Determining Child Custody

Determining Child Custody FAQs:

How is it decided whether there’s going to be sole custody versus joint custody?

In Texas, we have labels that we assign to each parent in a divorcing situation or a paternity situation, and we have sole managing conservators and joint managing conservators. These titles have more to do with the rights and duties that you have as parents than it has to do with the amount of time you actually spend with your children. In Texas at this time, there’s a presumption that each parent be appointed as a managing conservator unless we find that it would not be in the best interests of the children, because appointing one of the parents as the managing conservator would significantly impair the child’s physical health or emotional development. So, unless you have an abnormal situation where you might have a parent who has a substance-abuse problem or has committed crimes against their spouse or the other parent, as examples. And typically what we have is the joint managing conservatorship model, where the parents are allocated rights and duties.

In most cases, we see a joint managing conservatorship model. Again, that doesn’t mean that the parties are necessarily going to have equal time with the children, it just means that they’re going to be able to have the right to participate in that decision-making process. You know, all of the decisions that are made in our family courts in Texas are to be based on what is in the best interests of the child. That’s the standard that we use here in this state, and so the courts are going to look at each case on a case-by-case basis to determine whether a parent should be a managing conservator or whether they should have a reduced role as a possessory conservator.

Let’s say one spouse is the managing conservator, do they then figure out a schedule? How does joint custody agreement actually work in practice?

Sure. Even if you’re only appointed as a possessory conservator, there’s a rebuttal presumption in the Texas Family Code that each parent should have access and possession of their children. We have a model possession schedule in our Family Code that we call the Standard Possession Order, and there’s a rebuttable presumption that even a possessory conservator should have the amount of time that’s set forth in the Standard Possession Order. And although it can get a little complicated, the Standard Possession order would give the possessory conservator or non-custodial parent the first, third and fifth weekends of every month. There’s a mid-week visit, which under our Order model would be on Thursday evenings, and there’s a rotating holiday schedule and there’s an extended summer possession contained within the Stand Possession Order.

So again, these titles deal more with the rights and duties of the parents and not with the times of possession. We’re seeing more frequently now, possession schedules that are either agreed to or ordered by the court that try to equalize the amount of time that each of the parents has with the children. We don’t have a model possession schedule for that, and so the parents can be as creative as they want to be, whether the children are with mom one week and then with dad one week, or whether we split the weeks up. And certainly the parties and the courts have to look at the age of the children, the distance between where they live, where the children go to school, and what their activities are. And even looking at the parents’ work schedules, to figure out what schedule would work best for the kids and both parties in any case.

What happens if a schedule is set and then something changes with one of the spouses? Is it typical that the courts would come back to you to change the schedule or are you left on your own to figure it out?

Certainly the courts are available to modify or enforce their orders. Once an order is entered with the court in Texas, that court maintains the continuing exclusive jurisdiction over those children until they’re emancipated or another court assumes jurisdiction. So, if a change is warranted and it can’t be agreed on by the parties informally, then certainly either party can petition the court for modification to change either the conservatorship, rights and duties, or change the possession schedule.

When we enter an order, for instance in a situation with children, our divorce decree says that the parties can have possession and access to the children by agreement of the parties. And if there’s not an agreement, then here’s the schedule that needs to be followed. If they’re just minor changes and the parties can work it out informally, there may not be a need to go back to the courthouse. But if they can’t work through that and they need formal changes to that order, then certainly the courts are available to hear those cases and to consider a change in a possession schedule.

Tell me a little bit about the choice that children have. At what age can they choose to live where they want to live?

I think there’s a misconception that children get to choose, because in Texas they do not get to choose. And in my 20 plus years of practice the process has changed somewhat and the legislature has kind of toyed with how to handle this. At this time in Texas, if you’re going to have a trial before court and you want the child to be interviewed to express their wishes about conservatorship or possession and access or what the schedule is going to be, you can request the judge interview that child in chambers. If the child is 12 years of age or older, the court has to interview the child. If the child has not yet reached 12 years old, then the court has the discretion to say that they’re not going to interview that child.

The misconception is that the child gets to go in and tell the judge where they want to live and then the judge comes out and just announces a decision consistent with what the child’s wishes are. And I don’t find that to be true. I find that a lot of our judges would prefer not to interview the children because the decision about where a child’s going to live primarily is left up to the court if the parents can’t agree. So, the interview process is just a factor that the court’s going to consider in ultimately making their own decision.

It sounds like the best interests of the children are the primary criteria for determining primary custody. Is there anything else that affects who will get the primary custody of the children or child?

The best interest standard is obviously very broad, so our courts can consider a whole host of factors in determining where they believe the children should live primarily. Often, these cases focus on the history of what each parent’s role has been within the family. Do we have a parent who has assumed the primary role of raising these children, of waking them up in the morning and feeding them, and getting them to school and to the doctors’ appointments, and getting them to the dental appointments and participating in the school activities or extracurricular activities or parent/teacher conferences?

In some families, there’s naturally been one parent who’s assumed that role as the primary caretaker and so courts look at what the history has been of caring for the children. They also look at whether we have any issues like anger management issues, whether we have some mental health problems on one side or the other, whether we have substance-abuse problems, whether we have criminal history, whether we have somebody who has engaged in some activity that’s caused this divorce or the breakup of this relationship. There’s a very broad spectrum of topics and issues that a court can consider as they determine what they believe would be in the best interests of the kids.