Dividing parenting responsibilities can be difficult enough when parents live under the same roof, and settling these issues during divorce is often even more complicated. In the context of divorce, issues relating to parents’ rights and responsibilities toward their children are often referred to under the blanket term “child custody” – or, in Texas, as “conservatorship.”
When couples with children divorce in Texas, each parent’s rights and responsibilities must be laid out in parenting plan. This is a legal document that addresses important issues such as where the child will live and how much time he or she will spend with each parent. It also establishes each parent’s right to make or be involved in decisions affecting the child’s care and upbringing, such as those regarding education, discipline, medical care and religious instruction.
Sometimes, parents can work with their attorneys outside of court to negotiate a parenting plan. Other times, it is necessary to go to court to establish a parenting plan.
Parenting plan basics
In Texas, as mentioned above, child custody issues are sometimes discussed in terms of “conservatorship.” This is a legal term that refers to a parent’s right to make decisions on the child’s behalf. In some states, this set of rights is referred to as legal custody.
Texas law provides that there is a presumption that both parents will share these rights, which is known as joint managing conservatorship, or JMC. Even in a JMC arrangement, however, both parents do not necessarily have an equal say in all decisions. While the parents may share their authority in some areas, certain topics – such as where the child will live – may be reserved for one parent alone.
In other cases, only one parent receives the right to make decisions for the child. This is known as sole managing conservatorship, or SMC. There are a number of circumstances that might result in one parent receiving SMC, for instance when the other parent has abused or abandoned the child or has a history of drug or alcohol abuse.
A separate but related issue that must be addressed when parents divorce is where the children will live and how much time they will spend with each parent. In Texas, the legal term describing a parent’s right to live with his or her child is called “possession,” which is sometimes called physical custody.
When a child lives primarily with one parent, the other parent’s right to spend time with him or her is called “access,” though this is more commonly referred to as visitation. Typically, the parent who does not live with the child (often called the “non-custodial parent”) will have a right to see and spend time with the child regularly unless it is determined that doing so would put the child at risk of physical or emotional harm and would be against his or her best interest.
Negotiating a customized parenting plan
In Texas, the law provides divorcing parents with the option of negotiating their own parenting plans outside of court, often with help from their attorneys. Although it is not always an easy process, negotiating a customized parenting plan has a number of potential benefits over going to court.
Not only is negotiating an out-of-court parenting plan often faster and less expensive than engaging in a lengthy courtroom battle over child custody issues, but it also gives the parents themselves a greater degree of control over the final result. This affords them the opportunity to be more flexible and creative in their approach to sharing parenting responsibilities.
A customized parenting plan can be especially beneficial to parents with unpredictable or irregular work schedules, such as doctors, police officers or members of the military. Furthermore, since parents typically know better than anyone else what is best for their own children, a negotiated parenting agreement gives them the opportunity to create a plan that is custom-tailored for their unique family circumstances. This can improve the chances that the end result will work well for everyone involved.
Mediation can help ease the negotiation process
For many parents in the midst of a divorce, the prospect of trying to negotiate an agreement outside of court may seem daunting. After all, emotions are most likely at an all-time high, and areas of common ground may be few and far between. However, this does not mean it cannot be done. One option that can be helpful, so long as both parents are willing to put forth a genuine effort, is mediation.
Mediation is an out-of-court conflict resolution process that puts people in charge of settling their own disagreements with assistance from a professional called a mediator. Unlike a judge, a mediator does not take sides and has no say in the outcome. Instead, he or she assists the parents in reaching their own agreement by facilitating the discussion and providing guidance as they move through the negotiation process.
Mediation can be used to settle a wide variety of issues relating to divorce, but can be especially helpful regarding matters of parenting time and child custody. If an attempt to reach an agreement through mediation is unsuccessful, the parents can still go on to have their issues resolved in court.
Court-ordered parenting plans
When divorcing couples cannot agree on how to divide their parenting responsibilities, the issue must be resolved by a judge in family court. While this method of determining child custody gives parents less control over the outcome, it may be unavoidable and even preferable in certain situations. For example, if one parent is simply unwilling to cooperate in negotiating a customized parenting plan, or if there is any history of domestic abuse, it may be more appropriate to resolve child custody issues in court.
When a child custody case goes to family court in Texas, judges base their decisions on what they believe is best for the child – not the parents. In legal terms, this principle is known as the “best interests of the child” standard, and it is the primary consideration in any decision regarding child custody or visitation.
To assess the best interests of the child, family law judges in Texas consider an array of factors, such as:
- Who has been the child’s primary caregiver in the past?
- What is each parent’s ability to provide for the child’s physical and emotional needs?
- If the child is age 12 or older, what are his or her preferences?
- How able are the parents able to communicate and cooperate with one another?
- Does either parent have a history of substance abuse, neglect, criminal activity or any other issue that may pose a threat to the child’s health or safety?
Along with the examples listed here, judges in Texas family court may also weigh evidence relating to any other factors that they consider relevant to determining the child’s best interests. This determination will serve as the basis for the judge’s final order regarding each spouse’s parental rights and responsibilities, including physical custody, visitation time and decision-making authority.
Talk to a lawyer for help protecting your parental rights
If you have concerns about your parental rights and how to protect them during your divorce, a lawyer with a background in family can answer your questions and help you understand your options. Get in touch with the divorce and family law attorneys at Teller Law Firm, P.C., for more information.