The question of child custody perhaps the most contentious issue facing divorcing parents. On occasion, parents will agree to a custody arrangement that best suits the children. When there is no agreement, it is up to the court or a jury to decide the custody arrangements.
The Texas Family Code has several provisions that govern custody determinations. For starters, the Texas Family Code provides that child custody determines must be made on a gender neutral basis. In other words, neither the man nor the woman should have a theoretical advantage when it comes to deciding who has primary custody of the children. Whether it works this way in practice is unclear.
Child custody determines are very fact specific. The other thing the Texas Family Code provides is that there is a rebuttable presumption that it is in the children’s best interest for both parents to be appointed joint managing conservators of the children. This means, in practice, that both sets of parents are given near equal rights when it comes to the children. Those rights are enumerated in the Texas Family Code.
Even when both parents are appointed joint managing conservators, one parent is typically appointed the primary conservator with the exclusive right to establish the children’s primary residence (possibly subject to a geographic restriction) and to receive child support. Unless a different arrangement is agreed to by the divorcing parents, the Standard Possession Order contained in the Texas Family Code sets out the visitation schedule. There are two types of visitation schedules: standard and extended standard. Standard visitation provides that the “non-possessory” parents—i.e., the parent who does not have the right to establish the children’s primary residence—has the right to possession of the children on the first, third and fifth weekends of the month, Thursday of every week, alternating spring break vacations, Thanksgiving holidays and Christmas vacations. Visitation periods typically start at 6:00 p.m. on Friday and end at 6:00 p.m. on Sunday. All of this may be modified by agreement of the parties. If the parties elect to have extended standard visitation apply, the visitation schedule is similar to standard visitation, except that the visitation periods begin when school is dismissed and end when school resumes following weekend or holiday periods of possession. Summer visitation is typically for a period of 30 days, which may be broken into multiple periods.
If the parents live more than 100 miles from one another, the visitation schedule differs slightly. If the children are under the age of 3, the court has greater flexibility to depart from the Standard Possession Order contained in the Texas Family Code.
When discussing custody with the spouse you are divorcing, do not forget to discuss long-distance and international travel arrangements, who can apply for and maintain possession of the children’s passports and whether unrelated adults can stay at the house overnight when you or your soon to be ex-spouse exercise possession of the children.
At the end of the day, when deciding child custody issues, courts make their decisions with an eye on what is in the children’s best interest.
