In a family law case, there is no issue that is more emotional, that causes more stress and often times more hostility, than child custody. The stress and hostility is often times brought on when one parent threatens to “take“ the children from the other parent.
Let me be very clear: it is extremely rare that a parent will “lose“ children in a custody case. This is because in Texas, there are two types of conservatorship. First understand, that conservatorship means the person or people who we making decisions and caring for the children (usually the parents). The first type of conservatorship is "joint managing conservatorship". Joint managing conservatorship is the most common type of conservatorship . It is granted in the overwhelming majority of cases. In fact, there is a presumption built into the law saying that it is in the child’s best interest that parents be named managing conservators of their children. While there are circumstances where one parent can be designated as the “sole” managing conservator, those cases are few and far between (sole managing is granted when one parent has demonstrated through their actions that they pose a risk of emotional or physical danger to the child.
Instead parents will most likely share rights and duties relating to their children. These rights and duties mean that each parent will have the same rights as the other parent. However, there is one additional right that the parent named as the “primary managing conservator has“; that is the right to designate the residence of the child or children.
The good news is that parents are able to agree between themselves on any custody and visitation schedule which works for them. It is common for one parent to work shift work where their schedule rotates routinely and in a predictable fashion. When this happens custody arrangements and visitation schedules are easy to work out and manage. Other times custody and visitation schedules such as the first, third, and fifth weekend of each month are more appropriate. And it is becoming even more popular for parents to split physical possession of their children 50-50.
Child custody cases in Texas are guided by the overarching concept of “best interests of the child.” The Texas Family Code states, “the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child” (Tex.Fam.Code § 153.002) The determination of best interest is based on the well known Best Interest Factors as outlined by the Texas Supreme Court in the landmark case of Holley v. Adams, 544 S.W.2d 367. In fact, The U.S. Supreme Court has expressly recognized that the “best interest of the child” is the proper standard for resolving disputes between parents on custody issues. Reno v. Flores, 507 U.S. 292, 303-04 (1993). The Holley Factors or “Best Interest Factors” are as follows:
· the desires of the child
· the emotional and physical needs of the child now and in the future
· the emotional and physical danger (of one parent) to the child now and in the future
· the parental abilities of the individuals seeking custody
· the programs available to assist the parents
· the plans for the child by these individuals
· the stability of both parties’ homes and any acts or omissions of a parent which may indicate that the existing parent-child relationship is not a proper one
· any excuse for the acts or omissions of a parent.
If you have any questions about custody or visitation, give me a call. I can help. My number is 956-501-6565. You will always speak directly with me.