Children in the Family Law Case – It is Family.
If the marriage produced children and they are younger than 18, the court must issue orders addressing the child(ren). In the most simplest divorce involving children, the divorce decree will spell out the rights and duties of the parent conservators, a possession schedule, child support and health insurance. If the parents were never married, then a Order in Suit Affecting Parent Child Relationship will contain the same provisions. A modification of a court order may modify any number of items associated with the order. Including, child support, possession or change in the primary designation.
Conservator or Conservatorship is what we call Child Custody in Texas:
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 Conservators:
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 (“Joint 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 presumption is rebutted by a party, then the Court will appoint a Sole Managing Conservator and Possessory Conservator. The possessory conservator has visitation rights. This is the person with whom the child(ren) do not live with. If family violence is involved, the joint custody presumption is automatically rebutted.
Access to the Child:
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.
Possession of the Child:
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.
Child’s Affidavit – Child’s Choice – The Child Choosing – Not anymore?:
Please see above for an extensive discussion of this issue. The Choice of Managing Conservator statute has been repealed. However, if a child is 12 or older it is mandatory that the Court interview the child in chambers to determine the child’s wishes. The court must then determine whether or not the child’s wish is in the child’s best interest.
Presumptions in Child Cases:
Best Interest of the Child:
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.
Gender Neutral Determinations in Child Custody Cases:
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. That said it is not uncommon for a father to obtain custody.
Marital Status Must be Disregarded:
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.
Best Interest of the Child – Holly v. Adams
As discussed above, the overriding concern for the court is “the best interest of the child.” But, what is “best interest?” 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.
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.