Category Archives: Child Custody

Does My Child Get To Decide Which Parent They Will Live With?

Child custody is always a contentious issue in any divorce. One of the more common myths I hear from prospective divorce clients is that their child is over the age of 12 and wants to live with them so custody isn’t an issue.

That simply isn’t true as I will explain below.

A Quick Note On Conservatorship Versus Possession and Access

Let’s take a moment to look at the difference between conservatorship as opposed to possession and access under the Texas Family Code.

In simplest terms, conservatorship refers to decision making authority.

Possession and access refers to having physical possession of the children during defined periods of time. This is more of the traditional understanding of custody.

The Significance Of Your Child Being 12 Years Old In A Divorce

So where does that myth I discussed above come from? It comes from a misunderstanding of what the law says.

The Texas Family Code provides that upon application of a parent, the judge shall interview a child age 12 or older in chambers on the issues of conservatorship or which parent should have the right to determine the child’s primary residence.

The Texas Family Code provides that upon application of a parent, the judge may interview a child under the age of 12 in chambers on the issues of conservatorship or which parent should have the right to determine the child’s primary residence.

The law also provides that upon application of a parent, the judge may interview a child in chambers to determine the child’s wishes on the issues of possession, access, or any other issue affecting the parent-child relationship.

But The Judge Still Decides

The judge will still be the ultimate decision maker on the issues of conservatorship, possession, and access. The legal standard for making that decision is what is in the best interests of the child.

The child’s wishes as expressed to the judge during any interview are merely one factor that the judge can consider in making a decision.

When Will The Child’s Wishes Carry More Weight?

There are a number of circumstances in which the child’s wishes will carry more weight.

For example, an older teenager’s wishes will carry more weight for the simple reason that it is difficult for a court to control the child.

If you tell a 17 year old with a car that he has to live with dad but he wants to live with mom – guess whose house he will end up at regardless of what the court says?

The weight of the child’s wishes will also depend on how well thought out the child’s decision making appears to the judge.

A child stating that he or she wants to live with one parent over the other carries more weight if it is supported by well thought reasoning.

The judge will not simply ask which parent the child wishes to live with but also attempt to explore the reason behind that decision.

This leads to another factor – the child’s wishes will carry less weight if it appears to the judge that they are based on inappropriate influence from one parent or the other.

For example – telling a child that you will let him play video games all day if he tells the judge that he wants to live with you is a bad move.

One More Note Of Caution

Children tend to be a lot smarter than parents give them credit for both intellectually and emotionally.

Children know when a divorce is happening. They see the discord and conflict between parents. They see the emotional toll it takes on mom and dad.

Most of them have friends with divorced parents so they know at some point they will end up living with mom or dad.

It is not uncommon for a child to try to cheer up a parent by telling them that they want to live with them – even while telling the other parent the exact same thing. The child is merely trying to keep their parents happy.

So even if your child assures you that you are the parent they want to live with – be careful asking for them to testify as you do not know what they will say to the judge.

You should evaluate the child custody issues objectively understanding that the child’s opinion is one factor and the the ultimate decision will be based on what is in the child’s best interests.

Can I Revoke The Other Parent’s Visitation Rights If They Do Not Pay Child Support?

The short answer is no, you may not revoke the other parent’s custody rights with the child if do not pay child support in Texas.

I’ll explain in more detail below but note first that this issue is not limited to divorce cases in Texas.

For example, child support and custody may be determined through the Attorney General’s office without filing for divorce or those issues may be determined among unmarried parents.

In divorce cases, this issue may arise during the divorce proceeding when the parties are operating under temporary orders or after the court issues a final decree of divorce.

In any of these situations, the answer remains the same: one parent cannot prohibit the other parent from custody of a child because the other parent failed to make child support payments.

Texas’s Public Policy On Custody

Texas public policy for child custody, whether related to a divorce or independent of a divorce, is as follows:

  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. to provide a safe, stable, and nonviolent environment for the child; and
  3. to encourage parents to share in the rights and responsibilities of raising their children after the parents have separated or dissolved their marriage.

These public policies are independent from and in addition to a parent’s rights and duties under Texas law.

A Parent’s Duty and Rights Under Texas Law

I wrote previously discussing all of a parent’s rights and duties under Texas law.

In answering the question posed above, there are two particularly relevant rights and duties:

(1) the right to have physical possession, to direct the moral and religious training, and to designate the residence of the child;
….
(3) the duty to support the child, including providing the child with clothing, food, shelter, medical and dental care, and education;

Texas Family Code section 151.001(a)

As you can see, the duty to support his or her child and the right to possession and access of that child are separate under the law.

Texas Law Prohibits Conditioning Visitation On Payment Of Child Support

Texas law specifically provides as follows:

A court may not render an order that conditions the right of a conservator to possession of or access to a child on the payment of child support.

Texas Family Code Section 153.001(b)

The rights of visitation and child support belong to the child and are independent rights.

This means that an order in a divorce or child custody case cannot condition a parent’s visitation rights on whether or not that parent pays child support.

This also prohibits conditioning the payment of child support on the child’s consent to visitation with the other parent.

It also prohibits an order conditioning child support on whether the primary custodial parent allows visitation with the other parent.

What This All Means

In summary, a parent’s duty to provide child support as ordered by a court is a separate legal issue from that parent’s right to possession and access of the child.

This means that even if a parent is violating their duty to provide child support, that parent still has an independent right to visitation with the child that cannot be revoked or limited by the failure to pay support. The parent’s visitation right may not be limited by court order or by the other parent.

This also means that if a parent tries to revoke or limit the other parent’s visitation rights as ordered by the court, then that parent will find his or herself in violation of the court order as well.

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… Continue Reading

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… Continue Reading