Family Law / Issues involving Children

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Among the many things that divorcing parents must think about, child custody is always in the forefront of their minds. There are many legal terms that parents will hear during a divorce: custody, conservatorship, possession, modification, and support. In order to make sure that an arrangement is made which serves both parents and the children, it is important to speak with a family law attorney who is knowledgeable on the subject.


Conservatorship
Conservatorship is interchangeable with the word "custody" and concerns the control and management of major decisions pertaining to children. Generally, parents are appointed as either joint managing conservators (JMC) of the children or one parent is appointed as the sole managing conservator (SMC) with the other parent acting as the possessory conservator (PC). These titles carry very specific responsibilities and duties. A parent must understand what his/her "title" will be before entering any agreements or when deciphering a court order.

As a general rule, attentive and involved parents are appointed as JMCs of the children so long as they are not using illegal drugs, abusing prescription drugs, or have a history of assault/family violence. The title of JMC allows both parties to parent equally with the same rights and duties. Gender, the amount of income, or a difference in parenting styles generally plays no role in whether parents will be appointed as joint managing conservators. When appointing parents as JMCs, it is important that the parents are able to work together for the best interests of the children. In Texas, there is a presumption for joint managing conservatorship unless there is evidence of abuse, neglect, abandonment, or actions which subject the child to physical or psychological danger. It is presumed that it is in the children's best interest to have both parents involved in the upbringing and development.

Parents who struggle with drug addiction, are chronically unwilling or unable to provide routine care for the children, or who have been involved in family violence are often appointed as a PC, thereby limiting that parent's rights to little more than having access to the children's educational and medical information. A parent acting as a PC has very restricted rights in making decisions for the children.

When one parent is appointed as a PC, the other parent is generally appointed as the SMC, thus allowing the more competent or interested parent to primarily make decisions for or on behalf of the children without any interference by the parent appointed as PC.

As JMCs, it is typical for parents to share major decision-making and management of children, whereas the SMC generally has the all of the power to make decisions and manage the child. Please note conservatorship is separate and apart from possession/access of the children which is discussed below.


Possession
The Standard Possession Order is codified in the Texas Family Code and is presumed to be in the best interest of children, but it does not work for all families. The court considers unique work schedules and other facts pertinent to each individual situation. Many parents are now sharing equal time with the children on a 50/50 schedule.

Standard Possession
Generally one parent is the primary parent, or the parent determining the residence of the children, while the other parent is the non-primary parent.

The traditional possession schedule for the non-primary parent living LESS than 100 miles away from primary parent is:
1st, 3rd, 5th weekends of every month beginning at 6:00 p.m. Friday until 6:00 p.m. Sunday; Thursdays of each week beginning at 6:00 p.m. until 8:00 p.m.; every other Spring Break, alternating Thanksgiving and Christmas holidays; 30 days each summer; Mother's/Father's Day weekend; and the right to the children on their birthday from 6:00 p.m. until 8:00 p.m. if not otherwise entitled to the children on that day.

The traditional possession schedule for the non-primary parent living MORE than 100 miles away from primary parent:
All other provisions above except as conflicting below-
1st, 3rd, 5th weekends of every month beginning at 6:00 p.m. Friday until 6:00 p.m. Sunday OR one weekend each month beginning at 6:00 p.m. Friday until 6:00 p.m. Sunday; Spring Break in all years; and 42 days in the summer.

Extended Standard Possession
An Extended Standard Possession Order which allows for possession on the 1st, 3rd, 5th weekends of every month beginning when the children are released from school until the following Monday when school is scheduled to resume; Thursdays of each week beginning when the children are released from school until Friday when school resumes; every other Spring Break, alternating Thanksgiving and Christmas holidays; 30 days each summer; Mother's/Father's Day weekend; and the right to the children on their birthday beginning at 6:00 p.m. until 8:00 p.m. if not otherwise entitled to them on that day.

50/50 Possession
This is an option best suited for parents who have a very good working relationship. The options are generally:

  1. Week-to-week possession usually beginning on Fridays when the children are released from school through return to school the following Friday morning so that all exchanges are at school;
  2. Rotating/revolving schedule:
    1. One parent has the child on Monday/Tuesday, the other parent has possession on Wednesday/Thursday, with parents alternating the weekend of Friday through Monday morning; or
    2. One parent has the first Monday/Tuesday, the other parent has possession on Wednesday/Thursday, the parent having Monday/Tuesday has Friday through Monday morning. The following Monday/Tuesday possession will be held by the parent having Wednesday/Thursday the week earlier.

The standard holiday schedule for all possible possession schedules allows parents to alternate time with the children during Christmas and Thanksgiving.


Children under the age of 3
Certain courts have "local rules" or guidelines that are considered when the child is under three years of age. Children under age 3 often have specific needs, therefore the courts look to the parenting skills, ongoing contact and involvement, as well as relationship between the parents when structuring a possession schedule that is in the best interest of the child. It is important to contact the Law Office of Kelly M. Heitkamp, P.C., for assistance in creating a possession/access schedule which is particularly suited to the needs of the young child in question.


When 12 years becomes the magic number
A child who is 12 years of age or older may express to the court the name of the person whom the child wishes to have determine his/her residence.
The best interest of the children shall always be the primary consideration of the court in determining the issues of conservatorship and possession of the child.


Amicus Attorney
In certain cases, a judge may appoint an amicus attorney to represent the best interests of the child.

According to ยง107.001 of the Texas Family Code, an amicus attorney is an attorney appointed by the court in a suit whose role is to provide legal services necessary to assist the court in protecting a child's best interests rather than to provide legal services to the child. Generally the costs of this attorney are split between the parties.

It is the amicus attorney whose voice is heard regarding what is in the best interest of the child. While an amicus attorney should let the court know the desires of the child, the amicus attorney is not required to advocate for those desires if the amicus attorney believes the desires would not be in the best interests of the child. It is important to know that the amicus attorney does not have an attorney-client relationship with the child, as the amicus attorney provides legal services to the court, not the child.

In determining the best interests of the child, it is important to know that the amicus attorney is not bound by the child's opinions and requests. Rather, the amicus attorney shall:

  • With the consent of the child, ensure that the child's expressed objectives are made known to the court;
  • Explain the role of the amicus attorney to the child; and
  • Inform the child that the amicus attorney may use information that the child provides in providing assistance to the court.

 

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