Category Archives: Child Custody

Understanding Your Rights and Duties as a Parent During Divorce

This article provides an overview of your rights and duties as a parent both during and after your divorce. Certain rights are vested in a parent regardless of custody decisions in a divorce and others may be modified by the divorce decree. In addition, certain rights may be exercised independently, only upon agreement of the parents, or exclusively by one parent.

This article focuses on parental rights and duties. The article does not discuss how a court makes decisions regarding child custody which affect these rights and duties. For more information on custody decisions, please read General Rules for Child Custody in a Texas Divorce.

Your Rights and Duties as A Parent

Let’s start by looking at your rights and duties as a parent. These rights and duties result from the parent-child relationship and exist regardless of whether a child’s parents are married. These rights and duties are only modified by court order – such as a divorce decree.

Your rights and duties as a parent include the following:

  • the right to physical possession, to direct the moral and religious training, and to designate the residence of the child;
  • the duty of care, control, protection, and reasonable discipline of the child;
  • the duty to support the child, including providing the child with clothing, food, shelter, medical and dental care, and education;
  • the duty to manage the estate of the child, including the right to act as an agent of the child in relation to the estate;
  • the right to the services and earnings of the child;
  • the right to consent to the child’s marriage, enlistment in the military, medical and dental care, as well as psychiatric, psychological, and surgical treatment;
  • the right to represent the child in legal action and to make other decisions of legal significance concerning the child;
  • the right to receive and give receipt for payments for the support of the child and to hold and use funds for the benefit of the child;
  • the right to inherit from and through the child;
  • the right to make decisions concerning the child’s education; and
  • any other right or duty existing between a parent and child by virtue of law.

How Conservatorship and Possession Affect Your Rights as a Parent in Divorce

When parents get divorced, these rights and duties will be modified. How they are modified will depend upon the court’s determination of the issues of conservatorship (custody and management of the children) as well as possession.

For example, certain rights and duties are allowed only to the parent appointed sole managing conservator if one parent is appointed as sole managing conservator.

However, there is a presumption in favor of appointing both parents joint managing conservators. In that case, the rights and duties must be allocated by the court as you will see below.

Even if one parent is appointed sole managing conservator, the other parent will have rights to possession and access of the children and that parent will have certain rights and duties during his or her possession of the children.

So from this point forward – the rights and duties described will depend on whether the parents are appointed Sole Managing Conservator and Possessory Conservator or Joint Managing Conservators.

Having said that – parents have certain rights at all times – regardless of conservatorship or possession. So let’s look at those first.

Your Rights and Duties as a Parent at All Times During and After Divorce

These rights vest in a parent and do not go away as a result of the divorce unless specifically modified in the divorce decree. These rights and duties exist regardless of custody decisions and do not depend on whether you have possession of your children.

Unless limited by a court order, your rights as a parent at all times during and after a divorce include 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. to have 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 you as parent or your family.

In addition, each parent has a duty to inform the other parent in a timely manner of any significant information affecting the health, education, or welfare of the children.

These rights and duties exist regardless of whether the parents are appointed joint managing conservators or if one parent is appointed sole managing conservator.

Allocation of Rights and Duties for Parents Appointed Joint Managing Conservators

When parents are appointed joint managing conservators, the court must decide which of the rights those parents have may be exercised independently, jointly, or exclusively.

Independently means that either parent may exercise his or her right on that issue without consulting with the other parent.

Jointly means that the parents cannot exercise their right without agreement with the other parent.

Exclusively means that one parent or the other has been given the exclusive right to make decisions on that issue. The most common example is the right to designate the primary residence of the child.

When parents are appointed joint managing conservators, the court will decide which rights and duties a sole managing conservator would have will be exercised independently, jointly, or exclusively by the parents. Those rights and duties are discussed in the next section.

Rights and Duties of A Parent Appointed Sole Managing Conservator

A parent appointed sole managing conservator has the exclusive right to make decisions concerning the children on the following issues:

  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 those 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 enlistment in the military;
  7. the right to make decisions regarding the child’s education;
  8. the right to the services and earnings of the child; and
  9. the right to act as an agent of the child in relation to the child’s estate.

If the parents are appointed joint managing conservators, then the court will decide which of these rights are to be exercised independently by either parent, jointly by both parents, or exclusively by one parent.

Rights and Duties of A Parent Appointed Possessory Conservator

If one parent is appointed sole managing conservator, the other parent is presumed to be a possessory conservator. This means that even though the other parent does not have rights to make decisions concerning those items listed in the previous section, the other parent does have a right to possession and access of the children.

When the parent appointed possessory conservator has possession of the children, that parent has the following rights and duties:

  1. the duty of care, control, protection, and reasonable discipline of the children;
  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.

Also remember that these rights and duties are in addition to those rights and duties a parent has at all times.

If you would like to schedule a free consultation to discuss your divorce case, then please send me an e-mail or send a request through my contact page.

General Rules of Child Custody in a Texas Divorce

This article is intended to provide a broad overview of the general rules governing child custody decisions in a Texas divorce.

I will note that the law doesn’t use the term “custody” in a Texas divorce. Instead, the law uses terms such as “conservatorship,” “possession,” and “access.”

Let’s begin by looking at the different types of conservatorship.

Types of Conservatorship in Texas

“Joint Managing Conservatorship” is the sharing of parental duties between two parties, usually the parents. When parents are appointed joint managing conservators, one parent will have the right to designate the child’s primary residence. This parent is often referred to as the primary.

“Sole Managing Conservatorship” means the parent with whom the child lives and the parent who makes most of the parenting decisions regarding the child.

A “possessory conservator” is the parent who does not have primary custody of the child but does have rights of visitation.

For more information on the various language used in a child custody issues, you can read my article on Key Child Custody Terms in Texas.

Public Policy on Child Custody

The legislature set forth specific public policies of the State of Texas when it comes to making child custody decisions. These policies provide guidance to courts when a judge makes a decision on child custody as part of a divorce proceeding.

First, it is the policy of the state to assure that children will have frequent and continuing contact with a parent who has shown the ability to act in the best interest of the child.

Second, it is the policy of the state to provide a safe, stable, and nonviolent environment for the child.

Third, it is the policy of the state to encourage parents to share in the rights and responsibilities of raising their children after parents have divorced.

Fourth, the best interest of the child is always the primary consideration in determining custody issues and I will discuss that standard further below.

Presumptions on Child Custody

In addition to the State’s public policies, there are several important legal presumptions that govern child custody issues in a divorce proceeding.

Presumptions are a type of default rule that the courts operate under in making a child custody decision. If one spouse wants a different result than the default rule would provide, then that spouse will have the burden of introducing sufficient evidence to overcome the presumption.

First, it is presumed that appointment of the parents of the child as joint managing conservators is in the best interests of the child.

Second, there is a presumption that the Standard Possession Order is in the child’s best interest and that the SPO provides a minimum schedule of possession for the parent that does not have primary custody. You can learn more about the Standard Possession Order by reading this article.

Third, one of the child’s parents must be appointed sole managing conservator (or both joint managing conservators) unless the court finds that the appointment would significantly impair the child’s physical health or emotional development. This presumption arises when a third party, such as a grandparent, intervenes seeking custody of the children.

Another presumption arises when there are multiple children. It is presumed that keeping the children together when staying with or visiting either parent is in their best interests.

Understanding the Best Interest of the Child Standard

The best interest of the child standard is at the center of every decision a court makes on child custody issues so it is important for any parent to understand what that means. Unfortunately, this is not a defined standard and courts have a large degree of discretion in determining what is in a child’s best interest.

One thing we can do is identify issues that are clearly not in the child’s best interest. For example, if a custody decision would result in impairment of the child’s physical health or emotional development then it is clearly not in the child’s best interest. A parent with a history or pattern of past or present child neglect or physical abuse may have his or her rights to possession and access limited by statute.

To help provide some parameters to the best interest of the child standard, Texas courts developed a set of factors to use in determining what is in the child’s best interest. Those factors are set forth below:

  1. The child’s wishes.
  2. The emotional and physical needs of the child both now and in the future.
  3. The emotional and physical danger to the child both now and in the future.
  4. The parental abilities of the person seeking custody.
  5. Any programs available to assist the person seeking custody to promote the best interest of the child.
  6. Any plans for the child that the person seeking custody may have.
  7. The stability of the proposed home for the child.
  8. Any prior acts or omissions of a parent that may indicate the existing parent-child relationship is not a proper relationship.
  9. Any excuses for those acts or omissions.

Decision-Making Regarding the Child

When a court appoints parents joint managing conservators, the court must also designate which decisions can be made by each parent independently, by agreement with the other parent, or exclusively by one parent.

Agreed Parenting Plans

Remember the State’s policy to encourage parents to share in the rights and responsibilities of raising their children after parents have divorced?

Well the law very much favors and encourages parents to create their own parenting plans that address custody issues. Any agreed parenting plan is still subject to court approval and the court will review the plan under the best interest of the child standard. But if the parents can agree on a reasonable plan regarding custody, then the court will likely approve it.

Age Matters in Custody Decisions

It is important to remember that the age of a child matters when making custody decisions. This is true in two respects: for children under the age of 3; and for children over the age of 12.

For children under the age of 3, the presumption regarding the Standard Possession Order being in their best interests does not apply. The law recognizes that younger children benefit from a stable and consistent environment.

This does not mean that the other parent cannot visit or have possession of their younger children, merely that there is no presumption regarding the Standard Possession Order.

There is a big myth I often hear from prospective clients regarding older children – namely that children over the age of 12 can choose which parent they want to live with. This is NOT true.

What changes at the age of 12 is that a parent can petition the court to have the judge interview the child in chambers and the judge must do so if requested. During that interview the judge will explore the child’s wishes regarding custody. But the judge is not bound by the child’s wishes regarding custody. The judge must still make the custody decision based on the best interest of the child.

Distinguishing Child Custody from Child Support

It is natural for parents to link the two issues of child custody and child support. However, a court cannot and will not condition possession or access to a child on a parent’s payment of child support.

This means that even if the parent without primary custody falls behind on their child support, they can still enforce their visitation rights.

If you would like more information on your rights and duties as a parent, then please continue to this article: Understanding Your Rights and Duties as a Parent During Divorce.

If you would like to schedule a free consultation to discuss your divorce case, then please send me an e-mail or send a request through my contact page.

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.

If you would like more information on how child custody decisions are made in a divorce, then please read General Rules of Child Custody in a Texas Divorce.

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;
    1. reducing misunderstandings;
    1. clarifying priorities;
    1. exploring possibilities for problem solving;
    1. developing methods of collaboration in parenting;
    1. understanding parenting plans and reaching agreements about parenting issues to be included in a parenting plan;
    1. complying with the court’s order regarding conservatorship or possession of and access to the child;
    1. implementing parenting plans;
    1. obtaining training regarding problem solving, conflict management, and parenting skills; and
  1. 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;
    1. 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;
    1. provide for child support; and
  1. 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;
    1. to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;
    1. of access to medical, dental, psychological, and educational records of the child;
    1. to consult with a physician, dentist, or psychologist of the child;
    1. to consult with school officials concerning the child’s welfare and educational status, including school activities;
    1. to attend school activities;
    1. to be designated on the child’s records as a person to be notified in case of an emergency;
    1. to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and
  1. 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;
    1. the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;
    1. the right to consent for the child to medical and dental care not involving an invasive procedure; and
  1. 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;
    1. the right to consent to medical, dental, and surgical treatment involving invasive procedures;
    1. the right to consent to psychiatric and psychological treatment;
    1. 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;
    1. the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
    1. the right to consent to marriage and to enlistment in the armed forces of the United States;
    1. the right to make decisions concerning the child’s education;
    1. the right to the services and earnings of the child; and
  1. 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.