. If you’re thinking about terminating the other parent’s rights, that may be even harder to obtain even if both of you have already agreed to the termination. There are only a few circumstances in which a court would decide that it’s not in the best interest of a child to have both parents in the child’s life. Some examples may include abandonment, endangering the child’s life, certain felony convictions, child abuse, and heavy drug use. In general, the state of Texas wants parents to be involved in their children’s lives. Parents who ask this are often asking who the primary conservator will be.

Which leads us to the next question we often get: How does a court decide who should be the primary conservator of the child? 

There are a variety of factors the Court considers in making this decision. First, the court assumes that both parents are fit and will look at which parent has been the primary caretaker of the child.

– What is the child’s daily routine and who manages it?

– Who feeds, clothes, and bathes the child?

– Who gets them ready for school, activities?

– Who arranges their activities, enrolls them in school, takes them places?

– Who attends the activities, parent-teacher conferences, doctors’ appointments?

– Who helps with the child’s homework?

– Whose home is most stable?

– Who can provide for the child’s needs the best?

The court may decide how certain decision-making rights will be allocated. The parents have the rights to make medical, educational, psychological, legal and other decisions for their children. The parents can agree on how to allocate these decision-making rights or the court can decide. These rights can be designated exclusively to one parent, by agreement by both parents, or independently to each parent. Therefore, even if the parents are joint managing conservators, one parent can effectively have sole managing conservatorship by being the parent with the exclusive rights to make all of these decisions.

Does domestic violence or a criminal record matter in a custody case?

Yes. If there has been domestic violence or certain criminal actions, then it becomes easier to rebut the presumption that the parents should be appointed joint managing conservators. If there is credible evidence of domestic violence, then the Texas Family Code prohibits a court from appointing the abuser as a joint managing conservator.

Can my 12-year-old decide which parent they live with?

The internet has lots of false information floating around saying that children can decide which parent they want to live with once they are 12 years old. This is one of the biggest myths in Texas child custody law. There is a section in the Texas Family Code that states that if a parent requests that a child be interviewed by a judge, the judge must interview the child if they are 12 years of age or older. An older version of this section allowed children to submit an affidavit stating their preference for a parent. The problem is that by doing this, you are putting your child in a very difficult situation mentally and emotionally, even if your child insists that they have a preference for one parent and demand to speak with the judge.

To be clear, the child does NOT have a right to decide which parent will get custody. Even if the judge interviews the child, the judge has discretion as to what goes on, and more often than not, the interview is off the record and without the parents or their attorneys present. The interview is just one factor that the judge will consider in making the decision. Other factors the court may consider include:

– The child’s age;

– The relationship between each parent and the child;

– The relationship between the parents;

– The child’s developmental and emotional needs;

– Each parent’s financial situation, health, and living situation; and

– Any history of abuse or neglect.

It is the Court that decides custody, not the child. However, one option that may be better than putting the child in the middle is to appoint an amicus attorney. An amicus attorney can help the court decide what is in the child’s best interests. The amicus attorney can talk to the child, the parents, family, friends, teachers, and doctors, and they can make home visits. In this way, they can provide a more detailed and accurate picture for the judge as to what is going on.

Other options may include custody evaluations, mediation, parenting facilitators, parenting coordinators, parenting classes, and counselors. It’s important to note that parents do not have to resolve custody disputes through court battles. There are ways we can work through parenting issues to establish common ground and still respect the child’s wishes.

We also get a lot of age-related questions for very young children. For example:

Can I get full custody if I’m breastfeeding?

When is the right time to start overnight visits for an infant?

What is the standard schedule for young, pre-school aged children?

Texas law does not specify a standard visitation schedule for children under the age of 3 years. Because the needs of an infant differ from the needs of older children, the court will decide a schedule that is appropriate for the situation and the circumstances of the child. While many assume that the mother will automatically be awarded primary custody of an infant, that is not always true…even if she’s breastfeeding. While mother may argue that “breast is best”, fathers may argue that the infant needs to develop healthy attachments to both parents and fathers need bonding time, too. While not common, some courts do order mothers to either stop breastfeeding, to pump extra for dad, or to provide formula as an alternative. For children who are a bit older, a child’s disposition, attachment to one parent, tantrums, nap schedules, all become factors in deciding a visitation schedule. In our practice, we usually see two extremes – either 50/50 with frequent exchanges or very limited overnights for the possessory parent. The court may also decide to stairstep the schedule as the child ages, deciding to add or adjust time every 6 months or as certain developmental stages are met. Once the child reaches 3 years of age, courts can apply the Texas standard possession schedule.

Another age-related question we often get is: At what age can a child refuse visitation?

In Texas, there is no age that a minor child can refuse visitation. A child cannot unilaterally modify a court order. Visitation is the right of the possessory parent. The only legal option is to request a modification of the court order. Even then, it may be difficult to convince a judge that modifying the order is in the best interests of the child. The judge may think that the custodial parent is influencing the child or prefer that the parents go to counseling to address the root cause of the tension. If the parent in possession of the child is found to be influencing the child, withholding the child, preventing access to the child, or otherwise knowingly violating the court order, penalties can be steep. If a parent is denied visitation, even if it’s because the child is refusing to go, the custodial parent could be held in contempt of court.

The court expects parents to coparent and will tend to enforce the court orders. Parents are in charge, and it is the parents’ role to encourage the child to have a relationship with both parents. If you are the custodial parent, continue to provide the other parent access to the child as ordered. Make the child available for pick ups and calls as court ordered. Do not interfere. Be patient and positive. Seek counseling for you and your child to address how to cope with the challenges that you can’t control or understand the underlying issue. Listen to your child’s concerns but work to promote the importance of quality time with the other parent. However, if a parent has concerns about the safety and well-being of the child, that is a different matter.

Sometimes, parents can communicate to resolve the concerns. Other times, court intervention may be needed. If the situation is serious enough, then you may need to file a modification or restraining order and request appointment of experts to help. Every situation is different, so be sure to speak with an attorney about your situation before deciding what to do.

Lastly, while people don’t usually ask this, it’s important to mention that custody and visitation end when the child turns 18 but child support does not necessarily.

If you have a child who is a senior in high school and who turns 18 in, let’s say, January, then the visitation schedule and rights and duties no longer apply. However, the parent paying child support is obligated to do so until your child graduates high school in June. As for the reverse, if your child graduates high school before age 18 years, then child support will continue until your child turns 18 years old. And while visitation could continue until the child is 18 years old or otherwise emancipated, most people generally do not. (It may be hard for a parent to exercise visitation when the child is away at college.)

To sum up, the best thing you can do for your children is to learn to coparent with your ex. In some cases, it may be very difficult to do so. But the flip side may be expensive, time consuming, and stressful litigation that can drive a deeper wedge into your family. The court system was not created to address the real issues that underlie coparenting challenges. If there are alternatives to explore, we urge you to explore those alternatives before going the litigation route. The team at Alexandra Geczi, PLLC, a law firm focusing on divorce for women in Dallas, has over 15 years of experience helping clients reach amicable co-parenting and custody agreements while avoiding having to go to court.

For more information on how we might be able to help you avoid court and have an amicable divorce process, fill out the contact form below and a member of our team will reach out to set up a meeting to discuss your case.