Texas Divorce FAQ’s – Parenting

This is about custody and visitation after divorce in Texas, including the effect on custody and visitation of misconduct of the parents, mental health of the parents, and the rights of grandparents in Texas.

This information is from Robert J. Matlock, theDivorceInfo Network Lawyer for Texas. Click here to visit his web site.

How does custody get decided as between a parent and a third party?

A parent has the advantage of a statutory presumption.  That means the court will assume that custody should be given to a parent unless the non-parent can prove that doing so will cause serious harm to the child.

How does custody get decided as between parents?

On the basis of which parent will best serve the interests of the child – in an overall sense, which parent would be the better person to control the decisions made for the child.  Gender of the parents is not to be considered as a factor in the decision.

What’s the terminology for custody?

Conservatorship.  However, most people still use the term “custody”.

A person may be a managing conservator (a person who has decision making authority with respect to the child) or a possessory conservator (a person who is entitled to possession of the child, but has very limited authority to make decisions concerning the child).

Persons may be joint managing conservators.  They share or have overlapping decision making authority concerning the child.

The most important areas of decision making authority are: 1) selection of the child’s place of residence, 2) selection of health care providers, and 3) selection of educational facilities.  The other areas include, consenting to underage marriage, consenting to enlistment in the armed forces, representation of the child in legal proceedings, signing of legal documents on behalf of the child, and various other areas of authority that seldom arise.

Is there a presumption in favor of not changing custody arrangements?

Yes, but not as a presumption per se.

The statutory language is a bit convoluted and varies somewhat based upon the existing status of the persons and the kinds of changes that are requested.

The simple answer is – the person desiring a change in custody orders must prove there has been a substantial change of circumstances since the date of the last order and that changing the custody order is the only proper method of dealing with the current situation.

What effect does the misconduct of one of the parents have on custody?

Misconduct certainly does not help a parent’s cause, but it is not necessarily a fatal blow to the parent’s case.  The judge or jury is to pick the parent who, in an overall sense, is the better qualified person to raise the child.  It is a comparative analysis of the two parents’ strengths and weaknesses.

Parents anticipating a custody dispute would like to hear that a list of “slam dunk” factual winners and losers exists so they could compare their fact situation to the list and know which way the decision will go.  There is no such list because people carry with them multi-faceted personalities and it is the totality of those characteristics that must be evaluated rather than a single positive or negative factor.

What effect does the mental health of one of the parents have on custody?

Take a look at the answer to the prior question.  Mental health is an important factor, but not necessarily a determinative one.

In mental health cases, the proximity in time coupled with the nature and severity of the problem are very important.  The person’s legal position improves as: a) the mental health problems are confronted and treated and b) the triggering incident becomes more remote in time.

For example, the bi-polar (manic-depressive) personality who has been taking medication and whose status has been regularly reviewed over the past 10 years has a much better position than the current substance abuser who denies an addiction problem exists.

What effect does the preference of the child have on custody?

It depends upon the age and maturity level of the child.  At age 12 the child’s preference can be voiced by signing an affidavit stating which parent the child would prefer to have as the “managing conservator” (Texas language for primary custody).  The older the child, the more weight the judge will tend to give the child’s preference.

How does visitation get set?

The judge has authority to set the possession schedules for the parents.

Theoretically, the possession schedule is to be set so as to best serve the child’s interests.  However, as a practical matter, the “standard possession schedule” is usually the starting point for discussions about visitation.  Generally, lawyers and judges use the standard schedule as their foundation for negotiations and work by expanding or contracting that outline rather than starting from scratch.

Is there such a thing as “standard visitation”? If so, what is it?

Yes, the Texas Family Code contains a “standard possession schedule” that is presumed to be the minimum time allocated to the parent who does not have primary possession of the child.

Here is the standard schedule:

Parent lives within 100 miles of the child

  1. Weekends – First, third and fifth weekends of each month from 6:00 p.m. on Friday to Sunday at 6:00 p.m. Or – From the time school is recessed Or – Until Monday morning with delivery of the child to school. The first weekend of the month begins on the first Friday of the month.
  2. Weekday Evenings – During school, each Wednesday evening beginning at 6:00 p.m. and ending at 8:00 p.m. Or – From the time school is recessed Or – Until Thursday morning with delivery of the child to school.
  3. Christmas – Even-numbered years from 6:00 p.m. on the day school is recessed to noon on December 26. Odd-numbered years from noon on December 26 to 6:00 p.m. on the day before school resumes.
  4. Thanksgiving – Odd-numbered years from 6:00 p.m. the day is school is recessed to 6:00 p.m. the Sunday following Thanksgiving.
  5. Spring Break – Even-numbered years from 6:00 p.m. the day school is recessed to 6:00 p.m. at the end of spring break.
  6. Child’s Birthday – From 6:00 p.m. to 8:00 p.m. Must pick up and return the child to the other parent.
  7. Father’s/Mother’s Day – From 6:00 p.m. on the Friday prior to Father’s/Mother’s Day to 6:00 p.m. on Father’s/Mother’s Day.
  8. Summer – With written notice by April 1, possession for a total of 30 days. It must end at least 7 days prior to the end of the summer vacation. Without written notice by April 1, possession from 6:00 p.m. July 1 to 6:00 p.m. July 31.

The other parent can select 1 weekend for possession during the summer by giving notice of the date by April 15 or 14 days’ notice.

Parent lives more than 100 miles from the child –

  1. Weekends – Either (a) the first, third and fifth weekends of each month, or alternatively, (b) one weekend per month upon 7 day’s written or telephonic notice. From 6:00 p.m. on Friday to 6:00 p.m. on Sunday. Or – Same times as schedule above
  2. Christmas – Same as above.
  3. Thanksgiving – Same as above.
  4. Spring Break – Every year from 6:00 p.m. the day school is recessed to 6:00 p.m. at the end of spring break.
  5. Child’s Birthday – Same as above.
  6. Father’s/Mother’s Day – Same as above.
  7. Summer – With written notice by April 1, possession for 42 days. Without written notice by April 1, possession from 6:00 p.m. June 15 to 6:00 p.m. July 27. It must end at least 7 days before the end of summer vacation.

The other parent can select 1 weekend for possession during the summer or 2 weekends if the other parent has the child more than 30 days. Notice is to be given by April 15.

Long Weekends If a weekend includes a school, state, federal or local holiday, then the weekend is extended to include the Friday or Monday holiday.

Is there a standard visitation pattern when the non-custodial parent is in a different state from the child? If so, what is it?

No answer.

What rules govern cases where the custodial parent wants to move away with the children?

To a large degree, the decision is dependent upon the philosophy of the particular judge.  Some judges are adamant about the subject but most claim that it is depends upon the facts of the particular case.  There are logical reasons for moving (corporate employer requires relocation, need for financial support from family members in another part of the country, etc.) and those that are motivated by other reasons (boyfriend/girlfriend lives elsewhere, the desire to maximize the distance between the kids and the other parent, etc.).  The judge will always try to determine the real reason motivating the parent’s move.

Some judges require a Decree of Divorce to include a requirement that the child reside within a given geographic area (usually the county or the county and the surrounding counties).  If the parent with primary possession of the children desires to move beyond that area, the agreement of the other parent or approval of the court is required to do so.

What visitation rights do grandparents have, if any?

Grandparents can request orders for “access” to the grandchildren.  Basically, that means asking the judge to establish a schedule of times that the parents are to recognize as being grandparent time only.

Recent decisions in other states and Texas have weakened the status of grandparents seeking custody of grandchildren.  Those decisions have, to some degree, also diminished the status of grandparents desiring access periods.

Other issues in Texas:

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