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Houston Divorce & Family Law Attorney Richard J. Tholstrup

The Tholstrup Law Firm, L.P.

440 Louisiana, Suite 800
Houston, Texas 77002
    2002 Timberloch, Suite 200
The Woodlands, Texas 77380
Phone: 713.225.1280 Fax: 713.225.1344
E-Mail:  tholstru@sbcglobal.net
Home Page:  www.tholstruplaw.com

Family Law Attorney Richard J. Tholstrup

CHILD CUSTODY LITIGATION

For more detail on the following, simply click on the issue

1. What does “custody” mean?
2. What are the different types of custody?
3. What are the differences in rights between Joint Custody and Sole Custody?
4. What is the Standard Possession Order or SPO under the Texas Family Code?
5. Can the court consider the child’s preference of whom they want to designate the child’s primary residence?
6. What are some of the important issues considered by the court when deciding custody cases?
7. How can I make my custody case stronger?

1. What does “custody” mean?

Custody, which is known as “conservatorship” under the Texas Family Code, defines the rights and duties that each parent will exercise for the benefit of the child, designates the decisions to be made, and the responsibilities of each parent with regard to the child. Conservatorship is a separate issue from visitation (see Standard Possession Order, below).

2. What are the different types of custody?

The Texas Family Code provides a presumption that it is in the best interest of the child that the parents be joint managing conservators (“JMCs”). On good cause shown, one parent can be the sole managing conservator and the other parent the possessory conservator. If the parents are JMCs, then one of the parents will be designated primary joint managing conservator with the exclusive right to designate the residence of the child and right to receive child support. The sole managing conservator has the same rights as the primary joint managing conservator in addition to other rights set out in the Texas Family Code, while the possessory conservator may have limited rights depending on the circumstances.

3. What are the differences in rights between Joint Custody and Sole Custody?

A sole managing conservator would have the following exclusive rights (other rights and duties are not listed here that are the same for either case). For joint custody, the following rights might be subject to the agreement of the non-primary JMC, or the non-primary JMC might have the independent right just like the primary JMC.

A. the exclusive right to consent to medical, dental, and surgical treatment involving invasive procedures and to consent to psychiatric and psychological treatment of the child;
B. the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
C. the right to consent to marriage and to enlistment in the armed forces of the United States;
D. the right to make decisions concerning the child’s education;
E. the right to the services and earnings of the child;
F. except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for 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;
G. the duty to manage the estate of the child to the extent the estate has been created by community property or the joint property of the parents.

4. What is the Standard Possession Order or SPO under the Texas Family Code?

The SPO under the Texas Family Code addresses weekend, holiday and summer periods of possession of the child. A basic distinction is made for cases where 1) the parents reside within 100 miles of each other and 2) the parents reside more than 100 miles apart.

The Texas Family Code provides that the parties “shall have possession of the child at any and all times mutually agreed to in advance by the parties” In the absence of mutual agreement, the following is an outline of the basic periods of possession:

A. For a child aged under 3 years of age, a possession order is normally tailored to the child based on past contact with each parent. The following is presumed to be in the best interest of a child 3 years or older.
B. Weekends - 1st, 3rd and 5th weekends of the month based on the Friday before the weekend, and extended by Friday or Monday Holidays. For parents who reside over 100 miles apart, the non-possessory parent may in the alternative select one weekend per month with 14 days notice.
C. Thursdays during School Year - Every Thursday - can elect to pick-up and return to school on Friday to have an extended weekend on 1st, 3rd and 5th weekends.
D. Thanksgiving and Christmas in Odd Numbered Years - Non-possessory parent gets Thanksgiving and 12:00 noon on December 26 to day before school resumes in odd numbered years.
E. Spring Break and Christmas in Even Numbered Years - Non-possessory parent gets Spring Break and day school lets out to 12:00 noon on December 26. For parents residing over 100 miles apart, all spring breaks to non-possessory parent.
F. Mother/Father’s Day Weekend - If not in possession, the relevant parent gets this weekend.
G. Child’s Birthday - Parent not in possession gets possession from 6-8 pm on the child’s birthday.
H. Summer - Non-possessory parent gets 30 days if the parents reside within 100 miles, 42 days if the parents reside more than 100 miles apart. There are additional rules that apply to summer periods of possession regarding notice and the possessory parents pre-emptive rights.

5. Can the court consider the child’s preference of whom they want to designate the child’s primary residence?

Yes. The child can sign an affidavit of choice of managing conservatorship at age 12 or older, but this does not guarantee the court will adhere to the child’s decision. The child’s preference of whom they want to live with is given more consideration, depending upon their level of maturity and whether or not they have made their decision independent of parental influence. The judge can overrule this choice if the judge finds their choice is not in the child’s best interest.

6. What are some of the important issues considered by the court when deciding custody cases?

Parental Alienation Syndrome
Drug and alcohol abuse
Domestic violence
Lying to the child by parent and false accusations
Sexual abuse
Child abuse, neglect and endangerment
Poor living conditions
Denial of visitation
Social situations of the child, including grades, friends, extracurricular activities
Day care or being home alone

The child’s performance in school is very important. A parent seeking custody should be very familiar with a child’s teachers and school record. Where there are medical or health issues, the parent seeking custody should also be familiar with the child’s medical records and health care providers.

The ultimate success of any case is fact specific. The more relevant facts/evidence and witnesses a parent seeking custody can provide to his/her attorney, the greater the likelihood of success.

7. How can I make my custody case stronger?

A. Maximize your time with the child.
    a. Make the time with your child really count.
    b. Get to know your child and become a good listener.
    c. Insulate your child from the details of the custody case.

B. Have a well-defined discipline plan.
    a. Knowing the rules and consequences in advance encourages cooperation in your child.
    b. Consistency is extremely important to the success of your plan.
    c. Positive reinforcement is also important.

C. Express your love to your child.
    a. Do not try to win the child’s love through buying the child things.
    b. Read stories together
    c. Be open and honest with your child.

D. Share the child with the other parent, keeping in mind the child’s best interest.
    a. Visitation should continue as ordered by the court.
    b. Withholding visitation is a “red flag” to losing custody.
    c. Withholding visitation is a precursor to change of custody.

E. Attend parenting classes.
    a. Your parenting skills are learned from your parents.
    b. Learn new information and update parenting skills.
    c. This shows the court your dedication to your role as a parent.