If there are children involved this is usually one of the first issues to be resolved. You need an experienced attorney to guide you. Here are some issues that will be considered:
Many times my training as a Family Law Mediator will help in resolving these issues by agreement. If not, I will aggressively pursue these matters in court.
The court that handles a divorce proceeding also determines who shall have custody of any children from the marriage. The term “custody,” in a divorce, often serves as shorthand for “which parent gets the children.”
The vast majority of parents are awarded “joint custody” in a divorce, meaning that all rights and duties concerning the children are shared. In every case, however, the court must ultimately decide what custody arrangement is in the children’s best interest. The legal term for joint custody is Joint Managing Conservatorship, and this arrangement is presumed to be in the best interests of the children of the marriage. However, even in the joint custody situation, the court must designate one parent who has the authority to determine the location of the children’s primary residence. This parent is called the Primary Joint Managing Conservator and also referred to as the “custodial parent,” because most Primary Joint Managing Conservators will decide that the children’s primary residence is in that parent’s home.
The other parent is called the “Possessory Conservator,” because that parent has the right to possession of the children at certain times, and is commonly referred to as the “non-custodial parent.” Aside from the decision regarding the location of the children’s primary residence, most other major parenting decisions are shared between the Primary and the Possessory Conservator. The presumption under the law is that Joint Managing Conservatorship is in the best interest of the children.
In rare circumstances, one parent may be appointed as the Sole Managing Conservator. In this case, the other parent is still referred to as the Possessory Conservator. Generally, this occurs only if:
(1) The other parent has been absent from the children’s lives;
(2) There is a history of physical, psychological, or sexual abuse or neglect by other parent; or
(3) There is a history of extreme conflict between the parents over educational, medical, or religious values. However, this does not mean that the other parent loses his or her right to visit with the children. The only rights a Sole Managing Conservator has over a Primary Joint Managing Conservator relate to the sole right to make certain decisions regarding the children’s lives, such as education and health matters.
Other legal custody arrangements that can be ordered at divorce include split custody, in which one or more children live with one parent while the remaining children live with the other parent, and divided custody, also referred to as alternating custody. This form of custody allows each parent to have the child for alternating blocks of time, often every week or two weeks, with equal visitation rights. Such legal arrangements are much less common. Judges are reluctant to order split custody, in particular, because of a firm belief that children should not be separated from their siblings.
If there has been a history of abuse or neglect, the court may require that any visitation by the abusive or neglectful parent be supervised. Generally courts will appoint a mutually agreed upon family member or third party to supervise the periods of possession or will appoint a supervision facility to conduct the supervision.
However, if parents cannot agree, child visitation will generally follow a schedule developed by the Texas Legislature that is designed to be fair and workable for both parents.
The Standard Possession Order (“SPO”) provides that the noncustodial parent is granted visitation of the child beginning at 6:00 p.m., every first, third and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday, as well as every Thursday evening, from 6:00 p.m. to 8:00 p.m during the regular school year. All holidays, including Thanksgiving, Christmas (winter) and spring break are divided between the parents, giving one parent the right to spend a particular holiday with the child every other year. The SPO also provides for the noncustodial parent to have thirty days with the child during the summer, or forty-two if the child lives more than 100 miles away from that parent.