Child custody, including modification proceedings, can be one of the most hotly contested aspects of a divorce.
In the event the parents cannot agree on a custody plan, the court will decide whether to establish a Joint Managing Conservatorship (joint custody) or Sole Managing Conservatorship (sole custody). The decision as to what type of conservatorship will be awarded to whom, as well as the child’s primary residence and the visitation program, will be based solely on what is best for the child. Some of the factors a court will consider include which parent has been more involved with the child, parenting skills, resources and which parent is truly putting the child first. Children ages twelve (12) or older may express to the judge (in chambers) a preference of which parent should be allowed to determine their primary residence.
Parents should know that a custody fight will be expensive. It also may harm the children and harm relationships within the family. Because of these issues, parents often reach an agreement concerning custody.
Unless otherwise dictated by the circumstances, Texas law presumes that divorcing parents will be awarded Joint Managing Conservatorship of their children. This does not mean that the children will live half of the time with each parent. In fact, joint legal custody is not about how much time the parents spend with their children, but instead, addresses the parents’ post–divorce rights, powers, duties and responsibilities to their children.
In the typical Joint Managing Conservatorship, both parents share most of these rights, powers, duties and responsibilities, although some rights belong to a parent only when he or she has the children (for example, disciplining the children).
In some cases, one of the parents is awarded Sole Managing Conservatorship. This means that the designated parent has the majority of the legal rights pertaining to the children and makes the majority of the important parenting decisions (such as where the children will physically reside).
Regardless of whether the court establishes a Joint Managing Conservatorship or Sole Managing Conservatorship, in the typical divorce, the children will reside with one parent (i.e., the parent with the right to determine the primary residence of the children) while the other parent will have visitation rights. If the parents cannot agree on a visitation program, the court will make the decision.
However, Texas law no longer requires that one of the parents be granted the exclusive right to designate the children’s primary residence. As long as certain criteria are met, an order need only state that the children’s primary residence will be within a specified geographic area and describe the terms of the parents’ possession of the children in detail.
In international child custody situations, and depending on the circumstances and the countries involved, the Hague Convention may govern. The Hague Convention is a treaty that provides for the quick recovery of a child wrongfully taken to another country or wrongfully brought to Texas from another country unless the return will create a grave risk of harm to the child. Although approximately 140 countries have adopted the Hague Convention or entered into specific agreements with the United States regarding the return of children, Japan, China, the Philippines and most Middle Eastern and South American countries do not recognize these treaties.
The Texas Family Code presumes the following standard visitation schedule for parents of children age three (3) and over who live within 100 miles of each other. The possessory parent has visitation:
- On weekends starting at 6:00 p.m. on the first, third and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday (options are to start when school is dismissed on Fridays and/or to end when school resumes, usually on the next Monday morning).
- On Thursdays during the school year starting at 6:00 p.m. and ending at 8:00 p.m. (options are to start when school is dismissed and/or to end when school resumes, usually on the next Friday morning).
- From 6:00 p.m. to 8:00 p.m. on the child’s birthday.
- In even-numbered years: during Spring Break and for Christmas from the time school lets out until noon on December 28; the managing conservator has possession on Thanksgiving, and on December 28 until 6 p.m. on the day before school resumes after that vacation. In odd–numbered years, the holiday schedule is reversed.
- For thirty (30) days during the summer. If the possessory parent gives notice before April 1, he or she may designate the thirty (30) days during the summer when he or she has possession in up to two separate periods of at least seven (7) days. If no notice is given, the visiting parent has possession from July 1 until July 31.
- Fathers have possession on Father’s Day from 6:00 p.m. on the Friday before Father’s Day until 6:00 p.m. on Father’s Day. Mothers have the same period on Mother’s Day.
When the parents live more than 100 miles apart, visitation on Thanksgiving, Christmas, the child’s birthday, Mother’s Day and Father’s Day remain the same. The possessory parent also is allowed 42 days with the children during the summer and can follow the first, third, and fifth weekend schedule or choose to select one weekend a month with fourteen (14) days advance notice.
When a child is under the age of three (3), and depending upon the child’s needs and the parents’ circumstances, most courts will establish a customized visitation schedule that could include overnight visitation.
Interference With Custody of a Child
Interference with child custody can have both civil and criminal implications. On the criminal side, it is unlawful for a person to take or keep a child younger than 18 years of age when he or she knows that taking or keeping the child violates a judgment or court order establishing the terms of the child’s custody.
It is also unlawful for a person to take or keep a child younger than 18 years of age when he or she (i) has not been awarded custody of the child by a court, (ii) knows that a divorce action or legal proceeding to determine the child’s custody has been filed, and (iii) takes the child out of the county in which the legal action is pending without the court’s permission and with the intent to deprive the court of its authority over the child.
A non-custodial parent also violates Texas law by enticing or persuading a child younger than 18 years of age to leave the custody of the custodial parent, guardian or person authorized by the custodial parent or guardian to have custody of the child. Interference with the custody of a child is a felony that could result in jail time (of not less than 180 days but not more than 2 years) and a fine not to exceed $10,000.
On the civil side, a parent cannot take possession of a child during the other parent’s possession time except by prior agreement or in case of an emergency. Interfering with child custody may be grounds for modifying a court order establishing custody and possession of or access to a child. The ability to co-parent in the best interest of a child is fundamental to joint managing conservatorship. So, when one parent continually undermines the other parent’s relationship with a child or manipulates the other parent’s access to a child, it may be evidence of lack of co-parenting in the best interest of the child.
Real life examples of problematic behavior include scheduling “fun” activities during the other parent’s time (thereby forcing a choice of giving up parenting time or disappointing the child), refusing to open a security gate to allow the other parent access to the child, making it difficult to communicate with the child; and not having the child at home when the other parent comes to pick up a child.
It is important for your children’s well being that the proper conservatorship and visitation program is established by the court and adhered to by the parents without interference. It also is important that existing orders be enforced – whether across state lines or internationally –unless to do so would harm the children. If you need assistance enforcing custody or visitation orders, call Beaumont custody lawyer Sonya Coffman. Because . . . family matters.