The May Firm

There are four areas that must be addressed when spouses have minor children. All of the issues are related (although each must be reviewed separately) and all must be determined to be within the “best interests” of the child.

It is important to note that the gender of the parent plays no part in decisions involving children.

CONSERVATORSHIP

Conservatorship is the term used to describe the legal relationship between the parent and the child. In Texas, there are two basic arrangements. In one, both parents are “joint managing conservators.” In the other, one parent is the “managing conservator” and the other parent is the “possessory conservator.” Even though the word “possessory” is used, none of these terms are related to the amount of visitation a parent has with a child. Instead, the terms refer to the legal relationship and the authority a parent has to make decisions affecting the child’s life.

Texas law presumes that parents should be named as joint managing conservators after a divorce. In assessing whether it is appropriate to appoint the parents as joint managing conservators, the court will consider the questions of whether:

• The child’s physical, psychological or emotional needs will benefit from the arrangement;
• The parents have shown the ability to reach shared decisions;
• Both parents have participated in child rearing before the suit was filed; and
• The geographical proximity of the homes of the parties is problematic.

If the parents are joint managing conservators, either they will agree between themselves or the court will select one to have primary custody of the children with the other parent receiving visitation rights.

To avoid joint conservatorship, one parent must prove that it is not in the child’s best interest. Usually this is reserved for situations where a parent has committed domestic violence against a member of the family, has substance abuse problems, or has engaged in other actions or behaviors that could endanger the child.

RIGHTS AND DUTIES

Subject to court approval, a parent of a child has the following rights and duties at all times:

• To receive information concerning the child’s health, education and welfare;
• To confer with the other parent, to the best extent possible, before making a decision concerning the child’s health, education and welfare;
• To have access to the child’s medical, dental, psychological and educational records;
• To consult with the child’s physician, dentist or psychologist;
• To consult with school officials concerning the child’s welfare and educational status, including school activities;
• To attend school activities;
• To be designated on the child’s records as a person to be notified in case of emergency;
• To consent to the child’s medical, dental and surgical treatment during an emergency involving an immediate danger to health and safety;
• To manage the child’s estate that has been created by the parent or the parent’s family;
• To inform the other parent in a timely manner of significant information concerning the child’s health, education, and welfare; and
• To inform the other parent if the parent resides for at least 30 days with, marries or intends to marry a person who the parent knows is a registered sex offender under applicable state law.

While the child is in their care, a parent also has the following rights and duties, subject to the court’s approval:

• The care, control, protection and reasonable discipline of the child;
• To support the child, including providing clothing, food and shelter;
• To provide and consent for the child’s noninvasive medical and dental care;
• To consent to the child’s medical, dental and surgical treatment during an emergency involving an immediate danger to health and safety; and
• To direct the moral and religious training of the child.

A court may require that joint managing conservators consult with or obtain the consent of the other parent in the exercise of these rights; or, a court may allow each joint conservator to exercise these rights independently of the other. This can becomes problematic, particularly with regard to medical and educational decisions, if the lines of communication are faulty between the parents.

The following rights and duties are generally afforded to both parents in a joint managing conservatorship arrangement, or to the sole managing conservator.

• The right to consent to the child’s medical, dental and surgical treatment involving invasive procedures;
• The right to consent to the child’s psychiatric and psychological treatment;
• The right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
• The right to consent to marriage and enlistment in the armed services of the United States;
• The right to make decisions concerning the child’s education;
• The right to the services and earnings of the child;
• The right to act as an agent of the child in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government – except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed; and
• The duty to manage the estate of the child to the extent the estate has been created by community or joint property of the parents.

The rights typically allocated only to one parent, regardless of the type of conservatorship involved, include:

• Establishment of the child’s primary residence; and
• To receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child.

A recent trend has developed in many counties to restrict the establishment of the children’s primary residence to a particular geographic area. Dallas County judges routinely restrict a child’s residence either to Dallas County or to Dallas and its contiguous counties, as do Judges in Collin County, Tarrant County, and Denton County. If the primary parent chooses to relocate outside the designated area, he or she must seek permission from the court before moving the children or risk losing primary conservatorship.

PARENTING TIME SCHEDULING (aka VISITATION)

A schedule must be established to govern when parent and the child get to be together. Modern terminology for this is “parenting time”, although it is also commonly called “visitation” or “possession and access”.

Judges have wide discretion to determine schedules that will create a stable environment for the child, while also providing both parents with significant parenting time periods with their child. Texas has developed standard possession schedules, but by mutual agreement, parents can deviate from those standards.

Texas’ Standard Schedule for Parents Who Live Within 100 Miles of Each Other:

• The non-primary parent has visitation from 6 p.m. on the first, third and fifth Fridays of every month until the immediately following Sunday at 6 p.m.
• At the option of the non-primary parent, he or she may pick up the child on the Fridays of their weekends at the time school is dismissed for the day and retain possession until the immediately following Monday morning when school resumes.
• The non-primary parent has visitation with the child from 6 p.m. to 8 p.m. on each Thursday night when the child’s school is in session.
• At the election of the non-primary parent, he or she may choose to pick up the child at school at the time the child is dismissed from school on Thursday and then return the child to school the next morning.
• The non-primary parent receives the right to have the child for 30 days during the child’s summer vacation.
• In even-numbered years, the non-primary parent has the right to possession of the child during the child’s spring vacation from school.
• In even-numbered years, the non-primary parent has possession of the child from the time school is dismissed for Christmas vacation until Noon on Dec. 28.
• In odd-numbered years the schedule flips, with the non-primary parent receiving the children beginning at Noon on Dec. 28 until school resumes following the Christmas vacation.
• In odd numbered years, the non-primary parent receives possession of the child for the Thanksgiving holidays.
• The mother always gets to spend Mother’s Day weekend with the child. The father always has possession during Father’s Day weekend.

Texas’ Standard Schedule for Parents Who Live More Than 100 Miles From Each Other:

▪ At the option of the non-primary parent, he or she may have either the first, third and fifth weekends of a month, or one more weekend per month of his or her choosing.
• There is no Thursday visitation in the standard possession order.
• The non-primary parent receives custody during the spring vacation in every school year.
▪ Summer visitation for the parent who lives more than 100 miles from the child has 42 uninterrupted days with the child during the child’s summer vacation.
▪ Holiday possession is the same as that for parents who live under 100 miles away.

If the child is too young to be in school, the parenting time order for vacations follows the calendar of the public school district where the child lives.

The parenting time order continues in effect until the child reaches the age of 18 or graduates from high school, whichever is later. The visitation order may, of course, always be altered by the court should the need arise.

Again, the spouses are free to agree to any arrangement that works for both of them and the child.

Some parents choose to implement a plan where the child spends one week with one parent and the next week with the other parent. Other parents create more complex schedules for possession of the children. Even if the court enters a standard possession order, parents are still free to modify it by mutual agreement. So long as both the parties agree, there is no limit to the parties’ authority to change their respective visitation periods.

A parent who withholds the child from the other is in violation of court order and can be subjected to a contempt order, which can result in fines or even jail time. However, there is no punitive remedy for the non-primary parent who fails to exercise his or her scheduled visitation.