CHILD CUSTODY & VISITATION
At The Law Offices of Bruce Thrasher, we understand how incredibly emotional legal matters involving your children can be. During a divorce or separation, establishing custody and visitation arrangements can be difficult and worrisome for both the parents and the children. Whether you are determining custody and visitation through a divorce, or for parents who have never been married, Mr. Thrasher and his experienced staff can help ease the burden of uncertainty and ensure you are fully aware of your rights and options as a parent.
No matter the circumstances, your custody and visitation arrangement will be established based on what the court deems the best interest of your child, according to the Texas Family Code (§153.002).
Most common types of custody matters:
- Divorce: in a typical divorce matter, custody and visitation will be determined first in temporary orders, which will serve as a temporary custody schedule while the divorce is pending, and then in the Final Decree of Divorce. The custody arrangement used in the temporary orders will not always remain the same in the Final Decree.
- Suit Affecting the Parent-Child Relationship (SAPCR): A suit to determine the rights and duties of parents who were never married and do not, or no longer, live together.
- Modification of an existing order: suit to modify a prior order determining custody and visitation, whether in a divorce, SAPCR, or prior modification case.
Custody arrangements or "parenting plans" can often be resolved outside of the courtroom either between the parties themselves, through their attorneys or in mediation. In the event that an agreement cannot be reached, the court will determine the terms of future custody and visitation based on what the judge deems the best interest of the child(ren).
In a suit involving custody of a child, the court may award the parents joint custody, or sole custody to one parent and visitation to the other parent. In Texas, the technical term for a person having custody is "managing conservator," so parents with joint custody are referred to as "joint managing conservators". The technical term for a party awarded visitation rights only (not rights to make decisions regarding health, education, etc), is "possessory conservator". If the parents are or will be separated, the court must appoint at least one managing conservator, but can also appoint joint managing conservators (joint custody).
In original suits (i.e. the first time a court is deciding custody of a child, as distinguished from suits to modify a prior court order determining custody), the Texas Family Code creates a presumption that the appointment of joint managing conservators (joint custody) is in the child's best interest. However, this presumption can be overcome by evidence to the contrary, such as a history of family violence, or that joint custody would likely impair the child(ren)'s health or emotional well-being. This presumption is also only applicable in original custody suits.
In modification suits, the court generally applies the "best interest of the child" standard, without a presumption favoring any party, in the absence of evidence that may create a presumption for or against a party. However, if a party seeks to change a custody order in a hearing for temporary orders, the burden of proof is on that parent to establish that (Texas Family Code § 156.006(b)):
1. the order is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development;
2. the person designated in the final order has voluntarily relinquished the primary care and possession of the child for more than six months and the temporary order is in the best interest of the child; or
3. the child is 12 years of age or older and has filed with the court in writing the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child and the temporary order designating that person is in the best interest of the child.
Joint custody (joint managing conservators) does not necessarily mean joint or equal rights and duties regarding possession or access to the children or decision making. Parties may be appointed joint managing conservators but have different rights and duties as to the child's physical care, support, medical decisions, educational decisions, and other rights and duties.
Unless the parties agree otherwise, the court will usually award one of the parties the exclusive right to designate the primary residence of the child, which effectively determines which schools the child(ren) will attend. The parent having the right to determine the primary residence of the children is often referred to as the “primary conservator.” The conservator who is not the primary conservator will generally be required to pay child support to the parent who is the primary conservator and to pay for the child(ren)'s health insurance, even if the conservators are appointed as joint managing conservators (joint custody).
In Texas, when it comes to relocating with a child, the state favors keeping the child in the area where the family has been living or that was previously established in the original custody order (when applicable). Most standard custody orders will include a geographic restriction, which restricts how far the primary conservator (parent with primary custody) may move with the child(ren) from the county where the custody order was established. If a parent wishes to relocate with the child(ren), he or she must overcome this burden to prove the move is in the best interest of the child(ren). As discussed below, the presumptions and burdens of proof may be different depending on the type of custody case being decided.
In the absence of an agreement by the parties, a court will generally give to one party the rights of a “possessory conservator.” The rights of the possessory conservator are generally referred to as visitation. Visitation may be awarded to a parent who is also appointed as a joint managing conservator. In those situations, usually the joint managing conservator who is not awarded visitation rights has the right to possession of the child(ren) at all times not awarded to the conservator having visitation rights. The court may appoint a parent who is not a managing conservator (i.e., who does not have custody, whether joint or sole), as a “possessory conservator.”
If a parent of the child is not appointed as managing conservator of the child(ren), then the court is required to appoint that parent as a possessory conservator of the child(ren), unless the court finds that appointment of that parent as possessory conservator is not in the child(ren)’s best interest and that possession of or access to the child(ren) by that parent will endanger the child(ren)’s physical or emotional welfare.
A court is required to specify the rights and duties of the possessory conservator and to specify the times and conditions for possession of or access to the child(ren), unless a party shows by “good cause” that specific orders would not be in the best interest of the child(ren).
The Texas Family Code contains provisions referred to as the “standard possession order”, which are more commonly referred to as “standard visitation”, for children 3 years of age or older (Texas Family Code § 153.331-153.317). If any child is under 3 years of age, the court will render an order that is “appropriate under the circumstances.” In a suit involving the parents of a child or children over the age of 3, the Family Code establishes a rebuttable presumption that the standard visitation provisions are in the best interest of the child. If the circumstances of either of the conservators or of the child(ren) make standard visitation unworkable or inappropriate, the court would likely render an order for visitation that is as similar as possible to standard visitation.
However, the rebuttable presumption in favor of standard visitation may be overcome by evidence establishing that standard visitation is not in the child’s best interest. For example, the court must consider evidence of family violence committed by the possessory conservator in determining whether to deny, restrict or limit visitation with the child. Family violence that would justify denying, restricting or limiting visitation may have been committed against the child, another child, or the other parent.
As set forth in the Texas Family Code (Sec. 153.312), standard visitation basically consists of (i) the first, third and fifth weekend of each month from 6:00 p.m. on Friday to 6:00 p.m. on Sunday, (ii) every Thursday from 6:00 to 8:00 p.m., (iii) 42 days in the summer, and (iv) holidays shared equally on an alternating basis (each conservator gets every other holiday). Not every month has a 5th weekend. When there is a 5th weekend in a month, the conservator having visitation will have the child(ren) two weekends in a row, on the 5th weekend and on the 1st weekend of the following month.
The conservator seeking visitation may elect to have what is commonly referred to as “expanded” standard visitation (Texas Family Code § 153.317). Expanded visitation is the same as standard visitation except visitation would begin when the child(ren)’s school is dismissed (instead of 6:00 p.m.) and end when the child(ren)’s school resumes (instead of oat 6:00 p.m. on Sunday). The expanded hours of visitation apply not only to the weekends but also to the Thursday night visitations and holidays. With expanded visitation, every weekend visitation would begin Thursday afternoon through the following Monday morning (or Sunday night at the conservator’s election).
As with all aspects of any suit affecting the parent-child relationship or divorce proceeding, the terms of custody and visitation can be modified or customized if both parties are in agreement with the terms.