If you and your spouse can agree on custody, the court will almost always approve your written agreement. If you and your spouse cannot work out an agreement, the court will decide custody. A custody battle is usually extremely expensive and very destructive.

A conservatorship order should be sought when you are separated and not divorcing, when you are divorcing, or when a paternity or legitimization suit has been filed. Conservatorship relates to the division of legal rights pertaining to your child. Access and possession relates to the time a child spends with each parent.

Except in the extreme circumstances, each party will have certain legal rights as a parent. The legal rights each parent has do not necessarily determine how much time that the parent will have with the child. Some legal rights belong to both parents at all times, some legal rights belong to both parents and apply when the child is with them, and the remaining legal rights will be either shared in some capacity or given to only one parent.

Texas has now adopted presumptive Joint Managing Conservatorship. The court is required to appoint both parents as Joint Managing Conservators, unless it finds that the appointment would significantly impair the child's physical health or emotional development.  Joint Managing Conservatorship means the sharing of the rights, privileges, duties and powers relating to their child by two parties, even if the exclusive power to make certain decisions may be awarded to one party. Joint Managing Conservatorship does not mean that there will be equal or nearly equal periods of physical possession or access to the child by each parent.

Frequently, the primary physical residence of the child is restricted to the county in which the child is then-residing, and the counties contiguous to that county.  The Courts do this so that both parents may be involved in the day-to-day life of their child.  It is possible, although not likely, that the court may give one parent the right to establish the child's primary residence without any geographic restrictions;  this is more likely to happen if the parents are already living far from one another.

High conflict cases will likely include an amicus attorney to represent the best interest of the children to the court. Such cases may conclude with an order which puts a parenting plan coordinator in place to assist the parties in their future areas of disagreement.

Access

In 1987, the Texas Legislature adopted the following policy:

    It is the policy of this state to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child and to encourage parents who share in the rights and responsibilities of raising their children after the parents have separated or dissolved their marriage.

The Texas Legislature considered the importance of parental involvement in child development, and established a minimum visitation schedule for Texas - a Standard Possession Order (SPO). A partial listing of the schedule of access  for the non-custodial parent (if the parties live within 100 miles of each other)  is set forth below:

Weekends - beginning at 6:00 p.m. on the first, third and fifth Fridays of each month and ending at 6:00 p.m. on Sunday; 

Thursday - of each week during the regular school term, beginning at 6:00 p.m. and ending at 8:00 p.m.;

Christmas - in even-numbered years beginning at 6:00 p.m. on the last school day before the Christmas school vacation begins, and ending at noon on December 28; Christmas - in odd-numbered years beginning at noon on December 28 and ending at 6:00 p.m. on the day before school resumes;

Thanksgiving - in odd-numbered years beginning at 6:00 p.m. on the day the child is dismissed from school for Thanksgiving and ending at 6:00 p.m. on the Sunday following Thanksgiving;

Spring Break - in even-numbered years beginning at 6:00 p.m. on the day the child is dismissed from school for spring vacation and ending at 6:00 p.m. on the day before school resumes;

Summer - thirty (30) days to be exercised in no more than two (2) separate periods of at least seven (7) consecutive days;

Child's birthday - from 6:00 p.m. to 8:00 p.m.;

Mother's Day/Father's Day weekend - from 6:00 p.m. Friday to 6:00 p.m. Sunday;

If the non-custodial parent and the child reside more than 100 miles apart, the non-custodial parent gets every Spring Break, forty-two (42) days during the summer, and the choice of the standard weekends or any one weekend per month,  selected by the visiting parent, so long as proper notice is given to the other parent.

Also, on the Friday and Thursday access, if the non-custodial parent so elects, the court may permit the visiting parent to pickup the child at the time the child's school is regularly dismissed and return the child on Monday and/or Friday mornings.

Frequent contact after divorce between a child and each parent optimizes the continuing relationship between each parent and the child.  Frequent contact can be hindered if one parent moves after the divorce. If the primary parent moves out of the original county after divorce, then the primary parent is usually required to pick up the child at the end of the other parent's period of possession, at the other parent's residence.

Some Judges apply the guidelines to children under three (3) years of age, and other Judges do not. 

Following are some things to keep in mind, to help your children during the divorce/modification:

Don't "trash" your (former) spouse in front of your children.  Children know they are "part mom" and "part dad;"  think about how your comments make your children feel.

Don't use your children as messengers.  Deal directly with your (ex-)partner; don't put the kids in the middle of adult communications.

Reassure your kids that they are loved, and that the divorce or break-up is not THEIR fault.  Many children believe they are to blame for their parents' fighting and divorce.

Encourage your children to see your (former) spouse/partner frequently. Do all you can to make the access happen; focus on your children's feelings and best interests.

Remind yourself regularly that your children's interests--not yours--are paramount, and act with that thought in mind.

Get help for your problem, if you have a drinking, drug or anger problem!  If you don't, you set a bad example for your children, and you are less able to "be there" for them at this difficult time.

Pay your child support, if you are the non-custodial parent.  What you pay supports your children; don't make them suffer just because you may be angry with your (former) spouse/partner.

If you are the custodial parent, and you are not receiving child support, do not tell your children.  This scares children, and they cannot control whether or not you receive the child support from their other parent.  Children have no business worrying about such matters.

Try not to uproot your children.  Stability helps children deal with all the other changes they are experiencing at this difficult time. 

Following are some basic, frequently asked questions about conservatorship and access:

1)  What is supervised visitation?

Supervised visitation means that the non-custodial parent may not spend time alone with the child. It usually also means that the non-custodial parent may visit the child at a particular time and in a particular place.  Supervised visitation is often required after instances of family violence or in cases where substance abuse is an issue.

2)  Are visitation rights contingent upon the payment of child support?

No. Support is a duty, separate from the right of access.  Visitation rights may not be denied to the non-custodial parent, even though the non-custodial parent is not paying child support.

3)  How do I get to exercise my access rights, if the custodial parent is not letting me see my child?

You may seek a court order defining your visitation rights. Violation of a final court order may  result in the custodial parent being held in contempt of court; that parent may then face a fine and/or jail time.

4)  I have a final order with specific times for access, but the other parent won't let me see our child then.  What do I do?

File a motion for enforcement (contempt).

5)  Can I stop paying child support if I am not allowed to see my child?

No. The duty of support is separate from the right of access.  The payment of child support is not a trade you make in order to get visitation.  (See Question 4, above.) 

6)  How do the Courts determine custody/conservatorship?

The best interest of the child is the primary consideration of the Court in determining the issues of conservatorship, as well as possession of and access to the child.

7)  Don't Courts favor the woman being the primary conservator?

By law, Courts shall consider the qualifications of a spouse or party without regard to their marital status or to the sex of the party or the child, in determining whether to appoint either parent or party as the a sole managing conservator or appoint the parties joint managing conservators.

8)  How can the presumption of Joint Managing Conservatorship be rebutted/overcome?  How do I get named the Sole Managing Conservator?

The presumption can be rebutted by showing that a joint managing conservatorship arrangement is either not workable between the parents, or a showing that joint managing conservatorship would not be in the child's best interest.

9)  Can a child choose their managing conservator?

At age twelve (12) a child may, in writing, inform the court of his/her choice of managing conservator and the Court will consider that, along with other evidence relating to what is in the child's best interest, in making a decision.  However, the child's choice is not binding on the Court, and the Court will focus on what is in the child's best interest. The courts generally prefer that the child not be in the middle of making such a decision - one that should be made by the parents.

10)  When I have my child in the summer, do I still have to pay child support then?

Yes, unless your divorce decree or other court order specifically says otherwise.  The support guidelines take into consideration that you will be having access to your child in the summer. 

11)  Can a grandparent request conservatorship of their grandchild?

Yes, a grandparent may request custody of a grandchild if they have had actual care, control, and possession of the child for not less than six months preceding the filing of their petition for custody (a Suit Affecting Parent-Child Relationship); or if it can be shown that custody is necessary because the child's present environment presents a serious question concerning the child's physical health or welfare; or the parents, surviving parent, or the managing conservator files the petition or consents to the grandparents having custody.  The Court will consider what is in the "best interest of the child."