Child Custody and Visitation Rights

Experienced Attorney Protecting Your Relationship with Your Child

Regardless of the dynamic between two divorcing parents, the best interest of the child comes first.  At the Law Office of Mary Jones, we share the Texas courts’ approach, which is to keep the well-being of sons and daughters in mind during child custody disputes.  This means working hard to protect our clients’ relationships with their children – to keep parents present in their children’s lives after a divorce or when children are born outside of a marriage.

Your children are entitled to peace of mind and a future – one in which their best interests are protected. A couple who has a child does not need a marriage license to asset their rights as a parent.  Parents want structure and support in their children’s lives.  Our firm can provide dedicated representation to help parents establish legal rights and parameters to access and support the children of those parties never married.

The parent-child relationship gives each parent specific rights and duties.  The term parent-child relationship refers to the legal relationship between children and their parents as provided by the Texas Family Code.  This includes both a mother-child relationship and a father-child relationship.  Regardless of the marital status of the parents, this relationship extends equally to every child.  (“Child” is defined in the Texas Family Code as a person under the age of 18 years who is not and has not been married, or who has not become emancipated (having their disabilities of minority “removed for general purposes.”  (Tex. Fam. Code Section 101.003)) (“Parent” is defined as including the biological mother, unless her rights have been terminated by a court order, as well as a woman whose maternity has been found by court order or who has legally adopted the child, a father who has in fact fathered a child (during a marriage, under voluntary acknowledgment of paternity pursuant to the statute, or has been found by court order to bet the father), and in instances where a parent has legally adopted a child, the adoptive parent.  Statutory rights and duties of a parent include:

• The right to have physical possession, to direct the moral and religious training, and designate the residence of the child;
• the duty of care, control, protection, and reasonable discipline of the child;
• the duty to support the child, including providing the child with clothing, food, shelter, medical and dental care, and education;
• the duty to manage the child’s estate (unless a guardian has been appointed to manage the child’s estate);
• the right to the services and earnings of a child (save and except as provided by other provisions in the Texas Family Code and the Texas Finance Code);
• the right to consent to the child’s (underage) marriage and/or enlistment in the armed forces of the United States, medical and dental care, and psychiatric, psychological, and surgical treatment;
• the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
• the right to receive and give receipt for payments for the support of the child and to hold or disburse funds for the benefit of the child;
• the right to inherit from and through the child;
• the right to make decisions concerning the child’s education;
• any other right or duty existing between a parent and a child by virtue of law; and
• the duty to support their child while the child is an unemancipated minor, continuing for so long as the child is fully enrolled in a secondary school in a program leading toward a high school diploma and complies with particular statutory attendance requirements.

Tex. Fam. Code Section 151.001

The Legislature, in shaping our Family Code, has included certain public policies that address both the best interest of a child, as well as their relationships with their parents to “assure that will children have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; provide a safe, stable, and nonviolent environment for the child; and encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.”  Tex.Fam. Code Section 153.001.

The Texas Family Code authorizes as well as encourages and promotes amicable settlements of disputes between parties to a suit, to enter into written agreements (called “parenting plans”) that contain provisions for conservatorship, possession of a child, modification of parenting plans, including variations from the statutory “standard possession order.”  It remains with the court, however, to make the final determination that the parties’ agreed parenting plan is in the child’s best interest.  In Texas, courts make gender neutral determinations, marital status neutral determinations in this regard, as they must consider the qualifications of the child’s parents without regard to the gender of the parent in determining conservatorship, and the terms and conditions of conservatorship and possession and access to the child.  When parents to a dispute are able to craft their own settlement terms for conservatorship, possession and access and support of their children, they are much more likely to willingly follow the terms of their agreements in the future, thus creating a safer, more stable and nonviolent environment for their children.

“Joint custody” in Texas does not require equal or nearly equal periods of physical possession of and access to the child by each of its parents (and/or conservators), nor does the appointment of “joint conservators” mean that one parent does not have to pay child support to the other.  The duty of support falls equally on both of the parents, although the court need not divide this obligation equally in terms of monetary contribution, rather it may consider the relative value of a parent’s non-monetary services and his or her relative capabilities, as well as other relevant factors when making a child support determination.

Possession

The Standard Possession Order is designed to apply to children who are 3 years of age or older.  When a child is under three years of age, courts are authorized to structure and render nonstandard orders that are appropriate under the circumstances.  The Court must render an order that contains other provisions that will take effect on the child’s third birthday which are presumed to be applicable as a prospective possession order.

There is a presumption in Texas that the Standard Possession Order provides reasonable minimum possession of a child to a parent named as a conservator, and that it is in the best interest of the child, however, this is a rebuttable presumption when there is evidence that supports that it would not be in the child’s best interest.

Parties, by statute, may always have possession of the child at such times as they may agree in advance.  The possession provisions included in an order, are “default” times, meaning that they apply if the parties cannot or do not agree in advance of a period or periods of possession.  It has been the intent of the Texas Legislature to encourage parents to amicably resolve disputes between themselves, when possible.  This allows parents to consider school and work schedules, distances and travel times between their homes, other circumstances of the parent or child, as well as the child’s age, developmental status, needs, established routines and activities and relationships with friends.  If the parents cannot agree to provisions establishing a possession schedule for the child, then the variances or restrictions on possession by a parent from the Standard Possession Order, must be kept to a minimum, as required to protect the best interest of the child.