Child custody issues are sensitive and often emotionally charged. There are a number of factors to consider when determining who has custody of the kids.
There are default laws but your circumstances might call for a different plan. Contact the Handler Law Firm so we can evaluate and provide important guidance.
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 “who gets the children.”
Joint Managing Conservatorship
The vast majority of parents are awarded “joint custody” in a divorce, meaning that all rights and duties concerning the children are shared. 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.
In every case, however, the court must ultimately decide what custody arrangement is in the children’s best interest.
Primary Joint Managing Conservator
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.
Sole Managing Conservator
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 educational 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 year or two years, 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 brothers and/or sisters as it is not in their best interest.
The Right to Decide Where a Child will Live
Only one parent may have the right to establish the primary residency of the children. The parent who is named the Primary Joint Managing Conservator or the custodial parent will typically be restricted geographically on where they can reside with the children. This geographic restriction will be listed in the Final Decree of Divorce and will usually restrict the residence of the children to the county in which the children resided prior to the divorce if both parties still reside in the same county or the county where the divorce is pending. Courts will sometimes expand this geographic restriction to also include the counties that are contiguous to the restricted county.
Can Your 12-year-old Decide Which Parent to Live/Visit With?
Duration of a Child Custody and Child Support Order.
Texas courts generally have jurisdiction to make orders regarding the support and conservatorship of a child until that child reaches the age of eighteen or until that child graduates high school, whichever occurs later.
However, this jurisdiction can be extended if the court determines that a child has a physical or mental disability that exists prior to the child’s eighteenth birthday and the court determines that the child will not be capable of self-support.
If you have a child that has any form of disability, it is important for you to consult with an attorney prior to the finalization of your divorce to ensure that you are preserving the rights for that disabled child.