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Best Interest of the Child
When parents get divorced the most important issue concerns the children. When deciding issues of conservatorship, possession and access to a child, the court must determine what is in the “best interest” of the child and must also consider the public policies of the State of Texas which are (1) to give a child frequent and continuing contact with parents who have shown the ability to act in the child’s best interest, (2) to provide the child with a safe, stable, and nonviolent environment, and (3) to encourage parents after separation or divorce to share in the rights and duties of rearing their children.
How is custody (conservatorship) determined?
The court shall consider the qualifications of the parties without regard to their marital status or to the sex of the party or the child in determining (1) which party is appointed as sole managing conservator; (2) whether to appoint a party as a joint managing conservator; and (3) the terms and conditions of conservatorship and possession of and access to the child. If both parents are appointed as conservators of the child, the court shall specify the rights and duties of a parent that are to be exercised (1) by each parent independently; (2) by the joint agreement of the parents; and (3) exclusively by one parent. The person who gets primary custody of the child, meaning the person with whom the child primarily lives, is referred to as the “custodial parent”. The other parent is called the “possessory parent” or the “non-custodial parent”.
What are parental rights?
Parental rights are the rights that parents have to take care of their child. For a parent appointed as a conservator of a child, these rights include, but are not limited to, the right to receive information about and make decisions concerning the child’s health, education, and welfare; to attend school activities, and to manage the estate of the child to the extent the estate has been created by the parent or the parent’s family. Depending on the facts of each case, these rights may be limited by a court order.
Unless limited by court order, a parent appointed as a conservator of the child has the following rights and duties during the time that the parent has possession 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, and medical and dental care not involving an invasive procedure;
- the right to consent for the child to medical and dental care not involving an invasive procedure; and
- the right to direct the moral and religious training of the child.
The court shall order that each conservator has a duty to inform the other conservator of the child in a timely manner of significant information concerning the health, education, and welfare of the child. In addition a conservator must notify, within certain time periods, the other conservator if the conservator resides with or marries a person who is required to register as a sex offender, or if a protective order or magistrate’s order with a finding of family violence is in effect.
Can a child determine who he lives with?
A child who is at least 12 years old may sign a statement indicating which parent he or she primarily wants to live with. This statement is filed with the court and serves as some evidence of the child’s preference. However, the court is not bound by the child’s statement and must consider all other evidence to determine what is in the best interest of the child.
What is a geographic restriction?
A geographic restriction concerns the location of the child’s primary residence. The court prefers that both parents have frequent and positive continuing interaction and visitation with the child. If there is no geographic restriction, the custodial parent can determine the primary residence of the child anywhere. However, if there is a geographic restriction then the primary residence of the child will be restricted to a certain area, such as within a certain school district, city, county, or some other designated area. The typical divorce decree contains a provision that requires the custodial parent to give advance notice, usually 60 days, to the other parent before relocating the child’s residence. This advance notice allows the non-custodial parent the opportunity to file a motion with the court in order to determine if such a move would be in the child’s best interest.
What about visitation and the Standard Possession Order (“SPO”)
Visitation is referred to as “possession and access”. Parents are usually the best people to determine the terms of visitation because they know their schedules and the child’s schedule better than anyone else. Of course, life happens and schedules change. Sometimes, one parent has to work late, will be out of town, or is sick, or the child is sick or has a school or extracurricular event. Each parent must be willing to work with the other parent in adjusting the visitation schedule.
The parents can mutually agree to a visitation plan, but if they can’t then the Standard Possession Order (“SPO”) takes effect. The SPO is the default provision and should be included in every divorce decree where a child is involved. It was designed by the Texas legislature to be fair for both parents and works for most circumstances. But, it is not the only visitation plan. It can be varied to fit a parent’s work schedule (such as a fire fighter) or to fit the particular circumstances of the case. The SPO applies to a child who is three years of age or older. The court may also order a parent to undergo drug testing or other counseling if there is evidence to support that claim.
The SPO allows the possessory parent to have possession of the child starting at 6:00 P.M. every 1st, 3rd and 5th Friday of each month and ending at 6:00 P.M. on the following Sunday, and every Thursday from 6:00 P.M. – 8:00 P.M. The possessory parent may request an expanded SPO that allows him or her to either pick up the child at the time the child is dismissed from school or to return the child at the time school begins, or both. The SPO also contains provisions for when the child has a school holiday or a federal, state or local holiday. It also contains provisions dealing with holidays, including Thanksgiving, Christmas and spring break, summer visitation, Mother’s Day, Father’s Day and the child’s birthday. When a parent lives more than 100 miles from the child’s residence, the SPO is slightly different.
Child Under 3 Years Of Age
There is no SPO for a child who is less than three years old. The focus is still the best interest of the child. The parents can agree to a workable schedule but, if they are unable to do so, the court will order a visitation schedule for them. For example, it may order that (a) the possessory parent may have possession of the child during specified hours on certain days, (b) there be no overnight visits until a certain date or the occurrence of a certain event, and/or (c) there be no unrelated overnight visitors or no smoking or drinking of alcoholic beverages when the possessory parent has the child. In creating this visitation order, the court will consider, among other things, the age and needs of the child, including the child’s normal routine, and the history of each parent’s involvement with the child.
Occasionally the court will not allow visitation under the SPO because of a history of family violence or a potential danger to the physical or emotional welfare of the child. In that event, the court may order supervised visitation which means that the possessory parent can only visit the child under supervision provided by a neutral third party or an organization that provides supervision services. The court also may order the possessory parent to pay for the supervision provided by the person or organization.