Parents going through a divorce or custody dispute often ask, “What will happen to my children”? Of course, we all want what's best for our children, and hopefully, all strive to minimize the impact a divorce or custody dispute will have on the kids. But often, parents don't see eye to eye regarding what's best for the children. This article attempts to answer this critical question. Hopefully, it will help you better understand the legal process for custody disputes, whether an original suit like a divorce or a suit to modify an existing custody order.

First Things First. Establishing Paternity.

We almost always know who the mother is for a child. Not so when it comes to establishing “paternity,” or the identity of the child's father. In a marriage, father-child relationship is legally established between a man and a child because the man is presumed to be the father.

A “presumed father” is a man to whom the mother is currently married, a man to whom the mother was married and the marriage ended within 300 days before the child's birth, or a man who has continuously lived with and represented himself as the father during the first two years of the child's life. Is a presumed father necessarily the biological father of a child? The answer is, of course, no.

While DNA testing can determine with almost 100% certainty that a man is the biological father of a child, DNA testing is not required to adjudicate his paternity if a man is presumptively the father. The marital presumption alone establishes the parent-child relationship.

Unmarried biological parents who wish to establish paternity can complete and file an Acknowledgment of Paternity (or AOP). To do so, both parents must work through an AOP-certified entity. AOP-certified entities are trained by the Office of the Attorney General (OAG) to help parents voluntarily establish the paternity of children. You can locate an AOP-certified entity near you by searching here.

In cases where the mother is married to a man who is not the biological father of a child, the “Denial of Paternity” (or DOP) section of the AOP form must be completed by both the mother and her spouse (the presumed father) before a court can establish paternity.

Anyone signing an AOP can file a “Rescission of the Acknowledgment of Paternity.” However, the rescission must be filed within the first 60 days after the AOP is filed with the Texas Bureau of Vital Statistics (BVS) or before a legal proceeding related to the child is initiated, whichever comes first. After that, a person may only challenge an AOP in court under certain limited situations. An AOP is a binding legal document, and parents should therefore carefully read and understand the legal impact of the AOP before signing it.

Conservatorship (Custody).

In Texas, there are two different forms of conservatorship, or custody rights, given to parents. A managing conservator is a parent or other person (like a grandparent or other relative) who has the legal right to make decisions, including where the child will primarily live, which school the child will attend, and financial and medical decisions for the child. A possessory conservator is a parent or other person who has a right to access and visit a child but not necessarily the authority to make legal decisions regarding the child. Important factors considered by a Judge in determining conservatorship include:

• the parent's ability to give priority to the child's welfare and co-parent regarding the child's best interest;
• whether a parent promotes a positive relationship between the child and the other parent;
• the extent to which the parents have participated in raising the child so far;
• the physical distance between the parent's residences;
• the child's preference regarding primary residence and visitation, if the child is age 12 or older (note: the child's preferences are not binding on the Judge); and
• any other relevant factors.

Parents going through the legal conservatorship process should understand that the court will consider the parents' behaviors before and throughout the proceeding. Joint managing conservatorship is typically not awarded when there is a history of violence toward the other parent or abuse or neglect of the child.

Joint Custody is Preferred Under Texas Law.

Texas law includes a preference that parents share as equally as possible regarding the custody of a child in a divorce or custody case. Most courts favor granting parents equal access to the child absent parental misconduct, such as neglect, domestic violence, or abuse.

Joint managing conservatorship means that both parents share in most, but not all, aspects of a child's life. For example, a joint custody arrangement gives the parents equal access to medical and educational information and equal or at least significant input into medical, psychological, and educational decisions.

Sole Managing Conservatorship.

With a sole managing conservatorship, the children live primarily with one parent, and the visitation rights of the other parent may be the same as with joint managing conservatorship. However, when determining whether to appoint a party as a sole or a joint managing conservator, the court shall consider evidence of intentional use of abusive physical force by a party against their spouse, a parent of the child, or any person younger than 18 years of age committed within a two-year period preceding the filing of or during the pendency of the suit.

The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child, including a sexual assault that results in the other parent becoming pregnant with a child.

It is a rebuttable presumption that the appointment of a parent as the sole managing conservator of a child or as the conservator with the exclusive right to determine the primary residence of a child is not in the child's best interest if credible evidence is presented of a history or pattern of child neglect, or physical or sexual abuse by that parent directed against the other parent, a spouse, or a child.

Further, the court shall consider the commission of family violence in determining whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator. A court may not allow a parent to have access to a child when there is credible evidence of a history or pattern of committing family violence during the two years preceding the date of the filing of the suit and during the pendency of the suit unless the court:

• finds that awarding the parent access would not endanger the child's physical health or emotional welfare and would be in the best interest of the child; and
• renders a possession order designed to protect the safety and well-being of the child and any other person who has been a victim of family violence committed by the parent.

In violence and abuse cases, the court will likely require that:

• periods of access be continuously supervised by an entity or person chosen by the court;
• exchanges or possession of the child occur in a protective setting;
• the parent abstain from the consumption of alcohol or controlled substances within 12 hours before and during periods of access to the child; or
• require the parent to complete a battering intervention and prevention program (BIPP).

Geographical Residency Restrictions.

Generally, when one parent is awarded the exclusive right to establish a child's primary residence, the child's residence will be restricted to a specific geographical location. A geographical restriction ensures that the “non-primary” parent will be able to exercise frequent and regular visitation with their child. It is common in Fort Bend County for the geographical residence of a child to be restricted to Fort Bend County and “contiguous” counties, that is, any county that borders or touches Fort Bend.

Whether and where a geographical restriction should be imposed is perhaps one of the most contentiously litigated issues in family law. The dispute often arises in this scenario. One parent is awarded the exclusive right to designate a child's residence in their county of residence and contiguous counties. Fast-forward a few years, and now the parents have moved on. Maybe they have remarried. Perhaps they have been given a great new job in another city or state. In that instance, the custodial parent may want to pack up and move (with the child). The other parent, of course, objects that move because it frequently means they (or the child) must travel great distances and incur high costs to exercise their visitation.

As with other issues addressed in this post, the subject of geographical residency restriction is so complex (and important) that it deserves a lengthy article of its own. If you're in a situation where the geographical residence restriction for your child is in dispute and must be litigated, you are strongly urged to retain competent counsel. There is simply too much at stake to go it alone, and you'll likely need an experienced custody lawyer to get a good result. At MillardLaw, we have the skill and experience required to litigate these complicated cases.

Conservatorship Rights for a Third Party.

In some cases, a third party, or someone other than a child's biological parents, may seek to gain custody of a child. If one or both parents are deceased, the closest living relative may file a custody suit. A person in possession of a child for at least six months may have legal rights to the child and can seek custody. Grandparents may have legal rights to custody of their grandchildren when the parents are deceased. If both parents are dead, then a grandparent may be able to take legal custody of a child. As you can imagine, these cases can be complex. It is advisable to seek the advice of an experienced custody attorney should you need to pursue or defend against a claim by a third party regarding the conservatorship of a child.

Beds, Meds, Heads, and Eds (in lawyer-lingo).

Along with conservatorship, courts must also allocate the various rights and duties of the parents available under the Family Code. They can be allocated as joint rights, independent rights, or rights awarded exclusively to one of the parents. These rights and duties include the right to allow a child to marry or enlist in the military, apply for and hold passports, and manage a child's estate. Generally, these rights are allocated as joint rights but can be awarded as exclusive rights in appropriate circumstances.

The most frequently litigated parental rights include the right to designate the primary residence of the child (Beds), the right to consent to medical, dental, and surgical treatment involving invasive procedures (Meds), the right to consent to psychiatric and psychological treatment (Heads), and the right to make decisions concerning the child's education (Eds).

Possession and Access (Visitation).

In Texas, there is a legal presumption that it's in a child's best interests for a court to enter a “Standard Possession Order” (SPO) for visitation. As the name implies, an SPO sets forth a standardized schedule for the non-custodial parent's visitation rights. While an SPO is “standard” throughout all courts in Texas, it can still be very confusing. We'll take a more detailed look into the twists and turns of an SPO in a future article, as the details are beyond the scope of this post.

An SPO gives the visiting parent the right to exercise visitation on alternating weekends, commencing on each month's first, third, and fifth Fridays. The effect of a first, third, and fifth order is that the visiting parent will get back-to-back weekends when there is a fifth Friday in the month.

When parents reside more than 100 miles apart, the non-custodial parent is usually entitled to one weekend per month with additional visitation at other times. Both parents have the right to spend holidays with their child and may divide holidays in half or alternate odd and even years for holidays. A non-custodial parent is entitled to visitation of at least 30 days during the summer. If the parents reside more than 100 miles apart, and the non-custodial parent only has one weekend of visitation per month, the summer visitation period increases to 42 days.

Even though an SPO spells out what visitation each parent is to receive in great detail, the parents are always free to agree on any visitation they choose mutually. They can swap weekends and holidays and decide to alter pick-up and drop-off times or exchange locations. As a Judge, I would frequently tell parents that a bit of flexibility goes a long way for visitation at the end of the case. There will always be occasions when one parent needs to switch a weekend or alter a time or location to pick up a child for a visit. If one parent is always a stickler for the rules and will not budge when it comes to altering the visitation schedule, there will be a time when they need some flexibility. It is always best for the parents to work with each other and, importantly, always focus on what is best for the child when deciding whether to alter the visitation schedule.

There's So Much More to Cover!

There are many more important things pertaining to the question, “What will happen to my children”? These topics will be addressed in future blog posts. Expect to see more from us regarding other child-related issues, including:

• Expanded Visitation Election
• Supervised Visitation
• Child Support Guidelines
• Minimum Wage Presumption
• Intentional Underemployment
• Support for Disabled Adult Children
• Medical, Dental, and Vision Support
• And much, much more…

Don't Forget to Mediate!

Most family law cases must be mediated at least once before proceeding to a final trial. In fact, most courts will also require mediation in cases involving disputes over custody, visitation, or child support hearing temporary orders. Armatys Millard can help with both! We understand the issues for temporary orders and for a final trial, and we will give you the benefit of our years of judicial experience and knowledge. 

Armatys Millard Is Here to Help!

Walter Armatys and John Millard have significant family law experience, both as trial lawyers and as Family Court Judges. This judicial experience gave Walter and John a keen insight into how Judges think, what persuades them, what annoys them, and, importantly, what information Judges need to make an appropriate ruling. Armatys Millard provides mediation and arbitration services for family law disputes pending in Fort Bend, Harris, and surrounding counties. You can count on our extensive family law experience and judicial wisdom to help successfully resolve your case.

CONTACT US NOW

If you need to mediate or arbitrate a divorce, custody dispute, or other family law issue, Armatys Millard, PLLC can help. Check availability and book your session online or call our office at 281-313-6800. We're here to help!