In Texas, the concept of “custody” is broken into two separate areas: Conservatorship and Possession. Conservatorship relates to how parents will make major decisions on the behalf of their children. Possession relates to the time sharing plan that parents will have for their children. These concepts taken together constitute a “parenting plan” for the family.
Except in the rarest of cases, each parent will spend a substantial amount of time with the children after the divorce. We strongly prefer to help our clients reach agreements on parenting plans through reasonable discussion, without resorting to contested litigation and court-ordered determinations. Custody battles are very hard on the child, the parents, and family relationships.
In negotiating parenting plans, we encourage clients to place the child’s best interests first. This includes protecting the child’s positive relationship with both parents. In all divorces involving minor children, both parents will need to communicate and to share their children for many years to come. We help clients carefully consider how to best lay the groundwork for a workable co-parenting relationship over time.
The Law Governing Parenting Plans
In Texas, joint managing conservatorship or joint decision making is presumed to be in the best interests of the children (See Texas Family Code Section 153.131). In some families, joint managing conservatorship is not appropriate and one parent must be appointed a sole managing conservator.
Often there is confusion between the legal terms “conservatorship” and “possession.” Joint managing conservatorship does not mean that each parent has possession of the child 50% of the time. Nor does it mean that one parent will not be required to pay child support. Rather, it means that important decisions regarding the child’s life may be made jointly. In a situation where both parents are appointed joint managing conservators their possession arrangements might be 50/50, but the time sharing arrangements might be consistent with a standard possession schedule (discussed below) as well.
If one parent is awarded sole managing conservator by the court, it does not mean that the other parent will not have possession of the children. In a sole managing conservatorship situation, the parent appointed sole managing conservator will make all major decisions regarding the children. In nearly all cases, the other parent will continue to share possession of the children.
Divorcing parents can adopt any reasonable possession schedule or arrangements to which they both agree. However, in many cases families follow the standard possession schedules defined in the Texas Family Code (See Texas Family Code sections 153.311 through 153.317). According to this standard schedule, the primary parent has possession of the child the majority of the time during the school year. The non-primary parent has the child every first, third and fifth weekend, on Thursday evenings during the school year, alternate holidays, and for thirty days in the summer.
It is also fairly common to see an “expanded standard” schedule in which the non-primary parent keeps the child overnight on Thursdays and Sundays in addition to the standard possession schedule above. Many families are choosing 50/50 schedules in which the children spend half their time with each parent. It is crucial to remember that all parenting plans are dependent upon what is in the best interest of the children. Our goal is to help our clients develop a parenting plan which meets the special qualities and specific needs of their children. We do not favor “cookie cutter” solutions for any of our clients.
Other custody-related issues include grandparent rights, domicile issues (a requirement that both parents stay in Travis County, for example), and child support. These all should be discussed with your attorney.
In high-conflict cases, a guardian ad litem or an attorney ad litem may be appointed to represent the interests of the child. These guardians may rely on assistance from mental health professionals to perform an evaluation of the child, the parents, and the best solution for all concerned.