In Texas, there is a rebutable presumption that parents
should serve as the Joint Managing Conservators of their
children. In Texas, "Conservatorship" is
"Custody" of the children, and the entire regime about the
child(ren) is now called a "Parenting Plan." There is
promise that the 2009 Legislature will enact changes bringing Texas
nomenclature in line with the rest of the country.Major changes were enacted in 2005.
In its 2005 wisdom, "The Legislature finds that the use of parenting plans
and parenting coordinators in suits affecting the parent-child relationship
will assist in promoting the interest of children and in helping litigants
resolve their issues relating to parenting." Section 153.601 et seq. are
intended to assist parties in minimizing conflicts in their post-divorce
parenting through (1) creating a "parenting plan" which establishes the
parents’ rights and duties with respect to the children and which provides
procedures for resolution of future disputes and (2) by court-appointment of
"an impartial third party" to assist the parents in developing and
implementing their "parenting plan". The court may appoint this "parenting
coordinator" over a parent’s objection in a "high conflict case." The
parenting coordinator is paid by the parties, like a mediator, except for
hardship exceptions. She has no power to impose a solution and may not testify
in Court.
An excellent explanation of parenting plans by a
state with ample experience with them--Oregon-- is found at
"Family Law- Oregon Courts-Parenting Plan Information." The
information is quite valid here for Texas cases.
It will take some time to figure out what was really
intended. Meanwhile, we continue to deal with the same practical
concepts as before, as stated below.
Joint Managing
Conservatorship does not mean that each party will have
the children one-half of the time. It also does not mean
that child support will not be awarded to one parent.
Joint Managing Conservatorship does mean that the parents
will either share, allocate, or apportion parental rights
and duties. These are the same parental rights and duties that the
parents have prior to a divorce being filed; they just may be allocated
differently in the divorce. But there are new requirements, as in most cases, the
child's domicile must be established in the final Court
orders. The Court must make a finding of no family violence to either
approve an agreement or appoint the parents a joint managing
conservators.
In the absence of extenuating circumstances ( a history of family
violence, for one), it is
advisable for parents to work out appropriate custody
arrangements rather than have strangers do it for them. A
custody fight involves a great deal of time, commitment,
and emotional and financial expense. In some instances,
the child can be damaged more by the court action than
the worst trait of the other parent. Further, you need to
remember that your child's other parent will be a
continuing part of your child's life and activities. It
will be easier for your child if the child is kept out of
the parents' conflict. This is not possible if a trial
occurs. If you are able to reach an agreement, and make a
commitment to work together to resolve disputes that may
arise in the future, it is very probable that the child
will be able to have both parents at the important events
in the child's life. To emphasize the importance of
parental cooperation, many courts are now requiring all
parents to attend parenting or divorce education classes
before the court action can be finalized.
One difficult issue that comes up either at the time of a divorce or
later is the relocation of the parent who desires to be awarded or is
awarded primary physical custody of the child. This issue is
decided by weighing a multitude of facts and factors to make an
appropriate order that insures a quality relationship of both parents
with the child, whether it is here or there.
Obviously, there are going to be situations where a
custody fight is the only option. However, it is very
important that you thoroughly discuss your concerns,
options, and position with your attorney before making
the decision to take this issue to trial. Mediation
services are available to assist the
parties in formulating appropriate custody arrangements.
The Court will usually also order mediation. As a general
rule, mediation proceedings are confidential and
privileged. The articles on Mediation should be reviewed
for more information about this very useful alternative
used to resolve custody disputes.
Communications with counselors are not privileged and
confidential if the information is relevant to issues
concerning the parent-child relationship.
In those cases where an agreement cannot be reached,
professional services will ordinarily be required to assist the
Court in making a decision. In Dallas, it is customary to
order a Social Study to be performed by Dallas County
Family Court Services. The Social Study will involve the
completion of informational data, gathering of
references, and an interview in their offices and/or
home. A recommendation on conservatorship will be made to
the Court at the conclusion of their investigation. The
Court may also order psychological evaluations of one or
both parties and/or the children. Additionally, a party
may wish to retain psychiatrists, psychologists, or
private custody evaluators.
If 12 years of age or older, a child can sign an
affidavit stating whom the child would prefer to live
with. If requested by a party, the Court will interview a
child 10 years of age or older. Neither the affidavit nor
the information from the interview is binding on the court.
It is some evidence, just like all the other evidence.
However, the court realizes the problems in ordering a
sixteen year old child to stay with a parent with whom he
does not want to reside. If younger than 10, the child
might have the opportunity to speak with the judge. There
is no guarantee of this.
Texas recognizes the rights of grandparents and a court can
award them custody or visitation rights. But the US Supreme Court has
limited the applicability of such powers.
Once a decision is made concerning conservatorship,
provisions for periods of possession are generally
determined by guidelines enacted by the Texas Legislature
commonly called "Standard
Possession Order".
You need to review these guidelines for possible
modifications to fit your family circumstances. For
example, if one parent's family always celebrates
Christmas Eve and the other parent's family always
celebrates Christmas Day, and everyone lives within close
proximity, the schedule can be altered by agreement so the child has
the advantage of being with both families each year.
Persons of different religious affiliations will want to
add holidays specific to their faith.
Relocation or Move Away Custody Cases
Relocation cases are difficult cases that
mostly depend on the facts of the individual case. In parental
relocation cases, the court considers many
factors in deciding whether the child will move or not, including the motives
behind the proposed move, the distance, the quality of the child's relationship with the stay-behind
parent, how the move will affect the child, and ways to keep up the relationship
with the left-behind parent after the move. To have a feel for the chances that a
relocation of the child will--or will not--be allowed, it is mandatory that a parent
--either wanting to move or resisting the move-- schedule an appointment with an experienced lawyer to go through the relevant
facts.
In long distance, move away type of cases
, establishing the parenting time, telephone contact, and traveling
arrangements (as well as funding the long distance travel) are all factors
that must be addressed. There is even a new Texas statute that specifically
allows for long distance electronic visitation.
NAME CHANGE
- Absent agreement of the parties, it is generally
not possible to change the names of the children.
Custody cases are sometimes the most difficult
to resolve once the parties have dug into polarized
positions. Review of the articles on Mediation and the
Guide
to Dallas Family Courts may help
steer you away from these contentious lawsuits. Also, a
professional consultation with an experienced divorce and
family law attorney early--
before everything falls apart-- may help, by applying the
law to your unique situation, prevent
the expensive, knock-down, drag-out type of case that a
custody case can become. Feel free to call us to set up a
consultation
- Law Offices
of Raggio & Raggio, P.L.L.C.
Voice: 214.880.7500
Permission is given to redistribute
this article so long as attribution to (mention of) the
authors, Raggio & Raggio remains.
