Category Archives: Divorce

Key Child Custody Terms in Texas

The legal terms used in child custody proceedings are different from the every day terms such as “custody” and “visitation.”  This article provides definitions for some of the more common terms you will likely encounter during a divorce proceeding with children in Texas.

JOINT MANAGING CONSERVATORSHIP. “Joint managing conservatorship” 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 decisions may be awarded to one party.  Texas has a presumption that appointing both parents joint managing conservators is in the best interests of the child(ren).

PARENT. “Parent” means the mother, a man presumed to be the father, a man legally determined to be the father, a man who has been adjudicated to be the father by a court of competent jurisdiction, a man who has acknowledged his paternity under applicable law, or an adoptive mother or father. The term does not include a parent as to whom the parent-child relationship has been terminated except that, for the purpose of establishing, determining the terms of, modifying, or enforcing an order, a reference in this title to a parent includes a person ordered to pay child support or to provide medical support or dental support for a child.

PARENTING COORDINATOR. “Parenting coordinator” means an impartial third party appointed by the court to aid the parties in:

  1. identifying disputed issues;
  2. reducing misunderstandings;
  3. clarifying priorities;
  4. exploring possibilities for problem solving;
  5. developing methods of collaboration in parenting;
  6. understanding parenting plans and reaching agreements about parenting issues to be included in a parenting plan;
  7. complying with the court’s order regarding conservatorship or possession of and access to the child;
  8. implementing parenting plans;
  9. obtaining training regarding problem solving, conflict management, and parenting skills; and
  10. settling disputes regarding parenting issues and reaching a proposed joint resolution or statement of intent regarding those disputes.

PARENTING FACILITATOR. “Parenting facilitator” means an impartial third party appointed by the court to aid the parties in all or some of the same areas as a Parenting Coordinator, but also appointed with the power to monitor the parents’s compliance.

PARENTING PLAN. “Parenting plan” means the provisions of a final court order (which may be based upon an agreement between the parties) that:

  1. set out rights and duties of a parent or a person acting as a parent in relation to the child;
  2. provide for periods of possession of and access to the child, which may be the terms set out in the standard possession order and any amendments to the standard possession order agreed to by the parties or found by the court to be in the best interest of the child;
  3. provide for child support; and
  4. optimize the development of a close and continuing relationship between each parent and the child.

POSSESSORY CONSERVATOR. The court shall appoint as a possessory conservator a parent who is not appointed as a sole or joint managing conservator unless it finds that the appointment is not in the best interest of the child and that parental possession or access would endanger the physical or emotional welfare of the child.  The Possessory Conservator has the same Rights of a Parent at All Times and the right to possession of the child(ren) consistent with the guidelines in the Standard Possession Order or an approved agreed parenting plan.

RIGHTS OF A PARENT AT ALL TIMES. Unless limited by court order, a parent appointed as a conservator of a child has at all times the right:

  1. to receive information from any other conservator of the child concerning the health, education, and welfare of the child;
  2. to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;
  3. of access to medical, dental, psychological, and educational records of the child;
  4. to consult with a physician, dentist, or psychologist of the child;
  5. to consult with school officials concerning the child’s welfare and educational status, including school activities;
  6. to attend school activities;
  7. to be designated on the child’s records as a person to be notified in case of an emergency;
  8. to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and
  9. to manage the estate of the child to the extent the estate has been created by the parent or the parent’s family.

RIGHTS AND DUTIES DURING PERIOD OF POSSESSION. Unless limited by court order, a parent appointed as a conservator of a child has the following rights and duties during the period that the parent has possession of the child:

  1. the duty of care, control, protection, and reasonable discipline of the child;
  2. the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;
  3. the right to consent for the child to medical and dental care not involving an invasive procedure; and
  4. the right to direct the moral and religious training of the child.

RIGHT TO DESIGNATE PRIMARY RESIDENCE.  Even in cases where parents are appointed joint managing conservators, the court is required by law to appoint one of them the exclusive right to determine the primary residence of the child. The court may place restrictions on the geographic area in which the parent may designate the child reside.

SOLE MANAGING CONSERVATOR. Unless limited by court order, a parent appointed as sole managing conservator of a child has the following exclusive rights:

  1. the right to designate the primary residence of the child;
  2. the right to consent to medical, dental, and surgical treatment involving invasive procedures;
  3. the right to consent to psychiatric and psychological treatment;
  4. the right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child;
  5. the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
  6. the right to consent to marriage and to enlistment in the armed forces of the United States;
  7. the right to make decisions concerning the child’s education;
  8. the right to the services and earnings of the child; and
  9. except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government.

STANDARD POSSESSION ORDER. Texas law sets forth a standard possession order that is presumed to be in the child(ren)’s best interests.  The order varies based on the geographic distance between the parents’ residences.  You can read more about the Standard Possession Order here.

UCCJEA.  The Uniform Child Custody Jurisdiction and Enforcement Act provides for continuity in initiating, enforcing, or modifying child custody decisions by providing rules for deciding the proper forum for child custody issues when a child and/or the child’s parents have moved to different states.

What To Do After You Are Served With A Divorce Petition

Unexpectedly being served with a divorce petition is difficult.  You are faced with the loss of a relationship that you may not have been expecting.  Or maybe you thought it was possible but you didn’t expect it to actually happen.

You may be worried about your children.  Or your property.  You have so many thoughts and emotions that you may not know what to do next or how to deal with the situation.

That is what this article is about.  Divorce is a stressful and emotional time – even if the spouses agree on the need to end their relationship.  With a little planning, a little preparation, and a good foundation of support you will be ready to handle your divorce as best you can.

1. Understand That Time Is of the Essence

Once you are served with a petition for divorce, you have a relatively short time period in which you can file an answer in the case – it can be as short as 20 days.  And there is a lot to do!

If you were served with a temporary restraining order (TRO), then it likely has a hearing for preliminary injunction set in an even shorter time frame.

You will need to find an attorney.  This may require several consultations with different attorneys before you find a lawyer that you are comfortable working with during your divorce.

You then need to work with your lawyer to decide how you should respond to the petition and develop an overall strategy for how you will proceed with your divorce.

You also need time to gather relevant documents and information for your attorney and the court.  Again, all of this must occur within a very short time frame so do not delay in getting started.

2. Understand Your Options On How to Respond

Not every divorce petition requires a response – or legal counsel.  But many do.

If you do not respond then the court may enter judgment against you and award your spouse all that he or she seeks in the petition for divorce.  In some cases that may be fine, such as when spouses have a planned divorce where they agreed on each and every issue prior to filing.

But if you are reading this article then that likely does not apply to you.

You should work with your attorney to understand your options to respond.  Your strategy may require filing a general denial, filing a counter petition for divorce, or challenging the court’s jurisdiction and venue to hear the matter.  You may want to allege fault grounds even though your spouse claimed no fault grounds for the divorce.

You may need to seek temporary orders on how you and your spouse will handle matters such as possession of property, access to bank accounts, paying bills, custody of your children, child support, and spousal maintenance.

In some cases, you may have been served with a TRO that has a hearing for preliminary injunction set in a very short time frame.  This requires immediate attention in addition to filing your response to the divorce petition as the court will establish your rights and set limits on those rights for the duration of the divorce proceeding.

There are pros and cons to different strategies in responding to a petition for divorce and which is best for your case can only be determined after consulting with your lawyer.

3. Establish Pillars of Support

It is important to understand that your attorney is just that – your attorney.

Your attorney is not your friend.  Your attorney is not a family member.  Your attorney is not a psychiatrist.  Your attorney is not a CPA or financial adviser.

You need to find other individuals to fill those roles.  Many divorces are an emotional roller coaster. You will need a friend or family member that you can lean on when you have a rough day.

You may even need to seek professional help to deal with the emotional aspects of your divorce.

You may need a CPA or financial adviser to help you make smart money decisions about property divisions or the impact of distributions from retirement accounts.

That being said – be careful what you discuss and with whom.  You shouldn’t discuss the details of your divorce case with anyone without your attorney’s consent.

Your conversations with third parties could be subject to discovery and letting out a little frustration to a friend will sound a lot different when that friend recounts the conversation in court under questioning from your spouse’s lawyer.

4. Make a Plan

Life will go on.  Your divorce case will proceed and come to an end one way or another. You need a plan to address key issues both during your divorce and after.

You need to have a plan for how you will handle your financial obligations during the divorce and after.  How will you pay your attorney? How will you pay your bills?  Your car payment?  What if you need to get an apartment?

What about child care?  How will you take care of your kids when you have possession of them?  There will no longer be a second parent to watch them while you run a quick errand.

Will you be receiving child support to augment your income? Will you be paying child support that will reduce your income? How does that affect your financial health?

Where will you live?  Maybe you get to stay in the primary residence during the divorce – or maybe you don’t.  Maybe you are awarded the primary residence in the property division – but maybe you aren’t.  So make a plan for where you will live both during and after your divorce.

Discuss these plans with your attorney – particularly where children are involved – to make sure it will not cause any difficulty in pursuing your legal strategy.

5. Begin Implementing Your Divorce Strategy

Remember one of the things I mentioned in item 1 above – work with your attorney to develop a strategy? Now is the time to start implementing it.

You have a strategy for how you will proceed with your divorce case.  You have a plan for how you will take care of yourself and your children.  You have support in place to help you through the inevitable rough days that will come along during the divorce proceedings.  You are now as ready as you will ever be.

Understanding the Standard Possession Order for Child Custody in Texas

In any divorce involving minor children, the parties and ultimately the court must approve a custody plan for those children.  In Texas, that custody plan starts with the Standard Possession Order.  Below you can read about the Standard Possession Order as well as the circumstances and factors a court will consider in determining whether and to what extent it might deviate from that SPO.

Key points to remember:

  1. There is a presumption that the SPO is in the best interests of the children, but that may be rebutted by evidence showing that the SPO is not in the child’s best interests.
  2. The terms of the SPO will vary based on the distance between the child’s residence and the noncustodial parent.
  3. The SPO is designed to apply to children 3 years of age or older.  Texas law recognizes that children under the age of 3 years benefit from a stable environment.
  4. The bests interests of the children will always be the primary concern in deciding issues of child custody.
  5. Possession or access to a child may not be conditioned or based upon the payment of child support.
  6. Courts very much favor parents creating their own parenting plan for the terms of their custody issues, subject to court approval that the plan is in the best interests of the children.

Understand Texas’s Public Policy Regarding Child Custody is:

  1. To assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;
  2. Provide a safe, stable, and nonviolent environment for the child;
  3. Encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage;
  4. To encourage frequent contact between a child and each parent for periods of possession that optimize the development of a close and continuing relationship between each parent and child; and
  5. For all children in a family to be together during periods of possession.

For parents residing within 100 or less of each other, the noncustodial parent is entitled to possession under the Standard Possession Order as follows:

  1. On the 1st, 3rd and 5th weekends of each month.
  2. On Thursday evenings from 6pm-8pm during the school term; or, upon election, from the end of school Thursday until school resumes on Friday.
  3. During Spring Break in even numbered years.
  4. For 30 days during summer, but the custodial parent may have one weekend of visitation during that period.

For parents residing more than 100 miles from each other, the noncustodial parent is entitled to possession under the Standard Possession Order as follows:

  1. For one weekend each month, or on the 1st, 3rd, and 5th weekend of each month.
  2. During every Spring Break.
  3. For 42 days during the summer, but the custodial parent is entitled to two weekends of visitation during that period.

Regardless of distance, the noncustodial parent is entitled to possession under the Standard Possession Order:

  1. During the first part of the child’s Christmas school holidays in even numbered years (up to December 28th).
  2. During the last part of the child’s Christmas school holidays in odd numbered years (from December 28th)
  3. During the 4 day Thanksgiving weekend in odd numbered years.
  4. For two-hours (usually 6pm-8pm) on the child’s birthday.
  5. On Father’s Day or Mother’s Day, as appropriate.

Factors that will cause a court to deviate from or modify the Standard Possession Order:

  1. If there is a  history of domestic violence or sexual abuse in the family.
  2. If there is a history of neglect or abandonment.
  3. If the work schedule or other special circumstances of the custodial parent, noncustodial parent, or the child make the standard possession order unworkable or inappropriate.

Preparing For Your Consultation With A Divorce Attorney

Preparing For Your Consultation With A Divorce Attorney

After you make the decision to retain an attorney and file for divorce, or after you are served with a petition for divorce, you will soon find yourself preparing to meet with divorce lawyer.  There is a lot going on at this point.  You may be mentally or emotionally fatigued just making the decision to… Continue Reading