Family law matters can be very complex, especially when it comes to child custody. When parents divorce or separate, they may not always agree about what is best for their child. One parent may try to obtain more time with their children than the other parent would like, or perhaps both parents think they should have sole custody of their kids. Sole custody is actually a misnomer under Texas law because Texas follows either a Sole Managing Conservatorship or a Sole Managing Conservatorship.
Whatever the situation, it is important to understand how the court will evaluate these issues, and how judges determine child custody arrangements.
Texas Child Custody
In the state of Texas, there are two key types of parenting arrangements: (i) a Sole Managing Conservatorship (“SMC”); and (ii) a Joint Managing Conservatorship. Texas law refers to parents as conservators. The first, and usually less common, type of parenting plan is a sole managing conservatorship. In an SMC, one parent will have the exclusive right to decide where the child lives, the exclusive right to make educational decisions, the exclusive right to consent to invasive medical treatment for non-emergencies for the child, etc. Parents might have custody of their child under a joint managing conservatorship. Texas law presumes that a joint managing conservatorship (“JMC ”) is in the best interest of the child. Since it is a presumption, evidence of drug abuse or family violence can rebut the presumption of a joint managing conservatorship. However, in situations where this is not found to be in the best interest of the child, a sole managing conservatorship can be granted by a Judge or jury.
Parents named a conservator will have the right to access the health records, right to attend school functions, etc. One area where parents can find disagreement is who has the right to consent to psychological or psychiatric treatment. Or, another area of disagreement is who will have the right to consent to invasive medical treatment for non-emergencies. Generally speaking, under either a SMC or a JMC, a parent would also have the right to consent to medical treatments during an emergency situation.
Handling Custody Disputes
While parents through their own respective attorney may reach an agreed parenting plan, the Court must find that the parenting plan is in the best interest of the child. However, if parents are unable to agree to a parenting plan, then the Judge or a jury will decide what type of parenting plan the parents will have.
How is Child Custody Determined?
When parents must go to court for assistance with a child custody arrangement, the judge will consider several factors, including:
- (A) the desires of the child;
- (B) the emotional and physical needs of the child now and in the future;
- (C) the emotional and physical danger to the child now and in the future;
- (D) the parental abilities of the individuals seeking custody;
- (E) the programs available to assist the parents to promote the best interest of the child;
- (F) the plans for the child by the parents seeking custody;
- (G) the stability of the home;
- (H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one;
- and (I) any excuse for the acts or omissions of the parent.
The above factors are not exhaustive for a Judge or a jury to consider for the best interest of the child. The above factors were determined by the Texas Supreme Court in the Holley v. Adams case, decided in 1976.
If a child is 12 years old, the Court may have an in chambers interview with the child to help determine what is in the child’s best interest. Even though a child may express his or her opinion to a Judge during an in chambers interview, the Court still has the power of judicial veto to reject the child’s opinion.
With the help of an attorney, the court can consider the history of each spouse, including any criminal activity, especially crimes associated with children or domestic violence. The best interest of the child test may also into any past parental acts or omissions.
If you are facing a child custody issue after a divorce or separation, our firm can help. We understand how confusing and frustrating it can be to have to fight for custody of your own child, and we want to use our legal skills and knowledge to fight for your parental rights.
Contact Phillip M. Herr, Attorney at Law to discuss your options with our firm.