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Texas Divorce Issues: Child Custody and Visitation
It is the public policy of the State of Texas to assure that each minor child has frequent and continuing contact with both parents after the parents separate, or the marriage of the parties is dissolved, and to encourage parents to share the rights and responsibilities, and joys of childrearing.
Under Texas law, there is no such thing as “custody,” “full custody,” or “joint custody.” Custody in Texas is called “conservatorship.” Conservatorship is used to describe the legal rights and responsibilities of a parent.
There are two types of conservatorships in Texas: managing and possessory. A Managing Conservator has all the rights and responsibilities one would normally associate with a parent. These rights include the right to possession and access to the child, and essentially give a parent the right to manage the affairs of the child. A Managing Conservator has the right to make decisions regarding the child’s:
- Education and Schooling
- Medical, Psychiatric and Dental Care
- Religious Upbringing
- Involvement in activities
- Financial Welfare
- Moral principles, socializations and behavior
A Possessory Conservator, essentially has the right to access and visitation with the child, along with duties and responsibilities to provide for that child while that child is in his or her possession.
All parents, regardless of whether they are managing or possessory conservators, are obligated to support a child, to provide food, shelter, clothing, education, and medical and dental care. All parents owe each other a duty to keep the other parent informed of significant information concerning the health, education, and welfare of their child(ren).
In Texas, the law presumes that it is in the best interest of the child(ren) to appoint both parents as Joint Managing Conservators, meaning that the parents share the rights, duties, and responsibilities of a managing conservator. Only in instances of family violence, child abuse, or other extreme circumstances will the court appoint a parent as a Possessory Conservator.
If we have joint managing conservatorship, where will the child(ren) live?
Although both parents are typically named Joint Managing Conservators, one parent will be designated as the “primary conservator,” the person who has the exclusive right to designate where the child(ren) will live. That parent is basically the primary caretaker of the child(ren).
Can the primary conservator move away with the child?
In Texas, the Courts will typically restrict the residence of the child in your Final Decree of Divorce. This means that the court will order the primary conservator to live with the child within a specified geographic area. The decree will usually state that the child must reside in the current county of residence, or any surrounding counties, unless both parents agree otherwise.
What is a Parenting Plan?
A Parenting Plan is required in a Final Decree of Divorce when there are children of the marriage. The Parenting Plan includes the conservatorship rights of the parents, the visitation schedule, child support, and addresses any other issues that may affect the child in order to minimize the risk of future disagreements.
What type of Visitation will be ordered?
Visitation arrangements can vary. The parents can agree to any sort of visitation arrangement that they feel is best for the child, and the court will typically uphold that agreement as long as the court finds it to be in the child’s best interest. However, the most common visitation arrangement is the “Standard Possession Order” set out in the Texas Family Code.
Generally speaking, the Standard Possession Order (“SPO”) provides that the non-primary parent is granted visitation of the child beginning at 6:00 p.m. every first, third and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday, every Thursday evening from 6:00 p.m. to 8:00 p.m. during the regular school year, and alternating holidays. The SPO also provides for the non-primary parent to have thirty days with the child during the summer, or forty-two if the child lives more than 100 miles away from that parent. The non-primary parent can also elect to modify his or her periods to begin at the time the child’s school is regularly dismissed and to end at the time the child’s school resumes as opposed to the 6:00 p.m. start and end time.
Do the parents always have to follow the Standard Possession Order in the Divorce Decree?
Texas promotes co-parenting by the parents in a manner which is in the best interest of the child. Keeping this in mind, your Divorce Decree typically states that visitation shall occur “at any times which the parties mutually agree upon.” Absent an agreement, the Standard Possession Order (or any other specific visitation schedule you have put in your Divorce Decree) will apply. So if both parents agree to have visitation at a different time, then it can occur differently than how it is set forth in the SPO.
If the non-primary parent isn’t paying his or her child support, can I stop visitation?
No. The non-primary parent has the right to visitation, regardless of whether or not that parent is paying support. A parent may not stop visitation without risking being held in contempt of court, unless there are dire circumstances such as child abuse. In any event, to change or stop visitation, one must go to court to change the orders.