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 in Houston, Texas with regard to the children.
Conservatorship is a separate issue from visitation (see Standard Possession Order, below).
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.
What Are the Differences in Rights Between Joint Custody and Sole Custody?
Having sole custody would have the following exclusive rights (other rights and duties are not listed here that are the same for either child custody case).
For joint custody in Houston, 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.
- 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 or children;
- the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child or children;
- the right to consent to marriage and to enlistment in the armed forces of the United States;
- the right to make decisions concerning the child’s or children's education;
- the right to the services and earnings of the child or child;
- except when a guardian of the child’s estate or a guardian or family attorney ad litem has been appointed for the child or children, 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;
- the duty to manage the estate of the child or children to the extent the estate has been created by community property or the joint property of the parents in Houston.
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 child custody cases where 1) the parents reside within 100 miles of each other and 2) the parents reside more than 100 miles apart in Houston, Texas.
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:
- 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.
- 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.
- 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.
- 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.
- 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.
- Mother/Father’s Day Weekend - If not in possession, the relevant parent gets this weekend.
- Child’s Birthday - Parent not in possession gets possession from 6-8 pm on the child’s birthday.
- 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.
Can the Houston Courthouse 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.
What Do Judges Look for in Child Custody Cases Texas?
- 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 condition
- 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 child custody case is fact specific. The more relevant facts/evidence and witnesses a parent seeking child custody can provide to his/her Houston Child Custody attorney, the greater the likelihood of success.
How Can I Make My Child Custody Case Stronger?
Maximize your time with the child.
- Make the time with your child really count.
- Get to know your child and become a good listener.
- Insulate your child from the details of the custody case.
Have a well-defined discipline plan.
- Knowing the rules and consequences in advance encourages cooperation in your child or children.
- Consistency is extremely important to the success of your plan.
- Positive reinforcement is also important.
Express your love to your children.
- Do not try to win the child’s love through buying the child things.
- Read stories together.
- Be open and honest with your child or children.
Share the child with the other parent, keeping in mind the child’s best interest.
- Visitation should continue as ordered by the court.
- Withholding visitation is a “red flag” to losing custody.
- Withholding visitation is a precursor to change of custody.
Attend parenting classes.
- Your parenting skills are learned from your parents.
- Learn new information and update parenting skills.
- This shows the court your dedication to your role as a parent.
Our child custody lawyers understand that it is often in the best interests of the child for the parents to come to an amicable agreement regarding custody or visitation. Houston child custody lawyers at Tholstrup Law will guide you through this tough process in a satisfactory manner.
Rest assured that if your ex-spouse chooses to be uncooperative, our family lawyers are prepared to litigate on your behalf. Our experience in the Houston family courts gives you a distinct advantage if a trial becomes necessary.